To be considered a child with special needs the following three statements must be true:

(1) One or more of the following factors or conditions must exist, the child is:

(a) Of a minority ethnic background and the child's ethnicity is creating a barrier to the child's adoption;

(b) Six years of age or older at the time of application for adoption support;

(c) A member of a sibling group of three or more or of a sibling group in which one or more siblings meets the definition of special needs, as defined in this section;

(d) Diagnosed with a physical, mental, developmental, cognitive or emotional disability; or

(e) At risk for a diagnosis of a physical, mental, developmental, cognitive or emotional disability due to prenatal exposure to toxins, a history of serious abuse or neglect, or genetic history.

(2) The state has determined that the child cannot or should not be returned to the home of the legal parent; and

(3) The department, other public or private non-profit child welfare agency, or child placing agency that placed the child for adoption has documented that except where it would be against the best interests of the child, the placing agency made a reasonable but unsuccessful effort to place the child for adoption without adoption support.