Issue 1: Reasonable attempt to place the child without provision for adoption assistance
The third section of the federal special needs definition set forth in federal law at 42 U.S.C. 673(c) states:
Except where it would be against the best interest of the child to place the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a reasonable but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under subchapter XIX of this chapter.
Ohio’s revised 2010 rules addressing this issue may be found in OAC rule 5101:2-49-03(A) (4).
Reasonable, but unsuccessful, efforts to place without adoption
assistance.
(a) Except as described in paragraph (A)(4)(c) of this rule, the
PCSA shall document that in each case a reasonable, but unsuccessful, effort was
made to place the child with appropriate adoptive parents without adoption
assistance.
(b) The agency shall list in each child's case record:
(i) The
specific factor(s) or condition(s) listed in paragraph (A) (3) of this rule that
makes the child difficult to place, and
(ii) The efforts to place the child for adoption without the provision of adoption assistance.
The most significant change in rules is contained in OAC 5101:2-49-03(A) (4) (c). This portion of the rule addresses situations in which in accordance with federal law “it would be against the best interests of the child . . . “ to make an effort to place the child without adoption
assistance. Paragraph (4) (c) states:
When it is in the best interest of the child to place with a particular adoptive
parent(s) because of such factors as the existence of significant emotional ties
with prospective adoptive parent(s) while in the care of the parent(s) as a
foster child, adoption by a relative, or other circumstances that relate to the
child's best interest:
(i) The agency shall inquire as to whether the adopting parent(s) is willing to adopt without adoption assistance.
(ii) There is no additional requirement to make reasonable, but unsuccessful, effort
to place the child without adoption assistance beyond the requirement specified
in paragraph (A) (4) (c) (i) of this rule.
(iii) Documentation as to the inquiry and the basis for any exception shall be included in the child's case record.
This section of the revised rules was written to reflect Section 8.2B.11 of the federal Child Welfare Policy Manual dealing with special needs. This language was originally set forth by the federal Children’s Bureau with the publication of Policy Information Question (PIQ) 92-02 in 1992.
The PCSA must document in each child's case record the specific factor(s) that
makes the child difficult to place and describe the efforts to place the child
for adoption without providing assistance. Once the agency has determined that
placement with a certain family is in the child's best interest, the agency
should make full disclosure about the child's background, as well as known or
potential problems. If the agency has determined that the child cannot or should
not return home and the child meets the statutory definition of special needs
with regard to specific factors or conditions, then the agency can pose the
question of whether the prospective adoptive parent(s) is willing to adopt
without assistance. If they say they cannot adopt the child without adoption
assistance, the requirement in section 473 (c) (2) (B) for a reasonable, but
unsuccessful, effort to place the child without providing adoption assistance
will be met
Advice to agencies and adoptive Parents in satisfying this requirement that it is contrary to the child’s interest to be placed without provision for adoption assistance
If the state does not develop a form for the satisfying the above requirement, a reasonable approach to documentation would be to develop standardized language that incorporates the actions set forth in the requirements. An agency and/or parent might develop a statement such as the following:
Suggested language to establish to that it is contrary to the child’s interest to be placed without provision for adoption assistance
The (name of agency) has determined that (name(s)) are desirable parents for
(child’s name) and capable of incorporating him/her into a stable and healthy
family.
The (name of agency) has provided the adoptive parents (name(s) with complete information regarding (child’s name) medical, social and family history and discussed with (names) the significant, risk factors, along with current and anticipated special needs.
The (name of agency) has provided the adoptive parents with information about Ohio’s adoption assistance and adoption subsidy programs. (Name) meets or appears to meet all of the eligibility requirements for Title IV-E adoption
assistance.
After a thoughtful deliberation regarding the child’s background, current or anticipated special needs, the circumstances of the adopting family, (names of parents) are not willing to proceed with the adoption without provision for Title IV-E adoption assistance because they have determined that to do so would deprive the child of a valuable source of support and be contrary to his/her welfare. (Add signature).
Remember that being unwilling to proceed without provision for adoption assistance does not present adoptive parents with a choice about going through with the adoption. In essence, adoptive parents are asked to respond to the following: “Inasmuch as your child is eligible, knowing what you know about your child and your family circumstances, do you choose to go forward without adoption assistance?”
Issue: 2 The Judicial Determination in cases where the child is voluntarily relinquished (permanently surrendered) to a private agency.
The amended provisions in OAC 5101:2-49-02.1 reflect the language in Section 8.2B.13 of the Child Welfare Policy Manual. Question 1 asks: “Is a child who is voluntarily relinquished to a private, nonprofit agency eligible for title IV-E adoption assistance?”
Answer: As authorized by section 473(a) (2) (A) (i) (I) of theDoes it matter if the judicial determination is made in the first court order pertaining to the removal of the child from the home? Yes, both Ohio rule OAC 5101:2-49-02.1 and Section 8.2B.7 both require that the judicial determination must be made in the first court order that removes the child from the home. In the case of JFS 01645 voluntary agreements, the court is not involved, so, as noted in the previous question, the court determination is made when the child in reviewing the voluntarily relinquishment (permanent surrender).
Act, a child is eligible for title IVE adoption assistance if s/he is removed
from the home by way of a voluntary placement agreement with respect to which
title IV-E foster care payments are provided, or as the result of a judicial
determination that to remain in the home would be contrary to the child's
welfare. However, a child who is voluntarily relinquished to either a public or
private, nonprofit agency will be considered judicially removed in the following
circumstances:
(1) the child is voluntarily relinquished either to
the State agency (or another public agency (including Tribes) with whom the
State has a title IV-E agreement), or to a private, nonprofit agency; and
(2) there is a petition to the court to remove the child from home
within six months of the time the child lived with a specified relative; and
(3) there is a subsequent judicial determination to the effect
that remaining in the home would be contrary to the child's welfare.
Under these circumstances, the AFDC-eligible child will be treated
as though s/he was judicially removed rather than voluntarily
relinquished. If the State agency subsequently determines that the child
also meets the three criteria in the definition of a child with special needs in
section 473(c) of the Act, the child is eligible for title IV-E adoption
assistance. If, however, there is no petition to remove the child from the home
or no subsequent judicial determination, the child cannot be considered
judicially removed for the purpose of title IV-E adoption assistance
eligibility. [Emphasis added].
NOTE: Source/Date: ACYF-CB-IM-01-08 (11-6-01).
This policy went into effect on 11-06-2001.
Section 8.2B.7 states in pertinent part:
Since a child's removal from the home must occur as a result of such a judicialWhat if the Court makes a “best interest” determination?
determination, the determination must be made in the first court ruling that
sanctions (even temporarily) the removal of a child from the home. If the
determination is not made in the first court ruling pertaining to removal from
the home, the child is not eligible for title IV-E adoption
assistance.
OAC rule 5101:2-49-02.1 suggests that that “contrary to the welfare of the child” and “best interest of the child” are equivalent judicial determinations by the court. Paragraph (D) of the rule states:
If the judicial determination that continuation in the home would be contrary to
the welfare of the child or the removal from the home is in the best interest of the child is not included in the court order, a transcript of the court
proceedings is the onlyother documentation acceptable to verify that the
required determination has been made. (Emphasis added).
Federal Title IV-E foster care maintenance rules at 45 CFR 1356.22 also indicate that a judicial determination referring to the best interest of the child is the legal equivalent of the determination that continuation in the home is contrary to the child’s welfare. The federal rule addresses eligibility requirements for children that enter custody via a voluntary agreement. Paragraph (b) provides that such children "are eligible for Title IV-E foster care maintenance payments for 180 days of the child's placement in foster care unless there has been a judicial determination by a court of competent jurisdiction, within the first 180 days of such placement, to the effect that the continued voluntary placement is in the best interests of the child."
The purpose of the judicial determination is to ensure the protection of the birth parents’ due process rights and to exercise overview by the appropriate court to verify that the placement decision coincides with the child’s safety and overall best interest. Federal adoption assistance law at 42 U.S.C. 673 refers to the requirement for a judicial determination “to the effect” that “continuation in the home would be contrary to the welfare of the child.” A court review concluding that termination of parental rights and/or placement of the child with X parents would appear to meet the test of a judicial determination which satisfies the eligibility requirements under federal law.
Guidance regarding the requirement for a judicial determination in cases where the child is voluntarily relinquished to a private agency.
In order to avoid controversy, it is advisable for private agencies to employ the literal language of OAC rule 5101:2-49-02.1 in petitioning the court for a judicial determination. The language should be standardized. The following is a possible example.
Sample Judicial Determination Language
After reviewing the facts of the case, we request that the court issue the
following determination in order for __________ (name), a child with special
needs, to qualify for federal Title IV-E adoption assistance. We petition
the court to publish a finding that continuation in the home is contrary to
_______’s welfare and the voluntary relinquishment of the parental rights of
___________ and ____________ leading to the placement of the child with
__________ for the purpose of adoption is in the best interest of the child.
If the judge issues a determination that refers only to the “best interest of the child,” the agency and prospective parents should appeal any decision which denies that the IV-E requirement for a judicial determination has been met. The sections from paragraph (D) of OAC rule 5101:2-49-02.1 and federal regulations at 45 CFR 1356.22 can be cited in the appeal.
