Section II: Pathways to Eligibility

Federal law requires that any child who is determined by the State to be a child with special needs and meets the criteria under one of four pathways to eligibility be eligible for title IV-E adoption assistance (section 473(a)(2)(A) of the Social Security Act (the Act))². The four pathways to eligibility are:

A child who was eligible for Aid to Families with Dependent Children (AFDC); or
A child who is eligible for Supplemental Security Income (SSI) benefits; or
A child who is a child of a minor parent in title IV-E foster care; or
A child who was eligible for title IV-E adoption assistance in a previous adoption.

The following provides the specific Federal requirements for each of the four pathways to eligibility and follows with questions to help the State assess its compliance with the requirements. Additional eligibility criteria that are not in Federal statute may not be applied to the child.³

(1) A child who was eligible for Aid to Families with Dependent Children (AFDC): Under this pathway, the State must determine that the child would have been eligible for AFDC (pursuant to the State's title IV-A plan as in effect on July 16, 1996) in the specified relative's⁴ home from which s/he is removed in the month of, but prior to, the voluntary placement agreement (VPA) or initiation of court proceedings (petition) to remove the child from his/her home. If there is no petition in a court-ordered removal, then AFDC eligibility is determined in the month of, but prior to, the date of the child's removal in physical removals or the date of the removal order in constructive removals.⁵ For children who are adopted on or after October 1, 2005, States must determine AFDC eligibility only at the time of the child's removal from the home.⁶

Under this pathway, if a child is removed from his/her home pursuant to a VPA, there must have been at least one title IV-E foster care maintenance payment made on behalf of the child under the VPA in order for the child to be eligible for title IV-E adoption assistance. Therefore, in this situation—and only in this situation—the child must have been under the responsibility for placement and care of the State agency, or another public agency with which the State agency has a title IV-E, section 472 agreement to receive that title IV-E foster care maintenance payment. For the purpose of title IV-E adoption assistance eligibility, there is no specified amount of time that a child must have been in foster care under a VPA and no requirement for a judicial determination within 180 days of placement to the effect that the placement is in the child's best interest.

If a child's removal from his/her home is court-ordered, the removal must be the result of a judicial determination in the first court order removing the child from the home to the effect that to remain in the home would be contrary to the child's welfare.⁷ The child does not have to be under the responsibility for placement and care of the State agency or receive a title IV-E foster care maintenance payment in court-ordered removals. There is no requirement under title IV-E adoption assistance for a "reasonable efforts" judicial determination. That requirement applies only to title IV-E foster care.

Although a condition of eligibility is that the child must be removed from his/her home pursuant to a voluntary placement agreement or a judicial determination that to remain in the home would be contrary to the child's welfare, a child who is relinquished to a public or a private, non-profit agency, or placed with a private, non-profit agency under a voluntary placement agreement can be considered judicially removed under the following circumstances:

the child is voluntarily relinquished either to the State agency (or another public agency with which the State has a title IV-E agreement), or voluntarily placed with a private, non-profit agency; and
there is a petition to the court to remove the child from his/her home within six months of the time the child lived with the specified relative from whom s/he was removed; and
there is a subsequent judicial determination to the effect that remaining in the home would be contrary to the child's welfare.

Questions Specific to the AFDC Pathway:

(A) When a child's title IV-E adoption assistance eligibility is based on his/her AFDC eligibility, is the child's removal from the home of a specified relative the result of either a voluntary placement agreement or a judicial determination that to remain in the home would be contrary to the child's welfare ?⁸

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(B) If a child is relinquished to a public or a private non-profit agency, or placed with a private non-profit agency under a voluntary placement agreement, does the State require a subsequent judicial determination that to remain in the home would be contrary to the child's welfare which is initiated within six months of the date the child last lived with the specified relative from whom s/he was removed for title IV-E adoption assistance eligibility?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(C) Does the State determine AFDC eligibility based on the circumstances in the home of the specified relative from which the child is removed—that is, the home of the specified relative who entered into the VPA with the State agency or the home upon which there is a judicial determination regarding contrary to the welfare?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(D) Does the State determine AFDC eligibility based on the circumstances in the child's home in the month of, but prior to, the voluntary placement agreement or petition to the court to remove the child from the home?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(E) After a determination of AFDC eligibility at the time of a child's removal from his/her home, does the State require a redetermination of the child's AFDC eligibility, for title IV-E eligibility purposes, prior to the finalization of the adoption?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

(F) Does the State determine financial need based on its AFDC plan as in effect on July 16, 1996?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(G) Does the State determine deprivation of parental support for the child based on its AFDC plan as in effect on July 16, 1996?⁹

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(H) Does the State use Temporary Assistance for Needy Families (TANF), or other income-based criteria to determine a child's eligibility for title IV-E adoption assistance?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

(I) If a child is judicially removed from his/her home, does the State require a judicial determination to the effect that to remain in the home would be contrary to the child's welfare in the first court order sanctioning the child's removal (for children removed on or after January 23, 2001), or in any court order prior to the initiation of adoption proceedings (for children removed before January 23, 2001) to be eligible for title IV-E adoption assistance?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(J) If a child is judicially removed from his/her home, does the State require a judicial determination that reasonable efforts were made to prevent the child's removal from his/her home for title IV-E adoption assistance eligibility?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

(K) If a child is removed pursuant to a VPA, does the State require that the child receive at least one title IV-E foster care maintenance payment as a condition of title IV-E adoption assistance eligibility?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(L) If a child is removed pursuant to a VPA, does the State require a subsequent judicial determination to the effect that to remain in care is in the child's best interests?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

(M) If a child is removed pursuant to a VPA, does the State require that the child be in foster care for a specified length of time in order to be eligible for title IV-E adoption assistance?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

(N) Other than a determination of special needs, does the State apply any additional criteria to the AFDC-eligible child's eligibility for title IV-E adoption assistance that are not in Federal law, such as the child's being a ward of the State or eligible for title IV-E foster care, etc.?

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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Legal and Related References for AFDC Pathway:

Sections 473(a)(2)(A)(i)(I) of the Social Security Act
Child Welfare Policy Manual, Sections 8.2B (1-2); 8.2B.7 (1-2); 8.2B.10 (1); and 8.2B.13 (1)

(2) A child who is eligible for Supplemental Security Income (SSI) benefits: If a child is being determined eligible for title IV-E adoption assistance through the SSI pathway, the child must be determined eligible for SSI by the Social Security Administration prior to the finalization of the adoption. If the SSA final notice of eligibility is received after the finalization, but determines that the child's SSI eligibility began prior to finalization, that is acceptable. However, in all cases, a title IV-E adoption assistance agreement must be in place prior to the finalization of the adoption unless a fair hearing decision is favorable to the adoptive family. Only a designated Social Security Administration claims representative can determine a child's SSI eligibility and provide the appropriate eligibility documentation to the State for the child's file. Additional eligibility criteria that are not in Federal statute may not be applied to the child.

Questions Specific to the SSI Pathway:

(A) If a child's eligibility is based on his/her eligibility for SSI, does the State accept only a written confirmation of eligibility from the Social Security Administration?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(B) Must a child be eligible for SSI prior to the finalization of the adoption to be eligible for title IV-E adoption assistance?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(C) Does the State restrict title IV-E adoption assistance eligibility to children who are SSI eligible at a fixed point in time prior to finalization, such as at the time of the petition to adopt?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

(D) Other than the requirements in Federal law, does the State apply additional eligibility criteria for SSI-eligible children to be eligible for title IV-E adoption assistance?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

Legal and Related References for SSI Pathway:

Section 473(a)(2)(A)(i)(II) of the Social Security Act
Child Welfare Policy Manual, Sections 8.2B (1) and 8.2B.12 (1-2)

(3) A child who is a child of a minor parent in title IV-E foster care: A child is eligible for title IV-E adoption assistance through this pathway if the minor parent's title IV-E foster care maintenance payment covers the child's cost of care while the child was with the minor parent in foster care. Additional eligibility criteria that are not in Federal statute may not be applied to the child.

Questions Specific to the Child of a Minor Parent Pathway:

(A) Does the State provide title IV-E adoption assistance for a child of a minor parent whose title IV-E foster care maintenance payment covers the cost of the child's care while with the minor parent in foster care?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(B) Other than the requirements in Federal law, does the State apply additional eligibility criteria for a child of a minor parent for the child to be eligible for title IV-E adoption assistance?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

Legal and Related References for Child of Minor Parent Pathway:

Sections 473(a)(2)(A)(i)(III), and 473(b)(4) of the Social Security Act
Child Welfare Policy Manual, Section 8.2B (1) and 8.2B.3 (1-2)

(4) A child who was eligible for title IV-E adoption assistance in a previous adoption: A child continues to be eligible for title IV-E adoption assistance in a subsequent adoption if the child was eligible for title IV-E adoption assistance in a previous adoption and the adoptive parent(s) die, or the adoption is dissolved as a result of a termination of parental rights. Continued title IV-E adoption assistance eligibility and payments are not authorized for a child placed with an individual who is not adopting the child, or in situations where the child is placed with a legal guardian. Nor may the State "transfer" the child's payment to anyone after the adoptive parents die/adoption dissolved. Rather, the State must determine that the child continues to be a child with special needs and enter into a new title IV-E adoption assistance agreement with the subsequent adoptive parent(s). Both the determination of special needs and a signed title IV-E adoption assistance agreement must be completed prior to the finalization of the adoption. Additional eligibility criteria that are not in Federal statute may not be applied to the child.

Questions Specific to a Child Eligible in a Previous Adoption Pathway:

(A) Does the State provide title IV-E adoption assistance in a subsequent adoption for a child who was eligible for title IV-E adoption assistance in a previous adoption if the adoptive parent(s) die or the adoption is dissolved as a result of a termination of parental rights?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(B) Does the State transfer a child's title IV-E adoption assistance to a legal guardian or other individual with whom the child is placed after the adoptive parent(s) die or the adoption is dissolved?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

(C) Does the State require a determination of special needs based on the three-part requirement in section 473(c) of the Act in order for a child to be eligible in a subsequent adoption?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(D) Does the State require a new title IV-E adoption assistance agreement to be negotiated with the subsequent adoptive parent(s) if a child was eligible for title IV-E adoption assistance in a previous adoption in which the adoptive parent(s) die or the adoption is dissolved?

YESNONEEDS CLARIFICATION

If no, this is inconsistent with Federal requirements.

(E) Does the State apply other eligibility criteria that are not in the statute to a child who was eligible for title IV-E adoption assistance in a previous adoption if the adoptive parent(s) die or the adoption is dissolved as a result of a termination of parental rights?

YESNONEEDS CLARIFICATION

If yes, this is inconsistent with Federal requirements.

Legal and Related References for Child Eligible from Previous IV-E AA Eligibility:

Section 473(a)(2)(C) of the Social Security Act
Child Welfare Policy Manual, Sections 8.2A.1 (4); 8.2B (1); and 8.2B.4 (1-2)

² See sections III and IV for additional requirements related to criminal background checks and immigration status that must be met for a family to receive title IV-E adoption assistance. back
³ Additional eligibility criteria include the three-part special needs determination, criminal records clearances for the prospective adoptive parents and child abuse and neglect registry checks of the prospective parents and any other adult living in the home, and a determination that the child and adoptive parents, if not U.S. citizens, meet the qualified alien provisions of PRWORA. back
⁴ For the purpose of title IV-E adoption assistance eligibility, a specified relative is defined as any relation by blood, marriage or adoption who is within the fifth degree of kinship to the dependent child. This includes great-great-great grandparents and first cousins once removed (children of first cousins). (45 CFR 233.90(c)(1)(v)) back
⁵ A constructive removal is a legal or paper removal of a child who is not living with the specified relative from whom s/he is being removed at the time of removal. See 45 CFR 1356.21(k) for further guidance on this topic. back
⁶ Prior to that date, the State had to determine that the child continued to be eligible for AFDC at the time of the initiation of adoption proceedings. This requirement was removed by the Deficit Reduction Act of 2005 (P.L. 109-171). back
⁷ For children removed from their homes before January 23, 2001 (the date of ACYF-PA-01-01 which established that the timing for the contrary to the welfare determination for title IV-E adoption assistance is the same as for title IV-E foster care), the contrary to the welfare determination is allowed in any court order up to the time of the initiation of adoption proceedings. For children removed on or after that date (1/23/01), the judicial determination must be made in the first court order that sanctions the child's removal from the home. back
⁸ As noted in the discussion on the previous page, a voluntary relinquishment may be considered a judicial removal if there is a petition to the court to remove the child from his/her home within six months of the date the child last lived with the specified relative from whom s/he was removed and there is a subsequent judicial determination that to remain in the home would be contrary to the child's welfare. back
⁹ States with an AFDC plan, as in effect on July 16, 1996, that included the "unemployed parent" option, had the opportunity to amend its AFDC plan to expand its definition of "unemployed parent" to include hours of work, dollar amounts earned, and family size in establishing the reasonable standard of unemployment. See 45 CFR 233.101(a)(1) for further guidance. back

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