1. (a) The three-part special needs determination requires ALL of the following three conditions be met:

   1. (1) Evidence in the file that the child cannot or should not be returned to the home of his or her parents.

      1. (A) Sufficient evidence includes a petition to terminate parental rights, a court order terminating parental rights, a signed relinquishment or a tribal customary adoption order.

   2. (2) A specific factor or condition makes it reasonable to conclude that the child cannot be adopted without providing AAP payments.

      1. (A) Factors or conditions include a child's ethnic background, age or membership in a minority or sibling group, parental background of a medical or behavioral nature that can adversely affect the development of the child, the presence of a medical condition, or physical, mental or emotional disabilities.

   3. (3) An effort to place the child for adoption with appropriate parents without providing adoption assistance unless it is against the best interest of the child.

      1. (A) This search for adoptive parents shall be documented in the adoption case record and include the following:

         1. 1. A discussion of potential adoptive parents at a regional adoption agency exchange meeting, or
         2. 2. Registration of the child with the department's photo-listing album.

      2. (B) A child who develops significant emotional ties with the prospective adoptive parents while in their care as a foster child or if a relative is adopting a child, then it would be in the child's best interest to remain with them and additional efforts to place the child are not required.

         1. 1. This search shall not be required when the current foster parents, or other persons with whom the child has been living and has established significant emotional ties, have both:

            1. a. Expressed interest in adopting the child, and
            2. b. Been determined by the agency to be suitable adoptive parents for the child.

2. (b) The child must be a United States citizen or a qualified alien as defined in Title 8 USC section 1641(b).

   1. (1) If a child is placed with an unqualified alien, the child must be a qualified alien or have lived in the U.S. for five years, if the child entered the United States on or after August 22, 1996.
   2. (2) The child is exempt from the five year residency requirement if the child is placed with a U.S. citizen or qualified alien, or the child is a member of one of the excepted groups pursuant to Title 8 USC section 1612(b): refugees, asylees, aliens whose deportation is withheld, veterans and those on active duty (as well as the spouse and unmarried dependent children of that person), Cuban or Haitian entrants and Amerasians from Vietnam.
   3. (3) If a child is an unqualified alien and placed outside the United States, the county may use county funds to cover the AAP costs for an otherwise AAP eligible child.

3. (c) To be eligible for Title IV-E (federal) funding, one of the following five paths to eligibility OR the definition of an “Applicable Child” and one of the four corresponding eligibility paths must be met:

   1. (1) At the time the child was removed from the home of a specified relative, the child would have been Aid to Families with Dependent Children (AFDC)-eligible in the home of removal according to July 16, 1996 AFDC standards.

      1. (A) In an involuntary situation, when a child's removal from the home is the result of a court action, there must also be a judicial determination that to remain in the home would be contrary to the child's welfare.

         1. 1. The determination must be made in the first court ruling (minute order) that sanctions (even temporarily) the removal.
         2. 2. The “contrary to the welfare” finding must be explicit in the first court order.

      2. (B) For children voluntarily relinquished to a licensed public or private adoption agency, or another public agency operating a Title IV-E program on behalf of the state (Tribes), the following must be obtained within six months of the time the child lived with a specified relative:

         1. 1. A petition to the court to remove the child from the home of a specified relative within six months of the date the child lived with the relative; and
         2. 2. Subsequent judicial determination that remaining in the home would be contrary to the child's welfare.
      3. (C) In the case of a voluntary placement agreement between the child's parent/legal guardian and the county agency, at least one Title IV-E foster care maintenance payment must have been made on behalf of the child.
   2. (2) At least one Title IV-E foster care maintenance payment has been made on behalf of the child's minor parent to cover the cost of the minor parent's child while in the foster parent's home or child care institution with the minor parent.

   3. (3) A child received AAP benefits with respect to a prior adoption, the prior adoption dissolved, and the child is again available for adoption. To remain eligible the child must meet the following:

      1. (A) Three part special needs determination
      2. (B) Citizenship requirements
   4. (4) Prior to the finalization of an agency adoption or an independent adoption, the child has met the requirements to receive federal Supplemental Security Income (SSI) benefits as determined and documented by the federal Social Security Administration (SSA).
   5. (5) The child is an Indian child and the subject of an order of adoption based on tribal customary adoption of an Indian child, as described in Welfare and Institutions Code Section 366.24.

4. (d) An “applicable child” is a child who:

   1. (1) Has been in foster care for at least 60 consecutive months, or
   2. (2) Is a sibling of an “applicable child,” if both are placed in the same prospective adoptive home, or

   3. (3) Meets the applicable age requirement anytime before the end of the Federal Fiscal Year (FFY).

      1. (A) FFY is October 1st through September 30th.

      2. (B) A child who has or will attain the stated age or is older than the stated age in (d)(3)(B)(1) through (d)(3)(B)(8) by the end of the corresponding current FFY is considered to be an “applicable child”:

         1. (1) In FFY 2010, the applicable age is 16 years.
         2. (2) In FFY 2011, the applicable age is 14 years.
         3. (3) In FFY 2012, the applicable age is 12 years.
         4. (4) In FFY 2013, the applicable age is 10 years.
         5. (5) In FFY 2014, the applicable age is 8 years.
         6. (6) In FFY 2015, the applicable age is 6 years.
         7. (7) In FFY 2016, the applicable age is 4 years.
         8. (8) In FFY 2017, the applicable age is 2 years or younger.

5. (e) The “applicable child” must meet one of the four eligibility paths:

   1. (1) The child is in the care of a public or private child placement agency or Indian tribal organization and is the subject of either one of the following:

      1. (A) An involuntary removal from the home in accordance with a judicial determination that continuation in the home would be contrary to the welfare of the child;

      2. (B) A voluntary placement agreement or voluntary relinquishment.

         1. 1. A Title IV-E foster care maintenance payment does not have to be made on behalf of an “applicable child,” or
         2. 2. Judicial determination that continuation in the home would be contrary to the welfare of the child.
   2. (2) The child has met all medical or disability eligibility requirements for federal supplemental security income (SSI) benefits.
   3. (3) The child was residing in a foster family home or child care institution with the child's minor parent.
   4. (4) The child received AAP with respect to a prior adoption that dissolved.

6. (f) To be eligible for State funding, the child is the subject of an agency adoption and at the time of adoptive placement, the child met one of the following requirements:

   1. (1) Under the supervision of a county welfare department as the subject of a legal guardianship or juvenile court dependency.
   2. (2) Relinquished to a licensed California private or public adoption agency, or another public agency operating a Title IV-E program on behalf of the state, and would have otherwise been at risk of dependency as certified by the responsible public child welfare agency.
   3. (3) Committed to the care of the department or county adoption agency pursuant Family Code Sections 8805 or 8918.
7. (g) There shall be no means test used to determine AAP eligibility.
8. (h) The prospective adoptive parent and any other adult living in the prospective adoptive home has completed the criminal background check requirements pursuant to Title 42 USC Section 671(a)(20)(A) and (C).

To be eligible for Adoption Assistance Program (AAP) benefits, the child must be under the age of 18 and meet the three part special needs determination, citizenship requirements, and Title IV-E (federal) funding requirements or state funding requirements specified in Welfare and Institutions Code Section 16120.

Note: Authority cited: Sections 10553, 10554 and 16118(a), Welfare and Institutions Code. Reference: Sections 16118, 16119, 16120 and 16121.05, Welfare and Institutions Code; 42 USC 671 and 673; and 45 CFR 1356.40(c).

History

1. Renumbering of former article 1 to article 2, and renumbering and amendment of former section 35325 to section 35326 filed 10-31-94 as an emergency; operative 11-1-94 (Register 94, No. 44). A Certificate of Compliance must be transmitted to OAL by 3-1-95 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 10-31-94 order including amendment of subsection (b) transmitted to OAL 2-27-95 and filed 4-10-95 (Register 95, No. 15).

3. Amendment of subsection (a), new subsection (b) and subsection relettering filed 11-30-2000 as an emergency; operative 12-1-2000 (Register 2001, No. 13). A Certificate of Compliance must be transmitted to OAL by 3-30-2001 or emergency language will be repealed by operation of law on the following day.

4. Amendment of subsection (a), new subsection (b) and subsection relettering refiled 3-30-2001 as an emergency; operative 3-31-2001 (Register 2001, No. 13). A Certificate of Compliance must be transmitted to OAL by 7-30-2001 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 3-31-2001 order transmitted to OAL 7-27-2001 and filed 9-6-2001 (Register 2001, No. 36).

6. Repealer and new section and amendment of Note filed 11-10-2011; operative 12-10-2011 (Register 2011, No. 45).