Policy Research Articles and Reports

Federal Children's Bureau Corrects Policy on Children Relinquished to Private Agencies

On November 6, 2001 the federal Children's Bureau issued an Information Memorandum, ACYF-CB-IM 01-08, announcing that children who came into the care of private agencies through voluntary agreements could be eligible for federal Title IV-E adoption assistance. The announcement reverses the policy change set forth in federal Policy Announcement (P.A.) 01-01 and restores a long standing interpretation of the Children's Bureau regarding the eligibility of children placed by private agencies. The change was initially signaled in an October, 2001, a Letter from Tommy Thompson, Secretary U.S. Department of Health and Human Services to Senator Mike DeWine, Ohio and other amendment promised by Secretary Thompson and stipulated that the new policy "should be followed as having been other members of Congress who ahd inquired about the policy. The new policy was to be inserted in Section 8.2B.13 of the Child Welfare Policy Manual dealing with eligibility provisions.

Guidance for Adoptive Families and Advocates

The policy amendment states that a special needs child who comes into the care of a private agency through a voluntary agreement or relinquishment may be eligible for IV-E adoption assistance if

• 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
• there is a subsequent judicial determination to the effect that remaining in the home would be contrary to the child's welfare.

What does this mean? Essentially, the amendment restores the policy that was in effect prior to the to issuance of P.A. 01-01 in January of 2001. In cases where a child comes into to care of a private agency through some form of voluntary agreement resulting in a voluntary termination of parental rights,

1. There must be a petition filed with the court to review and approve the placement within six months of the date that the child is placed in a preadoptive home.
2. The court must make a determination or finding that continuation in the home is contrary to the child's welfare

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 was contrary to the child's welfare." The use of this phrase suggests a concern that all placements be reviewed by a court to assure that they are in the child's best interest. In the past a judicial determination that a placement was in the child's best interest has been viewed as the equivalent of a determination "that continuation in the home was contrary to the child's welfare.

In petitioning the court for a judicial determination, parents and advocates would be well advised to ask the judge to rule on the specific language that that continuation in the home is contrary to the child's welfare simply to avoid any controversy with a public agency who may insist on a literal interpretation of the policy revision. If the use of such a phrase appears awkward when describing a voluntary placement, the petitioner might request that the judge determine "continuation in the home is contrary to the child's welfare because all parties have agreed that placement for adoption is in the child's best interest. Alternatively, one might ask the judge to determine that in light of the birth parent(s)' decision to place their child for adoption and the approval of the adoptive family, continuation in the home is contrary to the child's welfare."

If for some reason, the judicial determination finds that the placement is in the best interest of the child or that adoption is in the child's interest, and agency refuses to accept the language as evidence of eligibility for IV-E adoption assistance, the parent(s) should contest the agency's conclusion. If the agency issues a formal denial, the family should request an administrative hearing. Federal law, once again, qualifies the language of the desired judicial determination by use of the phrase "to the effect that continuation in the home was contrary to the child's welfare." Adoptive parents and advocates should point this out and emphasize that: p>

• The purpose of the requirement that a child is judicially removed is to ensure that the birth parent(s)'(s)' rights and the child's welfare is protected.
• The determination that continuation in the home is contrary to the child's welfare primarily refers to a situation in which the removal and placement of the child is not voluntary, but initiated by a child protection agency.
• A judicial determination that placement or adoption is in the child's best interest or word to that effect have been recognized in the past as equivalent to continuation in the home is contrary to the child's welfare. Such alternative language seems pertinent in situations where the birth parent places the child voluntarily or in cases where the court is reviewing an existing placement and concludes that continuation in a placement setting or adoptive placement is in the child's best interest.
• In order for children voluntarily placed in foster care to remain eligible for Title IV-E foster care maintenance payments, federal regulations specify that a judicial determination must be made "to the effect that the continued voluntary placement is in the best interests of the child." The judicial determination must be made within 180 days of the child's placement into foster care. Specifically, the Code of Federal regulations at 45 CFR 1356.22 (b) states that:

b) Federal financial participation is available only for voluntary foster care maintenance expenditures made within the first 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 requirement for a review and judicial determination in the case a child placed voluntarily in foster care is strikingly similar to the corrected requirement for a judicial determination in the case case of a child placed voluntarily in the care of a private agency for the purpose of adoption. If foster care regulations interpret that a phrase "to the effect that continued voluntary placement is in the best interests of the child" satisfies the requirement for IV-E foster care eligibility, then it is more than reasonable to assume that similar language satisfies the judicial determination requirement for adoption assistance.

When issued P.A. 01-01 held that "the method of removal has the following implications for the AFDC-eligible child's eligibility for title IV-E adoption assistance. Unless a child is meets the eligibility requirements for SSI, he or she must not only satisfy the AFDC-relatedness standard but one of the following:

• If the child is removed from the home pursuant to a judicial determination, such determination must indicate that it was contrary to the child's welfare to remain in the home; or
• If the child is removed from the home pursuant to a voluntary placement agreement, that child must actually receive title IV-E foster care payments to be eligible for title IV-E adoption assistance.

Since children in the care of private agencies are not eligible for IV-E foster care payments, the initial placement of the child into the care or custody of a private agency had to be the result of a judicial determination or the child was not eligible for adoption assistance. In short, the normal practice in which a birth parent signed a voluntary agreement with a private agency to place her child for adoption, rendered the child ineligible, unless he or she qualified for SSI.

The policy change announced by IM 01-08, which amends Section 8.2B.13 of the Child Welfare Policy Manual, retains the requirement that the child must be judicially removed in order to receive adoption assistance, but drops the stipulation that the initial placement must be made through a judicial determination. The revised policy allows for a judicial determination to follow a voluntary relinquishment to a private agency.

Retroactive Effect of the Policy Correction

IM 01-08 further noted the states "must enter into an adoption assistance agreement with the family" in any case where a child adopted after February 18, 2000 had been denied adoption assistance, but would have been eligible under the revised policy.