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Ninemire v. Kansas Dep't of Social and Rehabilitation Services

July 13, 2007

GARY NINEMIRE AND TIFFANY NINEMIRE, APPELLANTS,
v.
KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, APPELLEE.



Appeal from Johnson district court; THOMAS M. SUTHERLAND, Judge.

SYLLABUS BY THE COURT

1. Under the doctrine of operative construction, courts have given deference to an administrative agency's interpretation of a statute it has been charged with enforcing. However, the final construction of a statute always rests within the courts.

2. Title IV-E of the Federal Social Security Act, 42 U.S.C. §§ 670 et seq. (2000), requires the State to enter into an adoption assistance agreement with the adoptive parents of special needs children.

3. Although Title IV-E of the Federal Social Security Act requires the State to pay for nonrecurring adoption expenses for special needs children, the State is not required to provide a monthly adoption assistance subsidy for eligible children.

4. The State must consider the circumstances of the adopting parents together with the child's needs when negotiating the adoption assistance agreement. Any agreed upon payment should combine with the parents' resources to cover the needs of the child.

5. While the federal guidelines for determining the amount of monthly adoption assistance payments consider the family's overall capacity to pay for the child's ordinary and special needs equally, the Kansas Department of Social and Rehabilitation Services' policy manual emphasizes the child's special needs and gives little, if any, consideration to the child's ordinary needs.

6. Under the facts of this case, the Kansas Department of Social and Rehabilitation Services properly applied the federal guidelines even though its internal guidelines were not aligned with the federal guidelines.

The opinion of the court was delivered by: Rosen, J.

Affirmed.

This case involves the amount of a monthly adoption subsidy payment to be made by the Secretary of Social and Rehabilitation Services (SRS) on behalf of a former foster child. SRS determined the child was eligible for federal adoption assistance and authorized a subsidy payment but set the amount at $0 because the child did not currently exhibit any special needs. The adoptive parents bring this appeal, seeking a monthly payment equal to the foster care payments they received before adopting the child.

C.L.N. was born in September 2002. C.L.N. tested positive for cocaine at the time of her birth but did not require admission to the neonatal intensive care unit and did not receive any specialized treatment after her birth due to the cocaine. SRS immediately placed C.L.N. in protective custody. When C.L.N. was 5 days old, SRS placed C.L.N. in foster care with Gary and Tiffany Ninemire, whose family included three children, ages 11, 10, and 8. SRS paid the Ninemires $540 per month as a foster care payment for C.L.N.

C.L.N.'s birth parents relinquished their parental rights nearly 1 year after C.L.N.'s birth. The Ninemires expressed an interest in adopting C.L.N. and requested a monthly adoption assistance subsidy, stating that they had promised their other three children that they would not have to sacrifice anything except space and some parenting time. The Ninemires submitted a family budget as part of their home study during the adoption process.

The Ninemires had C.L.N. evaluated when C.L.N. was 13 months old because they were concerned about C.L.N.'s self-calming behaviors like rocking, moaning, toe-walking, and hitting her head. After performing standardized testing to assess C.L.N.'s development, the evaluator concluded that C.L.N. was developing within normal limits. However, because the Ninemires expressed concerns regarding C.L.N.'s sensory processing, the evaluator recommended that C.L.N. receive services from Lakemary Center Infant-Toddler Program. Medicaid covered the cost of those services.

When C.L.N. was 16 months old, a social worker conducted an evaluation for C.L.N.'s adoptive placement and reported that C.L.N. was developmentally on target with no social or emotional problems. The social worker described C.L.N. as a "happy, healthy little girl who loves to smile and be held" and concluded that C.L.N. "is developing normally. She may need ...


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