Chapter 201. Permanency Services - Prevention, Foster Care, Adoption and Independent Living
22VAC40-201-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative panel review" means a review of a child in foster care that the local board conducts on a planned basis pursuant to § 63.2-907 of the Code of Virginia to evaluate the current status and effectiveness of the objectives in the service plan and the services being provided for the immediate care of the child and the plan to achieve a permanent home for the child. The administrative review may be attended by the birth parents or prior custodians and other interested individuals significant to the child and family as appropriate.
"Adoption" means a legal process that entitles the person being adopted to all of the rights and privileges, and subjects the person to all of the obligations of a birth child.
"Adoption assistance" means a money payment provided to adoptive parents or other persons on behalf of a child with special needs who meets federal or state requirements to receive such payments.
"Adoption assistance agreement" means a written agreement between the local board and the adoptive parents of a child with special needs or in cases in which the child is in the custody of a licensed child-placing agency, an agreement between the local board, the licensed child-placing agency, and the adoptive parents that sets out the payment and services that will be provided to benefit the child in accordance with Chapter 13 (§ 63.2-1300 et seq.) of Title 63.2 of the Code of Virginia.
"Adoption Progress Report" means a report filed with the juvenile court on the progress being made to place the child in an adoptive home. Section 16.1-283 of the Code of Virginia requires that an Adoption Progress Report be submitted to the juvenile court every six months following termination of parental rights until the adoption is final.
"Adoptive home" means any family home selected and approved by a parent, local board, or a licensed child-placing agency for the placement of a child with the intent of adoption.
"Adoptive home study" means an assessment of a family completed by a child-placing agency to determine the family's suitability for adoption.
"Adoptive parent" means any provider selected and approved by a parent or a child-placing agency for the placement of a child with the intent of adoption.
"Adoptive placement" means arranging for the care of a child who is in the custody of a child-placing agency in an approved home for the purpose of adoption.
"Adult adoption" means the adoption of any person 18 years of age or older, carried out in accordance with § 63.2-1243 of the Code of Virginia.
"Agency placement adoption" means an adoption in which a child is placed in an adoptive home by a child-placing agency that has custody of the child.
"AREVA" means the Adoption Resource Exchange of Virginia that maintains a registry and photo-listing of children waiting for adoption and families seeking to adopt.
"Assessment" means an evaluation of the situation of the child and family to identify strengths and services needed.
"Birth family" means the child's biological family.
"Birth parent" means the child's biological parent and for purposes of adoptive placement means a parent by previous adoption.
"Birth sibling" means the child's biological sibling.
"Board" means the State Board of Social Services.
"Child" means any natural person under 18 years of age or, for the purposes of the Fostering Futures program set forth in Article 2 (§ 63.2-917 et seq.) of Chapter 9 of the Code of Virginia, under 21 years of age and meeting the eligibility criteria set forth in § 63.2-919 of the Code of Virginia.
"Child-placing agency" means any person who places children in foster homes, adoptive homes, or independent living arrangements pursuant to § 63.2-1819 of the Code of Virginia or a local board that places children in foster homes or adoptive homes pursuant to §§ 63.2-900, 63.2-903, and 63.2-1221 of the Code of Virginia. Officers, employees, or agents of the Commonwealth, or any locality acting within the scope of their authority as such, who serve as or maintain a child-placing agency, shall not be required to be licensed.
"Child with special needs" as it relates to adoption assistance means a child who meets the definition of a child with special needs set forth in § 63.2-1300 or 63.2-1301 B of the Code of Virginia.
"Children's Services Act" or "CSA" means a collaborative system of services and funding that is child centered, family focused, and community based when addressing the strengths and needs of troubled and at-risk youth and their families in the Commonwealth.
"Claim for benefits," as used in § 63.2-915 of the Code of Virginia and 22VAC40-201-115, means (i) foster care maintenance, including enhanced maintenance; (ii) the services set forth in a court approved foster care service plan, the foster care services identified in an individual family service plan developed by a family assessment and planning team or other multi-disciplinary team pursuant to the Children's Services Act (§ 2.2-5200 et seq. of the Code of Virginia), or a transitional living plan for independent living services; (iii) the placement of a child through an agreement with the child's parents or guardians, where legal custody remains with the parents or guardians; (iv) foster care prevention services as set out in a prevention service plan; or (v) placement of a child for adoption when an approved family is outside the locality with the legal custody of the child, in accordance with 42 USC § 671(a)(23).
"Close relative" means a grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt.
"Commissioner" means the commissioner of the department, his designee, or his authorized representative.
"Community Policy and Management Team" or "CPMT" means a team appointed by the local governing body pursuant to Chapter 52 (§ 2.2-5200 et seq.) of Title 2.2 of the Code of Virginia. The powers and duties of the CPMT are set out in § 2.2-5206 of the Code of Virginia.
"Concurrent permanency planning" means utilizing a structured case management approach in which reasonable efforts are made to achieve a permanency goal, usually a reunification with the family, simultaneously with an established alternative permanent plan for the child.
"Department" means the state Department of Social Services.
"Denied," as used in § 63.2-915 of the Code of Virginia and 22VAC40-201-115, means the refusal to provide a claim for benefits.
"Dually approved" means applicants have met the required standards to be approved as a foster and adoptive family home provider.
"Entrustment agreement" means an agreement that the local board enters into with the parent, parents, or guardian to place the child in foster care either to terminate parental rights or for the temporary care and placement of the child. The agreement specifies the conditions for the care of the child.
"Family assessment and planning team" or "FAPT" means the local team created by the CPMT (i) to assess the strengths and needs of troubled youths and families who are approved for referral to the team and (ii) to identify and determine the complement of services required to meet their unique needs. The powers and duties of the FAPT are set out in § 2.2-5208 of the Code of Virginia.
"Foster care" means 24-hour substitute care for children in the custody of the local board or who remain in the custody of their parents, but are placed away from their parents or guardians and for whom the local board has placement and care responsibility through a noncustodial agreement.
"Foster care maintenance payments" means payments to cover those expenses made on behalf of a child in foster care including the cost of, and the cost of providing, food, clothing, shelter, daily supervision, school supplies, a child's incidentals, reasonable travel to the child's home for visitation, and reasonable travel to remain in the school in which the child is enrolled at the time of the placement. The term also includes costs for children in institutional care and costs related to the child of a child in foster care as set out in 42 USC § 675.
"Foster care plan" means a written document filed with the court in accordance with § 16.1-281 of the Code of Virginia that describes the programs, care, services, and other support that will be offered to the child and his parents and other prior custodians. The foster care plan defined in this definition is the case plan referenced in 42 USC § 675.
"Foster care prevention" means the provision of services to a child and family to prevent the need for foster care placement.
"Foster care services" means the provision of a full range of casework, treatment, and community services, including independent living services, for a planned period of time to a child meeting the requirements as set forth in § 63.2-905 of the Code of Virginia.
"Foster child" means a person younger than 21 years of age for whom the local board has assumed placement and care responsibilities through a noncustodial foster care agreement, entrustment, or court commitment prior to such person's 18th birthday.
"Foster home" means the place of residence of any natural person in which any child, other than a child by birth or adoption of such person, resides as a member of the household.
"Foster parent" means an approved provider who gives 24-hour substitute family care, room and board, and services for children or youth committed or entrusted to a child-placing agency.
"Independent living arrangement" means placement of a child at least 16 years of age who is in the custody of a local board or licensed child-placing agency and has been placed by the local board or licensed child-placing agency in a living arrangement in which he does not have daily substitute parental supervision.
"Independent living services" means services and activities provided to a child in foster care 14 years of age or older who was committed or entrusted to a local board of social services, child welfare agency, or private child-placing agency. Independent living services may also mean services and activities provided to a person who (i) was in foster care on his 18th birthday and has not yet reached the age of 21 years or (ii) is at least 18 years of age and who, immediately prior to his commitment to the Department of Juvenile Justice, was in the custody of a local department of social services. Such services shall include counseling, education, housing, employment, and money management skills development, access to essential documents, and other appropriate services to help children or persons prepare for self-sufficiency.
"Individual family service plan" or "IFSP" means the plan for services developed by the FAPT in accordance with § 2.2-5208 of the Code of Virginia.
"Intercountry placement" means the arrangement for the care of a child in an adoptive home or foster care placement into or out of the Commonwealth by a licensed child-placing agency, court, or other entity authorized to make such placements in accordance with the laws of the foreign country under which it operates.
"Interstate Compact on the Placement of Children" or "ICPC" means a uniform law that has been enacted by all 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, which establishes orderly procedures for the interstate placement of children and sets responsibility for those involved in placing those children.
"Interstate placement" means the arrangement for the care of a child in an adoptive home, foster care placement, or in the home of the child's parent or with a relative or nonagency guardian, into or out of the Commonwealth, by a child-placing agency or court when the full legal right of the child's parent or nonagency guardian to plan for the child has been voluntarily terminated or limited or severed by the action of any court.
"Investigation" means the process by which the child-placing agency obtains information required by § 63.2-1208 of the Code of Virginia about the placement and the suitability of the adoption. The findings of the investigation are compiled into a written report for the circuit court containing a recommendation on the action to be taken by the court.
"Kinship foster parent" means a relative or fictive kin who gives 24-hour substitute family care, room and board, and services for children or youth committed or entrusted to a child-placing agency.
"Kinship guardian" means the adult relative of a child who has been awarded custody of the child in accordance with a kinship guardianship, as established in § 63.2-1305 of the Code of Virginia, or a kinship subsidy, as established in § 63.2-1306 of the Code of Virginia.
"Kinship guardianship" means a relationship established in accordance with § 63.2-1305 of the Code of Virginia between a child and an adult relative of the child who has formerly acted as the child's foster parent that is intended to be permanent and self-sustaining, as evidenced by the transfer by the court to the adult relative of the child of the authority necessary to ensure the protection, education, care and control, and custody of the child and the authority for decision making for the child.
"Kinship Guardianship Assistance Agreement" means a written agreement, binding on the parties to the agreement, between the agency and the kinship guardian of the minor child that specifies the nature and the amount of any payments and assistance to be provided under such agreement and stipulates that the agreement shall remain in effect regardless of the state in which the kinship guardian resides.
"Kinship Guardianship Assistance payment" means a money payment provided to a kinship guardian on behalf of a child that was discharged from foster care to the kinship guardian's custody in accordance with the requirements of § 63.2-1305 of the Code of Virginia.
"Kinship Guardianship Assistance Program" means a program consistent with 42 USC § 673 that provides, subject to a kinship guardianship assistance agreement developed in accordance with § 63.2-1305 of the Code of Virginia, payments to eligible individuals who have received custody of a relative child of whom they had been the foster parents.
"Local board" means the local board of social services in each county and city in the Commonwealth required by § 63.2-300 of the Code of Virginia.
"Local department" means the local department of social services of any county or city in the Commonwealth.
"Nonagency placement adoption" means an adoption in which the child is not in the custody of a child-placing agency and is placed in the adoptive home directly by the birth parent or legal guardian.
"Noncustodial foster care agreement" means an agreement that the local department enters into with the parent or guardian of a child to place the child in foster care when the parent or guardian retains custody of the child. The agreement specifies the conditions for placement and care of the child.
"Nonrecurring expenses" means expenses of adoptive parents directly related to the adoption of a child with special needs as set out in § 63.2-1301 D of the Code of Virginia or the expenses of a kinship guardian directly related to obtaining legal custody of the child subject to 42 USC § 673(d)(1)(D).
"Normalcy" means allowing children and youth in foster care to experience childhood and adolescence in ways similar to their peers who are not in foster care by empowering foster parents and congregate care staff to use the reasonable and prudent parent standard as referenced in Public Law 113-183 (42 USC §§ 671 and 675) when making decisions regarding extracurricular, enrichment, and social activities.
"Parental placement" means locating or effecting the placement of a child or the placing of a child in a family home by the child's parent or legal guardian for the purpose of foster care or adoption.
"Permanency" means establishing family connections and placement options for a child to provide a lifetime of commitment, continuity of care, a sense of belonging, and a legal and social status that go beyond a child's temporary foster care placements.
"Permanency planning" means a social work practice philosophy that promotes establishing a permanent living situation for every child with an adult with whom the child has a continuous, reciprocal relationship within a minimum amount of time after the child enters the foster care system.
"Prior custodian" means the person who had custody of the child and with whom the child resided, other than the birth parent, before custody was transferred to or placement made with the child-placing agency when that person had custody of the child.
"Prior family" means the family with whom the child resided, including birth parents, relatives, or prior custodians, before custody was transferred to or placement made with the child-placing agency.
"Reasonable and prudent parent standard," in accordance with 42 USC § 675(10), means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child that foster parents and congregate care staff shall use when determining whether to allow a child in foster care to participate in extracurricular, enrichment, cultural, and social activities.
"Residential placement" means a placement in a licensed publicly or privately owned facility, other than a private family home, where 24-hour care is provided to children separated from their families. A residential placement includes placements in children's residential facilities as defined in § 63.2-100 of the Code of Virginia.
"Reunification" means the return of the child to his home after removal for reasons of child abuse and neglect, abandonment, child in need of services, parental request for relief of custody, noncustodial agreement, entrustment, or any other court-ordered removal.
"Service worker" means a worker responsible for case management or service coordination for prevention, foster care, or adoption cases.
"Sibling" means each of two or more children having one or more parents in common.
"SSI" means Supplemental Security Income.
"State-Funded Kinship Subsidy" or "State-Funded Kinship Guardianship Assistance Program" means a program that provides payments to eligible individuals who have received custody of a relative child subject to a State-Funded Kinship Subsidy agreement developed in accordance with § 63.2-1306 of the Code of Virginia.
"State pool funds" means the pooled state and local funds administered by CSA and used to pay for services authorized by the CPMT.
"Step-parent adoption" means the adoption of a child by a spouse or the adoption of a child by a former spouse of the birth or adoptive parent in accordance with § 63.2-1201.1 of the Code of Virginia.
"Supervised independent living setting" means the residence of a person 18 years of age or older who is participating in the Fostering Futures program set forth in Article 2 (§ 63.2-917 et seq.) of Chapter 9 of the Code of Virginia where supervision includes a monthly visit with a service worker or, when appropriate, contracted supervision. "Supervised independent living setting" does not include residential facilities or group homes.
"Title IV-E" means the title of the Social Security Act that authorizes federal funds for foster care and adoption assistance.
"Virginia Birth Father Registry" means the established confidential database designed to protect the rights of a putative father who wants to be notified in the event of a proceeding related to termination of parental rights or adoption for a child he may have fathered.
"Visitation and report" means the visits conducted pursuant to § 63.2-1212 of the Code of Virginia and the written report of the findings made in the course of the visitation. The report is filed in the circuit court in accordance with § 63.2-1212 of the Code of Virginia.
"Voluntary placement" means the placement of a child in foster care with the agreement of the child's parent through a noncustodial foster care or entrustment agreement.
"Wrap around services" means an individually designed set of services and supports provided to a child and his family that includes treatment services, personal support services, or any other supports necessary to achieve the desired outcome. Wrap around services are developed through a team approach.
"Youth" means any child in foster care between 14 and 18 years of age or any person 18 to 21 years of age transitioning out of foster care and receiving independent living services pursuant to § 63.2-905.1 of the Code of Virginia. "Youth" may also mean an individual older than the age of 16 years who is the subject of an adoption assistance agreement or kinship guardianship assistance agreement.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 32, Issue 17, eff. June 1, 2016; Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018; Volume 37, Issue 2, eff. October 15, 2020; Volume 37, Issue 19, eff. June 10, 2021; Volume 38, Issue 2, eff. October 13, 2021; Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-20. Foster care prevention services.
A. The local department shall first make reasonable efforts to keep the child in his home.
B. The local department shall make diligent efforts to locate and assess relatives or other alternative caregivers to support the child remaining in his home or as placement options if the child cannot safely remain in his home.
C. The local department shall provide services pursuant to § 63.2-905 of the Code of Virginia to the child and birth parents or custodians to prevent the need for foster care placement when the child is abused and neglected as defined in § 63.2-100 of the Code of Virginia or has been found to be a child in need of services as defined in § 16.1-228 of the Code of Virginia by the court or as determined by the family assessment and planning team.
D. Any services available to a child in foster care shall also be available to a child and his birth parents or custodians to prevent foster care placement and shall be based on an assessment of the child's and birth parents' or custodians' needs.
E. Appropriate services shall be provided to prevent foster care placement or to stabilize the family situation provided the need for the service is documented in the local department's written plan or in the IFSP used in conjunction with accessing CSA funds.
F. Children at imminent risk of entry into foster care shall be evaluated by the local department as reasonable candidates for foster care based on federal regulations, 45 CFR 1356.60(c).
G. The local department shall develop a written plan for the implementation of wrap around services prior to removing a child from his home. As long as the risk of removal from the home continues, services shall be provided to address identified needs. In the event that the child can no longer be safely maintained in the home, the local department shall document why the support and services considered and provided were not sufficient to maintain the child in his home.
H. Prior to removing the child from the custody of his parents, the local department shall make diligent efforts to notify in writing all adult relatives that the child is being removed or is likely to be removed and explain the options to relatives to participate in the care and placement of the child including eligibility as a kinship foster parent and the services and supports that may be available for children placed in such a home.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-30. Entering foster care.
A. A child enters foster care through a court commitment, entrustment agreement, or noncustodial foster care agreement.
B. The entrustment agreement shall specify the rights and obligations of the child, the birth parent or custodian, and the local department. Entrustments shall not be used for educational purposes, to make the child eligible for Medicaid, or to obtain mental health treatment.
1. Entrustment agreements that are not for the termination of parental rights may be revoked by the birth parent or custodian or local board prior to the court's approval of the agreement.
2. Entrustment agreements that terminate parental rights shall only be entered into when the birth parent and the local board, after counseling about alternatives to permanent relinquishment, agree that voluntary relinquishment of parental rights and placement of the child for adoption are in the child's best interests. When a local board enters into a permanent entrustment agreement, the child-placing agency shall make diligent efforts to ensure the timely finalization of the adoption.
3. Submission of a petition for approval of the entrustment agreement to the juvenile and domestic relations court shall be in accordance with § 16.1-277.01 of the Code of Virginia.
C. A child may be placed in foster care by a birth parent or custodian entering into a noncustodial foster care agreement with the local department where the birth parent or custodian retains legal custody and the local department assumes placement and care of the child.
1. A noncustodial foster care agreement shall be signed by the local department and the birth parent or custodian and shall address (i) the conditions for care and control of the child and (ii) the rights and obligations of the child, birth parent or custodian, and the local department. Local departments shall enter into a noncustodial foster care agreement at the request of the birth parent or custodian when such an agreement is in the best interest of the child. When a noncustodial foster care agreement is executed, the permanency goal shall be reunification and continuation of the agreement is subject to the cooperation of the birth parent or custodian and child.
2. The plan for foster care placement through a noncustodial foster care agreement shall be submitted to the court for approval within 45 days of the child's entry into foster care. Submission of a petition for approval of a noncustodial agreement to the juvenile and domestic relations court shall be made in accordance with § 16.1-281 of the Code of Virginia.
3. When a child is placed in foster care through a noncustodial foster care agreement, all foster care requirements shall be met.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-35. Reentry into foster care from commitment.
A. In the event the child was in the custody of the local board immediately prior to his commitment to the Department of Juvenile Justice (DJJ) and has not attained the age of 18 years, the local board shall resume custody upon the child's release from commitment, unless an alternative arrangement for the custody of the child has been made and communicated in writing to DJJ. At least 90 days prior to the child's release from commitment on parole supervision the local department shall consult with the court service unit on the child's return to the locality and collaborate to develop a foster care plan that prepares the child for successful transition back to the custody of the local department or to an alternative custody arrangement, if applicable. The plan shall identify services necessary for the transition and how the services are to be provided. If an alternative custody arrangement has been identified, such arrangement shall be described in the foster care plan to be considered and approved by the court. Any transfer of custody of the child must be by order of the court.
B. The foster care plan shall be submitted to the court for approval within 45 days of the child's reentry into foster care. Submission of a petition for approval of the foster care plan to the juvenile and domestic relations district court shall be made in accordance with § 16.1-281 of the Code of Virginia.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 33, Issue 8, eff. January 11, 2017; amended, Virginia Register Volume 35, Issue 5, eff. December 1, 2018.
22VAC40-201-40. Foster care placements.
A. Within 30 days of the child being placed in the custody of the local board, the local department shall exercise due diligence to identify and notify in writing all adult relatives, including the parents of siblings who have legal custody of such siblings, that the child has been removed and explain the options to relatives to participate in the care and placement of the child including eligibility as a kinship foster parent and the services and supports that may be available for children placed in such a home. The local department may determine it is not in the child's best interest to notify relatives who have a history of domestic violence; have been convicted of barrier crimes as defined in § 63.2-1719 of the Code of Virginia other than those described in subsections E, F, G, and H of § 63.2-1721 of the Code of Virginia; or are listed on the Virginia State Police Sex Offender Registry. Additionally, if the birth father is unknown, the local department shall search the Virginia Birth Father Registry within 30 days of the child entering foster care. At a minimum, the local department shall search for relatives at the time the child enters foster care, annually, and prior to any subsequent placement changes for the child.
B. The local department shall ensure a child in foster care is placed in a home or licensed facility that complies with all applicable federal and state requirements for safety and child well-being. Placements shall be made subject to the requirements of § 63.2-901.1 of the Code of Virginia. The following requirements shall be met when placing a child in an approved home or licensed facility:
1. The local department shall exercise due diligence to locate and assess relatives as a foster home placement for the child, including in emergency situations.
2. The local department shall place the child in the least restrictive, most family like setting consistent with the best interests and needs of the child.
3. The local department shall attempt to place the child in as close proximity as possible to the birth parent's or prior custodian's home to facilitate visitation, provide continuity of connections, and provide educational stability for the child.
4. The local department shall take reasonable steps to place the child with siblings unless such a joint placement would be contrary to the safety or well-being of the child or siblings.
5. The local department shall, when appropriate, consider placement in a dually approved home so that if reunification fails, the placement is the best available placement to provide permanency through adoption for the child.
6. The local department shall not delay or deny placement of a child into a foster or adoptive family placement on the basis of race, color, or national origin of the foster or adoptive parent or child.
7. When a child being placed in foster care is of Native American, Alaskan Eskimo, or Aleut heritage and is a member of a nationally recognized tribe, the local department shall follow all federal laws, regulations, and policies regarding the referral of the child. The local department may contact the Department of Historic Resources for information on contacting Virginia tribes and shall consider tribal culture and connections in the placement and care of a child of Virginia Indian heritage.
8. If a child is placed in a kinship foster placement pursuant to § 63.2-900.1 of the Code of Virginia, the child shall not be removed from the physical custody of the kinship foster parent, provided the child has been living with the kinship foster parent for six consecutive months and the placement continues to meet approval standards for foster care, unless (i) the kinship foster parent consents to the removal; (ii) removal is agreed upon at a family partnership meeting; (iii) removal is ordered by a court of competent jurisdiction; or (iv) removal is warranted pursuant to § 63.2-1517 of the Code of Virginia.
C. A service worker shall make a preplacement visit to any out-of-home placement to observe the environment where the child will be living and ensure that the placement is safe and capable of meeting the needs of the child. The preplacement visit shall precede the placement date except in cases of emergency. In cases of emergency, the visit shall occur on the same day as the placement.
D. Foster or adoptive homes shall meet standards established by the board and shall be approved by child-placing agencies. Prior to the placement of a child in a licensed child-placing agency (LCPA) foster home, the local department shall verify that the LCPA approved the foster home. Prior to the placement of a child in a children's residential facility, the local department shall verify that the facility is licensed to operate by the appropriate state regulatory authority.
E. Local departments shall receive notice of the approval from the department's office of the ICPC prior to placing a child out of state.
F. When the local department is considering placement of a child in a foster or adoptive home approved by another local department within Virginia, the local department intending to place the child shall consult with the approving local department about the placement of the child and shall also verify that the home is still approved.
G. When a child is moving with a foster or adoptive family from one jurisdiction to another, the local department holding custody shall notify the local department in the jurisdiction to which the foster or adoptive family is moving.
H. When a child moves with a foster or adoptive family from one jurisdiction to another in Virginia, the local department holding custody shall continue supervision of the child unless supervision is transferred to the other local department.
I. A local department may petition the court to transfer custody of a child to another local department when the birth parent or prior custodian has moved to that locality.
J. In planned placement changes or relocation of foster parents, birth parents with residual parental rights or prior custodians and all other relevant parties shall be notified that a placement change or move is being considered if such notification is in the best interest of the child. The service worker shall consider the child's best interest and safety needs when involving the birth parent or prior custodian and all other relevant parties in the decision-making process regarding placement change or notification of the new placement.
K. In the case where an emergency situation requires an immediate placement change, the birth parent with residual parental rights or prior custodian and all other relevant parties shall be notified immediately of the placement change. The local department shall inform the birth parent or prior custodian why the placement change occurred and why the birth parent or prior custodian and all other relevant parties could not be involved in the decision-making process.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018; Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-50. Initial foster care placement activities.
A. Information on every child in foster care shall be entered into the department's automated child welfare system.
B. The local department shall assess the child for Title IV-E eligibility. The local department shall also refer the child for all financial benefits to which the child may be eligible, including Child Support, SSI, other governmental benefits, and private resources.
C. The service worker shall ensure that the child receives a medical examination no later than 30 days after initial placement. The child shall be provided a medical evaluation within 72 hours of initial placement if conditions indicate such an evaluation is necessary. If the child has not had a dental appointment in the past six months and it is developmentally appropriate, a dental appointment shall be scheduled as soon as possible.
D. In accordance with § 22.1-3.4 of the Code of Virginia, the local department shall collaborate with the appropriate local school division to ensure that the child remains in his previous school placement when it is a joint determination that it is in the best interests of the child. If remaining in the same school is not in the best interests of the child, the service worker shall enroll the child in an appropriate new school as soon as possible but no more than 72 hours after placement.
1. The child's desire to remain in his previous school setting shall be considered in making the decision about which school the child shall attend.
2. The service worker, in cooperation with the birth parents or prior custodians, foster care providers, and other involved adults, shall coordinate the school placement.
3. If remaining in the same school is jointly determined to be in the best interests of the child, the local department shall arrange for transportation for the child to remain in that school unless the child requires specialized transportation documented in the Individualized Education Program (IEP) for the child, which is funded by the responsible school division.
4. The local department shall document in writing the joint determination with the local school division of the child's best interest for school placement.
5. If the joint determination process cannot be completed prior to the placement in the new residence, the child will remain in the same school until the best interest determination is completed.
E. Within 72 hours of placing a school age child in a foster care placement, the local department making the placement shall give written notification to the principal of the school in which the child is to be enrolled and the superintendent of the relevant school division of the placement and notify the principal of the status of parental rights.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-60. Assessment.
A. Assessments shall be conducted in a manner that respectfully involves children and birth parents or prior custodians to give them an opportunity for shared decision making. Decision making shall include input from children, youth, birth parents or prior custodians, and other interested individuals. Assessments shall be used both in the establishment of foster care goals and also to inform service plans.
B. The initial foster care assessment shall be completed within timeframes developed by the department but shall not exceed 30 calendar days after acceptance of the child in a foster care placement.
C. When a child has been removed from his home as a result of abuse or neglect, the initial foster care assessment shall include a summary of the Child Protective Services' safety and risk assessments.
D. The history and circumstances of the child, the birth parents or prior custodians, or other interested individuals shall be assessed at the time of the initial foster care assessment to determine their service needs. The initial foster care assessment shall:
1. Include a comprehensive social history;
2. Utilize assessment tools designated by the department;
3. Be entered into the department's automated child welfare system; and
4. Include a description of how the child, youth, birth parents or prior custodians, and other interested individuals were involved in the decision making process.
E. Assessment shall be ongoing and evaluate the effectiveness of services to the child, birth parents or prior custodians, and foster or adoptive parents and the need for additional services as long as the goal is to return home. For all other goals, assessments of the effectiveness and need for additional services shall occur at least every six months after placement for as long as the child remains in foster care.
F. The service worker shall refer the child, birth parents or prior custodians, and foster or adoptive parents for appropriate services identified through the assessment. The assessment shall include an assessment of financial resources.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-70. Foster care goals.
A. Foster care goals are established to assure permanency is achieved for the child. Permissible foster care goals are:
1. Transfer custody of the child to his prior family;
2. Transfer custody of the child to a relative other than his prior family;
3. Finalize adoption of the child;
4. Place the child in permanent foster care;
5. Transition to independent living if the child is admitted to the United States as a refugee or asylee or is 18 years of age or older; or
6. Place the child in another planned permanent living arrangement in accordance with § 16.1-282.1 A2 of the Code of Virginia.
B. When the permanency goal is changed to adoption, the local department shall file petitions with the court 30 days prior to the hearing to:
1. Approve the foster care service plan seeking to change the permanency goal to adoption; and
2. Terminate parental rights.
Upon termination of parental rights, the local department shall provide an array of adoption services to support obtaining a finalized adoption.
C. The local department shall engage in concurrent permanency planning in order to achieve timely permanency for the child. Permanency goals shall be considered and addressed from the beginning of placement and continuously evaluated.
D. The goal of another planned permanent living arrangement may be chosen when the court has found that:
1. The child has a severe and chronic emotional, physical, or neurological disabling condition;
2. The child requires long-term residential care for the condition;
3. None of the alternatives listed in clauses (i) through (v) of § 16.1-282.1 A of the Code of Virginia is achievable for the child at the time placement in another planned permanent living arrangement is approved as the permanent goal for the child; and
4. The youth is 16 years of age or older.
E. The goal of permanent foster care may be chosen when the court has found that:
1. The child is placed in a foster home;
2. The child has developed a clearly established and documented significant relationship with a foster parent;
3. None of the alternatives listed in clauses (i) through (v) of § 16.1-282.1 A of the Code of Virginia is achievable for the child at the time placement in permanent foster care is approved as the permanent goal for the child; and
4. The youth is 16 years of age and older.
F. If either the goal of permanent foster care or another planned permanent living arrangement is selected, the local department shall continue to search for relatives and significant individuals as permanent families throughout the child's involvement with the child welfare system. The local department shall continuously evaluate the best interests of the child in light of the changing circumstances of the child and extended family to determine whether a change in goal to return home, placement with relatives, or adoption can achieve permanency.
G. The goal of independent living services shall only be selected for those children admitted to the United States as a refugee or asylee, those youth age 18 years leaving foster care and meeting the requirements to receive independent living services, or youth participating in the Fostering Futures program, as described in 22VAC40-201-105. For those youth with this goal, the service worker shall continue diligent efforts to search for a relative or other interested adult who will provide a permanent long-term family relationship for the youth.
H. When a child has been in care for 12 months and reunification remains the goal, the local department shall consult with the commissioner or designee regarding case planning.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018; Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-80. Foster care plans.
A. Every child in foster care longer than 45 days shall have a written foster care plan approved by the court within 60 days of entry into foster care. The foster care plan shall specify the permanency goal and the concurrent permanency goal and shall meet all requirements set forth in federal law or § 16.1-282 of the Code of Virginia.
B. The foster care plan shall be written after the completion of the assessment. Foster care plans shall directly reference how the strengths identified in the foster care assessment will support the plan and the needs to be met to achieve the permanency goal, including the identified concurrent permanency goal, in a timely manner.
C. A plan for visitation with the birth parents or prior custodians and siblings for all children in foster care shall be developed and presented to the court as part of the foster care plan in accordance with § 63.2-900.2 of the Code of Virginia.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018.
22VAC40-201-90. Service delivery.
A. Services shall be provided to support the safety and well-being of the child. Services to children and birth parents or prior custodians shall continue until evidence indicates the services are either not effective to reach the child's goal or no longer necessary because the goal has been achieved, or the birth parent or prior custodian has refused services.
B. Permanency planning for children and birth parents or prior custodians shall be an inclusive process providing full disclosure to the birth parents or prior custodians of the establishment of a concurrent permanency goal and the implications of concurrent permanency planning for the child and birth parents or prior custodians. Local departments shall notify the birth parents or prior custodians concerning placement changes, hearings and meetings regarding the child, and assessments of needs and case progress and shall be responsive to the requests of the child and birth parents or prior custodians.
C. In order to ensure that permanency is achieved for the child, services may be provided to relatives or other interested individuals who are assessed to be potential permanency options for the child and may continue until an assessment indicates the services are no longer necessary.
D. Developmental and medical examinations shall be provided for the child in foster care in accordance with the Virginia Department of Medical Assistance Services' Early Periodic Screening Diagnosis and Treatment (EPSDT) schedule in the Virginia EPSDT Periodicity Chart. Dental examinations shall be provided for the child in accordance with the American Academy of Pediatric Dentistry's Periodicity and Anticipatory Guidance Recommendations (Dental Health Guidelines-Ages 0-18 Years, Recommendations for Preventive Pediatric Dental Care (AAPD Reference Manual 2002-2003)) as determined by the Virginia Department of Medical Assistance Services. As indicated through assessment, appropriate health care services shall include trauma, developmental, mental health, psychosocial, and substance abuse services and treatments. Local departments shall follow the protocols for appropriate and effective use of psychotropic medications for children in foster care disseminated by the department.
E. All children in foster care shall have a face-to-face contact with an approved service worker at least once per calendar month regardless of the child's permanency goal or placement. More than 50% of each child's visits shall be in his place of residency.
1. The purpose of the visits shall be to assess the child's progress, needs, adjustment to placement, and other significant information related to the health, safety, and well-being of the child.
2. The visits shall be made by individuals who meet the department's requirements consistent with 42 USC § 622(b).
F. The local department shall enter into a placement agreement developed by the department with the foster or adoptive parents. As required by § 63.2-900 of the Code of Virginia, the placement agreement shall include, at a minimum, a code of ethics and mutual responsibilities for all parties to the agreement.
1. Services to prevent placement disruptions shall be provided to the foster and adoptive parents.
2. Foster and adoptive parents who have children placed with them shall be contacted by a service worker as often as needed in accordance with 22VAC40-211-100 to assess service needs and progress.
3. Foster and adoptive parents shall be given full factual information about the child, including circumstances that led to the child's removal and complete educational, medical, and behavioral information. All information shall be kept confidential by the foster and adoptive parents.
4. Foster and adoptive parents shall be given the foster care plan.
5. Respite care for foster and adoptive parents may be provided on an emergency or planned basis.
6. The department shall make funds available to provide reimbursement to local departments' foster parents for damages to property caused by children placed in the home. Provision of reimbursement is contingent upon the availability of funds.
G. Pursuant to § 63.2-904 of the Code of Virginia, the local department shall implement policies and procedures to support normalcy for children in foster care. Foster parents and group home and residential providers shall make day-to-day decisions regarding a child's participation in age-appropriate extracurricular, enrichment, cultural, and social activities based on the reasonable and prudent parent standard and in accordance with the agreement entered into between the provider and local department.
1. Pursuant to 42 USC § 671(a)(10)(B), the department shall ensure that foster parents and group home and residential providers are trained in normalcy and how to use and apply the reasonable and prudent parent standard. Each group home and residential provider shall designate at least one official staff member on site to be the caregiver who is authorized to apply the reasonable and prudent parent standard.
2. No other policy or procedure shall interfere with the ability to implement normalcy.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018.
22VAC40-201-100. Providing independent living services: service for youth 14 years of age and older.
A. Independent living services shall be identified by the youth, parent or prior custodian, foster or adoptive family, local department, service providers, legal community, and other interested individuals and shall be included in the service plan. Input from the youth in assembling these individuals and developing the services is required.
B. Independent living services shall be provided to all youth in foster care ages 14 to 21 years and shall be offered to any person from the age of 14 until they reach 23 years of age and who was in foster care at any point between 14 and 21 years of age.
C. Independent living services include education, vocational training, employment, mental and physical health services, transportation, housing, financial support, daily living skills, counseling, and development of permanent connections with adults.
D. Local departments shall conduct life skills assessments and develop transition plans, which include independent living services to be offered, within 30 days of a child in foster care reaching 14 years of age or within 30 days of a child who is 14 years of age or older entering foster care and update such assessments and plans annually.
E. A youth age 16 years and older is eligible to live in an independent living arrangement provided the local department utilizes the independent living arrangement placement criteria developed by the department to determine that such an arrangement is in the youth's best interest. An eligible youth may receive an independent living stipend to assist him with the costs of maintenance. The eligibility criteria for receiving an independent living stipend will be developed by the department.
F. Local departments shall assist eligible youth in applying for educational and vocational financial assistance. Educational and vocational specific funding sources shall be used prior to using other sources.
G. A youth who has been in care six months or more and turns 18 years of age while in foster care shall receive a certified copy of his birth certificate, social security card, health insurance information, medical records, and state-issued identification or driver's license.
H. The local department shall run annual credit checks on all youth in foster care who are 14 years of age and older but younger than 18 years of age. The local department shall assist a youth in resolving any discrepancies in the youth's credit report. The local department shall assist a youth in foster care over 18 years of age in obtaining the youth's annual credit report.
I. The local department shall ensure that any youth in foster care on the youth's 18th birthday is enrolled in Medicaid, unless the youth objects or is otherwise ineligible.
J. The local department shall ensure that any youth who turns 18 years of age while in foster care is given the opportunity to complete a survey to provide feedback regarding the youth's experience in foster care.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018; Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-105. Foster Care for youth 18 to 21 years of age (Fostering Futures program).
A. Foster care services shall be provided to youth who turn 18 years of age while still in foster care on or after July 1, 2016, until they reach 21 years of age if they qualify and have chosen to participate in the Fostering Futures program.
B. Youth who qualify for the Fostering Futures program are those youth who (i) turn 18 years of age on or after July 1, 2016, and were in the custody of a local Virginia department of social services but have not yet turned 21 years of age, including those who were in foster care under an entrustment agreement and (ii) are:
1. Completing secondary education or an equivalent credential;
2. Enrolled in an institution that provides post-secondary or vocational education;
3. Participating in a program or activity designed to promote employment or remove barriers to employment;
4. Employed at least 80 hours a month; or
5. Are incapable of doing any of the activities described in subdivisions 1 through 4 of this subsection due to a medical condition, which incapability is supported by regularly updated information in the program participant's case plan.
C. Fostering Futures program participants are eligible for independent living services as well as placement services; placements in congregate care are not allowable.
D. Entry into the Fostering Futures program is considered a new foster care episode, and the youth shall be evaluated for Title IV-E funding or eligibility upon entering the program.
E. There is no limit to the number of times a youth may exit and reenter the Fostering Futures program prior to his 21st birthday.
F. Youth in foster care who are committed to the Department of Juvenile Justice prior to 18 years of age, turn 18 years of age on or after July 1, 2016, and are not yet 21 years of age, are eligible to enter the Fostering Futures program upon discharge from commitment.
G. To enter the Fostering Futures program, participants and the local department shall enter into a Voluntary Continuing Services and Support Agreement (VCSSA). The VCSSA documents the following:
1. The youth's agreement to voluntarily reenter foster care through self-entrustment.
2. The requirement that the youth continue to meet one of the requirements listed in subsection B of this section and the youth's agreement to provide the local department with information related to verifying compliance, progress, or status or to otherwise provide consent for the local department to receive such information directly.
3. The youth's agreement to participate in service and supports outlined in the foster care plan and transition plan and that the services and supports are to be provided to the youth no later than 30 days after execution of the VCSSA.
4. The youth's legal status as an adult.
5. The youth's agreement to report changes to the worker, be supervised by the local department, reside in a supervised independent living setting, and comply with program requirements and eligibility conditions.
6. An explanation of the voluntary nature of program participation and termination.
7. The specific conditions that may result in termination by the local department.
8. That the youth agrees to regular contact with the local department.
9. That the youth agrees to timely payment of housing fees and other requirements deemed necessary based on the unique circumstances and needs of the youth related to a specific safety concern.
a. The local department shall explore a variety of options to support the youth in timely payment of housing fees, including reviewing the youth's budget and money management assistance with the youth and discussing with the youth the option to have part of the maintenance payment sent directly to the housing provider.
b. Any additional requirements outlined in the VCSSA shall be related to a specific safety need of the youth.
H. The local department shall petition the juvenile and domestic relations court for a review of the agreement and approval of the youth's case plan no more than 30 days after execution of the VCSSA.
I. The local department shall identify services and supports to be provided to the youth through use of the foster care plan and transition plan. Services and supports to be provided under Fostering Futures shall include where necessary:
1. Medical care through the State Plan for Medical Assistance as long as eligibility is met;
2. Housing, placement, and support in the form of foster care maintenance payments; and
3. Case management services, including resources and services to be provided to the youth to meet the youth's individualized goals. All case plans shall be developed with the youth and, at the youth's option, include up to two members of the case planning team who are selected by the youth.
J. The local department may issue a notice of intent to terminate the youth from the Fostering Futures program due to substantial violations of the VCSSA. When the local department believes the youth is at risk of substantial violation of the VCSSA, efforts shall be made to actively engage the youth in understanding the ramifications of noncompliance and to encourage the youth's compliance. The local department shall provide the youth a notice of the youth's right to appeal the termination decision. Services and supports provided to the youth shall continue for a minimum of 30 days from the date of the appeal notice.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 35, Issue 5, eff. December 1, 2018; amended, Virginia Register Volume 37, Issue 2, eff. October 15, 2020.
22VAC40-201-110. Court hearings and case reviews.
A. For all court hearings, local departments shall:
1. Facilitate a meeting prior to the development of the foster care service plan and foster care service plan review to ensure participation and consider input from the child, the birth parents or prior custodians, the foster or adoptive parents, relatives and fictive kin who are interested in the child's welfare, and any other interested individuals, who may include service providers, in the development of the service plan and service plan review. All youth 12 years of age and older shall be given the opportunity to choose up to two people to attend the meeting who are not the foster parent or caseworker. All of these persons shall be involved in sharing information for the purposes of well-informed decisions and planning for the child with a focus on safety and permanence.
2. File petitions in accordance with subsection L of this section and the requirements for the type of hearing.
3. Obtain and consider the child's input as to who should be included in the court hearing. If persons identified by the child will not be included in the court hearing, the service worker shall explain the reasons to the child for such a decision consistent with the child's developmental and psychological status.
4. Inform the court of reasonable efforts made to achieve concurrent permanency goals.
5. Document the appropriateness of the placement, including the continued appropriateness of an out-of-state placement if applicable.
6. Ensure the child or youth is present for the permanency planning hearing unless the court determines this not to be in the child's best interest.
B. The child or youth shall be consulted in an age-appropriate manner about his permanency plan at the permanency planning hearing and subsequent administrative panel reviews.
C. An administrative panel review shall be held six months after a permanency planning hearing when the goal of permanent foster care has been approved by the court. A foster care review hearing will be held annually. The child will continue to have administrative panel reviews or review hearings every six months until the child reaches age 18 years.
D. The local department shall invite the child; the child's birth parents or prior custodians when appropriate; and the child's foster or adoptive parents, placement providers, guardian ad litem, court appointed special advocate, relatives, and service providers to participate in the administrative panel reviews.
E. The local department shall consider all recommendations made during the administrative panel review in planning services for the child and birth parents or prior custodians and document the recommendations on the department approved form. Individuals who were invited, including those not in attendance, shall be given a copy of the results of the administrative panel review as documented on the department approved form.
F. A supervisory review is required every six months for youth ages 18 to 21 years who are receiving independent living services only.
G. An administrative panel review is required every six months for Fostering Futures program participants unless a court review is held.
H. In accordance with § 16.1-242.1 of the Code of Virginia, when a case is on appeal for termination of parental rights, the juvenile and domestic relations district court retains jurisdiction on all matters not on appeal. The circuit court appeal hearing may substitute for a review hearing if the circuit court addresses the future status of the child.
I. An adoption progress report shall be prepared every six months after a permanency planning hearing when the goal of adoption has been approved by the court. The adoption progress report shall be entered into the automated child welfare data system. The child will continue to have annual review hearings in addition to adoption progress reports until a final order of adoption is issued or the child reaches age 18 years.
J. If a child is in the custody of the local department and a preadoptive family has not been identified and approved for the child, the child's guardian ad litem or the local board of social services may file a petition to restore the previously terminated parental rights of the child's parent in accordance with § 16.1-283.2 of the Code of Virginia.
K. If a child has been in foster care 15 out of the last 22 months or if the parent of the child in foster care has been convicted of an offense as outlined in § 63.2-910.2 of the Code of Virginia, the local department shall file a petition to terminate parental rights and concurrently identify, recruit, process, and approve a qualified family for adoption of the child, unless certain exceptions as outlined in § 63.2-910.2, are met. These exceptions, which shall be documented in the child's case plan submitted to court, include:
1. The child is being cared for by a relative, and the relative is pursuing custody of the child and does not want to adopt.
2. The local department has not provided services to the parents deemed necessary for the safe return of the child.
3. Termination of parental rights is not in the best interests of the child and the local department has documented a compelling reason explaining why termination is not in the best interests of the child. Determinations regarding compelling reasons not to terminate parental rights shall be made based on the unique circumstances of the case. Compelling reasons may include:
a. A parent has made substantial progress toward eliminating the conditions that caused the child's placement in foster care; it is possible for the child to safely return home within six months; and the child's return home will be in the child's best interest.
b. Another permanency plan is better suited to meet the health and safety needs of the child.
L. If a local department does not file a petition to terminate parental rights when a child has been in care for 15 of the most recent 22 months, the local department shall report to the commissioner or designee a clear description of the reason why such petition has not been filed and the reasonable efforts made regarding reunification or placement of the child with a relative.
1. The commissioner or designee shall compile the information reported into a de-identified annual report and provide such report to all local departments.
2. The commissioner or designee shall use the information contained in the report to establish a training program that educates local departments regarding common errors made by local departments when declining to file a petition for termination of parental rights.
M. Designated nonattorney employees of a local department may only file petitions that are outlined in this subsection. All other petitions must be filed by an attorney, including petitions for the termination of parental rights. In accordance with §§ 16.1-260, 54.1-3900, and 63.2-332 of the Code of Virginia, nonattorney employees of a local department may only do the following:
1. Initiate a case on behalf of the local department by appearing before an intake officer; and
2. Complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review hearings, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018; Volume 38, Issue 2, eff. October 13, 2021; Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-115. Foster care appeal process.
A. Any individual whose claim for benefits available pursuant to 42 USC § 670 et seq. or whose claim for benefits pursuant to § 63.2-905 of the Code of Virginia is denied or is not acted upon by the local department with reasonable promptness shall have a right to appeal to the commissioner.
B. A hearing need not be granted when either state or federal law requires automatic maintenance payment adjustments for classes of recipients unless the reason for an individual appeal is incorrect maintenance amount computation.
C. Placement decisions of local boards are final when in accordance with the relevant provisions of Title 16.1 of the Code of Virginia. However, in accordance with 42 USC § 671(a)(23), a hearing shall be granted for the denial or delay in placement of a child for adoption when an approved family is outside the locality with the legal custody of the child.
D. The hearing shall be face-to-face or, at the option of the commissioner or his designee, a hearing by telephone may be held if the individual agrees. The individual shall be afforded all rights as specified in this section, whether the hearing is face-to-face or by telephone.
E. The local department shall inform an individual in writing of the right to appeal the denial of a benefit or the delay of a decision regarding a benefit under this section at the time the applicable plan is written and at the time of any action affecting claim for benefit. This shall include a written notice to the birth parents or caretaker at the time a child comes into foster care, a written notice to the guardian ad litem, and written notice to foster parents at the time the foster care agreement is signed. The notice shall include:
1. The right to a hearing;
2. The method by which the individual may obtain a hearing; and
3. That the individual may be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or he may represent himself.
F. The local department shall provide timely notice of a decision to discontinue, terminate, suspend, or change a benefit for the child. Timely notice means the notice is mailed at least 10 days before the date the action becomes effective. If the individual requests a hearing within the timely notice period, the benefit shall not be suspended, reduced, discontinued, or terminated, but is subject to recovery if the action is sustained, until a decision is rendered after a hearing unless:
1. A determination is made at the hearing that the sole issue is one of state or federal law or policy or a change in state or federal law and not one of incorrect benefit computation;
2. A change affecting the individual's benefit occurs while the hearing decision is pending and the individual fails to request a hearing after notice of the change; or
3. The individual specifically requests that he not receive continued benefits pending a hearing decision.
G. An individual shall be allowed to request a hearing for up to 30 days after the denial of a claim for benefit. Reasonable notice of the hearing shall be provided to the individual. Within 90 days of the request for a hearing, the hearing shall be conducted, a decision reached, and the individual notified of the decision.
H. The commissioner may provide that a hearing request made after the date of action, but during a period not in excess of 10 days following such date, shall result in reinstatement of the benefit to be continued until the hearing decision unless (i) the individual specifically requests that continued benefit not be paid pending the hearing decision or (ii) at the hearing it is determined that the sole issue is one of state or federal law or policy. In any case where action was taken without timely notice, if the individual requests a hearing within 10 days of the mailing of the notice of the action and the commissioner determines that the action resulted from other than the application of state or federal law or policy or a change in state or federal law, the benefit shall be reinstated and continued until a decision is rendered after the hearing unless the individual specifically requests that he not receive continued benefits pending the hearing decision.
I. Pursuant to § 63.2-915 of the Code of Virginia, the commissioner may delegate the duty and authority to consider and make determinations on any appeal filed in accordance with this section to duly qualified officers.
J. The commissioner or designated hearing officer may deny or dismiss a request for a hearing where it has been withdrawn by the individual in writing or where it is abandoned. Abandonment may be deemed to have occurred if the individual without good cause fails to appear by himself or by authorized representative at the hearing scheduled for such individual.
K. The hearing shall include consideration of the denial of a claim for benefits or the local department's failure to act with reasonable promptness on a request for a benefit for the individual.
L. The individual requesting the hearing or his representative shall have adequate opportunity to:
1. Examine information relied upon by the local department, licensed child-placing agency, family assessment and planning team, or other multi-disciplinary team in considering the request for a benefit to the extent that the information does not violate confidentiality requirements;
2. Bring witnesses;
3. Establish all pertinent facts and circumstances;
4. Advance arguments without undue interference;
5. Question or refute testimony or evidence; and
6. Confront and cross-examine witnesses.
M. Decisions of the commissioner or designated hearing officer shall be based exclusively on evidence and other material introduced at the hearing. The transcript or recording of testimony and exhibits, or an official report containing the substance of what transpired at the hearing, together with all the papers and requests filed in the proceeding and the decision of the commissioner or hearing officer shall constitute the exclusive record and shall be available to the individual at a place accessible to him or his representative at a reasonable time.
N. Decisions by the commissioner or hearing officer shall consist of a memorandum decision summarizing the facts and identifying the regulations and policy supporting the decision.
O. The individual shall be notified of the decision in writing.
P. When the hearing decision is favorable to the individual, the local department shall promptly begin the process to provide the requested service or, in the case of foster care maintenance, make corrective payments retroactively to the date the incorrect action was taken, unless foster care maintenance payments were continued during the pendency of the hearing decision.
Q. The decision of the commissioner shall be binding and considered a final agency action for purposes of judicial review. The hearing decision shall be a memorandum decision summarizing the facts and identifying the statutes and regulations supporting the decision.
Statutory Authority
§§ 63.2-217, 63.2-900, and 63.2-915 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 32, Issue 17, eff. June 1, 2016.
22VAC40-201-120. Funding.
A. The local department is responsible for establishing a foster child's eligibility for federal, state, or other funding sources and making required payments from such sources. Local departments shall seek state pool funds for a child's maintenance and service needs when other funding sources are not available.
B. The assessment and provision of services to the child and birth parents or prior custodians shall be made without regard to the funding source.
C. The child's eligibility for Title IV-E funding shall be redetermined upon a change in situation and in accordance with federal Title IV-E eligibility requirements.
D. The service worker is responsible for providing the eligibility worker information required for the annual redetermination of Medicaid eligibility and information related to changes in the child's situation.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-130. Closing the foster care case.
A. Foster care cases are closed or transferred to another service category under the following circumstances:
1. When the foster care child turns 18 years of age and objects to continuing to receive foster care services for which he is eligible;
2. When the court releases the child from the local department's custody prior to the age of 18 years;
3. When a temporary entrustment or noncustodial agreement has expired, been revoked, or been terminated by the court;
4. When the foster care child is committed to the Department of Juvenile Justice; or
5. When the final order of adoption is issued.
B. When the foster care case is closed for services, the case record shall be maintained according to the record retention schedules established by the Library of Virginia.
C. Any foster care youth who has reached age 18 years has the right to request information from his records in accordance with state law.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018.
22VAC40-201-140. Other foster care requirements.
A. Pursuant to § 63.2-908 of the Code of Virginia, a foster parent may consent to a marriage or entry into the military if the child has been placed with him through a permanent foster care agreement that has been approved by the court.
B. An employee of a local department, including a relative, cannot serve as a foster, adoptive, or licensed child-placing agency parent for a child in the custody of that local department. In the event it is in the child's best interest that a local employee be the foster parent, the child's custody may be transferred to another local department.
C. The child of a foster child remains the responsibility of his parent, unless custody has been removed by the court.
1. The child is not subject to requirements for foster care plans, reviews, or hearings. However, the needs and safety of the child shall be considered and documented in the foster care plan for the foster child (parent).
2. The child is eligible for maintenance payments in accordance with 42 USC § 675(4)(B) and Medicaid in accordance with 42 USC § 672(h).
D. When a child in foster care is committed to the Department of Juvenile Justice, the local department no longer has custody or placement and care responsibility for the child. As long as the discharge or release plan for the child is to return to the local department prior to reaching age 18 years, the local department shall maintain a connection with the child.
E. At least 90 days prior to a child's release from commitment to the Department of Juvenile Justice, the local department shall:
1. Consult with the court services unit concerning the child's return to the locality; and
2. Work collaboratively with the court services unit to develop a plan for the child's successful transition back to the community, which will identify the services necessary to facilitate the transition and will describe how the services will be provided.
F. The caseload standard for foster care workers is 15 cases maximum per foster care worker. Each child in foster care is considered an individual foster care case.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017; Volume 35, Issue 5, eff. December 1, 2018; Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-145. Foster care complaint system.
A. Upon receipt of a complaint from a constituent regarding a foster care case, the department will investigate such complaint by conducting a review of case documentation, foster care policy, and state and federal code, and gather information from the constituent, local department, and other collaterals as needed.
B. The department shall provide the constituent a resolution to the constituent's concern that includes the methods used to assess the concern and a response to the concern. This resolution will be provided via the communication method of the constituent.
C. All information received or maintained by the department in connection with such reports, complaints, or investigations shall be confidential and not subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia), except that such information may be relayed and used on a confidential basis for the purposes of investigation and to protect the health, safety, and well-being of children in foster care.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-150. Adoption Resource Exchange of Virginia.
A. The Adoption Resource Exchange of Virginia (AREVA) is a service offered by the department that connects families with children who are available for adoption within the Commonwealth of Virginia. AREVA is one tool used to help local departments reach the federal goal of permanency within 24 months specified in § 471 of the Title IV-E of the Social Security Act (42 USC § 671) and the requirement of § 16.1-283 F of the Code of Virginia to file reports to the court on progress towards adoption. The purpose of AREVA is to increase opportunities for children waiting to be adopted by providing services to child-placing agencies having custody of these children. The services provided by AREVA include:
1. Maintaining a registry of children awaiting adoption and a registry of approved parents waiting to adopt;
2. Preparing and posting an electronic photo-listing of children awaiting adoption and a photo-listing of parents awaiting placement of a child;
3. Providing information and referral services for children who have special needs to link child-placing agencies with other adoption resources;
4. Providing ongoing targeted and child-specific recruitment efforts for waiting children;
5. Providing consultation and technical assistance on child-specific recruitment to child-placing agencies for waiting children; and
6. Monitoring local departments' compliance with legal requirements, guidance, and policy on registering children and parents.
B. For a child in foster care who has the foster care plan goal of adoption as specified in § 63.2-906 of the Code of Virginia and whose parental rights have been terminated, the child-placing agency shall register the child with AREVA within 60 days of termination of parental rights.
C. Child-placing agencies shall comply with all of the AREVA requirements.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-160. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; repealed, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-161. Adoption assistance.
A. The purpose of adoption assistance is to facilitate adoptive placements and ensure permanency for children with special needs.
B. For a child to be eligible for adoption assistance he must have been determined to be a child with special needs in accordance with §§ 63.2-1300 and 63.2-1301 of the Code of Virginia and meet the following criteria:
1. Be younger than 18 years of age and meet the requirements set forth in § 473 of Title IV-E of the Social Security Act (42 USC § 673); or
2. Be younger than 18 years of age and in the placement and care of a child-placing agency at the time the petition for adoption is filed and be placed by the child-placing agency with the prospective adoptive parents for the purpose of adoption, except for those situations in which the foster parents have filed a petition for adoption under § 63.2-1229 of the Code of Virginia.
C. Adoption assistance may include the following payments or services where appropriate:
1. Title IV-E maintenance payments if the child meets federal eligibility requirements.
2. State-funded maintenance payments when the local department determines that (i) the child does not meet the requirements in § 473 of Title IV-E of the Social Security Act (42 USC § 673) and (ii) the child is a child with special needs pursuant to § 63.2-1301 B of the Code of Virginia.
3. State-funded special service payments used to help meet the child's physical, mental, emotional, or dental needs (i) when the child is in the custody of the local board or in the custody of a licensed child-placing agency and placed for adoption, (ii) when the child meets the criteria of a child with special needs set out in § 63.2-1300 of the Code of Virginia, and (iii) when the adoptive parents are capable of providing permanent family relationships needed by the child in all respects except financial.
4. Nonrecurring expense payments when an adoption assistance agreement is entered into prior to or at the time of the finalization of the adoption. Claims for nonrecurring expense payments must be filed within two years of the date of the final decree of adoption.
D. For the child who meets the requirements in § 473 of Title IV-E of the Social Security Act (42 USC § 673) or who is receiving state-funded maintenance payments and has a special medical need as specified in § 32.1-325 of the Code of Virginia and in the Virginia DSS Medicaid Eligibility manual, M0310.102 2b, the adoption assistance agreement shall include a statement indicating the child's Medicaid eligibility status.
E. Additional criteria for the payments and services specified in subsection C of this section are as follows:
1. A maintenance payment, whether under Title IV-E or state funded, shall be approved for a child who is eligible for adoption assistance unless the adoptive parent indicates, or it is determined through negotiation, that the payment is not needed.
a. The amount of all payments shall be negotiated by a representative of the department with the adoptive parents, taking into consideration the needs of the child and circumstances of the adoptive parents.
b. The amount of maintenance payments made shall not exceed the foster care maintenance payment that would have been paid during the period if the child had been in a foster family home.
c. The maintenance payments shall not be reduced below the amount specified in the adoption assistance agreement without the concurrence of the adoptive parents or a statewide reduction.
d. The maintenance payment specified in the adoption assistance agreement may only be increased if the child is already receiving the maximum amount allowed and (i) the child reaches an age at which the foster care maintenance rate would increase or (ii) statewide increases are approved for foster care maintenance rates.
e. The adoptive parents shall be required under the adoption assistance agreement to keep the local department informed of the circumstances that would make them ineligible for a maintenance payment or eligible for a different amount of maintenance payment than that specified in the adoption assistance agreement.
f. Maintenance payments shall cease being made to the adoptive parents for the child who has not yet reached the age of 18 years if (i) the adoptive parents are no longer legally responsible for the support of the child or (ii) the child is no longer receiving any support from the adoptive parents.
2. The special service payment shall be directly related to the child's special needs listed on the adoption assistance agreement. Special service payments shall be time limited based on the needs of the child and can be modified beyond the original provision of the agreement when the local department and the adoptive parents agree to the modification in a signed and dated addendum. Subsection K of this section addresses addendums to an existing agreement.
a. A special service payment may be used for a child eligible for Medicaid to supplement payments not covered by Medicaid.
b. Payments for special services are negotiated by a representative of the department with the adoptive parents, taking into consideration:
(1) The special needs of the child;
(2) Alternative resources available to fully or partially defray the cost of meeting the child's special needs; and
(3) The circumstances of the adoptive family, including the family's income.
c. The rate of payment shall not exceed the prevailing rate for the provision of such special services within the child's community.
d. The special services adoption assistance payments shall be separate and distinct from the maintenance payments and nonrecurring expenses on the adoption assistance form.
3. The adoptive parent shall be reimbursed, upon request, for the nonrecurring expenses of adopting a child with special needs.
a. The total amount of reimbursement shall be based on actual costs and shall not exceed $2,000 per child per placement or an amount established by federal law.
b. Payment of nonrecurring expenses may begin as soon as the child is placed in the adoptive home and the adoption assistance agreement has been signed.
c. Nonrecurring expenses include those items set out in § 63.2-1301 D of the Code of Virginia.
4. When the adoptive parents decline a specific payment or agree to a reduced payment amount and their family circumstances or the child's needs change, the adoptive parents may request a change to the agreement and an addendum to the adoption assistance agreement can be negotiated. The requirements for addendums to an existing adoption assistance agreement are in subsection K of this section.
F. All adoption assistance payments, services, and agreements shall be negotiated with the adoptive parents by a representative of the department, taking into consideration the needs of the child, the circumstances of the family, and the limitations specified in subsections B, C, and E of this section. Documentation supporting the requests for payments and services shall be provided by the adoptive parents and for consideration in the negotiation of the adoption assistance agreement. Income shall not be the sole factor in considering the family's circumstances during the negotiations. Available family and community resources shall be explored as an alternative or supplement to the adoption assistance payment.
G. An adoption assistance agreement shall be entered into by the local board and the adoptive parents or a child who has been determined eligible for adoption assistance. Local departments shall use the adoption assistance agreement form developed by the department. In cases in which the child is in the custody of a licensed child-placing agency, the agreement shall be entered into by the local board, the licensed child-placing agency, and the adoptive parents. All adoption assistance agreements shall be negotiated by a representative of the department.
H. When a child is determined to be eligible for adoption assistance prior to the adoption being finalized, the adoption assistance agreement shall:
1. Be signed prior to or at the time of entry of the final order of adoption;
2. Specify the payment types, monthly amounts, special services to be provided; and
3. Remain in effect and governed by the laws of the Commonwealth of Virginia regardless of the state to which the adoptive parents may relocate.
I. Application for adoption assistance after finalization of the adoption shall be for state-funded maintenance payments as set out in § 63.2-1301 B of the Code of Virginia. The application for adoption assistance shall be submitted within one year of diagnosis of the condition that establishes the child as a child with special needs.
J. The adoptive parents shall annually submit a signed adoption assistance affidavit to the local department by the end of the month in which the adoption assistance agreement was effective pursuant to § 63.2-1302 C of the Code of Virginia.
K. Adoption assistance agreements may be modified beyond the original provisions of the agreement to the extent provided by law when the local department and the adoptive parents agree in writing to new or renewed special services or provisions in an addendum signed and dated by the local department and the adoptive parents. The local departments shall use the addendum form provided by the department and the changes to the agreement shall be negotiated by a representative of the department.
L. The local department is responsible for:
1. Maintaining payments and services identified in the adoption assistance agreement and any addendum in effect, regardless of where the family resides;
2. Notifying adoptive parents who are receiving adoption assistance that the annual affidavit is due;
3. Discussing with the adoptive parents the child's unique needs and their ability to manage the needs of the child;
4. Assisting the adoptive parents in coordinating services to meet the child's special needs related to adoption assistance upon request;
5. Providing services to prevent disruption and strengthen family well-being, when requested by the adoptive parents; and
6. Providing training, when requested, to the adoptive parents as part of an already established local department curriculum. If the local department does not provide the necessary training when requested, the local department shall identify potential training sources and assist the adoptive parent in accessing the training.
M. Adoption assistance shall be terminated when the child reaches the age of 18 years unless:
1. The child has a physical or mental disability or an educational delay resulting from the child's disability that warrants continuation of the adoption assistance. If a child has a physical or mental disability that warrants continuation of the adoption assistance, the adoption assistance payments may continue until the child reaches the age of 21 years if the local department and adoptive parents sign an addendum to the agreement to extend the agreement to the specified age. If the sole reason for continuing the agreement beyond the age of 18 years is educational delay, then state-funded adoption assistance may continue until the youth graduates from high school or until the youth's 21st birthday, whichever is earlier, if the local department and the adoptive parents sign an addendum to the agreement to extend the agreement to the end of the month of high school graduation or until the youth's 21st birthday, whichever is earlier or
2. The initial adoption assistance agreement became effective on or after the youth's 16th birthday and the youth turned 18 years of age on or after July 1, 2016. Adoption assistance may continue until the youth reaches 21 years of age if the youth meets one of the following criteria:
a. Completing secondary education or an equivalent credential;
b. Enrolled in an institution that provides post-secondary or vocational education;
c. Participating in a program or activity designed to promote employment or remove barriers to employment;
d. Employed at least 80 hours a month; or
e. Is incapable of doing any of the activities described in subdivisions 2 a through 2 d of this subsection due to a medical condition, which incapability is supported by regularly updated information in the program participant's case record.
N. Adoption assistance shall not be terminated before the child's 18th birthday without the consent of the adoptive parents unless:
1. The child is no longer receiving support from the adoptive parents; or
2. The adoptive parents are no longer legally responsible for the support of the child.
O. Local boards of social services are responsible for informing adoptive parents in writing of their right to appeal decisions relating to the child's eligibility for adoption assistance and decisions relating to payments and services to be provided within 30 days of receiving written notice of such decisions. In accordance with § 63.2-1304 of the Code of Virginia applicants for, and recipients of, adoption assistance shall have the right to appeal adoption assistance decisions by a local board or licensed child-placing agency in granting, denying, changing, or discontinuing adoption assistance.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 33, Issue 8, eff. January 11, 2017; amended, Virginia Register Volume 35, Issue 5, eff. December 1, 2018.
22VAC40-201-165. Kinship Guardianship Assistance Program.
A. The purpose of the Kinship Guardianship Assistance Program is to facilitate placements with relatives and ensure permanency for children for whom adoption or reunification are not appropriate permanency options.
B. A child is eligible for the Kinship Guardianship Assistance Program if:
1. The child has been removed from the child's home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child;
2. The child was eligible for foster care maintenance payments under 42 USC § 672 or under state law while residing for at least six consecutive months in the home of the prospective kinship guardian;
3. Reunification or adoption are not appropriate permanency options for the child;
4. The child demonstrates a strong attachment to the prospective kinship guardian, and the prospective kinship guardian has a strong commitment to caring permanently for the child; and
5. The child has been consulted regarding the kinship guardianship if the child is 14 years of age or older.
C. If a child does not meet the eligibility criteria set forth in subsection B of this section but has a sibling who meets such criteria, the child may be placed in the same kinship guardianship with the child's eligible sibling in accordance with 42 USC § 671(a)(31) if the local department and kinship guardian agree that such placement is appropriate. In such cases, kinship guardianship may be paid on behalf of each sibling so placed.
D. Kinship Guardianship Assistance payments may not exceed the foster care maintenance payment, either IV-E or state funded, which would have been paid on behalf of the child if the child had remained in a foster home. Once the Kinship Guardianship Assistance Agreement becomes effective in accordance with subsection H of this section, foster care payments will cease and kinship guardianship assistance payments will begin. Kinship Guardianship Assistance payments include the following, where appropriate:
1. Title IV-E maintenance payments if the child meets federal eligibility requirements.
2. State-funded maintenance payments when the local department determines that the child does not meet the requirements in § 473 of Title IV-E of the Social Security Act (42 USC § 673).
3. Nonrecurring expense payments associated with the costs of obtaining legal custody of the child when a Kinship Guardianship Assistance Agreement is completed prior to legal custody transfer to the kinship guardian. Claims for nonrecurring expense payments must be filed within two years of the date that legal custody transferred to the kinship guardian.
E. The local department shall inform the prospective kinship guardian whether the child is eligible for Medicaid in relation to the Kinship Guardianship Assistance Agreement. For the child who meets the requirements in § 473 of Title IV-E of the Social Security Act (42 USC § 673), Medicaid shall be included in the Kinship Guardianship Assistance Agreement.
F. Additional criteria for the payments and services specified in subsection D of this section are as follows:
1. A maintenance payment, whether under Title IV-E or state funded, shall be approved for a child who is eligible for Kinship Guardianship Assistance payment unless the kinship guardian indicates, or it is determined through negotiation, that the payment is not needed.
a. The amount of all payments shall be negotiated by a representative of the department with the kinship guardian, taking into consideration the needs of the child and circumstances of the kinship guardian.
b. The amount of maintenance payments made shall not exceed the foster care maintenance payment that would have been paid during the period if the child had remained in a foster family home.
c. The maintenance payments shall not be reduced below the amount specified in the Kinship Guardianship Assistance Agreement without the concurrence of the kinship guardian or a statewide reduction in maintenance rates.
d. The maintenance payment specified in the Kinship Guardianship Assistance Agreement may only be increased if the child is already receiving the maximum amount allowed and (i) the child reaches an age at which the foster care maintenance rate would increase or (ii) statewide increases are approved for foster care maintenance rates.
e. The kinship guardian shall be required under the Kinship Guardianship Assistance Agreement to keep the local department informed of the circumstances that would make them ineligible for a maintenance payment or eligible for a different amount of maintenance payment than that specified in the Kinship Guardianship Assistance Agreement.
2. Children who are living with a kinship guardian participating in the Kinship Guardianship Assistance Program are eligible for foster care services under § 63.2-905 of the Code of Virginia, including a full range of casework, treatment, and community services. The kinship guardian may request services through the family assessment and planning team (FAPT) in accordance with state and local policies and procedures.
3. The kinship guardian shall be reimbursed, upon request, for the nonrecurring expenses of obtaining legal custody of the child. The total amount of reimbursement shall be based on actual costs and shall not exceed the amount established by federal law. Claims for nonrecurring expense payments must be filed within two years of the date that legal custody transferred to the kinship guardian.
4. When the kinship guardian declines a specific payment or agrees to a reduced payment amount and the kinship guardian's family circumstances or the child's needs change, the kinship guardian may request a change to the agreement, and an addendum to the Kinship Guardianship Assistance Agreement may be negotiated. The requirements for addendums to an existing Kinship Guardianship Assistance Agreement are in subsection K of this section.
G. All Kinship Guardianship Assistance payments and agreements shall be negotiated with the kinship guardian by a representative of the department, taking into consideration the needs of the child, the circumstances of the family, and the limitations specified in subsections B, C, D, and E of this section. Documentation supporting the requests for payments shall be provided by the kinship guardian and shall be considered in the negotiation of the Kinship Guardianship Assistance Agreement. Income shall not be the sole factor in considering the family's circumstances during the negotiations. Available family and community resources shall be explored as an alternative or supplement to the Kinship Guardianship Assistance payment.
H. A Kinship Guardianship Assistance Agreement shall be entered into by the local board and the kinship guardian for a child who has been determined eligible for Kinship Guardianship Assistance payments. Local departments shall use the Kinship Guardianship Assistance Agreement form provided by the department.
I. The Kinship Guardianship Assistance Agreement shall:
1. Be signed prior to legal custody transfer of the child to the kinship guardian;
2. Specify the payment types and monthly amounts to be provided;
3. Become effective on the date that the judge signs the court order transferring legal custody of the child to the kinship guardian; and
4. Absent modification or revocation of the kinship guardianship, remain in effect and governed by the laws of the Commonwealth of Virginia regardless of the state to which the kinship guardian may relocate.
J. The kinship guardian shall:
1. Annually submit a signed kinship guardianship assistance affidavit to the local department by the date the Kinship Guardianship Assistance Agreement was effective; and
2. Report changes in circumstances to the local department as outlined in the Kinship Guardianship Assistance Agreement.
K. Kinship Guardianship Assistance Agreements may be modified beyond the original provisions of the agreement to the extent provided by law when the local department and the kinship guardian agree in writing to new or renewed provisions in an addendum signed and dated by the local department and the kinship guardian. The local departments shall use the addendum form provided by the department and the changes to the agreement shall be negotiated by a representative of the department.
L. The Kinship Guardianship Assistance Agreement and any amendments may name an appropriate person to act as a successor legal guardian to provide care and guardianship in the event of death or incapacitation of the relative guardian. The successor guardian must be named in the agreement or addendum prior to the kinship guardian's death or incapacitation. The successor guardian does not need to be a relative or licensed as a foster parent to receive the Kinship Guardianship Assistance payment. Before the successor guardian may receive the Kinship Guardianship Assistance payments, the following requirements shall be met:
1. A new amendment to the Kinship Guardianship Assistance Agreement will need to be completed, outlining the terms of the kinship guardianship assistance and responsibilities of the successor guardian. The amendment to the Kinship Guardianship Assistance Agreement must specify that the agency will pay the total cost of nonrecurring expenses associated with obtaining legal guardianship of the child to the extent that the total cost does not exceed the amount authorized by federal law;
2. The successor guardian must complete a fingerprint based criminal background check and a central registry check of the successor guardian and all other adults living in the successor guardian's home; and
3. The successor guardian must obtain legal custody of the child.
M. The local department is responsible for the following:
1. Maintaining payments identified in the Kinship Guardianship Assistance Agreement and any addendum in effect, regardless of where the family resides;
2. Notifying kinship guardians who are receiving Kinship Guardianship Assistance payments that the annual affidavit is due;
3. Assisting the kinship guardian in coordinating services to meet the child's needs upon request;
4. Managing requests for changes in Kinship Guardianship Assistance payments and foster care services from the kinship guardian; and
5. Notifying the kinship guardians of a suspension or termination in payments or foster care services.
N. The Kinship Guardianship Assistance Agreement shall be terminated when the child reaches the age of 18 years, unless:
1. The child has a physical or mental disability that was present at the time of the custody transfer or a physical or mental disability that is related to a hereditary tendency, congenital problem, or birth injury and the local department determines the child requires ongoing treatment and intervention. The Kinship Guardianship Assistance payment may be continued by amending the original Kinship Guardianship Assistance Agreement or completing an addendum. The terms of the agreement or addendum may be for any period after the child's 18th birthday up to the child's 21st birthday; or
2. The child was subject to a Kinship Guardianship Assistance Agreement that became effective after the child reached the age of 16 years. In addition, the child shall meet at least one of the following participation criteria:
a. Completing secondary education or an equivalent credential;
b. Enrolled in an institution that provides post-secondary or vocational education;
c. Participating in a program or activity designed to promote employment or remove barriers to employment;
d. Employed at least 80 hours per month; or
e. Is incapable of doing any of the activities described in subdivisions a through d of this subsection due to a medical condition, which incapability is supported by regularly updated information in the program participant's case record.
O. The Kinship Guardianship Assistance Agreement shall not be terminated before the child's 18th birthday without the consent of the kinship guardian unless:
1. The kinship guardian adopts the child subsequent to the Kinship Guardianship Assistance Agreement and transfer of legal custody. The kinship guardian and a representative of the department shall negotiate adoption assistance payments independently from any negotiated terms of the Kinship Guardianship Assistance Agreement.
2. The kinship guardian requests in writing that the agreement ends.
3. The kinship guardian fails to comply with the annual review process.
4. The kinship guardian is no longer legally responsible for the care of the child.
5. The kinship guardian is not providing any financial support for the child.
6. The kinship guardian dies or becomes incapacitated. If a successor legal guardian is named in the Kinship Guardianship Assistance Agreement or amendments prior to the kinship guardian's death or incapacitation, then Kinship Guardianship Assistance payments may continue to the successor legal guardian under the requirements outlined in subsection L of this section.
7. The kinship guardian and the local department agree in writing to terminate the agreement.
P. Local boards of social services are responsible for informing kinship guardians in writing of their right to appeal decisions relating to the child's eligibility for the Kinship Guardianship Assistance Program and decisions relating to payments within 30 days of receiving written notice of such decisions. In accordance with § 63.2-915 of the Code of Virginia, applicants for and recipients of the Kinship Guardianship Assistance Program shall have the right to appeal these decisions by a local board or licensed child-placing agency in granting, denying, changing, or discontinuing Kinship Guardianship Assistance payments.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 38, Issue 13, eff. March 17, 2022.
22VAC40-201-170. Child-placing agency's responsibilities in nonagency adoptive placements.
A. At the request of the juvenile court, the child-placing agency shall:
1. Conduct a home study of the prospective adoptive home taking into consideration that the manner in which a family receives a child for adoption shall have no bearing on how the family is to be assessed for purposes of adoptive placement; and
2. Provide the court with a written report of the home study.
B. The child-placing agency shall make a recommendation to the court regarding the suitability of the individual to adopt.
C. As provided in §§ 63.2-1218 and 63.2-1219 of the Code of Virginia, if the child-placing agency suspects an exchange of property, money, services, or any other thing of value has occurred in violation of law in the placement or adoption of the child, it shall report such findings to the commissioner for investigation.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-180. Fees for court services.
The local department shall charge fees for the following court ordered services: (i) custody investigations; (ii) adoption searches; (iii) nonagency placement adoptions, investigation and reports; and (iv) visitation and reports. The process for determining and collecting such fees shall be in accordance with guidance developed by the department.
Statutory Authority
§§ 63.2-217 and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012.
22VAC40-201-190. Virginia Birth Father Registry.
A. The department shall establish and maintain a putative father registry that is a confidential database.
B. A search of the Virginia Birth Father Registry shall be conducted for all adoptions except when the child has been adopted according to the laws of a foreign country or when the child was placed in Virginia from a foreign country for the purpose of adoption in accordance with § 63.2-1104 of the Code of Virginia.
C. Any petitioner who files a petition for termination of parental rights or for an adoption proceeding shall request a search of the Virginia Birth Father Registry. The certificate of search and finding must be filed with the court before an adoption or termination of parental rights proceeding can be concluded.
D. Any man who desires to be notified of an adoption proceeding or termination of parental rights regarding a child that he may have fathered shall register with the Virginia Birth Father Registry.
E. A registration is timely when it is received by the department within:
1. 10 days of the child's birth, unless written notice has been provided prior to the child's birth and the time period for registration under subsection 2 of this subsection applies or discovery of a misrepresentation has occurred and the time period for registration under subsection 3 of this subsection applies;
2. 10 days of the date of personal service of the written notice required under subsection F of § 63.2-1250 or within 13 days of the date of such written notice when sent by certified mail with proof of service or express mail with proof of delivery, whichever occurs first; or
3. 10 days upon the registrant's discovery of misrepresentation by the birth mother that led him to believe that (i) the pregnancy was terminated or the mother miscarried when in fact the baby was born or (ii) the child died when in fact the child is alive. However, registration within 10 days of discovery of such misrepresentations shall be considered untimely if 180 days have elapsed from the date the circuit court entered the final order of adoption.
F. The department may require additional information to determine that the individual requesting information from the Virginia Birth Father Registry is eligible to receive information in accordance with § 63.2-1251 of the Code of Virginia.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 37, Issue 19, eff. June 10, 2021; Volume 39, Issue 4, eff. November 10, 2022.
22VAC40-201-200. Training.
A. Local department service workers and supervisory staff shall attend and complete initial in-service training in accordance with §§ 63.2-913 and 63.2-1200.1 of the Code of Virginia.
B. Local department service workers and supervisory staff shall attend and complete annual in-service training in accordance with guidance developed by the department.
Statutory Authority
§§ 63.2-217, 63.2-319, and 63.2-900 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 29, Issue 2, eff. November 1, 2012; amended, Virginia Register Volume 33, Issue 8, January 11, 2017.
22VAC40-201-210. State-Funded Kinship Subsidy.
A. The purpose of the State-Funded Kinship Subsidy, also known as the State-Funded Kinship Guardianship Assistance Program, is to facilitate placements with relatives and ensure permanency for children who are ineligible for the Kinship Guardianship Assistance Program, as outlined in § 63.2-1305 of the Code of Virginia.
B. A child is eligible for the State-Funded Kinship Subsidy if:
1. The child has been removed from the child's home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child;
2. The child has been in the custody of the local department for at least 90 days;
3. The child demonstrates a strong attachment to the prospective kinship guardian, and the prospective kinship guardian has a strong commitment to caring permanently for the child;
4. The child has been consulted regarding the kinship subsidy if the child is 14 years of age or older;
5. The requirements for a transfer of custody of the child to the prospective kinship guardian for the purpose of establishing eligibility for the State-Funded Kinship Subsidy have been met; and
6. The child is not eligible for the Kinship Guardianship Assistance Program, as outlined in § 63.2-1305 of the Code of Virginia.
C. If a child does not meet the eligibility criteria set forth in subsection B of this section but has a sibling who meets such criteria, the child may be placed in the same State-Funded Kinship Subsidy arrangement as the child's eligible sibling if the local department and kinship guardian agree that such placement is appropriate. In such cases, the kinship subsidy may be paid on behalf of each sibling so placed.
D. A prospective kinship guardian is eligible for the State Funded Kinship Subsidy if the kinship guardian:
1. Completes a relative foster home approval; or
2. Completes a home study and background check, is found to have no convictions for any barrier crime as outlined in 42 USC § 671(a)(20), and qualifies for at least one of the following exemptions from the kinship foster home approval process:
a. The kinship guardian lives in another state and is unable to meet non-safety related approval requirements imposed by their state;
b. The kinship guardian has made attempts to satisfy the training requirements for foster home approval but is unable to complete all training requirements; or
c. The kinship guardian's home is unable to meet the foster parent approval standards and establishing permanency with the kinship guardian through a State-Funded Kinship Subsidy is in the child's best interest, as determined by the department.
E. Once the State-Funded Kinship Subsidy agreement becomes effective in accordance with subsection K of this section, foster care payments will cease and kinship subsidy payments will begin. The State-Funded Kinship Subsidy provides state-funded basic maintenance only. The basic maintenance payment will increase only when (i) the child reaches an age at which the foster care maintenance rate would increase or (ii) statewide increases are approved for foster care maintenance rates.
F. The local department shall inform the prospective kinship guardian of the Medicaid application process to support continuation of benefits after custody transfer.
G. The kinship guardian shall be required under the State-Funded Kinship Subsidy agreement to keep the local department informed of the circumstances that would make them ineligible for a maintenance payment or eligible for a different amount of maintenance payment than that specified in the State-Funded Kinship Subsidy agreement.
H. Children with a State-Funded Kinship Subsidy agreement are eligible for foster care services under § 63.2-905 of the Code of Virginia, including a full range of casework, treatment, and community services. The kinship guardian may request services through the family assessment and planning team (FAPT) in accordance with state and local policies and procedures.
I. A representative of the department shall approve all State-Funded Kinship Subsidy agreements, including all exemptions from the foster home approval process as outlined in subdivision D 2 of this section.
J. A State-Funded Kinship Subsidy agreement shall be entered into by the local board and the kinship guardian for a child who has been approved by the department for State-Funded Kinship Subsidy payments. Local departments shall use the State-Funded Kinship Subsidy agreement form provided by the department.
K. The State-Funded Kinship Subsidy agreement shall:
1. Be signed prior to legal custody transfer of the child to the kinship guardian;
2. Specify the monthly amount to be provided;
3. Become effective on the date that the judge signs the court order transferring legal custody of the child to the kinship guardian; and
4. Absent modification or revocation of the kinship guardianship, remain in effect and governed by the laws of the Commonwealth of Virginia regardless of the state to which the kinship guardian may relocate.
L. The kinship guardian shall:
1. Annually submit a signed State-Funded Kinship Subsidy affidavit to the local department by the date that the State-Funded Kinship Subsidy agreement was effective; and
2. Report changes in circumstances to the local department as outlined in the State-Funded Kinship Subsidy agreement.
M. The local department is responsible for the following:
1. Maintaining payments identified in the State-Funded Kinship Subsidy agreement, regardless of where the family resides;
2. Notifying kinship guardians who are receiving State-Funded Kinship Subsidy payments that the annual affidavit is due;
3. Assisting the kinship guardian in coordinating services to meet the child's needs upon request; and
4. Notifying the kinship guardians of a suspension or termination in payments or foster care services.
N. The State-Funded Kinship Subsidy agreement shall be terminated when the child reaches the age of 18 years.
O. The State-Funded Kinship Subsidy agreement shall not be terminated before the child's 18th birthday without the consent of the kinship guardian unless:
1. The kinship guardian adopts the child subsequent to the State-Funded Kinship Subsidy agreement and transfer of legal custody. The kinship guardian and a representative of the department shall negotiate adoption assistance payments independently from any negotiated terms of the State-Funded Kinship Subsidy agreement.
2. The kinship guardian requests in writing that the agreement ends.
3. The kinship guardian fails to comply with the annual review process.
4. The kinship guardian is no longer legally responsible for the care of the child.
5. The kinship guardian is not providing any financial support for the child.
6. The kinship guardian dies or becomes incapacitated.
7. The kinship guardian and the local department agree in writing to terminate the agreement.
P. Local boards of social services are responsible for informing kinship guardians in writing of their right to appeal decisions relating to the child's eligibility for the State-Funded Kinship Subsidy and decisions relating to payments within 30 days of receiving written notice of such decisions. In accordance with § 63.2-915 of the Code of Virginia, applicants for and recipients of the State-Funded Kinship Subsidy shall have the right to appeal these decisions by a local board or licensed child-placing agency in granting, denying, changing, or discontinuing State-Funded Kinship Subsidy payments.
Q. Approval of the State-Funded Kinship Subsidy for a child is dependent on allotted funding from the General Assembly. Based on the funding allotted on an annual basis, priority will be given to the arrangements that would be least likely to achieve permanency with the Kinship Guardianship Assistance Program, as outlined in § 63.2-1305 of the Code of Virginia, including kinship guardians who meet an exemption from the foster home approval process, as outlined in subdivision D 2 of this section.
Statutory Authority
§§ 63.2-217 and 63.2-319 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 38, Issue 2, eff. October 13, 2021.
Forms (22VAC40-201)
Virginia Application for Adoption Assistance, 032-04-0093-00-eng (eff. 3/2012)
Virginia Adoption Assistance Agreement, 032-04-0090-00-eng (eff. 7/2014)
Addendum to Adoption Assistance Agreement, 032-04-0086-00-eng (eff. 3/2012)
Documents Incorporated by Reference (22VAC40-201)
Virginia EPSDT Periodicity Chart, Virginia Department of Medical Assistance Services