Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 1 of 12 PageID #: 1

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 1 of 12 PageID #: 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION JULIE ARTHUR and DAVID ARTHUR, ) on their own behalf; ) J.T.J., J.A.V., J.D.V, by their next friend ) and grandmother, Julie Arthur, ) ) Plaintiffs, ) ) v. ) No. 1:15-cv-1718 ) DIRECTOR, CENTRAL ELIGIBILITY ) UNIT, INDIANA DEPARTMENT OF ) CHILD SERVICES, in her official ) capacity, ) ) Defendant. ) Introduction Complaint for Declaratory and Injunctive Relief 1. J.T.J., J.A.V., and J.D.V. are minor children with profound disabilities. They all have the same mother whose parental rights have been terminated as have the paternal parental rights of brothers J.A.V. and J.D.V. Paternity was never established for J.T.J. They have been placed by the Indiana Department of Child Services ( DCS ) with their grandmother, Julie Arthur and her husband, David Arthur. Julie Arthur and David Arthur are foster parents to the children and, because of the severe disabilities of the children, DCS has approved of foster payments of $145.72 per day for the children, far in excess of the per diem for foster children who are not disabled and who are not in need of therapeutic foster care. Such payments are essential to offset the necessary expenses of the children as well as to offset the loss of income to the Arthur household as Julie Arthur has had to quit her job to take care of the children. Julie Arthur and David Arthur desire to adopt the three children and DCS has approved of the adoption. ~ 1 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 2 of 12 PageID #: 2 However, upon the adoption foster care payments will cease and although DCS can authorize and pay adoption assistance payments to the children, the Director of DCS Central Eligibility Unit ( CEU-DCS ), who has the responsibility of establishing, after negotiation, adoption assistance payments, is only willing to pay a total of $52 a day for the three children. This sum will render it impossible for the Arthurs to adequately and appropriately care for the children and violates the State s duty under 42 U.S.C. 673(a)(3), to take into consideration the circumstances of the adopting parents and the needs of the child being adopted in computing the adoption subsidy. The actions and inactions of the CEU-DCS are therefore unlawful and appropriate injunctive and declaratory relief should issue. Jurisdiction, cause of action, venue 2. This Court has jurisdiction of this case pursuant to 28 U.S.C. 1331. 3. Venue is proper in this district pursuant to 28 U.S.C. 1391. 4. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. 2201 and 2202. 5. This case is brought pursuant to 42 U.S.C. 1983 to redress the deprivation, under color of state law, of rights secured by the laws of the United States. Parties 6. Julie Arthur is an adult resident of Greene County, Indiana. 7. David Arthur, Julie Arthur s spouse, is an adult resident of Greene County, Indiana. 8. J.T.J., J.A.V., J.D.V. are minor children who are placed by DCS with Julie and David Arthur as foster children. 9. The Director of the Central Eligibility Unit of the Indiana Department of Child Services is the duly appointed head of the unit within the agency that is responsible for the administration ~ 2 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 3 of 12 PageID #: 3 and determination of eligibility for adoption assistance payments under Title IV-E of the Social Security Act. Legal background 10. Title IV-E of the Social Security Act, 42 U.S.C. 670, et seq., provides for federal funding for the purposes of foster care and adoption assistance to states which have submitted, and have had approved, state plans to the federal government. 11. Indiana has submitted such plans, agreeing to be bound by the requirements of Title IV- E, and has received the federal funding provided by Title IV-E, which funding is used for, among other things, foster care and adoption assistance payments. 12. DCS is the single state agency responsible for administering the funds received under Title IV-E by the State of Indiana. Ind. Code 31-25-2-8(a)(2). 13. 42 U.S.C. 672 provides for foster care maintenance payments on behalf of eligible children who have been removed from relative homes and placed into foster care through a State agency, in Indiana the Department of Child Services. 14. The foster care maintenance payments, defined by 42 U.S.C. 675(4)(A), are defined as, among other things, payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child s home for visitation. 15. 42 U.S.C. 673 provides for the entering into of adoption assistance agreements providing for payments to be made for special needs children with the payments continuing after the child s adoption. 16. Specifically, 42 U.S.C. 673(a) provides that: (1)(A) Each State having a plan approved under this part shall enter into adoption assistance agreements (as defined in section 675(3) of this title) with the adoptive parents ~ 3 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 4 of 12 PageID #: 4 of children with special needs. (B) Under any adoption assistance agreement entered into by a State with parents who adopt a child with special needs, the State (i) shall make payments of nonrecurring adoption expenses incurred by or on behalf of such parents in connection with the adoption of such child, directly through the State agency or through another public or nonprofit private agency, in amounts determined under paragraph (3), and (ii) in any case where the child meets the requirements of paragraph (2), may make adoption assistance payments to such parents, directly through the State agency or through another public or nonprofit private agency, in amounts so determined. * * * (3) The amount of the payments to be made in any case under clauses (i) and (ii) of paragraph (1)(B) shall be determined through agreement between the adoptive parents and the State or local agency administering the program under this section, which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents (which may be specified in the adoption assistance agreement), depending upon changes in such circumstances. However, in no case may the amount of the adoption assistance payment made under clause (ii) of paragraph (1)(B) exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home. 17. Indiana has, through regulations, established that: A child shall be considered to be a special needs child, under the Indiana adoption assistance program, if the child meets each of the following criteria: (1) The county office of family and children has determined that the child cannot or should not be returned to the home of the child's parent or parents and that the parent or parents have signed or will sign a consent to adoption regarding the child or that parental rights have been or will be terminated by a court in accordance with IC 31-35. (2) One (1) of the following conditions exists: (A) The child is two (2) years of age or older. (B) The child is a member of a sibling group of two (2) or more children of which at least one (1) is two (2) years of age or older and who will be placed with the sibling group in the same home. ~ 4 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 5 of 12 PageID #: 5 (C) The child has a medical condition or physical, mental, or emotional disability as determined by a physician licensed to practice in Indiana or another state or territory. (3) Reasonable but unsuccessful efforts must be made to place the child in an appropriate adoptive home without providing adoption assistance. Reasonable efforts include, but are not limited to, the following: (A) Photo listing the child with the Indiana adoption resource exchange for a minimum of six (6) months. (B) Inability to recruit appropriate, interested adoptive parent or parents who are able to meet the child's needs without the use of adoption assistance. Reasonable efforts need not be made to place the child without adoption assistance if to do so would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child. 465 Ind. Admin. Code 2-7-2. 18. To assist with the interpretation of states duties under Title IV-E of the Social Security Act, the Department of Health and Human Services, through its Children s Bureau, has created the Child Welfare Policy Manual that provides, in relevant part: a. The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement. Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family s capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Child Welfare Policy Manual 8.2A.2, Question 1, available at http://www.acf.hhs.gov/ cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citid=81 (last visited Oct. 27, 2015). b. The amount of the adoption assistance payment cannot exceed the amount the child would have received if s/he had been in a foster family home, but otherwise must be determined through agreement between the adoptive parents and the State or local title IV-E agency. Unlike other public assistance programs in the Social Security Act, the title IV-E adoption assistance program is intended to encourage an action that will be a ~ 5 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 6 of 12 PageID #: 6 lifelong social benefit to certain children and not to meet short-term monetary needs during a crisis. Further, the adoptive parents' income is not relevant to the child's eligibility for the program. Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income. Instead, the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment. Child Welfare Policy Manual 8.2D.4, Question 1, available at http://www.acf.hhs.gov/ cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citid=54#673 (last visited Oct. 27, 2015). c. If a State s foster care payment schedule includes higher level-of-care rates that are paid across-the-board for certain children, the State may pay up to that amount in adoption assistance if that specific child would have received the higher level-of-care rate in foster care. Child Welfare Policy Manual 8.2D.4, Question 4, available at http://www.acf.hhs.gov/ cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citid=54#673 (last visited Oct. 27, 2015). 19. The adoption assistance agreement must [b]e signed and in effect at the time of or prior to the final decree of adoption. 45 C.F.R. 1356.40(b)(1). Factual allegations 20. The Central Eligibility Unit is the unit within DCS that is charged with the responsibility of, among other things, determining, after negotiation, the amount of adoption assistance payment to be paid pursuant to Title IV-E of the Social Security Act for the benefit of special needs children who are adopted. 21. J.T.J. was born in 2008. He is currently 6 years old. His mother was Julie Arthur s daughter. His mother s parental rights have been terminated in a judicial action in Indiana state court after the mother voluntarily agreed to terminate parental rights and his father has never ~ 6 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 7 of 12 PageID #: 7 been identified so no paternity was ever established. 22. J.A.V. was born in 2011. He is currently 3 years old. His mother was Julie Arthur s daughter. The parental rights of both of his parents have been terminated in an action brought in Indiana state court after both parents voluntarily agreed to terminate their parental rights. 23. D.V.J. was born in 2013. He is currently 2 years old. His mother was Julie Arthur s daughter. The parental rights of both of his parents have been terminated in an action brought in Indiana state court after both parents voluntarily agreed to terminate their parental rights. 24. All three of the children are wards of the DCS pursuant to Child in Need of Services proceedings brought in Indiana state court. 25. All three of the children suffer from severe disabilities: a. J.T.J. was born addicted to drugs. He suffers from RAD (Reactive attachment disorder), ODD (Oppositional defiant disorder), ADHD (Attention-deficit hyperactivity disorder), and ICD (Impulse control disorder). As a result of these conditions his behavior frequently becomes out of control. Although he is in the first grade he has had to be hospitalized as an in-patient at a psychiatric facility. He is not allowed to ride the bus because of his behavior and he has been threatened with expulsion from school. He also suffers from asthma that requires daily inhaler and nebulizer treatment. In addition to having to transport him to and from school Julie Arthur must also transport him to frequent therapy sessions and medical appointments. He is on medication and he is not able to sleep until 11 p.m. every night, even though he must rise early for school. b. J.A.V. was born at 22 weeks. He does not walk or talk to any degree. He is significantly delayed for his age. He has Pica disorder, a craving to eat non-food items, including dirty diapers. He has a permanent shunt in his brain. He will frequently bang his head on objects. He suffers from seizures and is on medication. He has been diagnosed with sensory dysfunction for which he requires therapy. He is not toilet-trained and will have to be in diapers for his entire life. He needs to be in an electric wheelchair, which will have to be paid for and replaced as he grows older. Julie Arthur must transport him to frequent medical and other appointments, including physical therapy appointments. c. J.D.V. was born addicted to methadone and spent the first two months of his life in the hospital. He has severe asthma, requiring nebulizers and inhalers and hospital emergency room treatment as necessary. He has significant behavioral problems featuring head banging and attacking other children. He has an abnormal need for structure and consistency. Any change in routine causes him to have extremely violent ~ 7 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 8 of 12 PageID #: 8 reactions. He requires constant supervision and cannot be left alone with other children. Day care is not appropriate for him. He is to be evaluated for autism. He will require frequent therapy appointments with different therapists. 26. Julie Arthur is the maternal grandmother of the three children and lives in Greene County with her husband, David Arthur, and their child who is 12 years of age. 27. Julie Arthur and David Arthur are licensed foster parents. 28. In December of 2013, J.T.J., J.A.V., J.D.V. ( the three children ) were placed with Julie Arthur and David Arthur as foster children. 29. Julie Arthur had been employed as an insurance agent, making approximately $ a year before the three children began to live with the family. 30. However, after the three children were placed with her she could no longer work inasmuch as she has to devote her day to getting the three children to-and-from medical and therapy appointments and providing them with the intensive supervision that they demand. 31. As of January 1, 2015, the foster payment rates in Indiana are as follows: Age 0-4 Age 5-13 Age 14-18 Foster Care $20.17 $21.90 $25.27 Foster Care with $27.94 $29.67 $33.04 Services Therapeutic Foster $40.08 $41.81 $45.18 Care Therapeutic Plus $63.83 $65.56 $68.93 32. Julie and David Arthur receive foster care payments totaling $145.72 a day for the three boys: $65.56 per day for J.T.J. and $40.08 per day for the other two children. 33. The foster care payments totaling $145.72 a day are a recognition by DCS that the three children have profound disabilities and extraordinary needs. ~ 8 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 9 of 12 PageID #: 9 34. This sum of money is absolutely necessary to care for these children due to their profound disabilities and extraordinary needs. 35. The three children are now available for adoption. 36. Julie Arthur and David Arthur wish to adopt the three children and the DCS has approved of the adoption. 37. Julie Arthur and David Arthur have initiated an adoption proceeding in Greene Circuit Court to adopt the three children. That action is pending. 38. David Arthur is employed and his gross income is approximately $40,000 a year. 39. Julie Arthur and David Arthur, their biological child, and the three children currently live in a 3 bedroom home. Under the best of circumstances a three-bedroom home would be problematic for a family with one girl and three boys. However, given the behavioral difficulties of the three children this living arrangement is untenable. Because of his severe behavioral problems, one of the boys has to have a room all to himself. This has necessitated one of the other boys sharing a room with Julie Arthur and David Arthur s daughter and the other boy sleeping in the house s living room. Julie Arthur and David Arthur recognize that they need to purchase a larger home. 40. The three children are each a child with special needs under Indiana law. 41. Accordingly, Julie Arthur and David Arthur, once they adopt the children, are entitled to an adoption assistance payment for each child. 42. Julie Arthur and David Arthur asked the DCS to receive adoption assistance payments for the three children equal to the foster care assistance currently being received. They estimated that this amount was minimally necessary, when combined with their existing income and resources, to cover the ordinary and special needs of the three children as well as the anticipated ~ 9 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 10 of 12 PageID #: 10 needs of the three children. 43. They presented information to the DCS that not only demonstrated the needs of the three children and the current income and expenses for the family, but also that Ms. Arthur had had to sacrifice her income to take care of the three children. 44. Despite recognizing the extraordinary needs of the three children in establishing their foster care payments the CEU-DCS has stated that it would provide a total per diem of only $52 a day, less than 36% of the foster care payments and less than the foster care payments that DCS makes for children without special needs. 45. CEU-DCS has stated that this is its final offer. 46. CEU-DCS has not taken into account the loss of the family s income because Ms. Arthur has been required to leave her employment. It has not taken into account the fact that the family needs to purchase a new home. It has not taken into account the numerous expenses that the three children will incur both currently and in the future. 47. The adoption assistance agreement must be finalized before the adoption of the three children can occur. 48. Julie Arthur and David Arthur will not be able to provide for the three children, their daughter, and themselves without receiving adoption assistance. 49. One of the purposes of adoption assistance payments under Title IV-E of the Social Security Act is to facilitate the permanent placement of children in foster care. 50. The actions and inactions of CEU-DCS thwarts that purpose. 51. Plaintiffs are being caused irreparable harm for which there is no adequate remedy at law. 52. At all times defendant has acted under color of state law. Legal claim ~ 10 ~

Case 1:15-cv-01718-JMS-MJD Document 1 Filed 10/29/15 Page 11 of 12 PageID #: 11 53. In determining the adoption assistance payment for the three children DCS-CEU has failed to properly take into consideration the needs of J.T.J., J.A.V., and J.D.V., and the circumstances of Julie and David Arthur in violation of 42 U.S.C. 673(a)(3). Relief requested WHEREFORE, plaintiffs request that this Court: 1. Accept jurisdiction over this case and set it for hearing at the earliest opportunity. 2. Declare that the actions and inactions of defendant have violated federal law for the reason noted above. 3. Enter a preliminary injunction, later to be made permanent, enjoining defendant to negotiate adoption assistance payments for the three children that properly take into consideration the needs of J.T.J., J.A.V., and J.D.V., and the circumstances of Julie Arthur and David Arthur. 4. Award plaintiffs their costs and reasonable attorneys fees pursuant to 42 U.S.C. 1988. 5. Award all other proper relief. s/ Kenneth J. Falk Kenneth J. Falk No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 ext. 104 fax: 317/635-4105 kfalk@aclu-in.org Jan P. Mensz ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 ext. 107 fax: 317/635-4105 jmensz@aclu-in.org Attorney for Plaintiffs ~ 11 ~

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