S.C. to Review Ruling That State Public Assistance Is Available to Indian Children Placed in Canada

Thursday, November 3, 2005

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S.C. to Review Ruling That State Public Assistance Is Available to Indian Children Placed in Canada

By David Watson, Staff Writer

The state Supreme Court agreed yesterday to review a decision of this district’s Court of Appeal that children placed in foster care in Canada can be eligible for public assistance from California.

In its August ruling, Div. Eight for the second time overturned a Los Angeles Superior Court referee’s order terminating jurisdiction over two Native American boys placed with their indigent grandmother on a reservation in Canada. Writing for the court, Justice Laurence D. Rubin said Referee Sherri Sobel’s decision was erroneous because it was based on the mistaken conclusion that their Canadian residence made the boys, born in 1996 and 1997, ineligible for California public assistance.

The Supreme Court voted unanimously at its weekly conference yesterday to take up the case. It was the only petition for review granted.

In his August opinion, Rubin said Sobel too readily accepted the argument of the Los Angeles County Department of Children and Family Services that it could not send benefits payments to the grandmother in Canada. DCFS contended that it would be out of compliance with supervision requirements imposed by federal law if it made the payments, since it had no authority to monitor the children’s welfare in Canada or to force compliance by Canadian authorities with its recommendations.

Though the grandmother told social services workers she did not want California financial aid and wanted nothing more to do with the state’s dependency system, lawyers for the two boys continued to object to terminating jurisdiction.

Rubin noted that Welfare and Institutions Code Sec. 366.3(a) requires termination of jurisdiction once a child has been placed with a relative for a year and the relative has been appointed the child’s legal guardian. But the statute provides for exceptions if the guardian objects or “upon a finding of exceptional circumstances.”

Implicit in Sobel’s order was a finding that there were no exceptional circumstances, and that finding was an abuse of the referee’s discretion, Rubin said.

Rubin acknowledged that determining whether public assistance was available to the boys in Canada “requires careful analysis of complex federal and state statutes.” But he noted that while the state statutes enacted to comply with federal requirements generally limit payments to state residents, Welfare and Institutions Code Sec. 11105(d) also provides that they shall not “be construed as limiting Aid to Families with Dependent Children-Foster Care payments to children placed out of state by California children’s placement agencies.”

He declared:

“That grandmother lives in Canada does not render the children ineligible for AFDC-FC payments. Section 11105, subdivision (d) expressly provides as much. Contrary to the department’s assertions, nothing indicates that section 11105, subdivision (d) should be read to apply only to placements made in other American states pursuant to the I[nterstate ]C[ompact on the ]P[lacement of ]C[hildren]; rather, section 11105, subdivision (d) refers to an ‘out of state’ placement, which placement in Canada surely is.”

The justice continued:

“Nothing in the statute limits the exception to domestic placements, and, although no legislative history informs us, we find the codification of section 11105, subdivision (d) in the same ‘Article’ as section 11101 telling. The latter section specifically addresses ‘absence from the United States.’ The Legislature was manifestly aware that aid recipients might reside outside the United States, and yet made no effort in section 11105, subdivision (d) to restrict AFDC-FC payments to children living in the United States. There is sound reason for such a legislative choice. If the juvenile court concludes that the best interests of a United States citizen child over whom it has jurisdiction is to place that child in foster care out of the United States, the available financial benefits to the child should not stop at the border. A child’s needs do not magically diminish when the child goes to a foreign county.”

Rubin said the appellate court was not persuaded by DCFS’s argument that it would have no way to monitor the children or to assure proper care for them in Canada. He noted that DCFS worked with a Canadian social services agency when it first placed the boys with their grandmother.

“If the department was able to rely on Canadian social services to assist in initially ‘approving’ grandmother’s home,” he wrote, “there would seem to be nothing to preclude the department from continuing to rely on Canadian social services for assistance in monitoring the placement.”

The August ruling was the second time Div. Eight had overturned a similar order by Sobel.

In March of 2003, also in an opinion by Rubin, the court told Sobel to reconsider whether termination of jurisdiction was in the boys’ best interests and to decide whether financial assistance, from either Candian or California sources, was available to the grandmother.

Justice Paul Boland and Presiding Justice Candace Cooper concurred in both of Rubin’s opinions.