[Code of Federal Regulations]
[Title 45, Volume 4]
[Revised as of October 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1356.21]

[Page 311-315]
 
                        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
 
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.
    (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:

[[Page 312]]

    (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 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

[[Page 313]]

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);
    (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:

[[Page 314]]

    (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,
    (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

[[Page 315]]

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 
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]