Mississippi Administrative Code › Title 18 - HUMAN SERVICES › Part 6 - Division of Family and Children's Services › Chapter 1 - DFCS Policy Manual › Section 18-6-1-E - Eligibility Foster Care Financial Assessment › Section 18-6-1-E-II - ELIGIBILITY REQUIREMENTS

Current through June 25, 2024
A.
Judicial
				  Determination of Custody
(
					 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.
B.
Judicial
				  Language
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.
1.
Voluntary
				  Placement Agreements
"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) )
2.
Goal of Services
				  Provided to Parents or Other Relatives
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.)