SAN DIEGO (KGTV) - Two sisters who spent their lives in and out of the foster care system say the County of San Diego took their social security benefits.
The girls, now 11 and 13, filed a lawsuit against San Diego County alleging the County unlawfully took and used their Social Security survivor’s benefits in “a manner violating both federal and state law.”
“It sounds outrageous to say they’re stealing the money, but they are stealing the money,” said attorney Robert Fellmeth. “They (the county) get money for the care of the children from a separate account already, and it’s federal and state sourced money and they take care of the kids with that fund. This is different money.”
Robert Fellmeth is the head of the Center for Public Interest Law and Children's Advocacy Institute at the University of San Diego. He’s a Child Welfare Expert and has commented on several stories throughout the years on ABC 10News.
However, in this role he’s one of the lawyers for the two children in the lawsuit.
“This is someone (the kid’s parent) who’s paid into the system and the money is there,” Fellmeth said. “The fund is there, and these kids are due $860 a month each for 15 months or about $12,500 or $13,000 each. They are due that money. It’s their money. It’s survivor benefits. It’s for them – not for the county – and the county takes it.”
According to the lawsuit, while the kids were in foster care and the County was acting as their legal guardian, the County applied to the Social Security Administration to be the children’s representative payee.
The lawsuit says, “Defendant did so without identifying other potential preferred representative payees, and without notifying or consulting (i) the Plaintiffs; (ii) their attorneys who are charged with representing Plaintiffs’ interests including Plaintiffs’ financial interests; (iii) the judges in this County solemnly and legally charged with assuring Plaintiffs’ overall welfare in loco parentis, including Plaintiffs’ financial welfare; or (iv) adults in Plaintiffs’ lives whom federal and state law prefers to be appointed over Defendant.”
The lawsuit claims, after being appointed, the County received and spent all or substantially all of the kids’ benefits on what it describes as “placement costs.”
The lawsuit says, “despite the fact that Federal, State, and County sources already appropriate money to Defendant for the care and maintenance of foster children like Plaintiffs and in violation of, inter alia, state laws requiring such benefits to be spent in ways that benefit the child, not the Defendant.”
Fellmeth says some children in foster care can be eligible for money from the government.
Some have disabilities and qualify for Supplemental Security Income (SSI) or have lost a parent and are eligible for survivor’s benefits. That money is paid out by the Social Security Administration.
The law permits the appointment of a “representative payee,” who receives the Social Security benefit funds on behalf of the entitled recipient under “certain prescribed circumstances.” That means, instead of the children in foster care receiving that money, the County is stepping in, acting as the guardian and taking it, according to the lawsuit.
"It’s not fair that because they did some time in child protective services that they lose those monies. That just doesn't make sense to me,” said the girls’ adoptive mother Amy. We’re not using her last name to help protect the identities of the kids.
Amy says both the girls current and future needs, interests, and aspirations require financial support. Both girls are receiving therapy and intend to continue mental health treatment. Some treatments have costs that aren’t always covered.
“If my kids decide that they want to do any type of college or trade school or perhaps just move out on their own, it can help with deposits. That stuff is important to set this youth population up to become a happy healthy individual in society,” Amy said.
A spokesperson for the County of San Diego says they can’t comment on the lawsuit, however, they did explain their current process.
In a statement the spokesperson said, “In March 2022, the county stopped evaluating Survivor’s Benefits as income during reassessment. There has been no change for SSI benefits due to SSI restrictions. If the county is the payee to the Survivor’s benefits, the county has maintained a reserved account for the youth until the youth reaches 18 years of age, exits Foster Care, or there is a new representative payee. The benefits are then returned to Social Security who will then send payments to the current representative payee and/or youth. For Survivor’s Benefits obtained prior to March 2022, the process has yet to be changed pending clarification from the state.”
A 2021 investigation by the Marshall Project and NPR found in at least 49 states and Washington D.C., foster care agencies went through children's case files to find ones entitled to benefits and applied to the Social Security Administration to become their financial representative.
Fellmeth says several states are moving to adopt policies that stop allowing payments to be taken as reimbursements.
ABC 10News reporter Adam Racusin asked Fellmeth why agencies don’t just stop taking the money to being with.
“You know I ask that question all the time,” he said. “Because they rationalize. They think well we're paying for this kid, we're already putting out for this kid, and we're getting some more money from the government, so it's ours."
