Section I: Special Needs Determination

A child's eligibility for title IV-E adoption assistance is based, in part, on a determination by the State that the child is a child with special needs. A determination of special needs is a three-part requirement established in section 473(c) of the Act. All three parts of the special needs provision must be met in order for a child to be considered a child with special needs. The determination of special needs must be made by the State prior to the finalization of the adoption¹. Those three parts are as follows:

The child cannot or should not be returned to the home of his or her parent(s);
There exists a specific factor or condition which makes it reasonable to conclude that the child cannot be adopted without providing title IV-E adoption assistance or title XIX medical assistance; and
The State must make a reasonable, but unsuccessful, effort to place the child for adoption with appropriate adoptive parent(s) without providing adoption assistance. The only exception to this requirement is in situations where it would be against the best interests of the child due to such factors as the existence of significant emotional ties with the prospective adoptive parent(s) while in their care as a foster child, or adoption by a relative (in keeping with the statutory emphasis on the placement of children with relatives).

The following provides the specific Federal requirements for each of the three parts of a determination of special needs and follows with questions to help the State assess whether its program is consistent with the requirements:

(1) The child cannot or should not be returned to the home of his or her parent(s): This determination can be based on evidence by an order from a court of competent jurisdiction that terminates parental rights, the existence of a petition to the court for a termination of parental rights (TPR), or a signed relinquishment by the parent(s). In addition, if a child can be adopted in accordance with State or Tribal law without a TPR or relinquishment, the requirement of section 473(c)(1) of the Act can be satisfied as long as the State has documented the valid reason why the child cannot or should not be returned to the home of his or her parent(s).

Questions Specific to this Requirement:

(A)(i) Does the State limit a determination that a child cannot or should not be returned to his or her parent(s) to the following: a TPR; a petition to the court for a TPR; or a signed relinquishment by the child's parent(s)?

YESNONEEDS CLARIFICATION

(A)(ii) If no, does State law allow adoptions without a TPR, a petition to the court for a TPR, or a signed relinquishment by the parent(s)?

YESNONEEDS CLARIFICATION

If both (A)(i) and (A)(ii) are no, this is inconsistent with Federal requirements.

(B) Does the State apply any additional criteria for a determination that the child cannot or should not be returned to the home of his or her parent(s)?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

Steps to address areas needing clarification:
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List any areas noted above that are inconsistent with Federal requirements:
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Action(s) needed to assure the State's program meets Federal requirements:
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Citations for State laws, administrative rules, policies, etc., used for review of this requirement:
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(2) There exists a specific factor or condition which makes it reasonable to conclude that the child cannot be adopted without providing title IV-E adoption assistance or title XIX medical assistance: Examples in section 473(c)(2)(A) of the Act include a child's ethnic background, age or membership in a minority or sibling group, the presence of a medical condition, or physical, mental or emotional disability. Each State has the discretion to determine the factors or conditions which make it difficult to place a child without adoption assistance, but the factors or conditions must be similar in nature to those noted in the Act. For instance, the factor or condition cannot have the effect of adding additional eligibility criteria, such as requiring that the State have placement and care responsibility of a child.

Questions Specific to this Requirement:

(A)(i) Does the State make a determination that it is reasonable to conclude that the particular child cannot be placed without providing adoption or medical assistance based on a specific factor or factors/conditions?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(A)(ii) If yes, is the factor or condition similar in nature to the examples in section 473(c) of the Act?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(3) The State must make a reasonable, but unsuccessful, effort to place the child for adoption with appropriate adoptive parent(s) without providing adoption assistance. The only exception to this requirement is in situations where it would not be in the child's best interests due to such factors as the existence of significant emotional ties with the prospective adoptive parent(s) while in their care as a foster child. This exception also extends to other circumstances that are not in the child's best interests, including adoption by a relative in keeping with the statutory emphasis on the placement of children with relatives: A State can meet the requirement to make a reasonable effort to place the child without assistance by using adoption exchanges, making referrals to appropriate specialized adoption agencies, or other such activities.

The State must document in each child's case record the specific factor(s) that make the child difficult to place and describe the efforts to place the child for adoption without providing assistance. It should be noted that the State is not required to shop around for a family who will adopt without assistance while a child remains in foster care. Rather, once the agency has determined that placement with a certain family is in the child's best interests, the agency should make full disclosure about the child's background, as well as known or potential problems. If the agency has determined that the child cannot or should not return home and the child meets the statutory definition of special needs with respect to specific factors or conditions, the agency can pose the question of whether the prospective adoptive parents are willing to adopt without assistance. If they say they cannot adopt the child without adoption assistance, the requirement in section 473(c)(2)(B) for a reasonable, but unsuccessful, effort to place the child without providing assistance will be met.

Questions Related to this Requirement:

(A) Does the State require that a reasonable, but unsuccessful, effort be made to place a child for adoption without providing adoption assistance unless it is against the best interest of the child to do so?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

Legal and Related References for Special Needs Determination:

Sections 473(a)(1)(B), 473(a)(2)(A)(ii), and 473(c) of the Social Security Act
Child Welfare Policy Manual, Section 8.2B.11 (1-2)

¹ Please see section IX on Fair Hearings. A favorable fair hearing decision may allow the State to determine after the finalization of the adoption that a child met the special needs criteria prior to finalization. back

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