CPS September 2017
Title IV-E foster care eligibility requires that a child meet the qualifications for the federal Aid to Families with Dependent Children (AFDC) program that were in effect on July 16, 1996. This appendix documents the relevant 1996 requirements for determining a child’s eligibility under the AFDC program, including:
• removal requirements;
• verification of child’s age;
• parental deprivation;
• certified group determination;
• countable resources; and
In addition to these AFDC requirements, the child must meet all other applicable eligibility requirements in 1530 Foster Care Assistance Eligibility Requirements for Children and Youth Who Are in DFPS Conservatorship.
The home of removal is the home used to make the AFDC financial determination. The home of removal is the home that the child is legally removed from, which is the home of the person who is entitled to legal custody of the child. This is usually the parent or managing conservator.
The removal order may name the adult from whom the child was legally removed, or may name that person as the adult who is the subject of the finding that remaining in the home would be contrary to the welfare of the child. Staff can also look to the petition to help determine the home of removal.
If the child is living with an interim caregiver at the time the child is judicially removed from the parent, the eligibility determination of financial need is based on the parent’s home, even when the child is physically removed from the interim caregiver.
Living With and Removed From
To be AFDC eligible, the child must be living with and removed from the same specified relative. This can be met two ways:
• the child was judicially removed from a specified relative and was also living with that specified relative when the removal occurred; or
• the child was judicially removed from a specified relative with whom the child lived with in the past six months before the removal.
If the child was removed from a specified relative but allowed to remain in that relative’s home this is not a removal for Title IV-E purposes and the child cannot be certified IV-E. There must be a physical removal of the child from a home, unless a constructive removal as described below occurs.
In a constructive removal DFPS files suit against the parents or the person with legal responsibility for the child. The child is currently living with a person who provides a stable environment and the decision is made to leave the child in this caretaker’s home. The home of removal would be that of the parents or the person with legal responsibility for the child. However, the child must have lived with the parents or person with the legal responsibility within the past six months before removal to be AFDC eligible.
• A child is placed in a residential treatment facility or medical or psychiatric hospital by his parents without DFPS involvement and the child remains there for more than six months while his or her parents maintain responsibility for the child. If DFPS files for conservatorship while the child is living in the facility, the child is considered to be living with and removed from his or her parents because the parents chose to place the child in the facility and maintained parental responsibility. The eligibility specialist determines AFDC eligibility based on the parents’ home as if the child had been living in their home in the month the removal took place.
• A woman gives birth while in prison or in a hospital so the child is placed into foster care. The child is considered to be living with and removed from the mother because the prison or hospital is considered to be a home under §45 CFR 233.90 (c)(1)(v)(B).
The following are individuals, either biological or adoptive, who may be considered relatives of a child:
• Father or mother
• Grandfather or grandmother
• Brother or sister
• Uncle or aunt
• First cousin
• Nephew or niece
• Stepfather or stepmother
• Stepbrother or stepsister
• First cousin once removed
The relationship extends to:
• the spouse of any specified relative, even after the marriage is terminated by death or divorce;
• the degree of “great-great” for uncle or aunt; and
• the degree of “great-great-great” for grandfather and grandmother.
45 C.F.R. §233.90(c)(1)(v)(1-4)
For AFDC eligibility, a child must be:
• under age 18; or
• age 18, attending high school, and expected to graduate by the end of the month of the child’s 19th birthday.
45 CFR §233.39(b)(1)(ii)
At least one of the following must be used to verify a child’s age:
• Birth certificate
• Hospital or public health birth records
• Church or baptismal birth record
• Bureau of Vital Statistics (BVS) inquiry system
• Local, state, federal, or military records
• Adoption papers or records
• Indian census report
• U.S. passport
• School or day care records
• Immigration and Naturalization Service (INS) records
• Attorney general child support paternity records
• Social Security Administration (SSA) records
• Texas Department of Health Automated Birth Verification system
One element of the definition of “dependent child” under the AFDC program is parental deprivation, which means the child must be deprived of the support and care of at least one parent. The determination of whether a child has been deprived of parental support in the home of removal is made in relation to the child’s natural or adoptive parents.
Parental deprivation exists when the home of removal is:
1. a non-parent home, because the child is cared for by relatives;
2. a one-parent home because of:
• the death of a parent; or
• the absence of a parent from the home.
3. a two-parent home with:
• physical or mental incapacity of at least one parent; or
• underemployment of the primary wage earner.
45 CFR §233.90(a)(1)
Who are the child’s parents?
The parent-child relationship is established between a child and:
• the mother by proof of her having given birth to the child;
• an adoptive parent by proof of adoption;
• the father by legal presumption, proof of relationship, court adjudication, or acknowledgment of paternity.
By statute, a man is presumed to be the child’s natural father under any of the following circumstances:
1. He and the child’s mother were married in apparent compliance with the law (even if the marriage is or could be voided), BEFORE the child’s birth and the child was born while they were married or before the 301st day after the marriage ended.
2. He and the mother married in apparent compliance with the law (even if the marriage is or could be voided) AFTER the child’s birth, he voluntarily asserted paternity, and:
• his assertion of paternity is in a record filed with the Bureau of Vital Statistics;
• he agreed to be named as the child’s father on the child’s birth certificate; or
• he promised in a record to support the child as his own.
3. He continuously resided in the same household where the child resided during the first two years of the child’s life, and he represented to others that the child was his own.
4. He is adjudicated, or determined by a court order, to be the child’s father.
5. He executes an acknowledgment of paternity, in accordance with Texas Family Code §160.302, which must be signed under penalty of perjury by both him and the child’s mother. An acknowledgment of paternity is void when another presumed father, who meets one of the presumed father criteria above, exists, unless the presumed father has signed a denial of his paternity.
Common Law Marriage
The marriages referred to above include common law marriage. A common law marriage exists if a man and woman:
• are both free to marry;
• live together; and
• hold out to the public that they are husband and wife.
If the common law couple separates and ceases living together, there must be a suit for proof of marriage filed within two years after the separation or the law presumes that the common law marriage never existed.
Stepparents include men who marry the child’s mother but do not assert paternity or promise financial responsibility for the child. A stepparent is not a legal parent to the child without adoption.
What is continued absence from the home?
A parent’s absence is considered to be continued absence from the home when:
• the nature of the absence is such that there is an interruption or termination of the parent’s functioning as a provider of maintenance, physical care, or guidance for the child; and
• the known or indefinite duration of the absence precludes counting on a parent’s performance of the function of planning for the present support or care of the child.
As long as these two conditions are met, the parent may be absent for any reason and may have only left recently. Deprivation includes any absence that prevents the family from relying on the missing parent’s support or care of the child. This can occur for many reasons, including divorce, separation, desertion, incarceration, deportation, or hospitalization. Absence for active military duty does not constitute continued absence from the home.
Active Military Duty
A parent who is absent solely by reason of the performance of active duty in the uniformed services of the United States is not considered continually absent from the home.
45 CFR §233.90(c)(iii)
How is physical or mental incapacity established?
For a parent to be considered incapacitated, the existence of a physical or mental defect, illness, or impairment must be supported by a medical diagnosis that is verified by a physician’s statement. The incapacity must be so debilitating as to reduce substantially or eliminate the parent’s ability to support or care for child. The incapacity must be expected to last for at least 30 days. The parent’s receipt of Supplemental Security Income (SSI) or Retirement, Survivors, and Disability Insurance (RSDI) based on a disability or blindness is also acceptable proof of incapacity.
45 CFR §233.90(c)(1)(iv)
How is underemployment of the primary wage earner established?
If a child is living with both parents, deprivation exists when the primary wage earner (PWE) parent is underemployed. The PWE is the parent who had the most earned income in the previous two years. The parents can identify which of them is the PWE based upon this criterion. The PWE is considered “underemployed” when:
• the PWE is working less than 100 hours per month;
• the PWE is averaging less than 100 hours per month, if working intermittently, or
• the PWE’s monthly gross income does not exceed the income limit for the size of the certified group, as listed in Appendix 1530-D: Income Guidelines for Underemployed Parent for Parental Deprivation.
45 CFR §233.100
Unwed Parents Living Together
If a child lives with the mother and the biological father, who admits paternity but is not the child’s legally presumed father, the eligibility specialist determines deprivation as follows:
• If mother is or was married (other than by common law) to another man whom the law presumes to be the child’s legal father, then the child is deprived based on absence from the home of the man whom the law recognizes as the child’s father.
• If the mother was married by common law to another man at the time the child was conceived, but at least two years have passed without the filing of suit for proof of their marriage after the common law couple separated and ceased living together, there is no presumed father and deprivation does not exist.
• If there is no other man whom the law presumes to be the child’s father, then the child can only be deprived by:
• parental incapacity, or
• underemployment of either the mother or biological father who are living together, whichever is the primary wage earner (PWE).
Unwed Parents – Paternity Uncertain
If the child’s paternity is uncertain, the eligibility specialist determines parental deprivation as follows:
• If a child is living with the mother and a man who may be the child’s natural father, but the couple disagrees about paternity, and there is no legally presumed father, then there is insufficient basis upon which to reach a conclusion regarding deprivation based on absence from the home. If deprivation cannot be established by incapacity or underemployment, the case would be certified state-paid and monitored for the court determination regarding paternity. Once there is an adjudication of paternity, the case must be reviewed again for deprivation now that the legal father has been established. If the man that was living in the home at the time of the child’s removal is adjudicated to be the child’s father, then deprivation cannot exist by reason of absence from the home.
• If a child is living with the mother and a man who both agree is NOT child’s natural parent, and there is no legally presumed father, then child is deprived.
Active Military Service
If the father is on active military service overseas, the eligibility specialist determines parental deprivation as follows:
• If a child is living only with the mother, but the father would be present in the home if he were not on active military service overseas, then the child is not deprived because of parental absence. When the sole reason why a mother or father is not in the home is because of active military service, then that parent is not considered absent.
• If child is living with mother and biological father, but the mother is married to a man who is in military service, there is no deprivation.
If child is removed from the mother and mother is:
1. living with biological father of the child AND:
• the biological father agrees he is the father of the child, AND:
• the mother is still legally married to another man outside the home who is the legally presumed father…
the child is deprived because the mother’s husband is considered the child’s father, and is absent from the home.
2. living with biological father of the child AND:
• the biological father agrees he is the father of the child, AND:
• there is no legally presumed father…
the child does not meet deprivation based on absence from the home.
The foster care eligibility specialist must determine whether the parents meet deprivation based on the criteria for disability. If the parents do not meet the criteria for disability, the foster care eligibility specialist must determine whether the parents meet criteria for underemployed parent.
3. living with a man that both she and he state is NOT the biological father (and he is not a “presumed” father by legal definition) …
In this appendix under the subheading Parental Deprivation, see “When is a man legally presumed to be the child’s father?
the child is deprived based on absence from the home.
4. living with a man and there is a discrepancy or disagreement about who the natural father is (and there is no presumed father by legal definition) …
In this appendix under the subheading Parental Deprivation, see “When is a man legally presumed to be the child’s father?“
A determination of parental deprivation cannot be made until a legal father is determined by court order or proper Acknowledgement of Paternity as described in “When is a man legally presumed to be the child’s father?”
The child must be certified state-paid until a legal father is determined by court order or proper Acknowledgement of Paternity. When the legal father determination is made, the foster care eligibility specialist must determine deprivation based on who the father is. If deprivation is met, the foster care eligibility specialist must then re-review the case for other IV-E eligibility criteria.
If the child meets all IV-E eligibility criteria, the foster care eligibility specialist may change the child’s eligibility to the date the child entered foster care.
To determine a child’s AFDC eligibility, it is necessary to identify the members of the AFDC-certified group from among all the people living in the home of removal. The size and makeup of the certified group allow determination of the total countable income and resources for the group, which ultimately determines whether the child is “needy.”
Who is included in the certified group?
The following people who live in the home of removal must be included in the AFDC-certified group, unless they are exempted as indicated:
• The child (even if he or she was not physically removed from the home, that is, a constructive removal occurred) and all siblings (including those legally adopted and blood-related) who also meet the AFDC requirements and are:
• under the age of 18, or
• age 18, attending high school, and expected to graduate before or during the month of their 19th birthday
• The child’s legal parents, including natural or adoptive parents
• Any other specified relative with managing conservatorship of the child
The spouse of the specified relative with managing conservatorship is also included in the certified group if the spouse has managing conservatorship of the child. If the spouse is not a managing conservator then he or she is not included in the certified group.
Who is not included in the certified group?
The following people are not included in the certified group:
• Any person (sibling or adult) who is receiving SSI
• Any person (child or adult) who does not meet the AFDC requirements for U.S. citizenship or is does not have a valid immigration status pursuant to 45 CFR §233.50, including a child’s natural or adoptive parent
If a parent does is not a U.S. citizen or does not have a valid immigration status the parent is considered disqualified for the AFDC-certified group. A disqualified parent’s income and resources must be counted as specified in section G below Stepparent Budgeting Procedures.
• Any relative in the home, unless the relative has managing conservatorship for the child
• Any stepparents in the home
A stepparent’s income and resources must be counted as specified in section G below in Stepparent Budgeting Procedures in this appendix
• Any child receiving Adoption Assistance benefits
A minor parent and child can be a separate certified group, even when they are living with the parent of the minor parent. However, if the minor parent is eligible for AFDC as part of a certified group with his or her parent, then the minor parent’s child is included in that same group.
When a minor parent and child are living in the same household with the minor’s own parents, but are their own separate certified group, the income of the minor’s own parents is still considered available to the certified group in the same way as that of a stepparent. The income of the minor’s parents is subjected to the stepparent budgeting procedures in section F, below.
What is the resource monetary limit?
For a child to meet the AFDC resources requirement and be determined eligible for Title IV-E, the total countable resources of the persons included in the certified group, regardless of the number of persons in the group, must not exceed $10,000. If the countable resources of the certified group exceeds $10,000, the child cannot be determined eligible for AFDC nor can the child be determined eligible for Title IV-E foster care.
42 USC §672(a)(3)(B)
What resources are exempt?
The following resources are exempt, and should not be included when totaling the resources of the certified group:
• Burial plots
• Earned income tax credits
• Energy assistance payments
• Homestead (residence and surrounding property)
• Inaccessible resources (for example, irrevocable trust funds, security deposits)
• Income-producing property essential to the person’s employment (such as inventory, tools)
• Loans (if intending to repay)
• Personal possessions (if used to meet needs essential to daily living)
• Reimbursements for replacing or repairing an exempt resource
What resources are countable?
Examples of resources that are counted in their entirety include cash, bank accounts, stocks, bonds, certificates of deposit, 401(k) accounts, retirement accounts, boats, campers, buildings, and land and mineral rights.
The following resources are counted to the extent indicated:
• Supplemental Security Income (SSI) benefits and all other resources of SSI recipients
• Life insurance (cash value of the policy)
• Real property (amount available after sale)
• Prepaid burial insurance or funeral plan (cash value over $1500)
• Vehicle (average trade-in value over $1500, unless used at least 50 percent to produce income)
• Other non-liquid resources (equity value equals fair market value minus money owed)
• Income tax refunds (all)
• 401(k) and other retirement accounts (all)
• IRAs and Keough plans (value minus early withdrawal penalty)
Exception: When a child’s legal parent and stepparent jointly own a non-exempt resource, only one-half the value of the resource is counted.
What is the income monetary limit?
For a child to meet the AFDC income requirement and be determined eligible for Title IV-E, the countable income available to the certified group must not exceed the allowable limits for the 185% and 100% AFDC Needs Standards found in Appendix 1530-C: AFDC Needs Standard Income Limits. If the countable income of the certified group exceeds the applicable limits, the child is not considered to be eligible for AFDC and cannot be eligible for Title IV-E for the duration of his or her foster care episode.
Under the 100% AFDC Needs Standard test, two Earned Income Deductions are allowed.
1. A maximum of $90 Earned Income deduction for each person in the certified group with countable earned income. The deduction amount cannot exceed the person’s monthly earned income amount. For example, if a person only had $45 of earned income, then the deduction would only be $45.
2. A Dependent Care Cost Deduction is allowed for the actual cost of day care a parent or managing conservator with earned income who is included the certified group pays on behalf of a dependent child or incapacitated adult who is also included in the certified group.
• The maximum allowed deduction is $200.00 for each child under age 2 and $175.00 for each dependent child age 2 and older and each incapacitated adult.
• Actual day care costs are the unreimbursed payments made for a child or incapacitated adult that are necessary to allow for the parent or managing conservator to work.
Appendix 1530-A: AFDC Income Determination Worksheet provides detailed instructions for determining whether the AFDC certified group’s allowable income meets both the 185% and 100% AFDC Needs Standards tests.
Whose income is counted?
The income of the following are included in determining the total income of the certified group:
• The earned and unearned income of each member of the certified group, subject to the exemptions and limitations identified below
• The income of a stepparent (a person married to the child’s legal parent) or a legal parent disqualified from AFDC because of his or her lack of U.S. Citizenship or valid immigration status who lives in the home, subject to the stepparent budgeting procedures below
• The income of a minor living with her parents when the minor is also a parent, subject to the stepparent budgeting procedures in section G, below.
What types of income are exempt?
The following are not included in determining the total income of the certified group:
• Adoption assistance payments
• Foster care payments
• Earned income tax credits
• Educational assistance (grants, scholarships)
• Energy assistance payments
• Government disaster payments or housing assistance
• Government welfare payments (TANF)
• SSI benefits
• All other income of SSI recipients
• Monetary allowances to children of women Vietnam veterans born with certain birth defects (38 U.S.C. §1823)
What types of income are countable?
The following income is counted for each member of the certified group, with the exceptions and qualifications noted:
• Gross earned income
• All wages, salaries, and commissions from employment (including self-employment), before taxes or other paycheck deductions
Exception: Do not count any earned income of a child under age 18 if the child is:
• a full-time student; or
• a part-time student working less than 30 hours per week.
• Unearned Income
• Cash gifts and contributions (unless they are received irregularly and do not exceed $30 per person in a three-month period)
• Child support (up to $50 can be disregarded, not to exceed the actual amount received). If a single payment covers two or more children (including at least one who is not an applicant or client) and the support order does not specify a portion for each child, prorate the payment among all the children
• Disability insurance benefits
• Dividends and royalties
• Military pay and allowances
• Interest on savings and investments
• Income from property
• Pension (including railroad retirement and RSDI)
• Trust funds (count only withdrawals and dividends received)
• Unemployment compensation (not counted for principal wage earner)
• Veteran’s Administration benefits (except allowances to children of women Vietnam veterans born with certain defects)
• Workers’ Compensation (except any amount that is reimbursement for medical expense)
When a stepparent or a parent is disqualified because of his or her lack of U.S. Citizenship or valid immigration status but lives in the home of removal, this person is not considered a member of the AFDC certified group. A portion of the stepparent or a disqualified parent’s income, as described below, and all of his or her countable resources are considered when determining whether the child would have qualified for AFDC during the month in which court proceedings were initiated.
The following budgeting process is used to determine the amount of the disqualified parent’s income that is considered countable to the AFDC certified group. The budgeting process is used when completing both the 185% and 100% AFDC Needs Standards income tests.
1. Determine the disqualified parent’s countable monthly gross earned income.
2. Subtract up to the standard $90 work-related expense deduction from the earned income.
3. Add the disqualified parent’s unearned income to the net earned income.
4. Subtract the following:
• The actual amounts paid by the disqualified parent to individuals outside the home who could be claimed as dependents for personal Federal income tax purposes
• Payments by the disqualified parent of alimony or child support to individuals not living in the home
• The allowance amount, as found in Appendix 1530-B: Stepparent or Disqualified Parent Budgetary Needs Allowance Deduction, for the support of the disqualified parent and any Federal tax dependents of the disqualified parent who are living in the home but not included in the AFDC certified group
5. Add the net amount as income of the AFDC Certified group