California Department of Social Services - State Hearings Division
Notes from the Training Bureau - February 24, 1999

MPP §45-202.311-.313 stated that in order for a child to be eligible for federal AFDC foster care benefits, the child must have lived with the parent or relative from whom removed during the removal month or within any of the six months prior to removal and have been eligible for AFDC FG/U in that home.

Land v. Anderson ordered CDSS to cease utilizing §§45-202.311-.313.

In response to Land, the state legislature added Welfare and Institutions Code (W&IC) §11402.1. That statute clarifies that unless federal financial participation is received, the state will make no payments to children living with relatives who would be eligible to federal foster care under the Land decision.

New MPP§ 45-202.332 written to comply with W&IC§ 11402.1 became effective October 5, 1998 and states:

Section 45-202.332 will not become operative unless and until it has been approved by the federal Department of Health and Human Services as part of the California Title IV-E State Plan.

If the child does not meet the conditions listed in Section 45-202.331, the linkage requirement is met if the following applies:

a) The county has information that the child resided with any relative as defined in Section 45-101(r)(1)(C) during the petition month or within any of the six months prior to the month in which the petition was filed or the voluntary placement agreement was signed, and can establish that the child would have been eligible for AFDC-FG/U based on that home had application been made while the child was living there.

The federal Department of Health and Human Services has not approved §45-202.332 and to date has declined to provide federal funding to meet the requirements of Land. Thus as a practical matter, Land is not in effect and foster care rules in effect prior to Land still apply.

In Anderson v. Superior Court of Los Angeles County, (1998) (Maria Lopez real party in interest) 1999 Daily Journal D.A.R. 7, the California Court of Appeal upheld new W&IC §11402.1, stating: "We see no reason why the Legislature cannot condition funding of a federally-funded program on the assurance of federal funding."