Court
of Appeals rules in favor of foster child and against DSS
November 6, 2007 Media Release
(Greensboro, NC) – The NC Court of Appeals today ruled that
District Court Judge Susan Bray has the jurisdiction to order the NC
Department of Social Services (DSS) to use a foster child’s Social
Security income to pay his mortgage.
“The ruling saves the foster child’s house from a threatened
foreclosure that may have rendered him homeless when he turns 18
years old,” said Lewis Pitts, an attorney with Legal Aid of North
Carolina and one of the attorneys for the 16-year-old foster child,
known as “John G.” “Obviously, it is in the best interest of the
child that the property not be foreclosed and that the asset be
preserved for the child's future.”
John G has been in the legal custody of Guilford County Department
of Social Services (DSS) since 2004. As his guardian, DSS
became payee of John G’s Social Security Benefits of $538 per month.
Although DSS was bound by law to use the funds in the best interest
of John G, DSS refused to use the money to pay the $220 monthly
mortgage payment on a Habitat House being held in trust for the
child.
Instead, DSS opted to retain the money to help pay its costs of
providing care for the child.
When foreclose was imminent, the child’s Guardian ad Litem attorneys
filed a motion asking Judge Bray to order DSS to act in the best
interest of the child and use his Social Security monthly check to
pay the mortgage. Judge Bray granted the motion, but DSS
appealed the decision.
DSS claimed that no District Court Judge had subject matter
jurisdiction to order how they, as payee, use the Social Security
benefit funds. DSS argued that John G. needed to bring a
federal lawsuit to complain about the misuse of his funds by the
payee.
The Court of Appeals rejected the DSS arguments and said that “nothing
in the concept of our federal system prevents state courts from
enforcing rights created by federal law.” The Court’s
decision also stated that DSS’s “interpretation of [the federal
statute] takes the statue out of context and is an improper attempt
to fashion a shield into a sword to be used against the intended
beneficiary of the law….”
Effectively, the Court of Appeals affirmed Judge Bray’s ruling that
DSS use John G’s social security benefit money to pay the monthly
mortgage on the Habitat House.
“We agree wholeheartedly with DSS that their budget is inadequate to
properly serve foster children,” said Pitts. “But the solution is
not to use their power and position of trust as payee to steal for
their own organizational needs money from abused and neglected
children.
“These children have many needs, including clothing, educational
supplies, and recreational, for which the funds should be used.
DSS needs to raise public awareness about their budgetary
nightmares, not create nightmares and deprivation by pocketing the
children’s money.”
The practice of DSS asking to be payee for foster children’s Social
Security Benefits and then pocketing the money as repayment for
costs of care is a statewide and national problem. When
the John G. case was first unfolding in 2006, the New York Times
ran a front page story about the child and his plight. [See
02/17/06 New York Times article,
"Welfare
Agencies Seek Foster Children's Assets"]
“Because this ruling is so clear and so strong, Guardian Ad Litem
advocates for foster children all around the state should be able to
get District Judges to halt DSS use of the funds that are not in the
child’s best interest,” Pitts concluded. “Now we should all
work to ensure adequate legislative funding for all services for
children and take away the incentive for DSS to misuse the funds
rightfully belonging to the children.”
Legal Aid of North Carolina (LANC) is a statewide, nonprofit law firm
that provides free legal services in civil matters to eligible,
low-income people in all 100 counties in North
Carolina
through 24, geographically located offices in North Carolina. LANC’s clients
typically have an annual income of 125% or less of the federally
established poverty levels.
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NC Court of Appeals decision, No. COA06-752, November 6, 2007
(pdf document)
CONTACTS:
Lewis Pitts (Senior Managing Attorney, Legal Aid of NC,
Advocates for Children’s Services), Durham, NC
919-226-0051
George R. Hausen (Executive Director, Legal Aid of NC),
Raleigh, NC,
919-856-2564
Dock Kornegay (Director, Public Relations & Development,
Legal Aid of NC), Raleigh, NC,
919-856-2564