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Home > Advocacy > Financing Child Welfare Services > Rosales v. Thompson


Q & A: Federal Foster Care Eligibility Expanded in 9th Circuit Court of Appeals Decision, Rosales v. Thompson

What is the Rosales Decision?

On March 3, 2003, the Ninth Circuit Court of Appeals issued a ruling in Rosales v. Thompson, 321 F.3d 835 (9th Cir. 2003) that would make many more children eligible for Title IV-E federal foster care assistance.

In the Rosales case, the Court of Appeals ruled that the U. S. Department of Health and Human Services (HHS) had misinterpreted Title IV-E of the Social Security Act in denying federal foster care benefits to certain children who had been maltreated and placed with relatives outside their home. The court ruled that certain children who were removed from their homes due to allegations of abuse and neglect and were living with their relatives on an interim basis were eligible for federal foster care payments under Title IV-E, even though the children would not have been eligible in the homes from which they were removed.

What policy did the court strike down?
At issue in Rosales was whether the relative with whom a child entering foster care had lived within six months of the court order or voluntary placement agreement must be the same relative from whose home the child was originally removed - or whether it was sufficient that the child had lived with any qualified relative and was AFDC-eligible 1 within the six-month period. HHS's "home of removal" policy denied federal foster care benefits to children unless the children were eligible for AFDC in the specific homes from which they were first removed, even if they lived with another relative and were AFDC eligible at the time of or after being removed from the home and before the removal petition or voluntary placement agreement was filed. The Ninth Circuit Court of Appeals disagreed with that policy. The court concluded that AFDC eligibility could be established in any specified relative's home in which the child resided during the removal month or six preceding months, up to and including the date of the removal petition or the voluntary placement agreement.
What children are affected by the decision?

The Rosales decision specifically addresses children in California who have been denied eligibility for the federal foster care program or are applying for the program in the future. However, the Court of Appeals for the Ninth Circuit also sets the law for Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, as well as Guam and the Mariana Islands. In 2003, HHS advised all the states covered by the Ninth Circuit to amend their state Title IV-E plans to come into compliance with the Rosales decision, but has denied requests from other states to modify their plans accordingly.

Over time, the decision could also affect similarly situated children in other states, depending on the outcome of subsequent litigation on the issue. To establish eligibility for the federal foster care program, however, these children, even when they are AFDC eligible in a relative's home, will still have to meet other Title IV-E eligibility criteria.

How will this decision benefit children?
This decision will assist many children living with relatives who have been denied federal foster care benefits in the past. In some cases it will make it possible for children to live with relatives who could not afford to take them in under the old policy. These children will have the advantage of remaining with their families, rather than needing to be placed with unfamiliar foster families or group homes. Relative placements are also more likely to be stable than other placements. 2
How will the Rosales decision affect real children and families?

In understanding the impact of the Rosales decision on real children and families, it is helpful to consider specific situations:
  • In the Rosales case, the child was originally living with his parents and was not eligible for AFDC in their home. County welfare officials removed the child, alleging maltreatment, and informally placed him with Ms. Rosales, his grandmother, without going to court. At that time the child met AFDC eligibility criteria in the grandmother's home. At some point afterwards, the county filed a dependency action in court, and Ms. Rosales became the child's foster parent. Under HHS policy, the child was not TITLE IV-E eligible because he did not meet the AFDC criteria in his parents' home, the home from which he was legally removed. The Court of Appeals disagreed with HHS and said that the child could meet the AFDC criteria in Ms. Rosales' home.

  • In another case, a child was originally living with her mother, where she was AFDC eligible. The child was then informally placed with her grandmother, in whose home she also was AFDC eligible. However, more than six months passed before the county welfare department filed a dependency action in court against the child's mother. HHS said the child was not eligible for Title IV-E foster care benefits because although the child was eligible for AFDC in the home of her mother, she did not live there in the six months before court proceedings were initiated. Under Rosales, the child is eligible for Title IV-E because she lived with the grandmother, a qualified relative under AFDC, within the six-month period.
What practical difference does this case make?

It is impossible at this stage to know the full impact of this case. The effect on children and their caregivers will vary depending on state policies about which children living with grandparents or other relative caregivers are currently eligible for public foster care benefits. In some states like California, Oregon, and New Jersey, the state does not pay foster care benefits for children living with relatives who do not meet the Title IV-E eligibility criteria. The only payment option for children in these states is the Temporary Assistance for Needy Families Program (TANF), which, in most states, provides lower benefit payments than foster care. Some of the children with relatives in states like California will now likely qualify for federal foster care benefits under this decision and be eligible for the higher foster care payments. Children with special needs may also qualify for a specialized care increment where available.

The U.S. District Court in California, on February 10, 2004, also granted retroactive relief to the relatives and children affected by the Rosales decision. Each foster child with an open case on or after March 3, 2003, must be provided foster care payments for the entire period, subsequent to December 23, 1997, in which he or she was eligible for Title IV-E foster care according to the Rosales decision.

There are other states where the state already makes foster care payments to children placed with relatives even though they do not qualify for federal reimbursement under Title IV-E. In these states, the amount the family gets will likely remain the same under the Rosales decision, but the state will be eligible for federal reimbursement for more of its children in foster care. Children who are newly eligible for federal foster care will also be eligible for federal adoption assistance under Title IV-E if they meet the other eligibility requirements. In both groups of states, a state will benefit from the additional federal funds for foster payments and administrative costs. Similarly, as more children become eligible for Title IV-E, the state will also be able to get federal reimbursement for a larger portion of its staff training costs.

Why is there this tie between AFDC and Title IV-E Foster Care and Adoption Assistance?

Federal aid for foster care was first provided in 1961 to assist children who were in AFDC-eligible homes but were being abused or neglected and needed an alternative to their own homes. The AFDC-Foster Care Program, established at that time, was replaced in 1980 by the Title IV-E Foster Care Program and the eligibility link to AFDC was maintained. Children must meet the eligibility criteria for AFDC in order to qualify for Title IV-E foster care benefits. (Children may qualify for adoption assistance benefits by meeting either the AFDC or Supplemental Security Income [SSI] criteria.) Even though the AFDC Program was replaced by TANF in 1996, eligibility for Title IV-E continues to be based on state AFDC eligibility criteria in place in July 1996-criteria and income eligibility that have remained static and been eroded by inflation for eight years. In addition, many argue that it makes little sense to base an abused or neglected child's eligibility for federal foster care and adoption assistance on the income of their birth family. Eligibility instead should be based on the child's need for protection.

Why does the Bush Administration's 2005 Budget propose to clarify the process for determining eligibility for the federal Foster Care Program?

In its FY 2005 budget request, the Bush Administration proposes to "clarify the process for determining eligibility in the Foster Care Program" in order to circumvent the Rosales decision. Rather than changing the HHS policy, the Administration proposes to change the law to conform to HHS policy and to continue to deny federal foster care assistance to tens of thousands of children living with relatives.

HHS estimates that the savings to the federal government by changing the law would be $77 million in FY 2005 and $375 million over the next five years.

March 3, 2004
  1. Aid to Families with Dependent Children (AFDC) was the welfare/cash assistance entitlement program that preceded the current Temporary Assistance for Needy Families (TANF) block grant.
  2. The additional Title IV-E eligibility criteria include requirements that (1) the child is removed from home pursuant to a court order that continuation in the home would be contrary to the child's welfare or a voluntary placement agreement, (2) the court has continued jurisdiction over the child, (3) the state or local child welfare agency is responsible for the child's care, (4) reasonable efforts have been made to prevent or eliminate the need to remove the child and to make it possible for the child to return home, and (5) the child is placed in a licensed or approved foster family home, group home, or child care institution.

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