Friday, August 29, 2014

Part 1: Basic Eligibility Requirements Title IV_E Adoption Assistance in Ohio

NEXT: Part 2, Path B. SSI; An Alternative Road to Adoption Assistance

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 most cases, meeting the ADC relatedness requirement is not a problem.  One easy way for foster parents to find out if the child they intend to adopt meets the two non special needs eligibility requirements is to ask the agency if the child is receiving Title IV-E foster care maintenance payments.  If so, the two non special needs criteria for adoption assistance are satisfied.


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.