SAN DIEGO — In 2020, the biological father of a 9-year-old and an 11-year-old who had previously been placed into a foster home in San Diego County died. Following his death, the two sisters were issued monthly survivor benefits from their father's Social Security account that he paid into. Each girl was set to receive $861 per month or $1,722 combined.
In the two years that have passed, the girls have not received a single penny from the approximately $50,000 in benefits. Instead, the County of San Diego has taken the money and deposited it in its own general fund.
Now, a new lawsuit filed by the University of San Diego's Children's Advocacy Institute on behalf of the sisters seeks to recover that money and looks to compel the county to deposit the more than $120,000 that will be paid to them until they turn 18 in a trust account to access when they leave the foster system.
But these two sisters are not alone.
Signing foster children up for disability benefits and survivor benefits if their parent has died without informing the child is the standard operating procedure at Child Welfare agencies in San Diego and throughout the country, says Washington D.C-based attorney Amy Harfeld, who works for USD's Children's Advocacy Institute and lobbies elected officials on this issue as well as others.
Harfeld tells CBS 8 that over the years states have taken an estimated $250 million in benefits from foster children, later depositing them into municipal accounts.
San Diego County is no exception to the rule.
Sisters Discover Missing Survivor Benefits
The girls' foster parent, Amy, who wishes to not use her last name, says she is proud that her newly adopted daughters agreed to fight San Diego County for taking their money.
Amy and her husband fostered the two young girls the first time when they were just four and six years old. After 18 months the girls returned to their biological parents. In 2020 tragedy struck and their father died. Meanwhile their mother was unable to care for them and they returned to Amy's home. In November 2022, Amy adopted the girls.
"We love those girls," said Amy. They've been family since the moment they walked in our door. And I kept in touch with them over the four and a half years that they were gone. We helped the family out whenever we could. And it was just a no-brainer for us and there was no question in our mind that if the kids were going to become adoptable, as the court says, it was going to be us."
Amy said the girls told her that their mom was receiving benefits after their dad had passed. When the mother was unable to care for them, Amy says she went to their social worker and told them about the benefits.
"I wanted it to be used for the girls and not for whatever, you know, things that she was using, intended to use it for," said Amy. "So that's how the conversation started. I told them, probably within the first couple of days after the kids came into custody, that they had these survival benefits"
That's when the foster mother discovered that the County never expected to turn over the funds to the girls.
"Maybe it was a little bit naive of me," she said. "I was thinking that they were going to start collecting these funds and put it in a trust for the kids and then the kids would either have access immediately or they'd hold them for them so that they could have I'm when they were 18, which both options were absolutely amazing. But I found out months later, that wasn't the case."
Amy informed the girls' court-appointed attorney and soon learned that the county has become the representative payee for the kids.
The attorney told Amy about the University of San Diego's Children's Advocacy Institute and told her that they had been working on changing the law about this for some time.
Amy said she contacted them immediately and things started moving.
"Even if the kids don't get those funds back, as a family, the four of us, hope to change the course for other kids that go into child protective services, that's the ultimate goal for us."
On Monday, March 6, the Child Advocacy Institute's lawsuit was posted to the Superior Court Website demanding that the county return the tens of thousands of dollars it has collected so far from the girls' survivor benefits.
And while the county was unable to comment on the specifics of the case, a spokesperson told CBS 8 that it no longer considers benefit checks from foster youth as "income" and has not since March of last year.
Added the spokesperson, "Currently, if the County is the payee to the Survivor’s benefits, the County maintains a reserve account for the youth until the youth reaches 18 years of age, exits Foster Care, or there is a new representative payee. At that point, the benefits will be returned to Social Security which will then send payments to the current representative payee and/or youth."
However, for foster youth who were issued checks prior to March 2022, the spokesperson says the county is waiting for direction from the state to decide what to do with that money.
"For Survivor’s Benefits obtained prior to March 2022, the process has yet to be changed pending clarification from the State," said the spokesperson.
And while the state has made some policy changes, far more needs to be done according to University of San Diego Professor and founder of the Children's Advocacy Institute, Robert Fellmeth, who is representing the two sisters in their quest to recover the benefits paid to them.
The institute has helped introduce Assembly Bill 1512, a newly proposed state law that hopes to amend current law to ensure that foster children receive the benefits they are entitled to.
"I can't think of any greater harm that a city, or a county, or the state can do than to embezzle money from foster children, their own foster children," says Fellmeth.
"They just take it, they stick it in the general fund, the kid does not get it. There's no trust fund created for the kid. The foster parent doesn't see it. An example is this," says Fellmeth. "I spent nine years prosecuting white-collar crime as a Deputy DA here in San Diego and as an Assistant US Attorney and this is the worst I've ever seen."
But the issue is not new, nor is it specific to California.
A National Issue
Amy Harfeld, the National Policy Director for the Children's Advocacy Institute, says she first came across a case in New York just out of law school. A client who was exiting the foster system learned that the foster agency had signed her up for disability benefits when she was a child and had been collecting the money the entire time.
"The children don't know," said Harfeld from her D.C-area office. "The way it works is when children are placed into foster care at some point they're screened to see if they're eligible for any benefits. Then the foster care agency, San Diego County in this instance, appoints itself as the representative payee or trustee for that money because, of course, children can't manage their own accounts. That happens without ever telling the child or their attorney or the judge, that those benefits have been identified and that eligibility has been found. After those benefits are flowing to the agency as the representative payee, the agency is required by federal law and policy to use those funds in the best interest of the child. But in almost every case, the entire check is intercepted by the agency to pay themselves back for the cost of that child's foster care, which is already an explicit obligation by federal and state law for the county to pay for."
Harfeld says there are numerous legal issues with the practice but also moral implications as well.
For many foster youths, the day they turn 18 they are ushered out into the street without a safety net. More than a quarter in California become homeless, says Harfeld, transitional age youth have increased interactions with law enforcement and could potentially turn to crime or drop out of school. Disability money that they qualified for or in this instance social security survivor benefits can help them start off on the right path, says Harfeld.
For many, disability checks could help them as they grow up in a foster home with things that may not be covered by state health care or by their foster parent.
"Maybe they need braces, and it's an expense that's not completely covered by Medicaid, and you need that money to get them through it. Maybe they require technology to fulfill an interest or a hobby," says Harfeld. "Perhaps they want to join a travel soccer team, like a lot of kids do, to participate in athletics and that's beyond the means that what the agency is willing to provide them with. For a child with a disability, what if they need the latest and greatest wheelchair that helps a child to stand up and participate in an activity, that they wouldn't be able to access through Medicaid. That's what the money should be used for."
Righting the Wrong
Harfeld says that states and the federal government have been trying for years to right the wrong.
Last year bills were passed in Illinois, Nebraska, and Connecticut and legislation has been introduced in Massachusetts, Texas, Minnesota, Arizona, and Oregon.
Just last month, California followed suit.
On February 17, Assembly Bill 1512 was introduced to state assembly members The bill, if passed, would require all county agencies to inform foster youth and parents of the disability benefits and set up accounts for them.
The bill is now making its way through the legislature.
As for San Diego County's policy change, Harfeld says she will believe it when she sees it.
"As soon as we have evidence that there are dedicated accounts being set up for youth and that they have access to those accounts to actually pay for unmet needs, I will believe it then."