The following judicial determinations must be made in the manner described below:

Best Interest of the Child

At the time a child is first removed from the home, regardless of whether it is an emergency removal subject to ex parte proceeding or removal pursuant to an adversary hearing with prior notice, the first court ruling that sanctions the removal must contain the judicial determination of either of the following:

• Continuation in the home would be contrary to the welfare of the child.
• Placement in foster care would be in the best interest of the child.

Reasonable Efforts to Prevent Removal

Not later than 60 days following the initial removal, a judicial determination must be made that says, when considering the child’s health and safety, the state made reasonable efforts to do any of the following:

• Prevent or eliminate the need for removal and make it possible for a child to return safely to the child’s home.
• Does not need to make reasonable efforts because of aggravated circumstances, as defined in the Texas Family Code §262.2015External Link, or because a parent has previously had parental rights involuntarily terminated with respect to a sibling.
• Has not or cannot make reasonable efforts due to the circumstances regarding the child’s safety and protection.

Time Frame for Title IV-E Eligibility

Title IV-E eligibility starts on the first day of placement in the month in which a court order finds the following to be true:

• Remaining in the home would be contrary to the welfare of the child.
• DFPS made reasonable efforts to prevent removal.

Example

A child is removed from the home on October 30. On November 1, the court finds that remaining in the home is contrary to the welfare of the child and that DFPS made reasonable efforts to prevent the child’s removal from the home. Title IV-E eligibility begins on November 1. The child is not Title IV-E eligible for October 30-31 and must be assigned state-paid eligibility for those days.

Reasonable Effort to Finalize a Permanency Plan

Additional judicial determinations must be made regarding permanency planning. At least once during every 12-month period that the child remains in foster care, a court must make a determination that the agency has made reasonable efforts to finalize the child’s permanency plan. This period starts with the date of the court-ordered removal.

If the court does not find that DFPS has made reasonable efforts to finalize the child’s permanency plan, the child’s Title IV-E eligibility ends on the last day of the month in which the finding is due.

The child will not regain Title IV-E eligibility until the court finds subsequently that DFPS has made reasonable efforts to finalize a permanency plan for the child. In this case the child’s Title IV-E eligibility resumes on the first day of the month in which the finding is made.

Requirements for All Judicial Determinations

All required judicial determinations must be explicitly documented and made on a case-by-case basis as stated in the court order. It is not acceptable for a court order to merely reference state law in support of a required judicial determination.

Affidavits and Nunc pro tunc orders cannot be used as documentation to verify that the required judicial determinations were made (nunc pro tunc refers to a ruling that retroactively corrects an earlier court ruling). Nunc pro tunc orders may be used only to make technical corrections unrelated to the judicial determination requirements. The only acceptable alternative documentation of judicial determinations, absent language in a court order, is a transcript of the court proceedings.

45 CFR §1356.21(d)External Link