Once the state agrees that a child has special needs, and the child can show eligibility, all that remains is to determine the child’s legal status. A Title IV-E eligible child must be either voluntarily placed or have his or her legal status determined in a court of law by a judge. A voluntarily placed child is one who has been placed into foster care voluntarily by his or her birth parents under the terms of a voluntary placement agreement and with the goal of going back home eventually. When the goal cannot be reached, and the child becomes a waiting child in need of an adoptive placement, a court becomes involved. In other cases, children go into foster care without a voluntary placement agreement and the birth parents relinquish their rights immediately. If the court and a judge become involved within six months of the child going into foster care, the requirements of IV-E have been met. This rule is designed to stop “foster care drift.”
Adoption subsidy, or AAP, is available only to adoptive parents of a child with special needs. The two types of AAPs are IV-E (or federal) AAP and state AAP. IV-E AAP is subject to FFP. The states will get some of this money back, most of it in fact.
Administrative hearings are relatively informal proceedings in which you as adoptive parents have the opportunity to present your case in your own words. You are permitted to be represented by counsel, but depending on the issue, may choose to represent yourself and reserve the option of enlisting the services of an attorney if you decide to pursue the appeal to the final stage of the hearing process. Lack of resources to hire an attorney should never prevent you from requesting a hearing. Adoptive parents are often quite successful in representing themselves. When making a decision about whether to seek representation or go it alone, it is usually a good idea to consult with an experienced South Jordan Utah family lawyer.
Hearing decisions must be communicated in writing. If the initial hearing decision goes against you, the notification letter must also provide information about the next level of appeal. The second step in the appeals process in a number of states is an administrative review of the hearing, usually by a section in the state department of human services. The administrative review is not another hearing but a reconsideration of the hearing decision based on the hearing record and relevant state regulations. Once again, the administrative review decision must be communicated to the adoptive parent in writing along with information about the next level of appeal.
Adoptive parents should contact the adoption section in the state human services agency, explain that they adopted a child and are interested in filing an appeal for Title IV-E adoption assistance. You should inform the state official you are aware that the child’s eligibility must be established through an administrative fair hearing. You should then ask how to go about requesting a hearing and ask for any written regulations and procedures on the subject. If you cannot obtain sufficient information because the state does not yet have clear guidelines on filing an appeal for adoption assistance after finalization, you should not give up. The specific steps for filing an appeal for adoption assistance after a final decree of adoption may vary from state to state, but you should be able to rely on certain basic due process rights. As noted in the previous section, the right to an administrative fair hearing is triggered by the proposed denial of federal or state assistance. If no other avenue presents itself, you should be able to receive a fair hearing by
• filing an application for Title IV-E adoption assistance with the appropriate state or county agency, as if the child had not yet been adopted. You should retain a copy of the application; or
• writing a letter of petition indicating you are applying for adoption assistance and that you are aware that appeals must be made through the state’s administrative fair hearing system as set forth in federal PIQ 92-02. The letter should discuss the extenuating circumstances that you believe are grounds for a reconsideration of your child’s eligibility. Finally, you should indicate that you are requesting an administrative fair hearing or information about how to obtain one.
Remember, the application will probably be denied, but federal regulations stipulate that it may not be ignored. If your request for adoption assistance is denied, the denial notice must inform you of your right to appeal the decision and how to schedule an administrative fair hearing. If there is no response to the application in thirty to forty-five days, or if the response does not contain sufficient information about the appeal process, you should contact the state’s office of administrative fair hearings for guidance. Unresponsiveness and an agency’s failure to act with “reasonable promptness” to an application are cited as grounds for a fair hearing in federal regulations. An experienced South Jordan Utah family lawyer can help you get a fair hearing. Fair hearing is your right and you shouldn’t give up this right.
Your first responsibility as an adoptive parent is to establish that extenuating circumstances either prevented you from applying for adoption assistance or prevented your child from being determined eligible for adoption assistance. If you succeed in arguing that extenuating circumstances are a factor in your case, then your child’s eligibility for adoption assistance should be reconsidered. You may present written documentation, call on witnesses for oral testimony, or present both kinds of evidence to support your argument.
• Relevant facts regarding the child, the biological family or child’s background are known and not presented to the adoptive parents prior to the legalization of the adoption
• Denial of assistance was based on a means test of the adoptive family. (According to federal law, the income of the adoptive family has no effect upon the child’s eligibility for adoption assistance.)
• Erroneous determination by the state that a child is ineligible for adoption assistance
• Failure by the state agency to advise adoptive parents of the availability of adoption assistance.
Suppose, for example, you feel that information about your child’s special needs was not available to you at the time of adoption and had you known the extent of the child’s problems, you would have applied for or received adoption assistance. At the hearing, you would present statements by medical or mental health professionals that (1) showed the extent of the child’s current special needs, and (2) showed that the current special needs either existed or were traceable to conditions that existed at the time of the adoption. Because adoptive parents have worked hard to secure medical or psychological services to address their child’s emerging problems, they often have such documentation in abundance. You also might find adoption agency workers to corroborate your testimony.
The point of the presentation is to establish that the child’s special needs originated prior to the adoption, but you were either unaware of them or did not recognize their seriousness. The purpose of the adoption assistance program is to help such children. Serious medical or emotional problems may be particularly difficult to recognize in infants or very young children who are simply not old enough to manifest clear symptoms. Adoptive parents and their children should not be punished because of a lack of sufficient information at the time of the adoption. When you are seeking an administrative hearing, always seek the assistance of an experienced South Jordan Utah family lawyer. The lawyer can provide you with invaluable assistance.
Federal law does not explicitly use the term burden of proof in discussing questions of eligibility, but the law makes it clear that the state or local agency, not the applicant, is responsible for determining eligibility for federal programs, including IV-E adoption assistance. The applicant has the responsibility of providing information to facilitate the eligibility determination. In most cases involving an appeal for adoption assistance after finalization, the chief contribution of the adoptive family is to provide information about the child’s special needs.
Adoptive parents are not expected to assume the primary burden for establishing whether the child meets such requirements as AFDC relatedness or if a judicial determination of best interest has been made when they submit an application for adoption assistance before finalization. Those eligibility requirements pertain to the child’s situation at the time he or she was removed from the home of the birth parents, a period before many adoptive families come into the picture and have any relationship with the child. In such cases, the state or local agency assumes responsibility for gathering the facts necessary to determine if the AFDC relatedness and judicial determination of best interest standards are satisfied.
The state’s responsibility for conducting eligibility determinations and the adoptive family’s responsibility for responding to eligibility determinations. If the state contends that the child is not eligible for adoption assistance because he or she did not meet the AFDC relatedness requirement, for example, it should provide documentation for its determinations. At that point, the adoptive family must be able to challenge that claim with evidence of its own.
1. Extenuating circumstances are most accurately characterized as the subject of the hearing, meaning that they are a matter to be determined at the hearing itself, not the grounds on which the decision to grant or deny a hearing is made. As an adoptive family, you have a right to an administrative fair hearing if a federal benefit is denied. You should be able to obtain a hearing in virtually every instance in which you petition for adoption assistance after finalization of the adoption.
2. You assume the burden of establishing the existence of extenuating circumstances at the administrative fair hearing.
3. If you succeed in establishing the existence of extenuating circumstances, the next question before the hearing examiner is whether the child met the eligibility requirements for IV-E adoption assistance.
4. The state (agency) is responsible for making eligibility determinations. If the state has determined that the adoptive child does not meet one or more of the eligibility requirements for IV-E adoption assistance, it is responsible for presenting evidence at the hearing to support its determination. If the evidence regarding the child’s eligibility is not available at the time of the hearing, the hearing examiner may order the agency to determine eligibility as part of the hearing decision.
You share the burden of proof with the agency in that you must respond to a determination by the state that the child does not meet one or more of the eligibility requirements for IV-E adoption assistance with evidence of your own. This responsibility, however, presupposes that an eligibility determination has been made and communicated to you. If there is no record that an eligibility determination has been made, you must cooperate in presenting information in your possession that may be relevant to the child’s eligibility, but you do not assume the entire burden of establishing the child’s eligibility.
If you are seeking assistance for your adopted special needs child, speak to an experienced South Jordan Utah family lawyer.
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