West Jordan Utah is a great place to bring up your kids. But what if you don’t have kids – you can legally adopt a kid. There are many couples with and without children who are adopting children. Speak to an experienced West Jordan Utah family lawyer to know how you can adopt a child.
Special Needs Adoption
Special needs adoption is challenging. This is not to say adoption can’t be positive. Special needs adoption can be and should be joyful. After all, it is the ultimate win-win situation: Child who needs parent gets parent, and parent who wants child gets child. But the joy that comes from a successful adoption is not bestowed automatically on the family. Successful special needs adoptions are the result of hard work on the part of the parents and their support network.
Special needs is a term coined in the seventies to describe adoptable children who are waiting. The term’s definition is important because only children with special needs are eligible for the special state and federal programs that reimburse parents for the cost of the adoption and that pay for some of the children’s medical and maintenance expenses after the adoption. The federal government defines a child with special needs as one who has one or more special needs or factors, such as
• Sibling status (must remain with one or more siblings
• minority race (this is not a special need or a requirement but a placement factor)
• age (older children)
• mild, moderate, or severe physical, mental, or emotional challenges
• risk factors for problems that could show up later (prenatal exposure to drugs, a family history of mental illness, abuse, neglect, a difficult birth, multiple caregivers, unknown paternity, and others)
Special needs waiting children can be healthy looking infants who were exposed to heroin prenatally, a two-year-old with asthma, or a seventeen and one-half-year-old who simply wants a real family before he or she graduates from high school. Quite often, they are sibling groups with two to seven or more members who need to be adopted together by one family.
On November 19, 1997, PL 96-272, or Title IV-E, was amended in positive ways that further help children with special needs. The amendments came about as a result of passage of ASFA, an acronym child advocates and adoptive parents will come to know very well in the years ahead. ASFA stands for the Adoption and Safe Families Act, otherwise known as Public Law 105-89, or H.R.867. Because of ASFA, PL 96-272 is now officially called the Adoption and Safe Families Act of 1997, Title IV, Part B–Child and Family Services.
PL 96-272, Title IV-E, the Adoption Assistance and Child Welfare Act of 1980. The premise was simple: The federal government promised to reimburse states for administrative costs and anywhere from fifty cents to eighty cents on the dollar for every dollar the states paid out in adoption subsidies for children with special needs, provided the states followed the federal law as written. In other words, states could also pay state-funded subsidies to families under different rules, but they would be reimbursed only for those that fell under the terms of the federal IV-E law.
The law was cautiously written so as not to discourage birth family reconciliation where possible. The states had to show why a child could not go home (usually because of abuse, neglect, or the ongoing drug abuse of the parents).
The new federal law was careful to allow only those children into the subsidy program who truly needed it to be adopted, children who were in foster homes with no family to return to, children deprived of the support of their parents, and children with special needs.
Since the law was complex, the federal government supplied each state with a sample “Adoption Assistance Contract,” which could be modified, to a certain extent, to meet individual state rules. The response from the states varied from quick and complete compliance (some states adopted the sample contract almost word-for-word) to near total noncompliance. It would be fourteen years before all states were participating in Title IV-E.
How to tell if your child is eligible
Speak to an experienced West Jordan Utah family lawyer to know if your adopted child is eligible. Only adopted children with special needs who meet the Title IV-E criteria can receive federal adoption assistance under PL 96-272. For those adopted children who do not meet all IV-E criteria, state subsidies may be available, but the rules and requirements are different from state to state.
How do you know if your child is IV-E eligible? If your social worker says so, ask for a written statement to that effect or for a copy of the child’s IV-E eligibility form to be sure there is no mistake about this. More than one parent has lost benefits under a state subsidy contract that they had believed was a federal IV-E contract. A IV-E contract is more reliable than a state subsidy contract because parents have more rights and safeguards in place under the federal law. The federal laws have no control over state subsidy contracts. For example, in some states, an individual state subsidy can be lowered without the agreement of the adoptive parents, whereas a negotiated federal subsidy amount cannot be lowered without the parents’ permission.
If your social worker isn’t sure or says your child is not IV-E eligible, be sure this is so. Sadly, some children are erroneously denied IV-E eligibility because the person or persons who make such determinations are not well trained in an understanding of PL 96-272. In fact, erroneous determinations are so common that there is a PIQ called PIQ 92-02 that outlines how families who think their children should have been given IV-E eligibility can go back and seek such a designation, along with retroactive subsidy payments. Just as you might be advised to seek a second opinion in serious medical matters, so should you seek another opinion when your child with special needs is denied IV-E eligibility.
The requirements for IV-E only sound complex and obtuse until the individual elements are understood. The requirements are actually very inclusive of children with special needs when the law is applied according to its word, intent, purpose, and scope. In simplest terms, a child must meet three tests in order to be IV-E eligible for adoption assistance:
• he or she must have been AFDC-(Aid to Families with Dependent Children) eligible in the birth home or SSI Supplemental Security Income eligible or IV-E foster care eligible and
• he or she must have special need risk factors or a special need and
• he or she must have entered the system through a voluntary placement, if the state plan allows that, or through a judicially determined removal from the home of a relative.
In other words, it is not enough for a child to have special needs or special needs risk factors. Let’s look at each requirement more carefully.
For purposes of IV-E eligibility, there are three doors to IV-E Adoption Assistance: SSI (the disability door), AFDC (the poverty/deprived door), or IV-E foster care eligibility (the foster care door). Although children need only enter through one door, many children are IV-E adoption-assistance eligible through two or even all three doors.
The Disability Door
Supplemental Security Income (SSI) is a monthly payment made to children and adults who have serious disabilities, such as mental retardation, cerebral palsy, blindness, or mental illness. Unlike adoption assistance, SSI is means-tested assistance, tied to the income of the child before adoption finalization and to the income of the adoptive parents after finalization. For this reason, most parents switch their children at adoption from SSI to the nonmeans-tested Adoption Assistance Payments (AAP). But what matters for IV-E eligibility is SSI eligibility. The child does not have to receive SSI to be SSI-eligible. The child only needs to have an SSI “award letter.”
If a child meets the SSI disability standards, then he or she is virtually certain to meet the definition of special needs. This SSI path to eligibility for Title IV-E adoption assistance does not require placement for adoption by an agency, although it may be very difficult to obtain subsidies for children who were never in agency custody.
The Poverty/Deprived Door
The second door is often used by children who, because of placement through private adoption agencies, were never eligible for IV-E foster care. Those children using this door have special needs or risk factors but do not qualify as SSI-eligible. The children come from birth homes where the birth mother or birth parents or relative caretaker were receiving public assistance such as AFDC or TANF. They also come from homes where, due to poverty, the birth parent or relative caretaker was eligible for public assistance, whether or not any assistance was ever applied for or received. This includes unemployed birth mothers, for example, and birth mothers who receive no support from the birth fathers or who cannot identify the birth father. The legal term for such children is deprived. A child is also considered deprived in most states as soon as the birth parents’ rights have been legally relinquished or terminated. Children also are deprived when their birth parents have abandoned them, refuse to support them, or have died.
The Foster Care Door
The third door is designed to offer children who are in agency custody a continuum of care. The thinking is that if a child in state agency custody qualifies for the IV-E foster care maintenance program he or she will already have met the AFDC (or TANF) relatedness requirement and the judicial determination that the child’s placement was in his or her best interest. Satisfying the special needs definition is the only remaining requirement for IV-E adoption assistance.
Sometimes, the only door for a child is the IV-E foster care door. In rare cases, a child will be erroneously denied IV-E foster care eligibility and then, as a consequence, erroneously denied IV-E adoption assistance eligibility too. In such cases, parents can use PIQ 92-02 to go back and obtain IV-E status for their child even though foster care FFP (Federal Financial Participation or federal matching funds) was never obtained by the state.
There are PIQs that support children’s rights in this regard. PIQ 85-06 states that a child should not suffer for a bureaucracy’s mistake. In other words, if a state fails to follow the rules for accessing foster care FFP, the state may lose some FFP funding, but the child may not be deprived of his or her IV-E eligibility. Similarly, PIQ 85-07 says that the child’s eligibility may not be denied because the birth parents make a paperwork error or omission or fail to cooperate with the agency in some way.
The important point to remember here is that some children will be erroneously labeled “nonspecial needs” when, in fact, they do qualify as children with special needs. Not all children with special needs come from sibling groups or have disabilities. Some children with special needs will qualify on race alone or on age or, especially in the case of healthy-looking infants, due to risk factors. Risk factors include anything that puts an otherwise normal-appearing infant or child at risk of having unseen disabilities or of developing special needs later on, such as
• genetic risk factors for mental, physical, or learning disabilities
• prenatal exposure to drugs or harsh chemicals
• lack of prenatal care
• rape conception
• unknown paternity
• maternal gestational disease
• difficult or dangerous birth
• low Apgar scores
• multiple foster home placements
If a parent believes his or her child qualifies as a child with special needs, but is denied this determination by the agency, that parent should seek the advice of an experienced West Jordan Utah family lawyer. Parents may appeal agency decisions by requesting an administrative hearing. Parents of such children have a right to a fair hearing to try and prove that their child is a child with special needs.
Free Consultation with a Family Lawyer in West Jordan Utah
When you need legal help with a family law issue in West Jordan, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506