[Code of Federal Regulations]

[Title 45, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR1356.21]



[Page 307-312]

 

                        TITLE 45--PUBLIC WELFARE

 

CHAPTER XIII--OFFICE OF HUMAN DEVELOPMENT SERVICES, DEPARTMENT OF HEALTH 

                           AND HUMAN SERVICES

 

PART 1356_REQUIREMENTS APPLICABLE TO TITLE IV-E--Table of Contents

 

Sec. 1356.21  Foster care maintenance payments program implementation 

requirements.



    (a) Statutory and regulatory requirements of the Federal foster care 

program. To implement the foster care maintenance payments program 

provisions of the title IV-E State plan and to be eligible to receive 

Federal financial participation (FFP) for foster care maintenance 

payments under this part, a State must meet the requirements of this 

section, 45 CFR 1356.22, 45 CFR 1356.30, and sections 472, 475(1), 

475(4), 475(5) and 475(6) of the Act.



[[Page 308]]



    (b) Reasonable efforts. The State must make reasonable efforts to 

maintain the family unit and prevent the unnecessary removal of a child 

from his/her home, as long as the child's safety is assured; to effect 

the safe reunification of the child and family (if temporary out-of-home 

placement is necessary to ensure the immediate safety of the child); and 

to make and finalize alternate permanency plans in a timely manner when 

reunification is not appropriate or possible. In order to satisfy the 

``reasonable efforts'' requirements of section 471(a)(15) (as 

implemented through section 472(a)(1) of the Act), the State must meet 

the requirements of paragraphs (b) and (d) of this section. In 

determining reasonable efforts to be made with respect to a child and in 

making such reasonable efforts, the child's health and safety must be 

the State's paramount concern.

    (1) Judicial determination of reasonable efforts to prevent a 

child's removal from the home.

    (i) When a child is removed from his/her home, the judicial 

determination as to whether reasonable efforts were made, or were not 

required to prevent the removal, in accordance with paragraph (b)(3) of 

this section, must be made no later than 60 days from the date the child 

is removed from the home pursuant to paragraph (k)(1)(ii) of this 

section.

    (ii) If the determination concerning reasonable efforts to prevent 

the removal is not made as specified in paragraph (b)(1)(i) of this 

section, the child is not eligible under the title IV-E foster care 

maintenance payments program for the duration of that stay in foster 

care.

    (2) Judicial determination of reasonable efforts to finalize a 

permanency plan.

    (i) The State agency must obtain a judicial determination that it 

has made reasonable efforts 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 months of the date 

the child is considered to have entered foster care in accordance with 

the definition at Sec. 1355.20 of this part, and at least once every 

twelve months thereafter while the child is in foster care.

    (ii) If such a judicial determination regarding reasonable efforts 

to finalize a permanency plan is not made in accordance with the 

schedule prescribed in paragraph (b)(2)(i) of this section, 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 remains 

ineligible until such a determination is made.

    (3) Circumstances in which reasonable efforts are not required to 

prevent a child's removal from home or to reunify the child and family. 

Reasonable efforts to prevent a child's removal from home or to reunify 

the child and family are not required if the State agency obtains a 

judicial determination that such efforts are not required because:

    (i) A court of competent jurisdiction has determined that the parent 

has subjected the child to aggravated circumstances (as defined in State 

law, which definition may include but need not be limited to 

abandonment, torture, chronic abuse, and sexual abuse);

    (ii) A court of competent jurisdiction has determined that the 

parent has been convicted of:

    (A) Murder (which would have been an offense under section 1111(a) 

of title 18, United States Code, if the offense had occurred in the 

special maritime or territorial jurisdiction of the United States) of 

another child of the parent;

    (B) Voluntary manslaughter (which would have been an offense under 

section 1112(a) of title 18, United States Code, if the offense had 

occurred in the special maritime or territorial jurisdiction of the 

United States) of another child of the parent;

    (C) Aiding or abetting, attempting, conspiring, or soliciting to 

commit such a murder or such a voluntary manslaughter; or

    (D) A felony assault that results in serious bodily injury to the 

child or another child of the parent; or,

    (iii) The parental rights of the parent with respect to a sibling 

have been terminated involuntarily.

    (4) Concurrent planning. Reasonable efforts to finalize an alternate 

permanency plan may be made concurrently



[[Page 309]]



with reasonable efforts to reunify the child and family.

    (5) Use of the Federal Parent Locator Service. The State agency may 

seek the services of the Federal Parent Locator Service to search for 

absent parents at any point in order to facilitate a permanency plan.

    (c) Contrary to the welfare determination. Under section 472(a)(1) 

of the Act, a child's removal from the home must have been the result of 

a judicial determination (unless the child was removed pursuant to a 

voluntary placement agreement) to the effect that continuation of 

residence in the home would be contrary to the welfare, or that 

placement would be in the best interest, of the child. The contrary to 

the welfare determination must 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 is not 

eligible for title IV-E foster care maintenance payments for the 

duration of that stay in foster care.

    (d) Documentation of judicial determinations. The judicial 

determinations regarding contrary to the welfare, reasonable efforts to 

prevent removal, and reasonable efforts to finalize the permanency plan 

in effect, including judicial determinations that reasonable efforts are 

not required, must be explicitly documented and must be made on a case-

by-case basis and so stated in the court order.

    (1) If the reasonable efforts and contrary to the welfare judicial 

determinations are not included as required in the court orders 

identified in paragraphs (b) and (c) of this section, a transcript of 

the court proceedings is the only other documentation that will be 

accepted to verify that these required determinations have been made.

    (2) Neither affidavits nor nunc pro tunc orders will be accepted as 

verification documentation in support of reasonable efforts and contrary 

to the welfare judicial determinations.

    (3) 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.

    (e) Trial home visits. A trial home visit may not exceed six months 

in duration, unless a court orders a longer trial home visit. If a trial 

home visit extends beyond six months and has not been authorized by the 

court, or exceeds the time period the court has deemed appropriate, and 

the child is subsequently returned to foster care, that placement must 

then be considered a new placement and title IV-E eligibility must be 

newly established. Under these circumstances the judicial determinations 

regarding contrary to the welfare and reasonable efforts to prevent 

removal are required.

    (f) Case review system. In order to satisfy the provisions of 

section 471(a)(16) of the Act regarding a case review system, each 

State's case review system must meet the requirements of sections 475(5) 

and 475(6) of the Act.

    (g) Case plan requirements. In order to satisfy the case plan 

requirements of sections 471(a)(16), 475(1) and 475(5) (A) and (D) of 

the Act, the State agency must promulgate policy materials and 

instructions for use by State and local staff to determine the 

appropriateness of and necessity for the foster care placement of the 

child. The case plan for each child must:

    (1) Be a written document, which is a discrete part of the case 

record, in a format determined by the State, which is developed jointly 

with the parent(s) or guardian of the child in foster care; and

    (2) Be developed within a reasonable period, to be established by 

the State, but in no event later than 60 days from the child's removal 

from the home pursuant to paragraph (k) of this section;

    (3) Include a discussion of how the case plan is designed to achieve 

a safe placement for the child in the least restrictive (most family-

like) setting available and in close proximity to the home of the 

parent(s) when the case plan goal is reunification and a discussion of 

how the placement is consistent with the best interests and special 

needs of the child. (FFP is not available when a court orders a 

placement with a specific foster care provider);



[[Page 310]]



    (4) Include a description of the services offered and provided to 

prevent removal of the child from the home and to reunify the family; 

and

    (5) Document the steps to finalize a placement when the case plan 

goal is or becomes adoption or placement in another permanent home in 

accordance with sections 475(1)(E) and (5)(E) of the Act. When the case 

plan goal is adoption, at a minimum, such documentation shall include 

child-specific recruitment efforts such as the use of State, regional, 

and national adoption exchanges including electronic exchange systems.



(This requirement has been approved by the Office of Management and 

Budget under OMB Control Number 0980-0140. In accordance with the 

Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, 

and a person is not required to respond to, a collection of information 

unless it displays a currently valid OMB control number.)



    (h) Application of the permanency hearing requirements. (1) To meet 

the requirements of the permanency hearing, the State must, among other 

requirements, comply with section 475(5)(C) of the Act.

    (2) In accordance with paragraph (b)(3) of this section, when a 

court determines that reasonable efforts to return the child home are 

not required, a permanency hearing must be held within 30 days of that 

determination, unless the requirements of the permanency hearing are 

fulfilled at the hearing in which the court determines that reasonable 

efforts to reunify the child and family are not required.

    (3) If the State concludes, after considering reunification, 

adoption, legal guardianship, or permanent placement with a fit and 

willing relative, that the most appropriate permanency plan for a child 

is placement in another planned permanent living arrangement, the State 

must document to the court the compelling reason for the alternate plan. 

Examples of a compelling reason for establishing such a permanency plan 

may include:

    (i) The case of an older teen who specifically requests that 

emancipation be established as his/her permanency plan;

    (ii) The case of a parent and child who have a significant bond but 

the parent is unable to care for the child because of an emotional or 

physical disability and the child's foster parents have committed to 

raising him/her to the age of majority and to facilitate visitation with 

the disabled parent; or,

    (iii) the Tribe has identified another planned permanent living 

arrangement for the child.

    (4) When an administrative body, appointed or approved by the court, 

conducts the permanency hearing, the procedural safeguards set forth in 

the definition of permanency hearing must be so extended by the 

administrative body.

    (i) Application of the requirements for filing a petition to 

terminate parental rights at section 475(5)(E) of the Social Security 

Act. (1) Subject to the exceptions in paragraph (i)(2) of this section, 

the State must file a petition (or, if such a petition has been filed by 

another party, seek to be joined as a party to the petition) to 

terminate the parental rights of a parent(s):

    (i) Whose child has been in foster care under the responsibility of 

the State for 15 of the most recent 22 months. The petition must be 

filed by the end of the child's fifteenth month in foster care. In 

calculating when to file a petition for termination of parental rights, 

the State:

    (A) Must calculate the 15 out of the most recent 22 month period 

from the date the child is considered to have entered foster care as 

defined at section 475(5)(F) of the Act and Sec. 1355.20 of this part;

    (B) Must use a cumulative method of calculation when a child 

experiences multiple exits from and entries into foster care during the 

22 month period;

    (C) Must not include trial home visits or runaway episodes in 

calculating 15 months in foster care; and,

    (D) Need only apply section 475(5)(E) of the Act to a child once if 

the State does not file a petition because one of the exceptions at 

paragraph (i)(2) of this section applies;

    (ii) Whose child has been determined by a court of competent 

jurisdiction to be an abandoned infant (as defined under State law). The 

petition to terminate parental rights must be filed within 60 days of 

the judicial determination that the child is an abandoned infant; or,



[[Page 311]]



    (iii) Who has been convicted of one of the felonies listed at 

paragraph (b)(3)(ii) of this section. Under such circumstances, the 

petition to terminate parental rights must be filed within 60 days of a 

judicial determination that reasonable efforts to reunify the child and 

parent are not required.

    (2) The State may elect not to file or join a petition to terminate 

the parental rights of a parent per paragraph (i)(1) of this section if:

    (i) At the option of the State, the child is being cared for by a 

relative;

    (ii) The State agency has documented in the case plan (which must be 

available for court review) a compelling reason for determining that 

filing such a petition would not be in the best interests of the 

individual child. Compelling reasons for not filing a petition to 

terminate parental rights include, but are not limited to:

    (A) Adoption is not the appropriate permanency goal for the child; 

or,

    (B) No grounds to file a petition to terminate parental rights 

exist; or,

    (C) The child is an unaccompanied refugee minor as defined in 45 CFR 

400.111; or

    (D) There are international legal obligations or compelling foreign 

policy reasons that would preclude terminating parental rights; or

    (iii) The State agency has not provided to the family, consistent 

with the time period in the case plan, services that the State deems 

necessary for the safe return of the child to the home, when reasonable 

efforts to reunify the family are required.

    (3) When the State files or joins a petition to terminate parental 

rights in accordance with paragraph (i)(1) of this section, it must 

concurrently begin to identify, recruit, process, and approve a 

qualified adoptive family for the child.

    (j) Child of a minor parent in foster care. Foster care maintenance 

payments made on behalf of a child placed in a foster family home or 

child care institution, who is the parent of a son or daughter in the 

same home or institution, must include amounts which are necessary to 

cover costs incurred on behalf of the child's son or daughter. Said 

costs must be limited to funds expended on items listed in the 

definition of foster care maintenance payments in Sec. 1355.20 of this 

part.

    (k) Removal from the home of a specified relative.

    (1) For the purposes of meeting the requirements of section 

472(a)(1) of the Act, a removal from the home must occur pursuant to:

    (i) A voluntary placement agreement entered into by a parent or 

guardian which leads to a physical or constructive removal (i.e., a non-

physical or paper removal of custody) of the child from the home; or

    (ii) A judicial order for a physical or constructive removal of the 

child from a parent or specified relative.

    (2) A removal has not occurred in situations where legal custody is 

removed from the parent or relative and the child remains with the same 

relative in that home under supervision by the State agency.

    (3) A child is considered constructively removed on the date of the 

first judicial order removing custody, even temporarily, from the 

appropriate specified relative or the date that the voluntary placement 

agreement is signed by all relevant parties.

    (l) Living with a specified relative.For purposes of meeting the 

requirements for living with a specified relative prior to removal from 

the home under section 472(a)(1) of the Act and all of the conditions 

under section 472(a)(4), one of the two following situations must apply:

    (1) The child was 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

    (2) The child had 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.

    (m) Review of payments and licensing standards. In meeting the 

requirements of section 471(a)(11) of the Act, the State must review at 

reasonable, specific, time-limited periods to be established by the 

State:

    (1) The amount of the payments made for foster care maintenance and



[[Page 312]]



adoption assistance to assure their continued appropriateness; and

    (2) The licensing or approval standards for child care institutions 

and foster family homes.

    (n) Foster care goals. The specific foster care goals required under 

section 471(a)(14) of the Act must be incorporated into State law by 

statute or administrative regulation with the force of law.

    (o) Notice and opportunity to be heard. The State must provide the 

foster parent(s) of a child and any preadoptive parent or relative 

providing care for the child with timely notice of and an opportunity to 

be heard in permanency hearings and six-month periodic reviews held with 

respect to the child during the time the child is in the care of such 

foster parent, preadoptive parent, or relative caregiver. Notice of and 

an opportunity to be heard does not include the right to standing as a 

party to the case.



[65 FR 4088, Jan. 25, 2000, as amended at 66 FR 58677, Nov. 23, 2001]