§ 3140.202. Child eligibility.
(a) The county children and youth social service agency (county agency) is the sole authority for certifying a child’s eligibility for adoption assistance.
(b) The county agency shall certify for adoption assistance children whose placement goal is adoption and who meet the following requirements:
(1) The child is 17 years of age or younger.
(2) Parental rights have been terminated under 23 Pa.C.S. Part III (relating to the Adoption Act).
(3) The child is in the legal custody of the county agency or another agency approved by the Department.
(4) The child shall have at least one of the following characteristics:
(i) A physical, mental or emotional condition or handicap.
(ii) A genetic condition which indicates a high risk of developing a disease or handicap.
(iii) Be a member of a minority group.
(iv) Be a member of a sibling group.
(v) Be 5 years of age or older.
(c) Prior to certification for adoption assistance, the county agency shall make reasonable efforts to find an adoptive home without providing adoption assistance. Evidence of this effort shall be recorded in the case record and include registration with the Department’s adoption exchange for at least 3 months.
(d) If it would be against the best interests of the child because of factors, such as the existence of significant emotional ties with prospective adoptive parents while in the care of the parents as a foster child, the requirement of subsection (c) does not apply.
Authority The provisions of this § 3140.202 amended under Articles II, VII, IX and X of the Public Welfare Code (62 P. S. § § 201—211, 701—774, 901—922 and 1001—1080).
Source The provisions of this § 3140.202 amended January 23, 1987, effective July 23, 1987, 17 Pa.B. 392; amended October 26, 1990, effective immediately and apply retroactively to July 30, 1988, 20 Pa.B. 5437. Immediately preceding text appears at serial pages (114540) to (114541).
Notes of Decisions Eligibility
It is the county agency’s responsibility to determine whether to certify a child as eligible for assistance, not the adoptive parents’ responsibility and the agency cannot expect the adoptive parents to make an informed decision as to whether or not to accept an adoption assistance subsidy when it is the agency that controls what information is and is not given to the adoptive parents. York CYS v. Department of Public Welfare, 833 A.2d 281, 288 (Pa. Cmwlth. 2003)
A child with special needs was not eligible for adoption subsidy payments until March 29, 1989, the date of termination of the natural parents’ rights. Allegheny County Office of Children and Youth Services v. Department of Public Welfare, 800 A.2d 367 (Pa. Cmwlth. 2002).
The county children and youth services agency is responsible for determining the adoption assistance eligibility not only for children who are in their care and custody, but for all children. Gruzinski v. Department of Public Welfare, 731 A.2d 246 (Pa. Cmwlth. 1999); appeal denied 747 A.2d 902 (Pa. 1999).
A child, who was born with a cleft palate, cleft jaw, and a cleft lip, is eligible for adoption assistance retroactive to the first instance where the child was residing with the adoptive mother and the birth mother’s parental rights were terminated, where, at the time the adoption petition was filed, the child was eligible for AFDC while living with a specified relative, her aunt, the adoptive mother, and the child, in fact, received AFDC payments while living with the adoptive mother prior to the adoption, even though actual payments are not necessary in order to meet the AFDC relatedness standard for adoption assistance. Gruzinski v. Department of Public Welfare, 731 A.2d 246 (Pa. Cmwlth. 1999).
Exception
Extenuating circumstances existed in this case to justify a waiver of the 3-month ‘‘reasonable efforts’’ requirement, where each child was placed in the custody of the adoptive parents at a very tender age and formed familial bonds with their adoptive parents; it would not have been in the best interest of either child to have the child removed and placed with a different family solely because that family did not require an adoption subsidy. Adoption Resource Center, Inc. v. Department of Public Welfare, 727 A.2d 1209 (Pa. Cmwlth. 1999).
The exception to the ‘‘reasonable efforts’’ requirement of this regulation should be interpreted broadly, where the ‘‘such as’’ language of the regulation suggests that other situations may come within the exception, and the foster care scenario described therein merely provides one example. Adoption Resource Center, Inc. v. Department of Public Welfare, 727 A.2d 1209 (Pa. Cmwlth. 1999).
Federal Law; Consistency
The Adoption Opportunities Act (62 P. S. § § 771—774) and the regulations promulgated thereunder, are consistent with the Federal Adoption Assistance and Child Welfare Act of 1980 (42 U.S.C.A. § § 670—676), with respect to the requirement that the child be in agency custody to qualify for certain subsidies. The court found that the child was effectively in that position, thereby satisfying the requirements of the Adoption Opportunities Act. C.B. and J.B. v. Department of Public Welfare, 786 A.2d 176 (Pa. 2001).
Three-Month Waiting/Search Period
Although the court agreed that the primary focus of the adoption agency should be on finding the most suitable family for the child, and not on ‘‘shopping’’ for a family that does not require assistance, the court declined to hold that the 3-month registration requirement contained in this regulation is per se unreasonable or in violation of Federal law. Adoption Resource Center, Inc. v. Department of Public Welfare, 727 A.2d 1209 (Pa. Cmwlth. 1999).
The extenuating circumstances doctrine states that adoptive parents have a right to a fair hearing if the State or county adoption agency fails to advise adoptive parents of the availability of adoption assistance. The extenuating circumstances doctrine does not apply when a county agency or the Department does not know of the existence of the children before the adoption is finalized. Without knowledge of the children, the county agency or the Department cannot comply with § § 3140.202(c) or 3140.203(a). Laird v. Dep’t of Pub. Welfare, 23 A.3d 1015, 1030 (Pa. 2011).
Cross References This section cited in 55 Pa. Code § 3140.205 (relating to eligibility for Federal financial participation).
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