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OCYF Bulletin 3140-99-01
Adoption Assistance Questions
Eligibility Issues

1.Who in the county must sign the adoption assistance agreement in order for it to be a binding agreement?

OCYF policy does not establish who at the county level has the authority to sign the adoption assistance agreement. Counties are therefore free to designate who may sign on behalf of the county.

2. May a child in the custody of a private agency be considered as eligible to receive adoption assistance?

Yes. The Pennsylvania Adoption Opportunities Act and enabling regulations specify that children who meet the child eligibility criteria and who are in either public or private agency custody are eligible to receive adoption assistance. The law's cite is located in the Public Welfare Code, Article VII, Section 772. Regulatory reference can be found in Chapter 3140, Subchapter C, §3140.202 (b) (3).

In response to a similar question, the United States Department of Health and Human Services provided an answer in PIQ 87- 05, Question # 1. The answer was that states may not exceed the eligibility requirements as contained in federal law. Federal law makes no requirement that the child must be in the custody of a public agency.

3. If a child in the custody of a private agency is being placed for adoption, which agency determines if the child is eligible for adoption assistance?

County children and youth agencies are responsible for making child eligibility determinations for adoption assistance.

Regarding which county agency should make the determination, the following guidance is provided:

• The county where the birth parent (s) with whom the child was living when the child was placed in the custody of the private agency; or
• for abandoned children or when parents are unknown, the county where the child was located when taken into custody.

4. A child who is in the custody of a private agency is determined to be eligible for adoption assistance by the appropriate county agency. Which agency has final authority for selecting the most appropriate adoptive family?

Based on the overriding principle established in both the Public Welfare Code and Chapters 3130 and 3140, the county agency has the ultimate authority for decision making when the issue involves funding liability for dependent, neglected and delinquent children.

The process decision to select a family for a child in private agency custody should involve the private agency and the county agency that certifies the child eligible. If a disagreement over family suitability develops, the county agency would have final authority to make the decision.

To facilitate the most efficient adoption assistance process, the private agency should involve the public agency as soon as possible.

Does this mean that if a child has not been registered on the adoption exchange the child is not eligible for adoption assistance?

No. THE REGULATION IN QUOTATIONS PRE-DATES FEDERAL POLICY AND THE REQUIREMENT TO REGISTER THE CHILD ON THE ADOPTION EXCHANGE AS A CONDITION OF ADOPTION ASSISTANCE ELIGIBILITY IS NO LONGER APPLICABLE. Necessary changes to this subsection of the regulation will be made when the regulations are revised.

6. What constitutes "reasonable, but unsuccessful, efforts" to locate a family willing to adopt without adoption assistance?

Federal regulation (Policy Interpretation Question (PIQ) 92-02 issued 6-25-92) provides specific guidance on this. An agency should look at a number of families to try to find the placement that is most suitable for the child. When the agency is satisfied that it has identified the "most suitable family for the child", a full disclosure is made to the potential family that includes the child's background and known and potential problems. Following full disclosure, the prospective parents should be asked if they are willing to adopt the child without a subsidy. If they say that they cannot adopt the child without the subsidy, then the agency has met the requirements of "reasonable, but unsuccessful, efforts."

There is one exception to the "reasonable, but unsuccessful, effort" requirement to place a child without adoption assistance. Federal regulation (PIQ-89-02 issued 5-23-89) states that this exception is when "...it would be against the best interests of the child because of factors such as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child."

The two PIQ's referenced here have since been withdrawn. However the new Child Welfare Policy Manual gives basically the same answer. Click here to take a look.

7. May a family adopting through a private attorney apply for and receive reimbursement for nonrecurring costs?

Yes. It is possible for adoptions arranged by private attorneys to be eligible for nonrecurring costs. It is unlikely, that a family would be eligible for nonrecurring costs because they must meet all of the following conditions:

An adoption arranged through a private attorney does not usually meet conditions 2 and 3.

8. A child born in a foreign country is brought to the United States for the purpose of adoption. May the child receive nonrecurring cost benefits as specified within the adoption assistance regulations?

Generally, no. Nonrecurring cost benefits Is a type of adoption assistance. Therefore the child must meet the federal and state eligibility requirements for adoption assistance.

Federal guidance on this Issue Is contained In ACYF-PIO-89-02, Issued 5-23-89. That document clarifies that states may not exclude reimbursement for Intercountry adoptions; however, It emphasized that states must assure that the child being adopted meets "special needs" eligibility criteria defined by the Individual state.

Pennsylvania eligibility criteria states that the child's parental rights must be terminated under the Pennsylvania Adoption Law, The parental rights of foreign-born children would generally not be terminated under Pennsylvania law: therefore, foreign-born children would generally not be eligible.

Additionally, for a child to be eligible, reasonable but unsuccessful efforts must have made by the county agency to place the child without adoption assistance. Since prospective parents interested in adopting foreign children identify the child they want to adopt without county agency involvement, the requirement for reasonable but unsuccessful efforts would not be met.

9. Could a family receive adoption assistance payments on behalf of a child whose parental rights have not yet been terminated if all other conditions regarding child eligibility as defined in §3140.202 are met and local court practice regularly handles parental rights terminations and adoption proceedings simultaneously?

No. The adoption assistance law is included as an amendment to the Public Welfare Code. In Section 772 of the code within the definition of "eligible child", the following is written: "means a child in the legal custody of local authorities where parental rights have been terminated pursuant to the procedure set forth in Article III of the act of July 24, 1970 (P. L. 620, No. 208), known as the "Adoption Act…."

10. QUESTION: A judge terminates parental rights and gives child custody to a family. May the family then receive adoption assistance for the child?

The family may receive non-recurring cost assistance payments for a child in their legal custody, but may not receive an ongoing monthly assistance payment or medical assistance for a child who is not in agency custody. A court order awarding custody to adults intending to adopt would result in the child becoming ineligible for ongoing adoption assistance benefits. Adoption Assistance regulations in § 3140.202 require as a condition of eligibility that a child be in agency custody. The exception for non-recurring cost assistance benefits is contained in § 3140.205 (c).

11. Can a child who has been seriously physically or sexually abused be determined eligible for adoption assistance even though the child is not currently exhibiting problematic behavior but may later in childhood?

Yes. Pennsylvania adoption assistance regulations, § 3140.202 (b) (4) (1) require that "The child shall have at least one of the following characteristics: A physical, mental or emotional condition or handicap." A child who has been physically or sexually abused is considered to have an emotional condition or handicap even if current behaviors may not exhibit the condition or handicap. In determining assistance eligibility, it will be important to consider the evidence of abuse events,

12. If a child is determined to be eligible for adoption assistance but is currently functioning without the need for benefits, does the adoption assistance agreement need to contain specified benefits?

No, if the child's special needs at the time of adoption do not necessitate specific benefits, the agreement can be signed without authorizing benefits. The agreement should be worded in such a way as to allow for adoption assistance benefits to be authorized at a later time based on changing child need.

13. Can an agency use criteria, such as state median income adjusted for the family size or a sliding income scale, in determining the potential adoptive family's eligibility for adoption assistance?

No, federal regulations (45 CFR 1356.40 (c)) prohibit use of a means test in determining eligibility for adoption assistance. Therefore, states are prohibited from using criteria such as state median income or sliding income scales to determine the eligibility of adoptive parents to receive adoption assistance benefits on behalf of a special needs child.

14. If monies are available for the child's care such as a trust fund, may the agency deny adoption assistance eligibility because adequate funding is available to care for the child?

Child eligibility for adoption assistance may not be denied based on income or resources that may be available to a child. Child eligibility criteria are found at §3140.202. These are the only criteria that can be used to determine the child's eligibility for adoption assistance.

Monies available to a child such as a trust fund may be considered when deciding upon the specific terms of the adoption assistance agreement.

15. A child meets the eligibility criteria and the adoptive parents state they need the adoption assistance for the child. Can the county agency refuse to provide the assistance by not budgeting for it or by stating that funds are not available?

No. Section 3140.202 (b) states: "The county agency shall certify for adoption assistance children whose placement goal is adoption and who meet the following requirements...." Counties may not deny benefits to an eligible child based on availability of funding.

16. Can a child lose assistance benefits if the parents' income changes?

No. Once determined eligible for adoption assistance and an assistance agreement is signed, a child may not lose the benefits until one of the conditions as identified in §3140.204 (e) is met.

17. A child who has been adopted and is receiving adoption assistance moves from the county that is providing the adoption assistance to another county. The adoption dissolves, the child is taken into custody in the new county and the child is placed in a new adoptive home. Which county is responsible for the adoption assistance payments for the child in the child's new adoptive home?

The county agency in which the child is currently living must process a new application for adoption assistance. The current county of child residence is responsible for preparing the adoption assistance agreement and for providing benefits as defined in the agreement.

18. What responsibility does a county agency accept when it certifies a child eligible for adoption assistance?

Section 3140.203 details the responsibilities of the county agency. Briefly, these include:

• negotiate and execute a legally binding agreement between the parties;
• provide the adoptive parents with a signed copy of the agreement;
• contact the family at least annually to assess the child's continued dependency; and
• pay the county share of adoption assistance costs.