The most logical place to begin our review is with eligibility requirements. Children placed by public and private agencies as well as children placed through independent adoptions who meet the disability requirements for Supplemental Security Income (SSI) are all potentially eligible for federal Title IV-E adoption assistance. (This topic is discussed in "Part 2 Path B. SSI, An Alternative Road to Adoption Assistance." )
Special Needs
Special Needs is the
common denominator for all adoption assistance/subsidy programs. For most Ohio foster parents, eligibility for
federal Title IV-E adoption assistance is not usually a difficult standard to
meet. Special needs is a category that
describes developmental delays, disabilities, medical conditions, mental health
problems that require greater than ordinary care. They cover a wide range from moderate to
profound severity. The severity of
special needs and corresponding level of care pertain more to the amount of
assistance than eligibility. Typically,
well over 90% of Ohio foster children qualify for federal adoption assistance. For the ones who do not qualify, the reason
usually involves a non-special needs requirement. Another class of special needs includes age
(6 or older), sibling placements and the duration of the child's placement in
foster care, three or more foster care disruptions or one adoption disruption.
The great majority of children in foster
care will satisfy one of the special needs categories. For infants and very young children, it may
be on the basis of "substantial risk" for special needs if they are
too young for an accurate diagnosis. Most
of these infants will be placed by private
adoption agencies. For a detailed discussion of "substantial
risk" as a special needs category see Eligibility " Part 3 "Substantial
Risk."
The special needs
definitions may be found in Ohio Administrative Code (OAC) rule
5101:2-49-03. One can find that rule by:
Googling Ohio Department of Job and Family Services. Click on M under Index of Services. Click on Manuals. Click on Family Children
and Adult Services Manual. Click on Management and Administration. Scroll down
to adoption assistance rules beginning with 5101:2-49-01.
There are three parts to the definition of special needs.
Part 1. “The state has determined that the child cannot or should not be returned to the home of the parents.” Essentially this requirement asks if the birth parents’ rights have been terminated and if the child is legally free for adoption.
Part 2. The special needs condition. (See OAC 5101:2-49-03)
Part
3.
A reasonable attempt must be made to place the child without adoption
assistance unless it is against the child's best interest. This should not be a difficult standard to
meet, but it is sometimes misunderstood.
Eligibility Part 4, "Reasonable Attempt to Place Without Adoption
Assistance" contains a detailed discussion of this provision.
Non
Special Needs Eligibility Requirements for Adoption Assistance
Path
A:
If the child is not eligible for Supplemental Security Income prior to
finalization, the two non special needs eligibility requirements are the same
as those for federal Title IV-E foster care maintenance:
1. A judicial determination "to the effect" that continuation in the
home is contrary to the child's welfare.
This is also a requirement for federal IV-E foster care maintenance,
which most foster children are receiving.
A judicial determination to the effect that remaining in the home is
contrary to the child's welfare or placement outside the home is in the
child's best interest or words to that effect are valid means of
satisfying the requirement. The federal
intent is that that a court of proper jurisdiction review the serious step of
removing a child from his or her birth parents or other "specified"
relatives.
The judicial
determination must be made in the first court ruling that approves the removal
of the child from the home. Agencies
have been requesting such judicial determinations for decades, so the practice
is routine and usually will not cause a problem.
In the case of
voluntary relinquishments (permanent surrenders) which primarily, but not
always, take place in private agency adoptions, there must be a petition for a
judicial determination with six months of the date of placement. The court must then determine that the
voluntary relinquishment of parental rights and/or placement with the adopting
parents is in the child's best interest or that remaining in the home is
contrary to the child's welfare.
Agencies have been
submitting the JFS 01666 Permanent Surrender form for decades. At the bottom of the form, there is a section
to be signed by the judge which states, "I find the continuation in the
home is contrary to the best interest of the child and that placement is in the
best interest of the child." A file stamped copy of the 01666 form with
the judge's signature is sufficient to meet the judicial determination
requirement for federal Title IV-E adoption assistance in the case of voluntary
placements. If the permanent surrender
form is submitted to the court within six months of the child's placement, the
judicial determination requirement should be met as a matter of routine
procedure. A court order with equivalent
language is also sufficient.
In some cases, private
agencies have difficulty completing a voluntary relinquishment (surrender) and
must petition the court to terminate the birth parents' parental rights. In
such cases, if the petition is within the six month window and the judicial
determination is the first court action approving the removal of the child from
the home, the judicial determination requirement is met. In a 2014 case with the above fact pattern,
the child was found eligible for adoption assistance after an initial
denial.
2. ADC-Relatedness
during the month of removal. This requirement is still based upon July 1996
regulations and is being phased out. During the Federal Fiscal Year extending
from October 1, 2013 through September, 2014, children who reach the age of
eight or are older than 8 are exempt. On
October 1, 2014, children 6 and over will be exempt from ADC-Relatedness
Additionally,
a. Siblings of children
who meet the above age exceptions are also exempt. and
b. Children who have
been in the custody of a public or private agency for 60 consecutive months are
also exempt.
In a few cases, a child's eligibility for ADC-relatedness will be denied. In those cases, the presence of a birth father is usually an issue. In our experience, the agency denials are often incorrect because it has not properly reconstructed the case. If your child is denied eligibility for adoption assistance based on ADC relatedness, do not take no for an answer. You may contact Tim O'Hanlon at tpohanlon@gmail.com. For a detailed discussion, see Eligibility Part 5: Practical Questions and Answers.
