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DCS says it didn’t have money to pay adoption subsidies

Debra Moss, of La Porte, seen in her attorney's office, Monday, June 30, 2014, is suing the Indiana Department of Child Services, claiming the agency owes them thousands of dollars in unpaid adoption subsidies. She and Mary Coovert, of Indianapolis, not pictured, who is also suing, adopted children from the Indiana foster care system.

A La Porte woman says the Indiana Department of Child Services is to blame for denying payment to her and at least 1,400 other families that have adopted special needs children from the state’s foster care system since 2009.

But in a response to the lawsuit Debra Moss has filed against the state agency, DCS shifts the blame to someone else: lawmakers. DCS says the adoption subsidies haven’t been paid because the Indiana legislature failed to appropriate enough money.

Moss’ lawsuit notes that DCS promised in a contract to pay adoption subsidies “if funding becomes available.” As evidence that those funds were available, the lawsuit points out that, since 2009, DCS has returned roughly $240 million to state coffers while not paying the subsidies. Moss’ lawsuit contends that is a violation of the families’ written contracts.

DCS acknowledged returning that amount to the state’s general fund but denied violating the families’ contracts.

“DCS can make adoption subsidy payments only if DCS determines in its discretion that sufficient funds are available in the adoption assistance account and that sufficient funds can reasonably be anticipated to be available in the account during the term of the subsidy,” the agency said in court records filed last week. “This is a condition precedent to payment that did not occur.”

Because of the pending litigation, DCS spokesman Rich Allen said he could not comment on the agency’s reason for returning money to the state’s general fund rather than using it on subsidies.

Lynn Toops, of Cohen & Malad, the law firm representing Moss, dismissed DCS’ claims that it didn’t have money to pay the subsidies. The Indianapolis Star previously reported that DCS returned $238.6 million to the state since 2009. Toops said DCS has returned an additional $4 million to the state’s general fund since Moss’ lawsuit was filed.

“The contracts that DCS had with the adoptive families weren’t contingent on an appropriation from the legislature,” she said in a written statement. “Since 2009, DCS has returned over $240 million in excess, unused funds to the State, and all of that money was available to DCS to pay to the adoption subsidies.”

State Rep. Tim Brown, R-Crawfordsville, who is chairman of the House Ways and Means committee, did not respond to The Star’s request for comment.

State Rep. Greg Porter, D-Indianapolis, who is also a member of that committee, said the legislature approved the budget with the expectation that the money it appropriated would be spent. He said the desire to return money to the general fund shouldn’t trump DCS’ need to take care of Hoosier children and families.

“We believe we did fund it sufficiently,” Porter said. “If they want to revert those dollars, the ball’s back in their court.”

Call Star reporter Marisa Kwiatkowski at (317) 444-6135. Follow her on Twitter: @IndyMarisaK.