Phase Out of AFDC Relatedness Requirement Applies to Children Who Became Sixteen on or After October 1, 2009 Regardless of When Revised Ohio Rules Wen

As many of you know, the dreaded AFDC relatedness eligibility requirement for Title IV-E adoption assistance is being phased out. For a detailed description, see the Blog post dated December 9, 2008, entitled "Congress Amends Title IV-E Adoption Assistance Requirements by Phasing Out the AFDC Relatedness Requirement." Because the rules implementing the, The Fostering Connections to Success and Increasing Adoptions Act of 2008, PUBLIC LAW 110–351, did not go into effect until April 1, 2010, some parents adopting older children may have incorrectly been denied eligibility for Title IV-E adoption assistance.


Age Related Provisions

PUBLIC LAW 110–351 went into effect on October 7, 2008. TITLE VI, Section 601(a) of the Act states:

Except as otherwise provided in this Act, each amendment made by this Act to
part B or E of title IV of the Social Security Act shall take effect on the date
of the enactment of this Act, and shall apply to payments under the part amended
for quarters beginning on or after the effective date of the amendment.

The necessity of the state legislature to enact a law to implement the changes in the adoption assistance program, constituted the only exception to the effective date of October 7, 2008.
Ohio Administrative Code (OAC) rule 5101:2-49-02(d)(ii) repeats the federal phase out provisions of the AFDC relatedness requirement in the federal law. It states:

a. During October 1, 2009 through September 30, 2010, the child turns or is
older than sixteen years of age and the PCSA and the adoptive parent(s)
enter into an AA agreement.

b. (b) During October 1, 2010 through September 30, 2011, the child turns or is older than fourteen years of age and the PCSA and the adoptive parent(s) enter into an AA agreement.

Removal from the Home of a Specified Relative

The requirement that a child be removed from the home of a specified relative is part of the AFDC relatedness requirement. OAC rule 5101:2-49-02.1 defines the AFDC-Relatedness requirement as follows:

(A) For purposes of meeting the requirements of rule 5101:2-49-02(A)(7)(a) the child shall meet the aid to families with dependent children (AFDC) relatedness requirements authorized under Title IV-A of the Social Security Act as of July 16, 1996 if at the time of removal from the home of the specified relative, one of the following is met:

(1) The public children services agency (PCSA) filed a petition with the court requesting custody of the child. The first court order, including temporary order, removing the child from the home of the specified relative shall include a judicial determination that the child cannot or should not be returned to the home of his or her specified relative.

(2) The removal was a result of a court order that placed the child in the custody of the PCSA. The first court order, including temporary order, removing the child from the home of the specified relative shall include a judicial determination that the child cannot or should not be returned to the home of his or her specified relative.

If a child is not required to meet the AFDC relatedness requirement, the requirement that a child must be removed from the home of a specified relative does not apply.

Retroactive Effect of PUBLIC LAW 110–351 and OAC 5101:2-49-02

If a child became 16 after October 1, 2009 and before April 1, 2010 when the revised Ohio rules implementing PUBLIC LAW 110–351 went into effect, he or she is exempt from the AFDC relatedness requirement, including the provision for removal from the home of a specified relative.

Other exemptions such as:

• Children residing in out of home placement for 60 consecutive months, or

• Children placed with a sibling who meets falls into one of the exempt categories
  are also exempt.
  
  

Advice to Parents

Adoptive parents with children that were incorrectly determined ineligible for Title IV-E adoption assistance because of delays in implementing the exemption to the AFDC relatedness requirement in PUBLIC LAW 110–351, should apply or re-apply to the county agency for Title IV-E adoption assistance. If the adoption has been finalized, the application will be denied, giving the parent a right to a state administrative hearing. Considering the effective date of the federal law and the actual language of OAC rules 5101:2-49-02 and 5101:2-49-02.1, the parents should prevail at the hearing. Feel free to contact me if you have any questions about this issue.

Some Adopting Parents Pressured to Sign Adoption Assistance Agreements Before Adoptive Placement

Adoptive parents have reported that some county agencies attempt to secure an adoption assistance agreement before completing the adoptive placement agreement. Federal and state law both provide that adoption assistance payment MAY begin on the date of placement, but there is no requirement that adoption assistance payments MUST begin on the date of placement. County agencies cannot legally compel adoption assistance agreement to be completed before adoptive placement.

Ohio Administrative Code (OAC) rule 5101:2-49-08 clarifies the requirement. In the case of children being adopted by their foster parents, the agency must " inform certified foster caregivers who are receiving foster care payments for the care of the child, of the option to continue the foster care payments until the adoption is finalized." The agency must convey this option to the foster parents " before the date on which the child is placed for adoption." See paragraph (D).

Paragraph (B) of the rules specifies "if a child is placed for adoption and all other eligibility requirements have been met, but the completion and signing of the AA agreement is delayed, the AA payment may begin on the date the child was placed for adoption, once the AA agreement is completed and signed by all parties." The primary reason for delay in both of the above examples is continuing negotiation of an adoption assistance agreement by the adopting parents and the agency.

Adopting parents being pressured by agencies to complete adoption assistance agreements should cite OAC rule 5101:2-49-08 and refuse to comply if they are not ready. You may contact with questions me if you wish.