by Nancy Jennings

Last year we profiled the Children's Ombudsman, Richard Bearup. The office of the Ombudsman has been a popular topic among child welfare professionals, and the families and children who are affected by Michigan's child welfare system. It has also become discussion fodder among the media and the public at large.

The Ombudsman's office currently employs eleven full-time staff members, and the budget is $988,000. Bearup says they hope to "top out" their staff at around 15 employees.

The staff currently includes nine field investigators and one intake investigator. These are limited term positions, not permanent civil service positions. This limited term "reflects a new era of governance," Bearup says, "where an operation may not be in place forever. We may work ourselves out of business after a few years. We may be able to effect enough systems changes that we'd be out of jobs." The concept of "limited term positions" also increases access to the multi-disciplinary qualities Bearup requires in his staff. They are professionals from various walks of life, including law enforcement, social work, community health, and child development. Bearup believes recognition of cultural and ethnic diversity and related issues are very important to best serve children. This diversity is reflected in the staff which includes one African American and two Hispanic persons.

Since its inception in January, 1995, the Ombudsman's office has investigated 443 cases. Many cases are multi-dimensional and involve protective services as well as foster care and adoption. According to Bearup, roughly 70% of the case complaints deal with protective service issues; 20% with foster care; and 10% with adoption.

Each investigator has "a passel of cases," says Bearup. Ultimately, the investigator brings the case disposition to a multi-disciplinary team to defend not only the actions that he or she has taken, but to hear the recommendations of the team as well. This allows everyone involved to have a well-rounded look at the cases and children who come up for review. An investigator may also enlist clinical expertise (such as a psychologists or pediatric expert in child abuse) on an as-needed basis

Caseworkers average about 22-25 contacts per case. These contacts can range from a series of phones calls to a number of interviews. Because the staff of the Ombudsman's office is relatively small, they do not have the luxury of sending out an investigator on every case. Much of their research is done over the phone, and by thoroughly reviewing case records.

In any case, the Ombudsman will not get involved until an "administrative act" has taken place. In other words, their office cannot take an original PS complaint, but rather will refer the inquiry to the appropriate agency for investigation. Bearup says the law clearly defines what that "administrative act" is, and that the Ombudsman's office was not brought into being to take the place of protective services or foster or adoption services.

With respect to a protective service (PS) inquiry, the caller is first asked if they have called their local protective service office. If not, they are directed to contact that office first. If, after talking with the PS worker and supervisor the caller is still not satisfied, the Ombudsman will then intervene. "The Ombudsman is not always welcome in investigations by agencies," says Bearup, "But we're not out to give anyone a hard time, we're just trying to fulfill our obligations under the law."

Many PS complaints stem from a child being left in or placed in a harmful situation. Sometimes, the complaint is about a child being precipitously removed from a home "without cause." The typical complainants are grandparents and other relatives, although a number of Michigan legislators have also called the Ombudsman on behalf of their constituents.

On the other hand, foster care complaints are not always typical and tend to be more complex. Frequently the allegation is that the child has languished too long in the foster care system, well beyond what the law allows. Bearup says he may "approach judges on a collaborative, informal basis" to ask if he may address them about a given case. "I'm respectful enough to know that I can't tell them how to do their jobs, but I may have information that can help them decide the case." He says he may also write to the court about a case he feels particularly strongly about. "Caregivers are being given a multitude of chances" says Bearup," and there's a fair degree of noncompliance, with no consequences." Foster parents may also complain to the office that they are being ill-treated. New laws giving foster parents more say in a child's future have not entirely been followed. Many times, foster parents who are interested in adopting their foster children feel they are being treated unjustly.

The Ombudsman has received some criticism from foster parents that their complaints haven't been prioritized higher. "But," as Bearup mentioned, "the well-being and safety of the children always has to come first. Certainly, the implication of a foster parent complaint is just that. But sometimes it's that they, as adults, have been mistreated by the system. We can't always put them first."

Bearup says there have also been a few "whistle blowers" from within the child welfare system who have come forward and indicated a case with their agency may not have been handled properly. He says those cases are always investigated because a child is allegedly at risk, and the allegation is coming from someone within the system.

"One interesting fact," Bearup says, "is that we have not had one single complaint under the law concerning adoption attorneys. Not that there aren't complaints, but we don't hear about them. In part, this is due to the excellent work of the state bar's adoption committee, which has worked hard to train their attorneys." Bearup is very impressed with these attorneys' work. A statewide training session is planned for this Fall. "They've done a heck of a job steeping themselves in what's best for children," Bearup says of the adoption attorneys. He is also impressed with the professionalism with which they approach their tasks. Last year, the Attorney General struck down the part of the legislation which mandated continuing education for attorneys who wish to specialize in adoptions, but the Ombudsman's office keeps a list of attorneys who do qualify under the law. There are currently 243 attorneys on the list, which is voluntary and not all-inclusive.

When asked what the future holds for the Ombudsman's office, Bearup says, "Our initial goal is to improve upon the foundation that's already been laid. We will do a better job in our operation as a multi-disciplinary team. We will also start getting into customer [complainant] feedback -- there's nothing formalized in place, but I would like to have something, especially with regards to dissatisfied customers. We need to model to the [child welfare] system that we need to be as interested in what our critics have to say as our satisfied customers. We need to listen to what our children have to say about how we handle their futures."

The Ombudsman's office can be reached at (517) 373-3077.

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When the System Breaks Down

Adoption workers want to find homes for children. Families want to adopt special kids. When workers and families are moving toward this common goal, the results are bound to be positive for everyone, right?

Not always. It is true that there are hundreds of adoption success stories every year. In fact, in Fiscal Year 1995-'96 2,189 adoptions of special needs children occurred in Michigan. This exceptional number of placements is something both adoption professionals and families can take great pride in.

However, as much as we can celebrate these successes, many adoption professionals and families can also recount times of great frustration in their pursuit to provide homes for waiting children.

As the information and referral service for special needs adoption in Michigan, we here at MARE receive many phone calls from frustrated families and workers who have experienced breakdowns along the road to adoption. It is not uncommon for a frustrated family to call asking about available children in other states because they have been turned off by their experience here in Michigan. It is a cause of great concern at MARE when we hear this because every month we produce a photolisting book containing over 300 children in Michigan who are (supposed to be) available for adoption! It is also not uncommon to hear from a worker that attempts to get information on a particular child on behalf of a family have been met with a response that was less than enthusiastic. Sometimes it was a matter a child's worker not being aware of FIA policy and MARE guidelines, and sometimes it was a case of blatant disregard of policy and guidelines all together.

Agencies, workers, and families all have responsibilities when it comes to working within the adoption system. At the very least, agencies and workers have the responsibility to thoroughly understand FIA adoption policy and MARE guidelines. They also have a responsibility to respond to families and other workers in a timely, courteous, and professional manner. Families have a responsibility to educate themselves about adoption in general and the adoption system in Michigan. This can be done through informational sessions at local adoption agencies, subscribing to Families Across Michigan (a newsletter available at no charge from MARE), and calling adoption agencies and/or MARE with questions about adoption. Families also have the responsibility to be assertive, yet courteous in their interactions with workers.

It is important to know that families with an approved homestudy are given preference when making inquiries about children listed in MARE. If a family is seriously considering adoption and has not completed the homestudy process (also called a pre-placement assessment) by a licensed adoption agency, they should start this process as soon as possible. Once this important step is completed, the adoption worker can make inquiries on behalf of the approved family.

Unfortunately, breakdowns in the system do occur. The most frequent complaint heard at the MARE office is that workers are not responding in a timely manner (and sometimes not at all) to inquiries from other workers and families. Or it is perceived that a worker or agency is deliberately refusing to consider a particular family for a child. These situations are frustrating at best, and while it may be tempting to go "straight to the top" with complaints, there is a process of moving through the ranks of authority that should be followed when attempting to resolve a dispute. Per recommendation from the Family Independence Agency, MARE offers the following FIA approved step-by-step suggestions for resolving such complaints:

• As stated earlier, the family worker should act as an advocate on behalf of their studied and approved family. While a family may call a child's worker directly, MARE placements are intended to be facilitated by worker-to-worker contact.
• If a child's worker does not respond to an inquiry in a timely manner, the family's worker should involve his/her own supervisor who will contact the supervisor of the child's worker for a response. For children in purchased foster care, the FIA Foster Care Monitor is to be notified.
• If contact with the child worker's supervisor does not produce a satisfactory response, the supervisor(s) of the adoption supervisor(s) should be involved. For children in purchased foster care, the FIA supervisor or foster care monitoring unit should be notified. At a private agency this supervisor may be called a Program Supervisor or agency Executive Director; at a local Family Independence Agency (FIA) office, this person may be called a Section Supervisor or local office Director.
• This process is to be escalated, if necessary, to the highest level within the FIA local office or private agency in an effort to achieve a resolution.
• If a child's worker anticipates that numerous calls will be received on a particular child listed in the MARE Book, voice mail updates and/or verbal updates left with a secretary regarding the availability of the child are very helpful to those who are calling to inquire.

The family's worker (or family) should document all phone contacts made in the above process. Having a record of the steps followed could be very useful for future reference should the complaint need to proceed to a higher level.

If workers and families are having difficulty with a particular case, they should follow the steps listed above. Families and workers are always welcome to phone the MARE office with additional questions.

Adoption professionals and families both share the same desire to provide permanent, loving homes for waiting children. Let us all resolve to work together to make that happen.

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Adoption Expense Credit

from the pages of "Quarterly Commentator," published by the law firm of Kemp, Klein, Umphrey & Endelman, P.C. It is intended to be information only, and does not consitute legal advice regarding any specific matter or situation.

The legal and other expenses of adopting a child can be significant, and until recently there was no way to get any tax benefit for those expenses. The Small Business Job Protection Act of 1996 changes that. The Act permits the adopting parents to claim a credit against their federal tax for up to $5,000 of "qualified adoption expenses" (see below) per adopted child. That's a dollar-for-dollar reduction of tax -- the equivalent, for someone in the 28% marginal tax bracket, of a deduction of over $17,800. However, the credit is progressively reduced as the adopting taxpayers' adjusted gross income exceeds $75,000. The $5,000 credit takes effect starting in 1997 so expenses you incur in 1996 don't qualify.

To qualify for the credit

To qualify for the credit, the expense must be "qualified adoption expenses." These are the reasonable and necessary adoption fees, court costs, attorney fees, and other expenses directly related to the legal adoption of an "eligible child." Expenses that are reimbursed (e.g., under an employer's program) don't qualify. Neither do expenses connected with the adoption of a child of a taxpayer's spouse or the expenses of carrying out a surrogate parenting arrangement or any arrangement in violation of state or federal law. Note, however, that expenses can qualify for the credit even if the adoption eventually falls through, except in the case of a foreign adoption, i.e., one in which the child isn't a U.S. citizen or resident. Expenses connected with a foreign adoption can only qualify if the child is actually adopted. Only "special needs" adoptions (discussed below) can qualify for expenses paid after the year 2001.

An "eligible child" is a person under the age of 18 at the time of adoption. A person who is physically or mentally incapable of caring for himself is also eligible, regardless of age.

If you adopt a "child with special needs" the credit limit is increased to $6,000. This refers to a child who the state has determined cannot or should not be returned to his parents and who can't be reasonably placed with adoptive parents without assistance because of a specific factor or condition, e.g., ethnic background, age, or disability. Only a child who is a citizen or resident of the U.S. can qualify as having special needs.

Claiming the credit

The credit is claimed for the year after the one in which the qualifying expenses are paid, expect for expenses paid in the year the adoption becomes final. For these, the credit is claimed in the year the adoption becomes final. For example, say $2,000 is paid in 1997, $1,000 in 1998, and $3,000 in 1999 when the adoption becomes final. The taxpayer claims a $2,000 credit in 1998 (for the 1997 expenses). The $1,000 of 1998 costs and the $3,000 of 1999 costs are combined to be claimed in 1999, but only $3,000 can be claimed due to the $5,000 maximum allowance for the child. (If a special needs child is adopted, the full $4,000 can be claimed in 1999 because the maximum allowance would be $6,000.) Note that in the case of a foreign adoption, the credit for qualified expenses paid before the year in which the adoption becomes final is claimed only in that year.

Phase-out for high income taxpayers

The credit allowable for any year is phased out for taxpayers with adjusted gross income over $75,000 and is eliminated when AGI reaches $115,000. The credit is reduced by a percentage equal to the excess of AGI over $75,000 divided by $40,000. For example, taxpayers who could otherwise claim a $2,000 credit and who have an AGI of $85,000: $85,000 minus $75,000 equals $10,000, and $10,000 divided by $40,000 is 25%. Accordingly, the taxpayers "lose" 25% of their credit and can only claim a credit of $1,500. (Special rules may apply in some cases for determining your AGI for these purposes.)

Employee's adoption assistance exclusion

Under a separate new law provision, a taxpayer who receives up to $5,000 in qualifying expenses under an adoption assistance plan of his employer ($6,000 for special needs adoptions) can exclude the amount received from income. The rules described above for which expenses qualify and the phase-out rules for high AGI taxpayers apply for the exclusions as well.