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Brief Filed on Foster Child's Survivor Benefits

On October 8, 2010, the Public Justice Center (PJC), along with Legal Aid Bureau, Randall & Sonnier, Children’s Advocacy Institute, Advocates for Children and Youth, and Prof. Susan Leviton, filed a friend-of-the-court brief (amicus) in Myers v. Baltimore County Department of Social Services, et al in the Court of Special Appeals of Maryland. The brief was authored by PJC’s former Murnaghan Fellow, Monisha Cherayil.

The case involves a child, Alex Myers, who became entitled to receive Old Age Survivors and Disability Insurance (OASDI) after his parent died. When Myers entered foster care, the Maryland Department of Social Services (DSS), pursuant to its longstanding practice, appointed itself as the child’s representative payee, and took the monetary benefits and deposited them into its own coffers. Myers sued to recover his benefits, but DSS successfully defended its conduct in the lower court by arguing that it could properly retain the funds as reimbursement for services provided to Myers. Before the Court of Special Appeals is the issue of whether DSS has a legal duty to use OASDI funds it manages on behalf of a child in a manner that directly furthers the best interests of that child, and if so, whether DSS breaches that duty when it systematically and without notice to the child keeps the funds for itself as “reimbursement” for services it may have provided.

The Public Justice Center’s amicus brief in support of Myers describes many ways in which DSS could expend or conserve the OASDI benefits it manages on behalf of a foster child in a manner that furthers that child’s individualized best interests, instead of reimbursing itself for the basic care it has a legal obligation to provide to all foster children. For example, depending on the child’s particular needs, DSS might use the funds to facilitate the child’s participation in development-enhancing activities or to assist with the child’s transition from foster care to independent adulthood. Additionally, the brief argues that even if the court decides that DSS has the authority to keep the OASDI funds, it may not take more from a foster child than it has actually spent on that child. PJC warned that, according to a government audit, DSS has a history of poor accounting practices which make it very difficult to determine how much it spends on individual foster children, and could easily lead DSS to over-reimburse itself for services it has provided to a foster child.

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