Revised Ohio Rules and Revised Adoption Assistance Guidebooks

Ohio's revised Title IV-E adoption assistance rules take effect on April 1, 2010. Interested adoptive parents, advocates, agency professionals may be interested in one of the three revised e-books. Each reflects the recent develops and changes in policy.

Employing a question and answer format, the guidebooks walk the reader through eligibility rules and issues that are likely to arise in dealing with county agencies, offer strategies in negotiating adoption assistance agreements and practical steps in preparing for a state adminstrative hearing.

The guidebooks may be accessed at the Adoption Policy Resource Center web site at http://www.fpsol.com/adoption/advocates.html.


User’s Guide to Federal Adoption Assistance in Ohio, 2010

The Adoption Advocates e-book, User's Guide to Federal Adoption Assistance in Ohio, has been revised to reflect the amendments to Ohio's Title IV-E adoption assistance rules which went into effect in March, 2010. Key changes include:

• Ohio rules pertaining to adoption assistance eligibility for special needs children placed by private agencies have been revised to better reflect federal law. As a consequence, two of the formidable barriers that impeded eligibility have been removed.

• SSI is a pathway to Title IV-E eligibility, in-so-much as SSI is means tested after the final decree of adoption and Title IV-E adoption assistance is not. Parents seeking to access adoption assistance by qualifying for SSI must do so prior to finalization. Prior Ohio rules required that SSI eligibility be determined prior to the petition for adoption.


Two New Ohio Related Guidebooks

Without a doubt, negotiating Title IV-E adoption assistance agreements remains the most contentious issue in the special needs adoption program. As such, disagreement over negotiation criteria and procedures as well as the amount of assistance is the most frequent topic of state administrative hearings involving adoption. Because of the complexities involved in negotiating adoption assistance and the appeals resulting from denials of Ohio county public children services agencies (PCSAs), we offer two new related books on these subjects: Funding and Negotiation of Adoption Assistance in Ohio, 2010 and Appealing Agency Decisions on The Amount of Title IV-E Adoption Assistance, 2010.


Funding and Negotiation of Adoption Assistance in Ohio, 2010

Chapter 1 of this new e-book, explains the how the financial responsibility for funding Title IV-E adoption assistance in Ohio is divided among the federal state and county governments. By understanding federal financial participation, the reader should acquire a better understanding of the legal and practical limitations in obtaining adoption assistance. Chapter 2, walks the reader through the legal requirements for the negotiation of adoption assistance agreements. The chapter contains practical recommendations on how to approach the process of negotiation.


Appealing Agency Decisions on The Amount of Title IV-E Adoption Assistance, 2010.

Chapter 1 of this new e-book takes the reader through the appeals process itself including a detailed consideration of state administrative hearings. The second chapter provides practical information on how to prepare for a state administrative hearing involving disagreement over the amount of adoption assistance. There is considerable overlap between the information presented in Chapter 2 of this guidebook and Chapter 2 of Funding and Negotiation of Adoption Assistance in Ohio, 2010, but the information in this e-book is organized around preparation for a hearing. Appendix A of Appealing Agency Decisions on The Amount of Title IV-E Adoption Assistance, offers a sample hearing statement for adoptive parents and their advocates to use as a model.

Revised 2010 Ohio IV-E Adoption Assistance Rules Remove Barriers to Eligibility for Special Needs Children Placed by Private Agencies

The revised Ohio Title IV-E adoption assistance rules scheduled to go into effect on April 1, 2010 remove two important barriers to eligibility for special needs children placed by private agencies. The amended rules are consistent with federal law as interpreted by the Child Welfare Policy Manual.

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 the
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.

Does 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).

Section 8.2B.7 states in pertinent part:

Since a child's removal from the home must occur as a result of such a judicial
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.

What if the Court makes a “best interest” determination?

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.

Ohio Department of Job and Family Services' Legal Staff Cite the Federal Child Welfare Policy Manual in Adminstrative Appeals of Hearing Decisions

Ohio Job and Family Services (ODJFS) legal staff have been citing and quoting from the online federal Child Welfare Policy Manual in administrative appeals decisions. The administrative appeal reviews state administrative hearing decisions. ODJFS legal staff serve as administrative review officers. In at lease three instances, provisions of the Child Welfare Policy Manual have served a basis for overruling hearing decisions and finding in favor of the adoptive parents.

ODJFS adoption staff have employed the Child Welfare Policy Manual as the primary reference in revising the state Title IV-E adoption assistance rules scheduled to go into effect on April 1, 2010. The recent trend of ODJFS legal staff to cite the Child Welfare Manual to explain and clarify state adoption assistance rules is a good sign for adoptive parents. Adoptive parents should qoute and cite relevant provisions of the Child Welfare Policy Manual as well as state rules in situations involving their child’s eligibility and in negotiating adoption assistance agreement, as well as in state administrative hearings. The federal manual may be used to:

- Clarify existing state rules, and/or

- Clarify policy when state rules are vague, confusing or non-existent, and/or

- Correct rules that are contrary to federal law.

Example: Negotiation of Adoption Assistance Agreements

Two 2009 ODJFS administrative appeal decisions clarified those criteria and procedures in the OAC rule by finding that the counties in question had failed to negotiate with the adoptive families in compliance with state and federal laws. In elaborating on the requirements for negotiation, the administrative appeal decisions both quoted extensively from Section 8.2D.4 of the federal Child Welfare Policy Manual as follows: “Title IV-E adoption assistance, “stated the appeals decisions

is not based upon a standard schedule of itemized needs and countable
income. Instead, the amount of the adoption assistance payment is
determined through the discussion and negotiation process between the adoptive
parents and a representative of the State agency based upon the needs of the
child and the circumstances of the family. The payment that is agreed upon
should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.

The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment. (Empasis added)

[See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), June 23, 2009 and Docket Number: AA-4651, Appeal No(s) 1499112, December 3, 2009.}

Example: Termination of Adoption Assistance


A more recent appeal involved a case in which the agency moved to terminate a child’s adoption assistance because he was in out of home care and the agency contended that the parents were not providing support for the child. The case was complicated by the fact that the child had turned 18. [See Docket Number AA-5044, Appeal Number 1541862, Decided March 3, 2010].

The parents lost their state administrative hearing even though they presented evidence that the existing adoption assistance agreement had been negotiated from $1,200 per month to $300 per month with $900 going to support their son’s out of home care.

The parent’s also presented testimony that their son was mentally disabled and therefore qualified to receive adoption assistance until the age of 21. In addition, the young man’s case plan called for him to return home to the care of his parents.

In filing for an administrative review, the parents reiterated that they continued to support their son through the revised adoption assistance agreement and by providing additional food and clothing to their son.

The parents cited state rule OAC rule 5101:2-49-13(B), which states:

An adoptive parent(s) is supporting the child when the adoptive parent(s)
provides the child with shelter, food, and clothing. Parents are generally
responsible for the support of their minor child who is under eighteen years
of age or their physically or mentally disabled child who is under the age
of twenty-one.

Then, they turned to the Child Welfare Policy Manual and asked if the rule meant that that the parents had to provide 100% or some other portion of the support? They contended Question 2, Section 8.2D.5 clarifies OAC 5101:2-49-13(B) by posing and answering the following question:

Question: Section 473(a)(4)(B) of the Social Security Act states that no adoption assistance payment can be made, "to parents with respect to any child if the State determines that the parents are no longer legally responsible for the support of the child or if the State determines that the child is no longer receiving any support from
such parents." When is a parent considered to be "no longer legally responsible for support" or not providing "any support" for the child?

Answer: A parent is considered no longer legally responsible
for the support of a child when parental rights have been terminated or when the child becomes an emancipated minor, marries, or enlists in the military.

"Any support" includes various forms of financial support. The State may
determine that payments for family therapy, tuition, clothing, maintenance of
special equipment in the home, or services for the child's special needs, are
acceptable forms of financial support. Consequently, the State may continue the
adoption assistance subsidy, if it determines that the parent is, in fact,
providing some form of financial support to the child. (Emphasis added)

The administrative appeal reviewer found the parents’ argument persuasive, stating “it is unclear why the PCSA [agency] would renegotiate a new adoption assistance agreement” [which significantly reduced the adoptive payment] . . . . and then proposed “to terminate the adoption assistance altogether. . . . .”

Ruling against the proposed termination, the administrative appeal reviewer quoted Question 3, Section 8.2D.5 of the Child Welfare Policy Manual

Question: Can a State agency automatically suspend the adoption assistance
payment for the duration of an adopted child's placement in foster care? The
State agency would reinstate the payment upon the child's return home.

Answer: No. An automatic suspension is, in effect, the equivalent
to a termination of the adoption assistance payment and as such is unallowable
under section 473(a)(4)(B) if the parent remains legally responsible or is
providing any support for the child. However, consistent with section
473(a)(4)(B) of the Act, there may be circumstances in which adoptive parent(s)
may be eligible for payments in a different amount. In these instances, a State
may re-negotiate the agreement and reduce the payment for the duration of an
adopted child's placement in foster care with the concurrence of the adoptive
parent.