The Adoption Assistance and Child Welfare Act of 1980 (Public Law 96-272) amended the Social Security Act to authorize the Title IV-E program to benefit children who have been subjected to abuse or neglect in their homes (42 U.S.C. 670 et seq.). The Title IV-E program may also appropriately serve certain youth in the juvenile justice system, specifically, those youth who meet the Title IV-E eligibility criteria and who present with child protection or dependency issues in addition to their delinquent status. In many juvenile justice systems, these youth end up in the care of the child welfare system because of a need for residential treatment.

Title IV-E requires, as a condition of eligibility, that the responsibility for “placement and care” of a child be vested either with: 1) the state agency responsible for administering the Title IV-E plan (state agency); or 2) another public agency, which can be a juvenile justice court or a juvenile justice probation agency, that is authorized under state law to operate as a child placing agency and has a Title IV-E agreement with the state or local agency responsible for Title IV-E. A number of states (e.g., Texas, New Hampshire, Indiana, Ohio, California) have developed memoranda of understanding (MOUs) and protocols between state and county child welfare agencies, juvenile justice courts, and juvenile probation departments to ensure Title IV-E protections for delinquents and status offenders.

If a juvenile justice court enters into an agreement with the state agency, they must comply with the Title IV-E requirements that apply to all children in eligible foster care in order to claim Title IV-E funds for costs incurred for the placement of eligible youth in approved or licensed facilities. Requirements that must be met at the beginning of the hearing process on a new delinquency petition include:

• Remaining at Home is Contrary to a Child’s Welfare Determination – The youth must have been removed pursuant to a voluntary agreement entered into by their legal guardian or as the result of a judicial determination that continuation in the home would be contrary to their welfare; and, their families must meet Aid to Families with Dependent Children eligibility criteria related to income level and deprivation.

For Title IV-E eligibility, this finding must be in the first order authorizing, even temporarily, the removal of a child from home, no matter where the child is placed at that time – whether in a secure or non-secure detention facility, a licensed foster family home, or a child care institution. If this determination is not made in the first court ruling removing the child from the home, the child will be ineligible for Title IV-E foster care maintenance payments for the duration of that stay in foster care.

• Reasonable Efforts to Prevent Removal Determination – The juvenile justice court must also make a finding that reasonable efforts were either made, or not required, to prevent the child’s removal from home. It must be established that reasonable efforts were made prior to the child’s removal from home, regardless of at what point in the case the state asks for a judicial reasonable efforts finding. The judicial determination must be made within 60 days of the child’s removal from home. If this determination is not made within the required time, the child will be ineligible for Title IV-E foster care maintenance payments for the duration of that stay in foster care.

Good practice requires that services provided to youth in the juvenile system should be administered in the least restrictive setting appropriate, at home with supervision when possible and only in out-of-home care when in-home care is contrary to the child’s welfare. For a delinquent youth to become eligible for Title IV-E foster care maintenance funding, the youth must be placed in a licensed foster family home or a child care institution licensed by the state and not operated primarily to detain adjudicated delinquent youth. The definition of child care institution specifically excludes detention facilities, forestry camps, training schools, and any other facility operated primarily for the detention of children determined to be delinquent.

In addition to the requirement for timely court orders with the findings related to “contrary to the welfare” and “reasonable efforts,” there are protections that must be provided. These requirements apply to each child receiving foster care under the supervision of the state, those who are Title IV-E eligible and those who are not. Therefore, these protections must be provided to virtually all children in foster care through the child protection agency, probation department, or a state-licensed child-placing agency, including delinquent and status offenders. These requirements are intended to ensure that children do not enter out-of-home care unnecessarily, and that once in care they receive the services they need and help to prepare them to return home or to another permanent setting:

• Case Plans – Federal law requires that there be a written case plan that addresses such concerns as the appropriateness of the placement, the treatment and services the youth needs, meeting the youth’s health and educational needs, and services needed to improve the conditions in the home. Case plans must be prepared within 60 days of the time the youth is removed from the home.
• Periodic Reviews – A juvenile justice court or administrative review is required at least every six months to monitor compliance with the case plan, the necessity for and appropriateness of the placement, the progress made in improving the home, and when the youth is likely to return home or placed for adoption or legal guardianship.
• A Permanency Hearing and Reasonable Efforts to Finalize a Permanency Plan – The state agency must obtain a judicial determination that it made reasonable efforts to finalize the permanency plan for delinquent and status offenders within 12 months from the date the child is considered to have entered foster care. After the first finding of reasonable efforts to finalize the permanency plan, Title IV-E requires further determinations at least once every 12 months provided the child is in eligible foster care.

Permanency planning is just as essential for delinquent youth as it is for children entering care for reasons of abuse and neglect. The permanency hearing should be used to make permanency decisions based on the individual circumstances of the case, including a decision about the appropriateness of initiating termination of parental rights. Title IV-E requires the agency and court to document an individual, compelling reason for establishing a permanency plan other than reunification, adoption, legal guardianship, or placement with a fit and willing relative. Through this judicial determination at the permanency hearing, the findings of reasonable efforts to reunify the family and reasonable efforts to finalize alternate permanent plans are consolidated.

• Termination of Parental Rights (TPR) Filing Requirement – Delinquent and status offenders in foster care are not exempt from Title IV-E’s TPR requirements. The state agency or probation department must file a petition to terminate parental rights for delinquent and status offenders who have been in eligible foster care for 15 of the most recent 22 months, unless it can document an individual, compelling reason for establishing a permanency plan other than reunification, adoption, legal guardianship, or placement with a fit and willing relative.
• Notice and Opportunity to be Heard Requirements – Title IV-E requires that the foster parents (if any) of a child, and any pre-adoptive parents or relatives providing care for the child be provided with notice of, and an opportunity to be heard, in any review or hearing to be held with respect to the child.  This applies to delinquent and status offenders when these youth are in eligible foster care.

The protections for youth required under the Title IV-E program are a good basis for establishing sound delinquency practice, and some juvenile justice courts are routinely functioning at that level of excellence. For other courts, compliance with the required judicial oversight and necessary documentation will require a major change in practice. In order for juvenile justice courts with Title IV- E agreements to ensure compliance with the “contrary to the welfare” and “reasonable efforts” determinations, they generally must either make these determinations at the detention hearing for every new delinquency petition or institute a “red-flag” system that identifies any youth who may be eligible for Title IV-E funding at the initial or detention hearing on a new delinquency petition. It is incumbent upon the court to make the required determinations in a clear and definitive manner and that they be so reflected in the court orders.

The Children’s Bureau monitors federally assisted state child welfare programs through Child and Family Services Reviews (CFSRs) and Title IV-E Foster Care Eligibility Reviews. The CFSR is a results-focused approach to monitoring that measures state compliance with the state plan requirements under Titles IV-B and IV-E of the Social Security Act. State child welfare programs are reviewed in two areas: 1) outcomes for children and families served by the child welfare system; and 2) systemic factors that directly affect the state’s capacity to deliver services leading to improved outcomes. Systemic factors include whether a state has in place, and is successfully operating, systems for reviewing the cases of children in foster care at required intervals, training child welfare staff, licensing foster care providers, and recruiting prospective adoptive parents. As a part of the CFSR, the on-site review team interviews juvenile and family court judges, as stakeholders, in three sites in each State.

The Title IV-E Foster Care Eligibility Reviews focus on whether a child meets the statutory eligibility requirements for the program and is in a licensed placement where safety requirements have been met. This two-stage review of the federal foster care program is conducted every three years. During the first stage, cases are reviewed. A disallowance is taken for all cases that fail to meet the requirements, which includes maintenance payments and administrative costs associated with each error case. If a state fails more than a specific percentage of cases, the state is out of compliance with the federal foster care eligibility requirements. As a condition of non-compliance, the state is required to complete a program improvement plan (PIP) and undergo a second review. After the secondary review, if the state is still not in compliance, a second disallowance is assessed based on the total population of children in foster care.

Title IV-E is complex in its structure, and it can be difficult to deal with its accountability requirements and potential costly disallowances. It is important that courts have a thorough understanding of the law and regulations related to Title IV-E, before they consider entering into an interagency agreement with the state agency responsible for administering the state Title IV-E plan. In addition to reviewing the summary information on Title IV-E provided in Appendix J, courts should consult the Child Welfare Policy Manual posted on the Children’s Bureau website, HHS Regional Office staff, and experts in the field. The recent adoption of the Family First Prevention Services Act (FFPSA) has broadened the scope of Title IV-E funds. The FFPSA was signed into law as part of the Bipartisan Budget Act on February 9, 2018. This act, which is effective October 1, 2019, reforms Title IV-E and Title IV-B of the Social Security Act to prevent children from entering foster care by allowing federal reimbursement for mental health services, substance use treatment, and in-home parenting skill training. It also seeks to improve the well-being of children already in foster care by incentivizing states to reduce placement of children in congregate care. For more information on FFPSA, visit http://www.ncsl.org/research/human-services/family-first-prevention-services-act-ffpsa.aspx