Judge cites potential for ‘irreparable harm’
By Chris Pepus
For the St. Louis American
On September 8, a federal judge stopped Governor Matt Blunt’s cuts in adoption subsidies from going into effect. Citing the potential for “irreparable harm” to adopted children, Judge Scott O. Wright of the U.S. District Court in Kansas City issued a preliminary injunction against portions of Senate Bill 539.
Signed into law by the governor in April, Senate Bill 539 would eliminate existing contracts between the state and parents who adopted children from the foster care system. Currently, these contracts guarantee fixed, monthly subsidies for parents until their adopted children turn 18. Under the new law, however, families must re-apply annually for subsidies. S.B. 539 also requires some parents to pass a means test in order to continue receiving monthly payments.
Judge Wright’s injunction came in response to a class-action lawsuit filed on behalf of adoptive families by Children’s Rights, a national children’s advocacy group, the Saint Louis University Legal Clinic, and some private attorneys. John Ammann of the SLU Legal Clinic argued that the state’s actions violate the federal Adoption Assistance and Child Welfare Act, which specifies that state governments require “the concurrence of the adopting parents” in order to change existing funding contracts. “These adoptive parents have signed contracts and the state is now unilaterally changing the rules,” Ammann said.
When asked if that were true, sources in Governor Blunt’s office and the Department of Social Services declined to comment. “It would be inappropriate to discuss that while the case is under adjudication,” said Deborah E. Scott, a DSS spokesperson.
However, Scott pointed out that S.B. 539 is projected to save the government approximately $6.85 million in the next fiscal year. The savings would be achieved by eliminating subsidies for some of the families whose annual incomes exceed 250 percent of federal poverty guidelines or $40,225 for a family of three.
The plaintiffs charge that the state’s means test is arbitrary, because it applies only to children who entered foster care from households that did not receive government assistance. “If a child whose biological parents were on welfare is placed with adoptive parents who make $3 million a year, there’s no means test,” Children’s Rights associate director Ira Lustbader explained. “However, say a middle-income family adopts a child whose birth parents were not on welfare when the child entered foster care. In that case, there is a means test.”
Of the approximately 11,000 children currently receiving the adoption subsidy, an estimated 3,900 would be subject to the income test.
The governor’s press secretary, Jessica Robinson, replied that it is “misleading” to claim that S.B. 539 is arbitrary, because federal law prevents the state government from imposing its means test on children whose birth parents received government assistance.
“When those children enter into the system, they enter in through a federal track as opposed to a state” track, she explained.
Critics of the new law countered that the solution to the problem is to abolish the income test so that the same rules apply to all children in the system. Lustbader also disputed the state’s claim that S.B. 539 will save money, arguing that without the subsidy, fewer families would be able to afford to adopt foster children.
“That will end up costing the state money, because the children who don’t get adopted will have to stay in state-funded foster care,” he said.
Robinson disagreed: “That implies that the only reason that people would adopt a child is because they receive these subsidies.” She noted that the new law would not affect other state payments to adoptive families, such as funding for health and education. She said that shortly after S.B. 539 passed, “more than 10 percent of those families opted out of those monthly maintenance payments voluntarily.”
However, the families represented in the lawsuit claim they need the monthly subsidy payment. The 16 children named in the suit all require expensive medical and/or psychiatric treatment. One has a congenital heart defect; one has attempted suicide; four others have post-traumatic stress syndrome because they were abused by their birth parents. The adoptive parents all claim that they will not be able to pay for these children’s needs if they lose the subsidy.
In the coming months, Judge Wright will decide whether to grant the plaintiffs’ request for a permanent injunction against the subsidy cuts. The families and organizations who brought the lawsuit appear to have the upper hand. In his decision on the 8th, Wright concluded that “Plaintiffs have demonstrated a substantial likelihood of success” in their suit.