Dissolution of Adoption or Death of Adoptive Parents

As part of the Adoption and Safe Families Act (ASFA) of 1997 (Public Law 105-89), children's eligibility for federal adoption assistance continues if the adoptive parent(s) dies or the adoption dissolves. This is important because it encourages the re-adoption of children with more severe disabilities. Below is the text of the actual law.

Sec. 307. Continuation of Eligibility for Adoption Assistance Payments on Behalf of Children with Special Needs Whose Initial Adoption Has Been Dissolved.

(a) Continuation of Eligibility-Section 473(a)(2) of the Social Security Act (42 U.S.C. 673 (a)(2)) is amended by adding at the end the following: "Any child who meets the requirements of subparagraph (C), who was determined eligible for adoption assistance payments under this part with respect to a prior adoption, who is available for adoption because the prior adoption has been dissolved and the parental rights of the adoptive parents have been terminated or because the child's adoptive parents have died, and who fails to meet the requirements of subparagraphs (A) and (B) but would meet such requirements if the child were treated as if the child were in the same financial and other circumstances the child was in the last time the child was determined eligible for adoption assistance payments under this part and the prior adoption were treated as never having occurred, shall be treated as meeting the requirements of this paragraph for purposes of paragraph (1)(B)(ii).".

(b) Applicability-The amendment made by subsection (a) shall only apply to children who are adopted on or after October 1, 1997.

Prior to ASFAM

Before the 1997 change, children adopted with a signed adoption assistance agreement did not necessarily continue receiving adoption subsidy benefits if their adoption dissolved and they were replaced for adoption. The regulations mandated that their eligibility for a second subsidy agreement be based on the status of the adoptive parents' income (i.e., AFDC status). If the child was not eligible for Supplemental Security Income (SSI)-the other "door" into eligibility for the federal program-the child typically did not receive federally funded benefits if he was placed for adoption a second time. As a result, many special needs children with significant medical and emotional needs were ineligible to receive ongoing assistance. This acted as a barrier to adoption. The only way a child could maintain his subsidy benefits is if he was readopted and the state happened to have a policy that guaranteed continued benefits.

Involvement of a Child Placing Agency

According to ACYF-CB-PA-01-01, if a Title IV-E adoption dissolves or the adoptive parents die and the child is placed with a State agency that assumes responsibility for placement and care, it is the placing State's responsibility to determine whether the child meets the definition of special needs, and pay the subsidy in a subsequent adoption. If, however, a public child welfare agency is not involved in the subsequent adoptive placement of a child, it is the public child welfare agency in the subsequent adoptive parents' State of residence that is responsible for determining whether the child meets the definition of special needs, entering into the adoption assistance agreement, and paying the subsidy. The State of the child's initial adoption or the State that pays the Title IV-E adoption assistance in the child's initial adoption is irrelevant in a subsequent adoption.

As a precaution, NACAC suggests that all adoptive parents put a writing clause in their will about the subsidy benefits received on behalf of their special needs child. If the Executor of your will knows that the child receives adoption assistance and knows to contact the child's agency upon your death, there will be less confusion during an already confusing and stressful time.

Private Agency or Independent Adoptions

Since Title IV-E adoption assistance eligibility need not be re-established in subsequent adoptions, the manner of the child's removal from the adoptive home, including whether the child is voluntarily relinquished to an individual or private agency, is irrelevant.

Timeline

The amendment made by Public Law 105-89 shall only apply to children who are adopted on or after October 1, 1997. NACAC reads this to mean that children are eligible if the subsequent adoption-not the initial adoption-is finalized on or after this date. The Children's Bureau has verbally agreed to this interpretation.