IN RE PAGE/RACICOT MINORS (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
July 28, 2011
In the Matter of M. P., M. P., and D. R., Minors.
No. 296331
Delta Circuit Court
Family Division
LC Nos. 09-000506
09-000507
09-000508
Before: RONAYNE KRAUSE, P.J., and SERVITTO and GLEICHER, JJ.
PER CURIAM.
Respondent Department of Human Services (DHS) appeals by leave granted a circuit
court order directing it to treat the three minor children petitioners as eligible for funding under
Title IV-E of the Social Security Act, 42 USC 670 to 42 USC 679c. We dismiss the case as
moot.
This case concerns the federal funding program known as Title IV-E that offers financial
assistance for eligible children in state foster care and adoption systems. 42 USC 670 et seq.
County governments generally bear primary responsibility for the payment of foster care
expenses. MCL 712A.25. However, if a child is eligible for Title IV-E funding, the county
owes no financial obligation for foster care costs, which the DHS and the federal government
divide. Federal statutes and regulations control Title IV-E funding. 42 USC 670 et seq.; 45 CFR
1355; 45 CFR 1356. Just one restriction envisions that “[federal financial participation] is not
available when a court orders a placement with a specific foster care provider.” 45 CFR
1356.21(g)(3).
In December 2009, the DHS filed a petition requesting that the circuit court assume
jurisdiction over the three involved children. The petition reflects that in late October 2009, the
children’s mother admitted to a Children’s Protective Services worker that she had ingested
Vicodin during her pregnancy with one of the children, causing the child to “test[] positive for
Opiates shortly after . . . birth.” After a December 19, 2009 preliminary hearing, the circuit court
removed the children from the parents, but the petition remained pending until a continued
preliminary hearing date. The December 19, 2009 order contained the following language:
If DHS places the minor(s) in a placement that charges an administrative
rate or if DHS agrees to pay an administrative rate, DHS shall pay the full cost of
the administrative rate. This Court will not be liable for payment of any
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administrative rates, or parts thereof, or other non-traditional placement costs
unless this Court has approved said costs in advance in a court order.
After the continued preliminary hearing on December 29, 2009, the circuit court authorized an
amended petition and exercised jurisdiction over the children.
On January 5, 2010, the DHS filed with the circuit court its determination that none of the
children qualified for federal benefits under Title IV-E; identical handwritten explanations for
two of the children noted, “[U]nlicensed relative & court order language restricting placement,”
while the third child’s explanation read, “MGH & court order language restricting placement.”
By January 6, 2010, the children’s guardian ad litem (GAL) had commenced an administrative
appeal with a DHS hearing coordinator. The GAL filed in the circuit court a “motion to review
placement” on January 8, 2010, and the court held a lengthy hearing that same day. At the outset
of the hearing, the court framed the inquiry as whether it should “modify the order and plan . . .
in the best interest of the children,” given the DHS’s recent funding decisions.1 But questioning
of four DHS employee witnesses and later comments by the circuit court revealed that the recent
funding decisions of the DHS had not impaired or jeopardized the children’s best interests, and
that the real question at issue was the availability of Title IV-E funds.
On January 15, 2010, the circuit court entered a 20-page opinion and order characterizing
as “abundantly clear . . . that the case was wrongly found ineligible for Title IV funding.” The
circuit court explained, in relevant part, as follows:
There was the mistaken belief that court language restricted the ability of
the department to place. As a matter of law and in accordance with the testimony
received at the court hearing, . . . it is clear that the language did not restrict in any
way the department’s ability to place the children where they felt the most
appropriate placement was, even including a placement that charged an
administrative rate also called a P.O.S. rate.
***
[A county DHS director] testified that the Department of Human Services
would pay the private provider not only the foster care rate but their so-called
purchase of service or administrative rate directly. The department would not
have to request further authority of the court to place any Title IV child or to pay
the administrative rate. They could do it in accordance with the present court
order. He testified DHS could place the child even in a private agency licensed
foster home and would pay for the entire cost under Title IV funding. The court
order did not in any way restrict the department’s flexibility or ability to place
these children.
1
The local DHS employees testified that the decision to deny funding on the basis of the court
order language was made by a “Title IV-E Review Committee” in Lansing.
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The court also emphasized that it had “not in any way attempt[ed] to specify a placement or a
specific foster care provider.” The court concluded that all the children had Title IV-E
eligibility, and instructed the DHS to “immediately classify all three children as Title IV
eligible.”
This Court granted the DHS’s application for leave to appeal the circuit court’s decision.2
Meanwhile, circuit court supervision of the children and parents continued. On July 16, 2010,
after a dispositional review hearing, the circuit court entered an order allowing the parents
unsupervised visits and providing, “DHS may return the children to their parents at their
discretion after observing overnight visits.” The court also incorporated the following
paragraph:
As stated on the record, the court order of 1/15/2010 which ordered DHS
to provide Title IV-E funding for the children is rescinded because Christina
Creten, the Title IV specialist for the department, has announced and notified the
guardian and the Court that they have changed their position. Effective May 4,
2010 they have now approved the disputed language in the court order which they
had been objecting to and have now declared the children to be Title IV-E eligible
in all respects. Thus, there is no need for the court to order them to provide
funding as they are doing so on a voluntary basis.
The record contains a July 1, 2010 memorandum on DHS letterhead, authored by “child welfare
funding specialist” Creten to the administrative hearing bureau, summarizing:
Pursuant to their [DHS employees in Lansing] guidance [in May 2010],
DHS changed their position on the matter and will allow [T]itle IV-E on those
cases where the judge added language regarding the agency using a purchase of
service. . . . [T]his matter has been resolved and the Department has changed its
position on the court order language.
On July 28, 2010, the DHS notified the GAL that it had dismissed the children’s administrative
appeals because “the problem you addressed has been resolved.”3
The DHS insists on appeal that the circuit court did not possess subject-matter
jurisdiction to opine with respect to child eligibility for Title IV-E funding. We review de novo
the legal question whether a court has subject-matter jurisdiction over a case. Specht v Citizens
Ins Co of America, 234 Mich App 292, 294; 593 NW2d 670 (1999). To the extent that our
2
In re MP, MP and DR, Minors, unpublished order of the Court of Appeals, entered June 9,
2010 (Docket No. 296331).
3
Petitioners moved in this Court to dismiss the instant appeal, however this Court denied the
motion. In re MP, MP and DR, Minors, unpublished order of the Court of Appeals, entered
September 8, 2010 (Docket No. 296331).
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analysis involves statutory interpretation, we similarly consider de novo this issue of law.
Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).
The circuit court’s rescinding of the offending order from which the DHS appeals renders
the merits of this appeal moot. “The principal duty of this Court is to decide actual cases and
controversies. To that end, this Court does not reach moot questions or declare principles or
rules of law that have no practical legal effect in the case before us unless the issue is one of
public significance that is likely to recur, yet evade judicial review.” Federated Publications,
Inc v Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002), clarified on other grounds by Herald
Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 471-472; 719 NW2d 19 (2006). The
circuit court ordered that its “order of 1/15/2010 which ordered DHS to provide Title IV-E
funding for the children is rescinded . . . .” (Emphasis added). To rescind something, like a
contract, means “[t]o abrogate, annul, avoid, or cancel [it] . . . [, n]ot merely to terminate it . . .
but to abrogate it from the beginning.” Black’s Law Dictionary (4th ed). Consequently, when
the circuit court on July 16, 2010 rescinded the portion of the January 15, 2010 order that the
DHS asserts the court entered without jurisdiction, the abrogation of this order “from the
beginning” left no error for this Court to review on appeal. Black’s Law Dictionary. “If the . . .
[DHS] was ever entitled to the relief prayed for, we cannot now make any decree to aid it.”
Street R Co of East Saginaw v Wildman, 58 Mich 286, 287; 25 NW 193 (1885). Because our
analysis and decision of the issue presented by the DHS would embody a declaration of
“principles or rules of law that have no practical legal effect in the case before us,” we cannot
decide this moot issue. Federated Publications, 467 Mich at 112.
As we have noted, a court may decide moot questions if “the issue is one of public
significance” “that is likely to recur yet regularly evade judicial review.” Federated
Publications, 467 Mich at 112-113. We accept that this appeal focuses on an issue of public
significance. But the mootness exception does not supply a ground for judicial review in this
case because we find unsatisfied the “likely to recur” portion of the exception: first,
notwithstanding the DHS’s predictions that the precise issue in this case will recur in the future,
we can conceive of no reasonable likelihood that other circuit courts in Michigan might adopt
orders containing funding or placement language identical to that adopted by the Delta Circuit
Court in its January 2010 order and here challenged by the DHS; and second, the DHS has
concededly altered its view toward the Title IV-E eligibility of children subject to orders
containing court language that the DHS deemed objectionable in this case. No indication of
record suggests that the DHS might resort to its earlier position that the language the circuit court
employed in its December 2009 placement provisions would preclude the involved children’s
eligibility for Title IV-E funding. Moreover, we additionally find unsatisfied here the “regularly
evade judicial review” element of the mootness exception. We cannot discern any reason why,
should the precise legal question at issue here arise in a future circuit or probate court
proceeding, the dispute would likely evade judicial review.
Although we understand our dissenting colleague’s concern that the circuit court usurped
this Court’s authority by rescinding the offending portion of the January 15, 2010 order, the issue
presented in this appeal nevertheless qualifies as moot. Regardless of the propriety of the circuit
court’s action, the DHS concedes that as the state agency “charged with administering the Title
IV-E program,” it has approved the disputed language. Should a circuit court insert into a future
order placement language similar to that the Delta Circuit Court crafted in this case, which
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spawned the present Title IV-E funding dispute, no untoward limitations on placement would
ensue. Simply put, the DHS’s own action has rendered this appeal without consequence and
there remains no controversy for this Court to resolve.
Because the DHS has not shown that the present dispute meets the requirements of a
mootness exception, we dismiss this appeal on mootness grounds.
Dismissed.
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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