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[Current Status: Withdrawn in January 2001 by PA-01-01]
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration on Children, Youth and Families
TO: State Agencies Administering or Supervising Administration of Titles IV-E and IV-B of the Social Security Act and Indian Tribes and Indian Tribal Organizations (ITOS)
Regional Administrators, HDS Regions I - X
SUBJECT: Clarification of Required Format and Content of Court Orders Utilized to Establish Eligibility for Title IV-E Foster Care Reviews as Set Forth in ACYF-IM-85-25.
STATEMENT OF REPLY:
In order to be eligible for title IV-E foster care, there must be a judicial determination (unless the child was removed from his home pursuant to a voluntary placement agreement) to the effect that continuation in the home would be contrary to the welfare of the child.
BACKGROUND:
The title IV-E Foster Care program, section 472(a)(1) of the Social Security Act provides that foster care maintenance payments may be made on behalf of otherwise eligible children who were removed from the home of a specified relative pursuant to a voluntary placement agreement, or as the result of a "judicial determination to the effect that continuation therein would be contrary to the welfare of the child and (effective
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October, 1983) that reasonable efforts of the type described in section 471 (a) (15) have been made . . . ." The Department's position on this requirement was issued January 13, 1984 in ACYF-PA-84-l, which states, among other things, that "review and approval of the agency's report and recommendation alone are not sufficient to meet the requirements of the Act . . . ."
LEGAL AND RELATED REFERENCES:
Sections 472(a)(1) and 471(a)(15) of the Social Security Act (the Act), ACYF-PA-84-01 dated January 13, 1985, and ACYF-IM-85-25 dated August 14, 1985.
INTERPRETATION TO:
Region V's request for policy interpretation in response to questions raised during the Michigan title IV-E foster care review in relation to the eligibility checklist developed for use in these reviews.
QUESTION 1:
If the court order does not contain language to satisfy the requirement of section 472(a)(1) of the Act but the court order and/or petition cite State laws that allow removal from the home and/or termination of parental rights, only for the "best interest" of the child, can the reviewer mark question 16(a) of the Title IV-E foster care eligibility checklist "yes"?
ANSWER 1:
No, except under specific circumstances. Under section 472(a)(1) of the Act, removal from the home must have been the result of a judicial determination (unless the child was removed pursuant to a voluntary placement agreement) to the effect that continuation in his home would be contrary to the child's welfare. Therefore, the court order issued in relation to the removal must clearly evidence such a determination. The fact that State laws include generic provisions referring to a class of children is not sufficient to satisfy the requirements of section 472, which relate to an individual
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determination for each child. However, if State law unambiguously requires that removal may only be based on a determination that remaining in the home would be contrary to the child's welfare (and in the appropriate circumstances, that removal can only be ordered after reasonable efforts to prevent removal have been made), it must be assumed that a judge who orders a child's removal from the home in accordance with that State law does so only for the reasons authorized by the State statute. This conclusion can be drawn only if the State,law clearly allows removal under no other circumstances except those required under section 472(a)(1) of the Act. If a State can show that it has such a clear and unequivocal State law, and if the court order is expressly based on that law, then the order can be accepted as sufficient evidence that the required determinations have been made.
In these instances, however, it may be necessary to request a State Attorney General's opinion to verify the conclusion that children are being removed only under these circumstances.
QUESTION 2:
If the court order does not contain a statement that (a) continuation of residence in the home is contrary to the welfare of the child, or (b) placement is in the best interest of the child, can the reviewer, on the basis of the material in the case file, mark question 16(a) "yes"?
ANSWER 2:
No. The determination required by section 472(a)(1) must be a judicial one based on the facts presented to the court in relation to the need for removal of the child from the home. The relevant material in the case file may be used as background information to the court to
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assist in making the judicial determination; however, it may not be used as a substitute for the appropriate court order or as the reviewer's sole rationale for an affirmative conclusion on the eligibility checklist.
QUESTION 3:
If the court order contains the proper language, as per the citation in the law, but the order is not supported by the case record, can the reviewer mark the question 'yes'? We raise this question because we are finding "pre-printed" court orders.
ANSWER 3:
Yes. The fact that the court order is pre-printed does not invalidate it as documentation that a judicial determination regarding removal has been made. While case record material may not, in the reviewer's opinion, support the judicial determination (as evidenced by a signed court order), there may have been other factors, such as verbal testimony during the court hearing or reports from community resources, used by the court in making the determination. The reviewer's responsibility is to confirm that a judicial determination was made, but not to raise issue with the basis for the determination.
QUESTION 4:
If the petition preceding the court order contains the language required in the law, but the final court order does not refer to the petition or include the necessary determination, can a positive answer be recorded?
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ANSWER 4:
No. The signed court order or a transcript of court proceedings may be used to satisfy the requirement in section 472(a)(1) if the judicial determination in relation to removal is included; however, the petition which requests a hearing could not anticipate the findings and conclusions to be made by the court at a time in the future and cannot be used in lieu of the judicial determination.
QUESTION 5:
If the court order makes reference to a correctly worded petition but the order does not contain the required language, can a positive answer be recorded?
ANSWER 5:
No, in most cases. Although the petition may contain allegations which would bring the child under the court's jurisdiction and attach information to support action taken by the State agency and recommendations to the court about the child's placement, the petition does not authorize removal of the child, nor does it indicate court approval of the removal. Only if the court order expressly adopts the specific relevant language of the petition and makes clear that a judicial determination has been made would the petition language suffice.
QUESTION 6:
We note that the instructions in ACYF-IM-85-25 add a phrase not found in section 472(a)(1), "or that placement is in the best interest of the child." May the reviewer, observing this to be so from reading the record, give a positive answer even though specific language, or language to that effect, is not found in the court order?
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ANSWER 6:
No. We believe the phrase "placement is in the best interest of the child" has the same meaning as "continuation therein would be contrary to the welfare of the child" as stated in section 472(a)(1). The case record or the reviewer's analysis of the record may not be used as a substitute for a signed court order and the judicial determination.
Dodie Livingston
COMMISSIONER