May 01, 2016

Child Welfare Agency Had Discretion to Deny Couple’s Foster Parent Application Based on Husband’s Prior Conviction

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Ferreira v. Frederick County DSS, 2016 WL 1098908 (Md. Ct. Spec. App.).

Child welfare agency did not err in denying couple’s application to be foster parents based on the husband’s federal conviction. The decision was supported by statutes and regulations that govern the application process. The primary basis for the denial was the best interests of the children whose needs are served by foster parents, and the agency acted within its discretion when it denied the application.

Javier and Brenda Ferreira applied to the Frederick County, MD, child welfare agency to become resource parents for children in foster care and completed the necessary training. While reviewing their application, the agency learned Mr. Ferreira had a past federal criminal conviction for deprivation of civil rights under color of law while working as a guard in a California jail. He turned security cameras off to allow an inmate to assault another inmate and served almost five years in prison. 

The child welfare agency resource parent recruitment and training director asked Mr. Ferreira to submit further information about the conviction, which he did along with his version of what happened, the support he received from his family after incarceration, and his involvement with church and community. He also submitted numerous reference letters. After reviewing this information, the agency director decided it would not move forward with the home study and licensure process.

 The Ferreiras appealed the agency’s decision. An administrative law judge (ALJ) conducted a hearing and issued a written decision that upheld the agency director’s decision. The ALJ’s reasoning was based on the agency’s first priority to protect the interests of children and the wide latitude granted the agency by statutes and regulations governing the application process for someone with a criminal history. The agency issued its final decision, adopting the ALJ’s findings of fact and affirming the ALJ’s decision, again citing the overarching concern of the best interests of the children who would be in the care of resource parents. The Ferreiras petitioned for judicial review, and the court affirmed the agency’s decision, which the couple appealed.

On appeal, the Ferreiras raised 11 questions that addressed whether the agency erred in denying their application to serve as resource parents based on Mr. Ferreira’s conviction. The court relied on three bodies of law to analyze the case: the Code of Maryland Regulations governing application for resource home approval, the Administrative Procedure Act governing the administrative law process for an agency such as the child welfare agency, and the family law statute related to dependent children.

The technical requirements for resource home approval include criminal and protective services background checks, and the regulations specifically prohibit a department from approving “any home in which an adult in the household [h]as a felony conviction” of certain types, including child abuse or neglect. It also prohibits approval of anyone with a felony conviction involving physical assault, battery, or a drug-related offense in the five years preceding the application. The agency examined Mr. Ferreira’s conduct in the context of this provision, which gives the local director some discretion to allow an applicant to serve as a resource parent in spite of a prior conviction for certain offenses. Deference was also given to the agency based on its expertise.

The Ferreiras had four levels of review by the recruitment and training director, an ALJ, the agency head, and the trial court. At every level, the reviewing body considered the evidence and reached the same conclusion: it is up to the agency to determine whether someone with a conviction like Mr. Ferreira’s is suitable to foster a child. It was entirely within the agency’s discretion to reach that decision on the record. Mr. Ferreira’s version of events and supporting documents did not overcome the agency’s concerns about the couple’s suitability given his conviction for a crime that, although not among those automatically disqualifying him, involved violence and a breach of public trust. While government agencies must comply with their own rules and regulations, the Ferreiras could not identify any regulation with which the agency failed to comply. 

In addition, the court did not address whether there was any prejudice to the Ferreiras because there was no procedure in the statutes that the agency failed to follow. While the court sympathized with the Ferreriras’ frustration with the outcome, the statute grants the local agency director broad discretion, and the letter denying their application stated an adequate basis, supported by the record, for her decision.

The Ferrieras also claimed the agency director’s decision was arbitrary and capricious, an abuse of discretion, and unsupported by substantial evidence. The agency does not need to justify the exercise of its discretion by findings of fact or specific reasons setting out why the agency made a specific decision as long as the decision is lawful and authorized. The agency head followed the regulation and factored in Mr. Ferreira’s conviction and the circumstances surrounding it. As a result, the agency properly exercised its discretion under regulation and statute and the decision was supported by substantial evidence.