18 Miss. Code. R. 6-1-E-II
(42 U.S.C. 672 § 472(a)(2)(A)(i-ii)) requires that, for eligibility under Title IV-E foster care, a child's removal from his home must either be pursuant to a voluntary placement agreement or the result of a judicial determination.
When a child is removed from the home, through a voluntary placement agreement or a judicial determination, the child's care become the sole responsibility of DFCS in order to be Title IV-E eligible. Children placed in the joint custody of DFCS and another person/facility will not be Title IV-E eligible.
The judicial determinations for Title IV-E eligibility are intended to ensure that children are not removed from their homes unnecessarily. The first judicial determination must be to the effect that "continuation in the home would be contrary to the welfare of the child" or "removal was in the best interest of the child."
There must also be a judicial determination that "reasonable efforts were made to prevent the child's removal from the home." This determination must be made even if the removal is only temporary.
In emergency situations, time does not allow for reasonable efforts to be made to prevent removal; therefore, the court order must indicate that "due to an emergency situation, reasonable efforts to prevent removal were not possible." If reasonable efforts were not made, there must be documentation that reasonable efforts are now being made to return the child to the home.
"The contrary to the welfare determination will be made in the first court ruling that sanctions (even temporarily) the removal of a child from home. If the determination regarding contrary to the welfare is not made in the first court ruling pertaining to removal from the home, the child will not be eligible for Title IV-E foster care maintenance payments for the duration of that stay in foster care." (45 CFR § 1356.21(c))
For Title IV-E eligibility and pursuant to MISS. CODE ANN. § 43-21-603(7), the judicial determination must contain language as follows:
* "Removal was in the best interest of the child" or "to remain in the home would be contrary to the welfare of the child"
* "Reasonable efforts have been made to maintain the child within his own home"
* "The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home and there is no reasonable alternative to custody and;"
* "Reasonable efforts will be made to return the child," or
* "Reasonable efforts to maintain the child within his home shall not be required if the court determines that:"
* "The parent has subjected the child to aggravated circumstances. (including but not limited to abandonment, torture, chronic abuse, and sexual abuse); or"
* "The parent has been convicted of murder or convicted of voluntary manslaughter of another child of that parent; or"
* "The parent has aided or abetted, attempted, conspired, or solicited to commit that murder or voluntary manslaughter; or a felony assault that results in the serious bodily injury to the surviving child or another child of that parent; or"
* "The parental rights of the parent to a sibling have been terminated involuntarily; and"
* "The effect of the continuation of the child's residence within his own home will be contrary to the welfare of the child and that the placement of the child in foster care is in the best interest of the child."
The first court order must specify "contrary to the welfare of the child," which defines the first month in which DFCS may collect federal reimbursement for the child, assuming all other criteria are met.
In situations where DFCS was unable to obtain a court order which contained clear language indicating the court's determination regarding the best interests of the child and the reasonable efforts of DFCS to prevent the removal of the child, a Nunc Pro Tunc (meaning "now for then") order cannot be used by the court to make a retroactive determination of the removal circumstances.
Bench notes do not constitute acceptable documentation of judicial determinations. In accordance with the regulations, the only acceptable alternative documentation of judicial determinations, absent language in a court order, is a transcript of the court proceedings. We recommend that the State agency collaborate closely with the judicial system to assure that the necessary judicial determinations are made and appropriately recorded for children who must be removed from their homes.
Court orders that reference state law to substantiate judicial determinations are not acceptable, even if State law provides that a removal must be based on a judicial determination that remaining in the home would be contrary to the child's welfare or that removal can only be ordered after reasonable efforts have been made. (45 CFR § 1356.21(d)(3))
Further, a judicial determination must be obtained that states reasonable efforts were made to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement) within twelve (12) months of the date the child is considered to have entered foster care, and at least once every twelve (12) months thereafter while the child is in foster care.
If such a judicial determination is not made, the child becomes ineligible under Title IV-E at the end of the month in which the judicial determination was required to have been made, and will remain ineligible until such a determination is made. (45 CFR § 1356.21(b)(2))
Quick Reminder: "Voluntary Placement Agreements", "Constructive Removal" and "Voluntary Releases for Adoption" are not the same and not interchangeable phrases. Children who are voluntarily released (Voluntary Release for Adoption is signed) to DFCS prior to a judicial determination are not Title IV-E eligible.
Constructive Removal: is a paper removal. This means DFCS has obtained legal custody of the child but does not physically remove the child from the home where the abuse or neglect. (see http://www.sccgov.org/ssa/fosterca/fcchap17.pdf)
Voluntary Placement: is an out-of-home placement of a child, by or with participation of DFCS, after the parents or guardians have requested the assistance of DFCS and signed a voluntary placement agreement, (see http://www.ssa.gov/OP_Home/ssact/title04/0472.htm)
Voluntary Placement Agreement: is a written binding agreement between DFCS and the parents or guardians of a child and which specifies, at a minimum, the legal status of the child and the rights and obligations of the parents or guardians, the child, and DFCS while the child is in placement. (see http://www.ssa.gov/OP_Home/ssact/title04/0472.htm)
Voluntary Release for Adoption: is a written affirmation that the surrendering parent(s) voluntary released their parental rights to their child.
"Voluntary placement agreements" contain several criteria which set them apart from voluntary releases for adoption:
* The assistance of the DFCS has been requested by the parents or legal guardians
* There is a written agreement, binding to all parties, which specifies the legal status of the child and rights and obligations of parents, child, and DFCS while the child is in placement
* It cannot exceed 180 days
* It can be revoked at any time by the parent or legal guardian
If a voluntarily placed child meets all other Title IV-E requirements, s/he may be Title IV-E funded up to 180 days from the date of the Agreement.
Prior to the release, while the Agreement is in effect, the DFCS can petition the court for a judicial determination regarding the removal of the child. If the court determines that Title IV-E eligibility can be established beyond the 180 days.
The child cannot remain Title IV-E funded for more than 180 days without the judicial determination by a court to the effect that such a placement is in the best interest of the child. (42 U.S.C. 672 § 472(e); 45 CFR § 1356.22(b))
Federal requirements governing Title IV-E foster care specify that the goal of services provided parents or other relatives will be to:
* Return the child to his own home;
* Arrange placement with other relatives;
* Make other appropriate plans for the child's permanent care such as adoption;
* Make some other plans that best meets the needs of the individual child.
These services must be provided on a regular basis during the time of placement of the child in foster care. The safety, permanency, and well-being of the child must be addressed at each review of the child's plan and documented in the case record. (See Section D, "Foster Care", for more details regarding requirements for the child's permanency plan.)
AFDC relatedness refers to the fact that in order for a child to be classified as Title IV-E eligible, he must have some relationship to the general AFDC program authorized under Title IV, Part A IV-A of the Social Security Act. This relationship can be established if any one of the following criteria is met:
* In the month the child was removed from the home, the child was in an active AFDC case;
* In the month the child was removed from the home, the child would have been eligible for AFDC had an application been made; or
* In the six months prior to the month the child was removed from the home, the child was living with a qualified relative and would have been eligible for AFDC if an application had been made.
For those children who were not in an active AFDC grant at the time of removal, but there exists the potential that these children could be Title IV-E eligible if application were made, the following AFDC eligibility conditions apply:
* Age
* Enumeration
* Residence
* School Attendance
* Citizenship
* Living in the home of a specified relative
* Deprivation
* Need as determined by:
* Resources ($10,000) family unit
* Income
The age limit for Title IV-E funding is eighteen (18) years of age. The Worker will have documented evidence of the child's date of birth in the social service case record.
Examples of documentation are birth certificates, school records, hospital records, immunization records, etc. Title IV-E funds cannot be utilized without verification of the child's age documented in the social service case record.
A child will lose Title IV-E eligibility and reimbursability when s/he reaches the age of eighteen (18).
The application for and disclosure of a Social Security account number is a technical factor of eligibility.
Only those children for whom there is in the case file a validated Social Security Number, or for whom an application for a Social Security Number has been completed are eligible for Title IV-E.
The child must be a resident of the State of Mississippi. Residents of the State of Mississippi are persons who are voluntarily living in Mississippi with the intention of making their home here. The child does not become ineligible for Title IV-E on the basis of residence in the event out-of-state placement is made or the child moves out of state with his Resource Parents or adoptive parents.
It is mandatory that the child must attend school according to Mississippi mandatory school attendance law and that documentation is maintained in the case record.
[DFCS has a system that] provides assurances that each child who has attained the minimum age for compulsory school attendance under State law and with respect to whom there is eligibility for a payment under the State plan is a full-time elementary or secondary school student or has completed secondary school, and for purposes of this paragraph, the term "elementary or secondary school student" means, with respect to a child, that the child is -
The child must be a citizen of the United States or an alien lawfully admitted for permanent residence or otherwise residing in the United States under color of law.
If the child is an alien, the case record must have verification that the child is a legal alien. The alien should have an INS 1-151 (Alien registration card), an INS 551 (Reentry permit), or an INS-I-94 (Refugee green card). In any case where the child is an alien disqualified by the Immigration and Nationality Act, the child is ineligible for receiving Title IV-E funds.
Subject to Title IV of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, if the child is an alien disqualified under section 245A(h) or 210(f) of the Immigration and Nationality Act from receiving aid under the State plan approved under section 402 in or for the month in which the agreement described in paragraph (2)(A)(i) was entered into or court proceedings leading to the determination described in paragraph (2)(A)(ii) were initiated, the child shall be considered to satisfy the requirements of paragraph (3), with respect to the month, if the child would have satisfied the requirements but for the disqualification. (42 U.S.C. 672 § 472(4))
Additionally, the state shall have in effect procedures for verifying the citizenship or immigration status of any child in foster care under the responsibility of the state under this part or part B, and without regard to whether foster care maintenance payments are made under 472(a)(27) on behalf of the child. (See, 42 U.S.C. 671 § 471(a)(27)
No payment may be made to parents with respect to any applicable child for a fiscal year that:
A child that is not a citizen or resident of the US and was adopted outside of the US or brought into the US for the purpose of being adopted may be eligible for adoption assistance payments if the initial adoption of the child by parents is a failure and the child is subsequently placed into foster care. (See Social Security Act, Sec. 42 U.S.C. 673 § 473(a)(7))
If a child was not removed from a parent, s/he had to have been living with another relative who comes within the fifth degree of relationship. The child and relative must live together in a place of residence maintained by the relative as his home. The child must also have qualified for AFDC during the month the child came into custody.
The following relationships meet the requirement of specified relative:
* Parents (either by birth, legal adoption or step relationship)
* Grandparents (up to great-great-great)
* Siblings (half, whole, step)
* Aunts/uncles (up to great-great)
* Nieces/nephews (up to great-great)
* First cousins
* Children of a first cousin (first cousin once removed)
* Spouses of any person named in the above groups even after the marriage is
* Terminated by death or divorce.
* Verification of specified relative relationship can be achieved through private or public records (i.e. birth certificates, marriage certificate, divorce decrees, family Bible, or court order)
Removal has not occurred in situations where legal custody is removed from the parent or specified relative yet the child remains with the same relative in that home under supervision by the DFCS.
The child must have been living with the parent or specified relative, and was AFDC eligible in that home in the month of the voluntary placement agreement or initiation of court proceedings; or
The child must have been living with the parent or specified relative within six months of the month of the voluntary placement agreement or the initiation of court proceedings, and the child would have been AFDC eligible in that month if s/he had still been living in that home. (See, 45 CFR 1356.21(k))
Deprivation of parental support is a condition for AFDC eligibility. A child is deprived of the support of one of his parents for one of the following reasons:
* Parental absence from the home may be due to lack of marriage, voluntary separation, desertion, or divorce.
* Deprivation exists when a parent lives at an address separate and apart from the child except when:
* Continued absence exists when a parent is out of the home and the nature of the absence is such that it terminates or interrupts that parent's functioning as a provider of maintenance, physical care, or guidance for the child.
* The known or indefinite duration of the absence precludes the child from relying on the parent's support and care of the child, thus increasing the responsibilities of the caretaker relation with whom the child lives.
Deprivation will be established in relation to one or both legal and/or natural parents. If the child has a legal father and a different natural father, deprivation must be established in relation to both fathers.
In the case of a legally adopted child, deprivation is established only in relation to the adoptive parent(s). Deprivation is automatically established in cases where an individual has adopted a child.
For Title IV-E purposes, deprivation must be established in relation to the home from which the child was removed or in relation to the specified relative's home at the time AFDC relatedness is being determined.
* Living with both parents. When a child is living with both the mother and father at the time of removal, the condition of deprivation shall be established in relation to one or both parents being incapacitated or in relation to the unemployment of the parent who is the principal wage earner.
* Living with one parent. When a child is living with only one parent at the time of removal, the condition of deprivation shall be established in relation to the absent parent.
* Living with qualified relative. When the child is not living with either parent at the time of removal and was removed from the home of a specified relative (a relative within the 5th degree) and both parents are living together or separately, the condition of deprivation will be established in relation to both absent parents.
* Living with someone other than parents or qualified relative. When the child is not living with either parent at the time of removal and was removed from the home of someone other than a specified relative, the condition of deprivation shall be established in relation to the specified relative's home at the time AFDC eligibility is being considered (during the six-month exception).
* For example, if a child is removed from the home of a non-relative, the Worker may be able to establish that the child lived with his parent or a specified relative within the six months prior to court proceedings. This time will be considered to determine if the child would be AFDC eligible had an application been made. Whether or not deprivation is met must be established on the parent's situation.
If the child is removed from a non-relative and has not lived with a parent or a qualified relative within six months prior to custody, the child is not Title IV -E eligible.
Incapacity is a condition of deprivation which is applicable to the physical or mental incapacity of one or both parents. Medical documentation and a medical review are required for a determination of incapacity if the parent is not receiving a disability type of assistance, such as Supplemental Security Income (SSI) or Social Security.
Death of a parent must be verified with supporting evidence such as a death certificate or verification from Social Security, etc. that the child(ren) receives survivor's benefits.
When both parents are in the household at the time of removal and neither are disabled or employed, the Worker can make a determination as to whether the principal wage earner is unemployed. The Worker must have verification of wages/unemployment for the past two years to determine the primary wage earner.
When a child is placed in care, the right of assignment of child support becomes the responsibility of the county to whom custody was given.
The Worker is responsible for identifying and reporting both legal parents of the child to Child Support Enforcement (CSE) for the collection and assignment of child support.
The Worker will enter the Eligibility Determination information Mississippi Automated Child Welfare Information System (MACWIS), MACWIS will refer all legal and putative parents to CSE. Through the Interface System, the Child Support referral will be sent to the designated county child support office.
Assignment of support rights cannot be waived or excused. If child support has been ordered the Worker will mail a copy of the order to the county CSE Office. CSE will determine whether to pursue admission of paternity and child support from the absent parent. The Worker is responsible for obtaining as much identifying information on the absent parent(s) as possible to ensure the referral will be complete. If additional information is required by CSE, the child support worker will contact the Worker who submitted the referral. (42 U.S.C. 671 § 471(a) (17))
Only legal parents (which includes adoptive parents) and putative fathers will be reported. Stepparents are not legally responsible for step-children.
If a child has been a recipient of AFDC at any time prior to custody, child support assigned and collected by CSE will be subject to recoupment of the AFDC benefit received by the child. Recoupment of the benefit will be deducted from the child's support payment before the payment will be forwarded to DFCS. Only the amount received at DFCS will be applied toward the child's board payment. If a child's funding source changes from Title IV-E to CWS or vice versa, CSE must be notified.
The amount of real and personal property that can be reserved for the child's family unit cannot exceed $10,000 per family unit. (see 42 U.S.C. 672 § 472(a)(3)(B))
The family unit consists of foster children, mother, father, and any siblings under the age of eighteen (18) who are in the home at the time of the child's removal. After initial eligibility is determined, only the child's personal resources will be applied to the $10,000 resource limit.
MACWIS will automatically assess the child's $10,000 resource limit on a monthly basis.
Changes in a child's funding source may occur frequently as a result of the $10,000 resource limit.
The Worker will disregard the home property occupied by the family unit as resources and any resources which are unavailable (such as property in probate proceedings, divorce litigations). For eligibility purposes, the family units combined equity value of personal and household effects cannot exceed $10,000.
Methods for verification of resources include such sources as car tags, tax receipts, or bank statements. The Worker will inquire as to cash value on life insurance, burial plots, etc. The Worker will request the family unit to give and/or verify resource information; however, if the family refuses to provide resource information and verification, eligibility for Title IV-E funding cannot be determined.
The maximum amount of resources a child may have in order to be eligible for Title IV-E funding is $10,000. The Worker will use these resources to assist in meeting the needs of the child. By using these funds to keep the resources under the maximum amount, the Worker will help the child to remain Title IV-E and Medicaid eligible.
The child's Title IV-E eligibility must be based on the income requirements for the family members in the home from which he was removed. A regular AFDC budget is used to determine this eligibility.
MACWIS will make the determination based on the information input by the Worker. The initial eligibility budget will include the family unit which consists of the legal parent(s) and any siblings under the age of eighteen (18) who live in the household from which the children were removed.
The household's income will be verified before a Title IV-E eligibility determination can be made. Income consists of earned and unearned income, such as wages, unemployment, Social Security, SSI, veteran benefits, railroad retirement, child support, contributions, etc.
Verification for Social Security Administration /SSI benefits will be obtained through notices of award, and in some instances, can be verified through the MAVERICS system. Wage stubs, employer's statement and income tax forms may be used to verify earned income. Unearned income must be verified through the source from which it is received.
When the child is removed from the home of a specified relative rather than the legal parent, the child is considered to be a separate "assistance unit" and eligibility is determined using only the income and resources of the child and his/her immediate sibling group who reside with the relative from which s/he was removed.
The Worker may find it to be more beneficial for DFCS to include some members of the household as members of the assistance unit and other times it may not be beneficial. The Worker will review each case to determine the most advantageous assistance unit composition.
In situations where a couple is legally married or in situations where a couple is not legally married, and both have children from prior unions, the Worker will consider the household as having two separate assistance units. The child from the union shall not be considered a member of the assistance unit unless one of the deprivation factors is applicable to that child.
When a foster child has income, either earned or unearned, his/her income will be used to reimburse the DFCS for the monthly payments made to the Resource Home or child caring institution. Note the following procedures.
* Wages: The earnings are considered in the eligibility determination only if the child is between the ages of sixteen (16) and twenty-one (21) and not attending school.
* Child Support: The CSE (Title IV-D) staff will follow established procedures for transfer of such payments to appropriate county bookkeeping staff and will report the amount of the current obligation and any surplus transmitted that month from previous Title IV-D computations to the county bookkeeper.
* County bookkeeper will document, in MACWIS, the amount received and the child's income will automatically be evaluated.
* Unearned Income: Social Security and VA benefits are considered in the determination of eligibility and in the determination of the child's net income to be included in MACWIS to ensure reimbursement. SSI is not counted in the child's test budget; however, the income will be used to reimburse the board payment.
45 CFR Part 1356.67
The State agency has established and maintains procedures for the transfer of responsibility for the placement and care of a child under a State title IV-E plan to a Tribal title IV-E agency or an Indian Tribe with a title IV-E agreement. At a minimum, the State agency transfer procedures:
* All judicial determinations to the effect that continuation in the home from which the child was removed would be contrary to the welfare of the child and that reasonable efforts described in section 471(a)(15) on the Act have been made;
* Other documentation the State agency has that relates to the child's title IV-E eligibility under sections 472 and 473 of the Act;
* Information and documentation available to the agency regarding the child's eligibility or potential eligibility for other Federal benefits;
* The case plan developed pursuant to section 475(1) of the Act, including health and education records of the child pursuant to section 475(1)(C) of the Act; and
* Information and documentation of the child's placement settings, including a copy of the most recent provider's license or approval.
(Not applicable to Tribes)
18 Miss. Code. R. 6-1-E-II