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COURT OF APPEALS DECISION DATED AND RELEASED April 9, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3118-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JOHN NIERENGARTEN and
BETTY NIERENGARTEN,
Petitioners-Appellants,
v.
STATE OF WISCONSIN,
DEPARTMENT OF HEALTH
AND SOCIAL SERVICES,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Pierce County:
ROBERT W. WING, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. John and Betty Nierengarten appeal a
judgment affirming a Department of Health and Social Services decision that the
Nierengartens' adoption assistance application was properly denied as untimely.[1] The Nierengartens raise three issues on
appeal: (1) whether their adopted son,
Benjamin, was eligible for adoption assistance at the time of his adoption; (2)
whether foreign born children were excluded from the adoption assistance
program at the time Benjamin was adopted; and (3) whether the trial court's
decision was consistent with federal policy considerations and congressional
goals. Applying the plain language of §
48.975, Stats., we conclude that
application for adoption assistance was properly denied as untimely. We therefore affirm the judgment.
In April 1987, Lutheran
Social Services of Wisconsin and Upper Michigan placed four-year-old Benjamin,
who was born in Korea, with the Nierengartens for the purpose of adoption. When Benjamin was placed with the
Nierengartens, they were advised that they did not qualify for adoption
assistance. In November 1987,
Benjamin's adoption was finalized.
After his adoption was finalized, Benjamin was diagnosed with bipolar
disorder, attention deficit hyperactivity disorder, post-traumatic stress
disorder and mathematics disorder.
In August 1994, the
Nierengartens applied for adoption assistance to assist with the financial
exigencies in meeting Benjamin's medical needs. Their application was denied as untimely. The circuit court affirmed the DHSS's denial
of their application.
We review the
department's decision and not that of the circuit court. Gibson v. State Public Defender,
154 Wis.2d 809, 812, 454 N.W.2d 46, 47-48 (Ct. App. 1990). The scope of our review is prescribed by §
227.57(5), Stats.: "The court shall set aside or modify
the agency action if it finds that the agency has erroneously interpreted a
provision of law ...."
Here, there is no
dispute of underlying facts, and the issues presented require that we apply the
statutory guidelines to a set of facts.
The application of a statute to a set of facts presents a question of
law that we review de novo. Sheely
v. DHSS, 150 Wis.2d 320, 328, 442 N.W.2d 1, 5 (1989). The primary source of interpretation is the
statutory language itself. Hartlaub
v. Coachmen Indus., 143 Wis.2d 791, 797, 422 N.W.2d 869, 871 (Ct. App.
1988). If the language is unambiguous,
resort to extrinsic aid for purposes of statutory interpretation would be
improper. General Tel. v. A Corp.,
147 Wis.2d 461, 464, 433 N.W.2d 264, 265 (Ct. App. 1988).
Here, the statutory
language is unambiguous. Adoption
assistance was created to assist the adoption of special needs children by
providing financial assistance to adoptive families. "'[A]doption assistance' means payments by the department to
the adoptive or proposed adoptive parents of a child which are designed to
assist in the cost of care of that child after an agreement under sub. (4) has
been signed and the child has been placed for adoption with the adoptive or
proposed adoptive parents."
Section 48.975(1), Stats. The application for adoption assistance must
be made before the adoption is finalized.
Section 48.975(4), Stats.,
provides: "A written agreement to
provide adoption assistance shall be made prior to legal adoption
...." We conclude that the
department correctly interpreted the law to require the application for
adoption assistance be made before the adoption is finalized.
The Nierengartens argue
that Benjamin would have qualified for adoption assistance at the time he was
placed, that the law did not disqualify foreign born children, and that they
were misinformed that they were not eligible.
The Nierengartens do not contend that Lutheran Social Services deceived
them or misrepresented the state of Benjamin's health. Their contention is that at that time his
undiagnosed condition would have qualified him as a special needs child for
whom adoption assistance would have been available, if they would have applied
before the adoption was finalized.
Although the Nierengartens' contentions may be correct, they do not
change the result, given our narrow scope of review. Our obligation under § 227.57, Stats., is to apply the plain and unambiguous language of the
applicable statute. Harris v.
Kelley, 70 Wis.2d 242, 249, 234 N.W.2d 628, 631 (1975). Section 49.975(4), Stats., plainly requires that the application for adoption
assistance be made before the adoption is finalized. Because it is undisputed that the application was made after the
adoption was finalized, it was properly denied.
The Nierengartens also
argue that interpretations of analogous federal law recognize extenuating
circumstances that require a hearing after the adoption is final to reverse an
improper agency denial of an adoption assistance application. However, they agree that in the federal
interpretation, the family applied before the adoption was finalized. That is not the case here.
The Nierengartens also
argue that the congressional goals of Title IV-E of the Social Security Act,
which resulted in the creation of the adoption assistance program, would be met
if extenuating circumstances were recognized to permit an untimely
application. Our duty, however, is to
ascertain legislative intent by virtue of the plain statutory language. Here, in § 48.975(4), Stats., the unambiguous language
requires the application to be made before finalization of the adoption. The department's regulations pursuant to §
48.975(5), Stats., are consistent
with this interpretation. Cf. Wis. Adm. Code § HSS 50.04(1) ("An
application for adoption assistance shall be completed and approved before an
adoptive placement occurs ...."); § HSS 50.03(3)(b) (application may be
made after placement but before finalization if there is a change in needs).
The Nierengartens also
cite Ferdinand v. Department for Children & Their Families,
768 F.Supp. 401 (D. R.I. 1991), which concluded that an adoptive family was not
barred from adoption assistance although the adoptive child's special
educational needs were not evident at the time of her adoption. Because the Ferdinand court
was not interpreting our Wisconsin statutes, its result is not controlling.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.