Appendix 1530-F: Categorical Requirements for AFDC
CPS March 2021
Requirements for AFDC Eligibility
B. Verification of Child's Age
Examples and Special Situations
Tool for Determining Deprivation
D. Certified Group Determination
G. Stepparent Budgeting Procedures
Background
CPS September 2017
Title IV-E foster care eligibility requires that a child meet the qualifications for the federal Aid to Families with Dependent Children (AFDC) program that were in effect on July 16, 1996. This appendix documents the relevant 1996 requirements for determining a child’s eligibility under the AFDC program, including:
• removal requirements;
• verification of child’s age;
• parental deprivation;
• certified group determination;
• countable resources; and
• income.
In addition to these AFDC requirements, the child must meet all other applicable eligibility requirements in 1530 Foster Care Assistance Eligibility Requirements for Children and Youth Who Are in DFPS Conservatorship.
Requirements for AFDC Eligibility
A. Removal Requirements
CPS March 2021
AFDC Home of Removal
The AFDC home of removal is the home DFPS uses to determine whether the child is eligible for AFDC.
The home of removal is the home from which the court legally removes the child. This is the home of the person who under state law had the legal right and responsibility for the child immediately before DFPS removed the child, which is usually the parent or managing conservator.
DFPS staff can use the following sources of information to help identify the home of removal:
- The removal order, which may name one or both of the following:
- The adult from whom the court legally removed the child.
- The adult who is the subject of the court’s “contrary to the welfare” finding.
- The petition for removal, when the home from which the child is legally removed is not identified in the court order.
Interim Caregiver
An interim caregiver is a related or unrelated person with whom the child is living at the time the court orders the removal of the child.
If the child is living with an interim caregiver at the time the court judicially (legally) removes the child from the parent, the following apply:
- The AFDC home of removal is the home of the person from whom the court legally removed the child, regardless of whether that is the parent’s home.
- DFPS uses the AFDC home of removal to determine whether the child is eligible for AFDC, even if DFPS physically removed the child from the interim caregiver’s home.
AFDC Eligibility Month
The AFDC eligibility month is the month DFPS uses to determine whether the child was eligible for AFDC in the home of removal. The AFDC eligibility month is the month in which the court proceedings that led to the court removing the child from the home began.
The court proceedings are considered to be initiated on the date that DFPS files the petition of removal. If a removal petition is not filed or is filed after the initial removal court order, the initiation of court proceedings is the date of the initial removal court order.
Use of Home of Removal and Eligibility Month
All factors related to AFDC eligibility (including parental deprivation, resources, and income) are based on the circumstances in the AFDC home of removal during the AFDC eligibility month. This applies even if the child did not live with that parent or other specified relative (see Specified Relatives, below) when DFPS removed the child.
Child Living with and Removed from the Same Specified Relative
To be eligible for AFDC, the child must have lived with and been legally removed from the same specified relative (see Specified Relatives, below). There are two ways to meet this requirement:
- The child was judicially (legally) removed from a specified relative and was also living with that relative in the month of the initiation of court proceedings.
- The child was judicially (legally) removed from a specified relative and had lived with that relative within six months of the initiation of court proceedings.
If the court legally removed the child from a specified relative, but DFPS allowed the child to remain in that relative’s home, this is not a removal for Title IV-E purposes. In this situation, the child is ineligible for Title IV-E assistance for the entire foster care episode. A foster care episode is the time period from when the court legally orders the child’s removal to when the court dismisses the conservatorship case.
Specified Relatives
The following people may be considered specified relatives of a child:
- Father or mother
- Grandfather or grandmother
- Brother or sister
- Uncle or aunt
- First cousin
- Nephew or niece
- Stepfather or stepmother
- Stepbrother or stepsister
- First cousin once removed
Each relationship listed above includes the following people:
- Biological and adoptive relatives.
- The spouse of any person who is eligible to be a specified relative, even after the marriage has ended in death or divorce.
- Relatives up to and including the degree of “great-great” for uncle and aunt.
- Relatives up to and including the degree of “great-great-great” for grandfather and grandmother.
45 Code of Federal Regulations (CFR) §233.90(c)(1)(v)(1-4)
Constructive Removal
In a constructive removal, all of the following occur:
- The child is currently living with an interim caregiver who provides a stable environment.
- DFPS files suit against the parent or the person with managing conservatorship of the child, but the child is not living with that person.
- DFPS decides to leave the child in the interim caregiver’s home.
In a constructive removal, the AFDC home of removal is the home from which the court legally removed the child (the parent’s home or the home of the person with managing conservatorship), not the interim caregiver’s home. In order to be eligible for AFDC, the child must have lived with the person from whom the court legally removed the child at some point during the six months before the removal.
Other Circumstances of Living with a relative
Child in Residential Treatment Facility or Hospital
A child’s parent places him or her in a residential treatment facility or a medical or psychiatric hospital without DFPS involvement. The child remains there for more than six months, but his or her parent maintains parental responsibility for the child. Then, DFPS files a petition for removal while the child is still in the facility.
In this circumstance, the child is considered to be living with his or her parent, because the parent placed the child in the facility and maintained parental responsibility. All other IV-E requirements must still be met for the case to be certified for IV-E.
The AFDC eligibility month is the month in which the court proceedings that led to the court removing the child began. This is the month when DFPS filed the petition for removal.
Child Born to a Mother Who Is in Prison or in a Hospital
A woman gives birth while in prison or in a hospital, and therefore she is not able to care for her child, so DFPS places the child into foster care.
In this circumstance, the child is considered to be living with the mother because federal policy considers the prison or hospital to be a home. All other IV-E requirements must still be met for the case to be certified for IV-E
The AFDC eligibility month is the month in which the court proceedings that led to the court removing the child began. This is the month when DFPS filed the petition for removal.
B. Verification of Child’s Age
CPS September 2019
Age Requirements
To be AFDC eligible, a child (or young adult) must meet one of the following requirements:
• Under age 18.
• Age 18, attending high school, and expected to graduate before or during the month of the young adult’s 19th birthday.
Age Records
DFPS uses at least one of the following records to verify the child’s age:
• Birth certificate.
• Birth records from a hospital or public health agency.
• Birth records from a church or other religious institution.
• Baptismal record.
• Local, state, or federal government records.
• Military records.
• Adoption papers or records.
• American Indian census report.
• US passport.
• School or day care records.
• Records from the Immigration and Naturalization Service or US Citizenship and Immigration Services.
• Paternity records that the attorney general of Texas keeps for managing child support payments.
• Social Security Administration records.
• Texas Department of State Health Services Automated Birth Verification system.
C. Parental Deprivation
CPS September 2017
One element of the definition of “dependent child” under the AFDC program is parental deprivation, which means the child must be deprived of the support and care of at least one parent. The determination of whether a child has been deprived of parental support in the home of removal is made in relation to the child’s natural or adoptive parents.
Parental deprivation exists when the home of removal is:
1. a non-parent home, because the child is cared for by relatives;
2. a one-parent home because of:
• the death of a parent; or
• the absence of a parent from the home.
3. a two-parent home with:
• physical or mental incapacity of at least one parent; or
• underemployment of the primary wage earner.
45 CFR §233.90(a)(1)
Who are the child’s parents?
The parent-child relationship is established between a child and:
• the mother by proof of her having given birth to the child;
• an adoptive parent by proof of adoption;
• the father by legal presumption, proof of relationship, court adjudication, or acknowledgment of paternity.
When is a man legally presumed to be the child’s father?
By statute, a man is presumed to be the child’s natural father under any of the following circumstances:
1. He and the child’s mother were married in apparent compliance with the law (even if the marriage is or could be voided), BEFORE the child’s birth and the child was born while they were married or before the 301st day after the marriage ended.
2. He and the mother married in apparent compliance with the law (even if the marriage is or could be voided) AFTER the child’s birth, he voluntarily asserted paternity, and:
• his assertion of paternity is in a record filed with the Bureau of Vital Statistics;
• he agreed to be named as the child’s father on the child’s birth certificate; or
• he promised in a record to support the child as his own.
3. He continuously resided in the same household where the child resided during the first two years of the child’s life, and he represented to others that the child was his own.
4. He is adjudicated, or determined by a court order, to be the child’s father.
5. He executes an acknowledgment of paternity, in accordance with Texas Family Code §160.302, which must be signed under penalty of perjury by both him and the child’s mother. An acknowledgment of paternity is void when another presumed father, who meets one of the presumed father criteria above, exists, unless the presumed father has signed a denial of his paternity.
Common Law Marriage
The marriages referred to above include common law marriage. A common law marriage exists if a man and woman:
• are both free to marry;
• live together; and
• hold out to the public that they are husband and wife.
If the common law couple separates and ceases living together, there must be a suit for proof of marriage filed within two years after the separation or the law presumes that the common law marriage never existed.
Stepparents
Stepparents include men who marry the child’s mother but do not assert paternity or promise financial responsibility for the child. A stepparent is not a legal parent to the child without adoption.
One-Parent Household
What is continued absence from the home?
A parent’s absence is considered to be continued absence from the home when:
• the nature of the absence is such that there is an interruption or termination of the parent’s functioning as a provider of maintenance, physical care, or guidance for the child; and
• the known or indefinite duration of the absence precludes counting on a parent’s performance of the function of planning for the present support or care of the child.
As long as these two conditions are met, the parent may be absent for any reason and may have only left recently. Deprivation includes any absence that prevents the family from relying on the missing parent’s support or care of the child. This can occur for many reasons, including divorce, separation, desertion, incarceration, deportation, or hospitalization. Absence for active military duty does not constitute continued absence from the home.
Active Military Duty
A parent who is absent solely by reason of the performance of active duty in the uniformed services of the United States is not considered continually absent from the home.
45 CFR §233.90(c)(iii)
Two-Parent Household
How is physical or mental incapacity established?
For a parent to be considered incapacitated, the existence of a physical or mental defect, illness, or impairment must be supported by a medical diagnosis that is verified by a physician’s statement. The incapacity must be so debilitating as to reduce substantially or eliminate the parent’s ability to support or care for child. The incapacity must be expected to last for at least 30 days. The parent’s receipt of Supplemental Security Income (SSI) or Retirement, Survivors, and Disability Insurance (RSDI) based on a disability or blindness is also acceptable proof of incapacity.
45 CFR §233.90(c)(1)(iv)
How is underemployment of the primary wage earner established?
If a child is living with both parents, deprivation exists when the primary wage earner (PWE) parent is underemployed. The PWE is the parent who had the most earned income in the previous two years. The parents can identify which of them is the PWE based upon this criterion. The PWE is considered “underemployed” when:
• the PWE is working less than 100 hours per month;
• the PWE is averaging less than 100 hours per month, if working intermittently, or
• the PWE’s monthly gross income does not exceed the income limit for the size of the certified group, as listed in Appendix 1530-D: Income Guidelines for Underemployed Parent for Parental Deprivation.
45 CFR §233.100
Examples and Special Situations
Unwed Parents Living Together
If a child lives with the mother and the biological father, who admits paternity but is not the child’s legally presumed father, the eligibility specialist determines deprivation as follows:
• If mother is or was married (other than by common law) to another man whom the law presumes to be the child’s legal father, then the child is deprived based on absence from the home of the man whom the law recognizes as the child’s father.
• If the mother was married by common law to another man at the time the child was conceived, but at least two years have passed without the filing of suit for proof of their marriage after the common law couple separated and ceased living together, there is no presumed father and deprivation does not exist.
• If there is no other man whom the law presumes to be the child’s father, then the child can only be deprived by:
• parental incapacity, or
• underemployment of either the mother or biological father who are living together, whichever is the primary wage earner (PWE).
Unwed Parents – Paternity Uncertain
If the child’s paternity is uncertain, the eligibility specialist determines parental deprivation as follows:
• If a child is living with the mother and a man who may be the child’s natural father, but the couple disagrees about paternity, and there is no legally presumed father, then there is insufficient basis upon which to reach a conclusion regarding deprivation based on absence from the home. If deprivation cannot be established by incapacity or underemployment, the case would be certified state-paid and monitored for the court determination regarding paternity. Once there is an adjudication of paternity, the case must be reviewed again for deprivation now that the legal father has been established. If the man that was living in the home at the time of the child’s removal is adjudicated to be the child’s father, then deprivation cannot exist by reason of absence from the home.
• If a child is living with the mother and a man who both agree is NOT child’s natural parent, and there is no legally presumed father, then child is deprived.
Active Military Service
If the father is on active military service overseas, the eligibility specialist determines parental deprivation as follows:
• If a child is living only with the mother, but the father would be present in the home if he were not on active military service overseas, then the child is not deprived because of parental absence. When the sole reason why a mother or father is not in the home is because of active military service, then that parent is not considered absent.
• If child is living with mother and biological father, but the mother is married to a man who is in military service, there is no deprivation.
Tool for Determining Deprivation
| If child is removed from the mother and mother is: |
Then: |
Action |
|---|---|---|
1. living with biological father of the child AND: • the biological father agrees he is the father of the child, AND: • the mother is still legally married to another man outside the home who is the legally presumed father… |
the child is deprived because the mother’s husband is considered the child’s father, and is absent from the home. |
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2. living with biological father of the child AND: • the biological father agrees he is the father of the child, AND: • there is no legally presumed father… |
the child does not meet deprivation based on absence from the home. | The foster care eligibility specialist must determine whether the parents meet deprivation based on the criteria for disability. If the parents do not meet the criteria for disability, the foster care eligibility specialist must determine whether the parents meet criteria for underemployed parent. |
3. living with a man that both she and he state is NOT the biological father (and he is not a “presumed” father by legal definition) … In this appendix under the subheading Parental Deprivation, see “When is a man legally presumed to be the child’s father? |
the child is deprived based on absence from the home.
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4. living with a man and there is a discrepancy or disagreement about who the natural father is (and there is no presumed father by legal definition) … In this appendix under the subheading Parental Deprivation, see “When is a man legally presumed to be the child’s father?“ |
A determination of parental deprivation cannot be made until a legal father is determined by court order or proper Acknowledgement of Paternity as described in “When is a man legally presumed to be the child’s father?” |
The child must be certified state-paid until a legal father is determined by court order or proper Acknowledgement of Paternity. When the legal father determination is made, the foster care eligibility specialist must determine deprivation based on who the father is. If deprivation is met, the foster care eligibility specialist must then re-review the case for other IV-E eligibility criteria. If the child meets all IV-E eligibility criteria, the foster care eligibility specialist may change the child’s eligibility to the date the child entered foster care. |
D. Certified Group Determination
CPS September 2019
The AFDC certified group consists of the people whose income and resources count for the purpose of determining whether a child has AFDC eligibility.
DFPS identifies the members of the certified group. DFPS considers all the people living in the AFDC home of removal during the AFDC eligibility month and determines whether each person is a member of the certified group.
The number of people in the certified group, and who they are, allows DFPS to determine the total countable income and resources for the group. This information determines whether the child qualifies as needy for AFDC purposes.
People Included in the Certified Group
The following people who live in the home of removal during all or part of the AFDC eligibility month are included in the certified group (except as specified in the People Not Included in the Certified Group subsection):
• The child, even if DFPS did not physically remove him or her from the home (that is, if a constructive removal occurred).
• All siblings of the child (including biological siblings and legally adopted siblings) who also meet all AFDC requirements, including one of the following age requirements:
• Under age 18.
• Age 18, attending high school, and expected to graduate before or during the month of the sibling’s 19th birthday.
• The child’s legal parents, whether they are biological or adoptive parents.
• Any other specified relative who has managing conservatorship of the child.
• The spouse of the specified relative with managing conservatorship, if the spouse also has managing conservatorship of the child.
People Not Included in the Certified Group
The following people are not included in the certified group:
• Any person (of any age) who is receiving supplemental security income (SSI), other than the child.
• Any person (of any age) who has neither US citizenship nor a valid immigration status, as described in the Code of Federal Regulations (45 CFR §233.50).
• The spouse of the specified relative with managing conservatorship, if the spouse does not have managing conservatorship of the child.
• Any other relative who does not have managing conservatorship of the child.
• Any stepparent of the child.
• Any child receiving adoption assistance benefits (see 1700 Adoption Assistance Program).
Details about Certain Situations
Parent Who Does Not Meet Requirements for Citizenship or Immigration Status
A child’s parent (whether biological or adoptive) is disqualified from the certified group if the parent has neither US citizenship nor a valid immigration status.
DFPS counts a disqualified parent’s income and resources as specified in G. Stepparent Budgeting Procedures.
Stepparent
DFPS counts a stepparent’s income and resources as specified in G. Stepparent Budgeting Procedures.
Minor Parent
This subsection applies if the following people are all living in the same household:
• Minor parent
• Minor parent’s child
• Minor parent’s parent
If the minor parent has AFDC eligibility as part of a certified group that contains his or her parent, the minor parent and his or her child are included in that same certified group.
If the minor parent is part of a separate certified group, the following applies:
• The minor parent’s child is included in the same certified group as the minor parent.
• DFPS considers the income of the minor parent’s parent to be available in the same way as the income of a stepparent, and section G. Stepparent Budgeting Procedures applies.
E. Resources
CPS September 2017
What is the resource monetary limit?
For a child to meet the AFDC resources requirement and be determined eligible for Title IV-E, the total countable resources of the persons included in the certified group, regardless of the number of persons in the group, must not exceed $10,000. If the countable resources of the certified group exceeds $10,000, the child cannot be determined eligible for AFDC nor can the child be determined eligible for Title IV-E foster care.
42 USC §672(a)(3)(B)
What resources are exempt?
The following resources are exempt, and should not be included when totaling the resources of the certified group:
• Burial plots
• Earned income tax credits
• Energy assistance payments
• Homestead (residence and surrounding property)
• Inaccessible resources (for example, irrevocable trust funds, security deposits)
• Income-producing property essential to the person’s employment (such as inventory, tools)
• Loans (if intending to repay)
• Personal possessions (if used to meet needs essential to daily living)
• Reimbursements for replacing or repairing an exempt resource
What resources are countable?
Examples of resources that are counted in their entirety include cash, bank accounts, stocks, bonds, certificates of deposit, 401(k) accounts, retirement accounts, boats, campers, buildings, and land and mineral rights.
The following resources are counted to the extent indicated:
• Supplemental Security Income (SSI) benefits and all other resources of SSI recipients
• Life insurance (cash value of the policy)
• Real property (amount available after sale)
• Prepaid burial insurance or funeral plan (cash value over $1500)
• Vehicle (average trade-in value over $1500, unless used at least 50 percent to produce income)
• Other non-liquid resources (equity value equals fair market value minus money owed)
• Income tax refunds (all)
• 401(k) and other retirement accounts (all)
• IRAs and Keough plans (value minus early withdrawal penalty)
Exception: When a child’s legal parent and stepparent jointly own a non-exempt resource, only one-half the value of the resource is counted.
F. Income
CPS September 2017
What is the income monetary limit?
For a child to meet the AFDC income requirement and be determined eligible for Title IV-E, the countable income available to the certified group must not exceed the allowable limits for the 185% and 100% AFDC Needs Standards found in Appendix 1530-C: AFDC Needs Standard Income Limits. If the countable income of the certified group exceeds the applicable limits, the child is not considered to be eligible for AFDC and cannot be eligible for Title IV-E for the duration of his or her foster care episode.
Under the 100% AFDC Needs Standard test, two Earned Income Deductions are allowed.
1. A maximum of $90 Earned Income deduction for each person in the certified group with countable earned income. The deduction amount cannot exceed the person’s monthly earned income amount. For example, if a person only had $45 of earned income, then the deduction would only be $45.
2. A Dependent Care Cost Deduction is allowed for the actual cost of day care a parent or managing conservator with earned income who is included the certified group pays on behalf of a dependent child or incapacitated adult who is also included in the certified group.
• The maximum allowed deduction is $200.00 for each child under age 2 and $175.00 for each dependent child age 2 and older and each incapacitated adult.
• Actual day care costs are the unreimbursed payments made for a child or incapacitated adult that are necessary to allow for the parent or managing conservator to work.
Appendix 1530-A: AFDC Income Determination Worksheet provides detailed instructions for determining whether the AFDC certified group’s allowable income meets both the 185% and 100% AFDC Needs Standards tests.
Whose income is counted?
The income of the following are included in determining the total income of the certified group:
• The earned and unearned income of each member of the certified group, subject to the exemptions and limitations identified below
• The income of a stepparent (a person married to the child’s legal parent) or a legal parent disqualified from AFDC because of his or her lack of U.S. Citizenship or valid immigration status who lives in the home, subject to the stepparent budgeting procedures below
• The income of a minor living with her parents when the minor is also a parent, subject to the stepparent budgeting procedures in section G, below.
What types of income are exempt?
The following are not included in determining the total income of the certified group:
• Adoption assistance payments
• Foster care payments
• Earned income tax credits
• Educational assistance (grants, scholarships)
• Energy assistance payments
• Government disaster payments or housing assistance
• Government welfare payments (TANF)
• SSI benefits
• All other income of SSI recipients
• Monetary allowances to children of women Vietnam veterans born with certain birth defects (38 U.S.C. §1823)
What types of income are countable?
The following income is counted for each member of the certified group, with the exceptions and qualifications noted:
• Gross earned income
• All wages, salaries, and commissions from employment (including self-employment), before taxes or other paycheck deductions
Exception: Do not count any earned income of a child under age 18 if the child is:
• a full-time student; or
• a part-time student working less than 30 hours per week.
• Unearned Income
• Cash gifts and contributions (unless they are received irregularly and do not exceed $30 per person in a three-month period)
• Child support (up to $50 can be disregarded, not to exceed the actual amount received). If a single payment covers two or more children (including at least one who is not an applicant or client) and the support order does not specify a portion for each child, prorate the payment among all the children
• Disability insurance benefits
• Dividends and royalties
• Military pay and allowances
• Interest on savings and investments
• Income from property
• Pension (including railroad retirement and RSDI)
• Trust funds (count only withdrawals and dividends received)
• Unemployment compensation (not counted for principal wage earner)
• Veteran’s Administration benefits (except allowances to children of women Vietnam veterans born with certain defects)
• Workers’ Compensation (except any amount that is reimbursement for medical expense)
G. Stepparent Budgeting Procedures
CPS September 2017
When a stepparent or a parent is disqualified because of his or her lack of U.S. Citizenship or valid immigration status but lives in the home of removal, this person is not considered a member of the AFDC certified group. A portion of the stepparent or a disqualified parent’s income, as described below, and all of his or her countable resources are considered when determining whether the child would have qualified for AFDC during the month in which court proceedings were initiated.
The following budgeting process is used to determine the amount of the disqualified parent’s income that is considered countable to the AFDC certified group. The budgeting process is used when completing both the 185% and 100% AFDC Needs Standards income tests.
1. Determine the disqualified parent’s countable monthly gross earned income.
2. Subtract up to the standard $90 work-related expense deduction from the earned income.
3. Add the disqualified parent’s unearned income to the net earned income.
4. Subtract the following:
• The actual amounts paid by the disqualified parent to individuals outside the home who could be claimed as dependents for personal Federal income tax purposes
• Payments by the disqualified parent of alimony or child support to individuals not living in the home
• The allowance amount, as found in Appendix 1530-B: Stepparent or Disqualified Parent Budgetary Needs Allowance Deduction, for the support of the disqualified parent and any Federal tax dependents of the disqualified parent who are living in the home but not included in the AFDC certified group
5. Add the net amount as income of the AFDC Certified group