Possession of or Access to an Adult Child with Disabilities
A. TEX. FAM. CODE § 154.309(a) gives the court authority to render an order for the possession of or access to an adult child with disabilities that is appropriate under the circumstances. Before this statute was enacted, there had been problems with custodial parents preventing possession of or access to that child by the other parent, often the one who was paying the support.
B. Enforcement. This section also makes possession of or access to an adult child with disabilities enforceable in the manner provided by Chapter 157 [Enforcement] of the Texas Family Code. However, an adult child with disabilities may refuse possession or access if the he or she is mentally competent. TEX. FAM. CODE § 154.309(b).
C. Continuing Exclusive Jurisdiction? A court that obtains continuing, exclusive jurisdiction of a suit affecting the parent-child relationship involving adisabled person who is a child retains continuing, exclusive jurisdiction of subsequent proceedings involving the person, including proceedings after the person is an adult. TEX. FAM. CODE § 154.309©.
The latest amendment to this section, which was effective June 16, 2007, added a provision that, not with standing this subsection and any other law, a probate court may exercise jurisdiction in a guardianship proceeding for the person after the person is an adult.
1. Concurrent Jurisdiction. This statutorily clears up an issue some appellate courts have been confronting during the past several years. In Garland v. Garland, 868 SW2d 847 (Tex. App. – Dallas, 1993, no writ), the parents of a child with Down’s syndrome divorced, and the father was ordered to pay child support past the age of 18. When the son was 22, the father asked the probate court in his county to appoint him the guardian of the person and estate of his son, and the mother moved to dismiss the case, contending that the family district court had exclusive, continuing jurisdiction over him. The probate court dismissed the action, but the court of appeals held that the language of the Texas Family Code, at that time, allowed the family district court to order support for an adult child with disabilities. Any guardianship of that child must first be filed in the statutory probate court. Id., at 850.V. Governmental Benefits for Children with Disabilities
A. Supplemental Security Income (SSI) payments for children with disabilities: SSI makes monthly payments to people with low income and limited resources who are 65 or older, or blind or disabled. A child under age 18 can qualify if he or she meets Social Security’s definition of disability for children (supra), and if his or her income and resources fall within the eligibility limits. The amount of the SSI payment is different from one state to another because some states add to the SSI payment. To determine whether a child can get SSI, the child’s income and resources are considered, as well as the income and resources of family members living in the child’s household. These rules apply if the child lives at home. They also apply if he or she is away at school but returns home from time to time and is subject to the parent’s control. If the child’s income and resources, or the income and resources of family members living in the child’s household, are more than the amount allowed, the child’s application for SSI payments will be denied. The monthly SSI payment will be limited to $30 when a child is in a medical facility where health insurance pays for his or her care. SSA Publication No. 05-10026, January 2008, ICN 455360.
B. Immediate SSI payments under certain conditions: It can take three to five months for the state agency to decide if a child is disabled. However, the Social Security Administration has determined that certain medical conditions are considered to be so limiting that any one of them may disable a child. In these cases, SSI payments are made right away and for up to six months while the state agency decides if the child is disabled. The following are some of those conditions:
• HIV infection
• Total blindness
• Total deafness
• Cerebral palsy
• Down’s syndrome
• Muscular dystrophy
• Severe mental retardation (child age 7 or older)
• Birth weight below two pounds, 10 ounces
If the child has one of the limiting conditions that is expected to disable a child, he or she will get SSI payments right away. However, the state agency may finally decide that the child’s disability is not severe enough for SSI. If that happens, the parent will not have to pay back the SSI payments that the child received. (Id.).
C. When the child turns 18: For disability purposes in the SSI program, a child becomes an adult at age 18, and different medical and nonmedical rules are used when deciding if an adult can get SSI disability payments. For example, the income and resources of family members are not used when determining whether an adult meets the financial limits for SSI. Only the adult’s income and resources are considered. The disability rules for adults are used when deciding whether an adult is disabled. If the child is already receiving SSI payments, the child’s medical condition must be reviewed when he or she turns age 18. This review is usually done during the one-year period that begins on the child’s 18th birthday. The adult disability rules will be used to decide whether your 18-yearold is disabled.
• If the child was not eligible for SSI before his orher 18th birthday because the parent(s) had too much income or resources, he or she may become eligible for SSI at age 18. (Id.). D. Social Security Disability Insurance (SSDI) benefits for adults disabled since childhood: The SSDI program pays benefits to adults who have a disability that began before they became 22 years old.
This SSDI benefit is considered as a “child’s” benefit because it is paid on a parent’s Social Security earnings record. For a disabled adult to become entitled to this “child” benefit, one of his or her parents:
• Must be receiving Social Security retirement or disability benefits; or
• Must have died and have worked long enough under Social Security.
These benefits also are payable to an adult who received dependents benefits on a parent’s Social Security earnings record prior to age 18, if he or she is disabled at age 18. The disability rules for adults are used in this determination. SSDI disabled adult “child” benefits continue as long as the individual remains disabled. The child does not need to have worked to get these benefits. (Id.).
E. Additional Benefits Available through the State of Texas: Although most parents of children with physical disabilities are aware of the assistance available through the State of Texas, oftentimes parents of children with developmental disabilities other than mental retardation or Down’s Syndrome do not get this information because their children are diagnosed after 18 months of age and there is not one central clearinghouse for service providers.
1. Department of Disability and Aging Services (DADS) provides services for all Texas who have physical and mental disabilities. Some of these services provide funds and care givers in addition to Medicaid or Medicare monies. There is a great deal of information available at the DADS website: www.dads.state.tx.us .
2. Mental Retardation Authority: regional clearinghouse for resources and financial assistance for families of special needs children (established by statute).
3. How to look good in front of your client: Your client may not know that they may qualify for state or county money even if they do not qualify for Medicaid or SSI. Unfortunately the waiting lists are very long (at present, approximately 8 – 10 years!) but if they might even want to consider some sort of respite care, group homes or funds for extra medical equipment in the distant future, they should get on the list NOW!!!
To contact the local DADs office and the Mental Retardation Authority in your county, go to this link: http://www.dads.state.tx.us/contact/DADSServicesByCounty.html
To find out about DADS services available for your client’s child, go to this link: http://www.dads.state.tx.us/forms/2121/2121.doc
Your client will need to check in with these interest lists annually to remain on the lists and keep the agencies apprised of current address and telephone number so s/he can be reached (or use a permanent address, like their parent’s address).
Law Offices of Sinkin & Marvel - 866-933-CHILD(2445) | 210-732-6000
105 W. Woodlawn Ave. San Antonio, TX 78212
