No Bystanders Emerging Due Process Protections for Children

No Bystanders: Emerging Due Process Protections for Children, Youth and Foster Parents in Child Welfare Cases Linda Britton, J. D. Commission on Youth at Risk American Bar Association

Overview n n Impact of Being a Bystander Due Process Protections for Children/Youth Due Process Protections for Foster Parents The Big Gaps and Where to Go

“There are no bystanders in this life. ” Sonia Sotomayor, My Beloved World n n n Children and foster parents in the child welfare system have historically been bystanders. Enormous change to child-centered cases Foster parents’ voice remains very small Improving due process for children leads to better case outcomes Would increased due process for foster parents also create better outcomes?

America’s Infinite Possibilities vs. Reality Wealth Shapes Outcomes “Talent is abundant. Opportunity is not. ” Nicholas Kristof n n n Social mobility is now largely dependent on residence in mixedeconomic neighborhoods that also offer greater civic engagement, availability of better school systems, and being in two-parent families. A smaller percentage of people escape childhood poverty in the United States than in several other rich countries, including Canada, Australia, France, Germany and Japan. One of every three 30 -year-olds who grew up in the top 1 percent of the income distribution was already making at least $100, 000 in family income; among adults who grew up in the bottom half of the income distribution, only one out of 25 had family income of at least $100, 000 by age 30 in certain areas.

Who Gets to Graduate? Wealth Determines College Completion n n n More than 40% of American students who start at a four-year college haven’t earned a degree after six years. Include community colleges, and the dropout rate is more than half, worse than any other country except Hungary. Rich kids graduate; poor and working class kids do not. 25% of college freshman born into bottom half of income distribution get a bachelor’s degree by age 24 90% of freshman born into families in the top quarter of income distribution finish their degree. Even when they have the same SAT scores – 1000 to 1200 – kids in top income quartile have a 2 in 3 chance of graduating, and kids in bottom quartile have only a 1 in 6 chance of graduating. What happens to children in foster care?

Educational Outcomes for Children in Care n n With each move, a child loses six months of educational achievement Educational instability places foster children in crisis for success in school No accountability measures exist for foster children because they are invisible High school graduation rates are abysmal: n n n Less than 30% in Kansas 40% in Texas (70% for all youth) 50% estimate nationwide; probably much less

Levels of Trauma for Foster Children/Youth n n n Many children entering foster care have already been exposed to wide range of painful and distressing experiences – often unknown and unreported Disproportionate rates of PTSD – 25. 2%, almost double rate for US war veterans Disproportionate rates of depression, anxiety and other disorders Lasts a lifetime and more “Money was not going to heal a father who never had been a child. ”

How Permanent is Permanency? n n n In 2012, approximately 400, 000 children in foster care 235, 000 exited foster care; 87% of exited children went to a permanent home – adoption, reunification, legal guardianship 77% of children with disabilities went to a permanent home 64% of children over 12 achieved permanency

Failed Adoptions in Ohio between 1990 and 2013 n n n Columbus Dispatch (September 2014) 7% of adoptions didn’t work out Cost of child in foster care in Ohio $30, 334 per year Cost of child in RTC/group home over $100, 000 per year Children of failed adoptions more than 3 ½ times likely to be in RTC/group home. Reasons: average child had lived in home for 5 years n n Parental expectations didn’t meet reality Need more post-adoption supports and services Need greater scrutiny of adoptive family 83% of children were teenagers

What are the Outcomes of Youth Who Age Out? n n n n About 24, 000 youth age out from foster care each year Up to 50% of former foster youth end up homeless within 18 months of aging out 27% of the homeless population spent some time in foster care 4 years after leaving care, 42% of youth have become parents 4 years after leaving care, 46% of youth lack a high school diploma Less than half of foster youth are employed 2 -4 years after leaving foster care; only 38% of former foster youth have maintained employment for at least 1 year Parents with a history of foster care almost twice as likely as parents without that history to see their own children placed in foster care or become homeless.

Constitutional Rights of Foster Children n n Right of foster children to protection and proper care Right to maintain family relationships Right to sibling access Right to effective assistance of counsel Right to bodily integrity

Due Process Rights for Parties in Child Welfare Cases n n n Right to notice Opportunity to be heard Right to counsel Right to trial before bench and/or jury Right to appeal Burden of proof for termination: clear and convincing evidence

Due Process Rights for Children n n In re Gault (1967) “Whatever may be their precise impact, neither the Fourteenth Amendment, nor the Bill of Rights, is for adults alone. ” In re Gault, 387 U. S. 1, 13 (1967). “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. ” Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 74 (1976).

Development of Due Process for Children in Dependency Cases n n n Federal legislation National standards of practice State case law State statutes Court rules and policy Development of data-driven projects to confirm and expand rights.

Federal Legislation n n Serves as the primary means to expand substantive and procedural due process for children Child and Family Services Improvement Act of 2006 n n Require court proceedings to include consultation by child with judge in an “age appropriate” manner Fostering Connections 2008 n n n Expands Chafee program and educational vouchers to those adopted or in guardianship after 16 Requires all youth aging out to have transition planning at least 90 days prior to 18 th birthday State plans must show coordination of health care needs for child

Federal Legislation n Affordable Care Act 2010 n n CAPTA Reauthorization 2010 n n Extends Medicaid coverage to age 26 for youth in care at 18 Requires GALs to be trained in child & adolescent development Child and Family Services Improvement and Innovation Act 2011 n n States to plan health services to treat trauma, and protocols for psychotropic medications Facilitate visits with biological parents and siblings Improve educational plans Child to receive yearly credit reports beginning at age 16

Federal Legislation n Preventing Trafficking and Strengthening Families Act of 2014 n n n No APPLA under 16 years old Right to normalcy while in foster care “Reasonable and prudent” parenting standard in foster care and group homes applies to child’s participation in extracurricular, enrichment, cultural and social activities Youth 14 and older to be involved in case planning and transitional planning All youth leave care with birth certificate, Social Security card, health ins care, medical records, DL/state ID

Expanding Federal Rights of Dependent Children n n n n Right as a party to procedural due process: notice, opportunity to be heard Right to effective GALs Rights to family relationships Right to medical information, privacy, and consent to treatment Right to education/normalcy Right to “sound brain” Right to successful transition to adulthood Greater focus on well-being

State Statutory Rights for Dependent Children n n Codify federal legislation Expand rights n n n n Children given “party” status Children/youth engagement Consultation rights Expansion of foster care to age 21, re-entry for 18 -21 Tuition waivers for state higher educational institutions Transition planning at earlier age Emerging areas: limitations on APPLA, normalcy No change: right to counsel

Example: State Statutes and Court Policies on Youth Attendance in Court 46 states have statutes, court rules or case law establishing right of children/youth to be present at some court hearings. Statutes are often conditional or overly vague, and difficult to implement. Poorly-drafted statutes can deny due process rights. Example of newer statute: Louisiana CHC Art. 623(C); Art. 661(B); Art. 679(C); Art. 696 (B); Art. 706(B) “A child twelve years of age or older shall be present in court unless his presence is waived by the court upon motion of the child’s counsel. ” “A child below the age of twelve years shall be present in court upon the request of counsel for the child or the court. ” Applies to continued custody, adjudication, disposition, case review and permanency hearings.

Texas Statutes on Youth Engagement n n n 263. 008 Foster Children’s Bill of Rights right to participate in court hearings right to participate in service and treatment plans 263. 009 Permanency Planning Meeting requires dept to make reasonable efforts to include child, if at least, 7 years of age, on each meeting 263. 301 requires at least 10 days’ notice of permanency hearings to the child, if 10 years of age or older OR if the court determines it is appropriate for child to receive notice. 263. 501 requires same for permanency review hearings, and child is entitled to present evidence.

Texas Statutes on Youth Engagement 263. 02 and 263. 501 Permanency/Review Hearings The child shall attend each permanency [or review] hearing unless specifically excused by the court. TYC kids may attend in person, by phone or by videoconference. The court shall consult with the child in a developmentally appropriate manner regarding the child’s permanency plan, if the child is 4 years of age or older and if the court determines it is in the best interest of the child. n n 263. 306 At each permanency hearing the court shall ensure the child has been provided the opportunity to express the child’s opinion on his/her medical care.

Judicial Perspective Permanency Review Hearings n EXHAUSTING and often heart breaking: n This is not the ivory tower anymore. n Kids are hurting: Too much medicine n Too many placements n Not any or enough coordination among the many school districts they attend n No driver’s education n No school clothes n Being bullied n

Placement Review Hearings Creative Solutions: n Appoint Educational AAL n Bullying Speeches to foster group homes n Judge joined an ARD committee n PAL transitioning even when not in community n Assisting child in finding family now n Assisting the CPS worker, AAL and CASA in finding adoptive homes

National Standards of Practice and Evidence-Based Practice n n n National standards from ABA, NACC, NCJFCJ, Pew Commission beginning in late 1990’s Bar-Youth began in 2013 to develop with states a pilot project that has two goals: improve engagement of youth in court and collect data to link the improved practice to decision-making and outcomes Outcomes include well-being and permanency Pilot projects also locate and remove barriers to youth engagement in court, i. e. , transportation, quality of representation, child-friendly hearings. Kansas and New Jersey initiated pilot projects in 2013.

The Search for Data n n n n Pilot projects in Kansas and New Jersey Three counties: urban, suburban, rural Enthusiastic judges Remove barriers, e. g. , notice, transportation, give excused absences for school Measure youth attendance and participation through surveys and written court observations Extensive planning and TA with NRCLJI Collect baseline and project data

Kansas baseline data: January, 2013 n n n In 3 pilot counties, 52. 5% of youth 12 and older attended permanency/review hearings Judicial surveys: Youth’s presence impacted decision-making 71% of time. Youth surveys: n 100% were glad they went to their hearings; n 92% the judge asked them questions about what is going on with their lives; n Youth: 84% the judge makes fair decisions.

Kansas Peer to Peer Training n n n n Youth in pilot counties in Kansas Peer trainers from Kansas Youth Advisory Council Materials: Foster Child Bill of Rights, Youth Calendar, Written Report Training Session: small, informal, encourage questions, explain court process, roles, importance of being in court, self-advocacy skills, 2 hours in length Two age groups: 11 -14 and 15 -17 Prezi presentation, video on coming to court, mock hearing Evaluation: 85% agreed “this training helped me prepare to attend court hearings” (2013)

Preparing Court and Stakeholders: New Jersey Training: n All supervisory stakeholders included n Focus on knowing the child and understanding importance of trauma and existence of disabilities. n Prepare child to come to court. n Make attendance and participation in court understandable to child. n Insure that child is debriefed after the hearing. Collection of data is ongoing: n Surveys by youth (pre and post), judges, and stakeholders completed after each hearing. Surveys amended to include age of child. n CIP review of surveys thus far reveals children are positive/neutral about their experience; stakeholders view children’s presence with more concerns.

Texas Children’s Commission Hearing Quality Observation Report n n n n n 165 observed hearings over 18 jurisdictions in Texas Report issued March 2014 by Judge Robin Sage (ret. ) www. texaschildrenscommission. gov Reported presence of children/parties at hearings Measured 15 due process and 24 well-being quality indicators Number of both indicators increased when children were present: 19% increase in due process; 14% increase in wellbeing – issues that most directly impact the child Presence of child was more significant than presence of any other party, including agency Require children to attend court whenever possible; encourage engagement with the judge. Note Texas statutes amended in 2013 to require attendance of children and consultation with them

Improving Youth Engagement n Need for statutory clarification/amendment n n n Review possible barriers to youth engagement n n n n Child/youth right to attend all hearings Extension of foster care to age 21 Distance and transportation Youth-friendly notice with timeliness Docket and waiting times Encourage youth to bring support person Prepare youth for court; train all stakeholders Use hearing to insure all issues are covered and to help child learn self-advocacy and problem-solving. Greater focus on transition planning and 18 -21

Bill of Rights for Foster Children n n n Abuse, neglect, exploitation, discrimination and harassment Food, clothing, shelter and education Medical, dental, vision, and mental health treatment (and consent) Emergency behavioral intervention Placement with siblings and contact with family Privacy and searches, including use of storage, mail, telephone Participation in extra-curricular activities Interaction with teachers, church members, mentors, friends Contact with all court personnel Religious services/activities Confidentiality of records Job skills, personal finances, preparation for adulthood Attendance/participation in court hearings Advocacy and rights regarding any disability Any other matter affecting child’s ability to be treated in the least restrictive environment, most like a family setting, consistent with best interest and needs of the child

On the Horizon n n Enhancing rights to keep vital documents secure/Austin Civic Hack for Change Right to leave and re-enter care between 18 -21. Right to employment Right to normal neurodevelopment

Emerging Due Process for Foster Parents: An Ongoing Controversy n n n n Historically, the agency speaks for foster parents CASA often provides information to/from Dilemma is most obvious prior to termination No rights as a party in most states; may intervene in certain states and circumstances Right to be present, but not to speak No consultation by court prior to orders Seen as temporary, viewed with suspicion as a group, In it for the money

Smith v. Organization of Foster Families for Equality and Reform, 431 US 816 (1977) n n Challenge to NY state procedures for removal of children from foster home Holding – procedures were constitutional Dicta – no finding of a liberty interest because states procedures deemed sufficient, but biological families are not the exclusive determination of the existence of a family; familial relationships stem from emotional attachments that derive from the intimacy of daily association and the role it plays in promoting a way of life through the instruction of children. A foster family is not just a collection of unrelated individuals. Suggests that a nontraditional family could have a liberty interest in its existence, but that interest does not trump an interest in which there is a blood relationship.

Federal Legislation for Foster Parents n Adoption and Safe Families Act 1997 n n Right to be heard in permanency/review proceedings about child, does not make them a party Can be a written report Tax legislation to establish credits Introduction of Foster Care Tax Credit Act 2015 by Senators Kaine (VA) and Heitkamp (ND) to create credits for foster care residencies of less than six months

Development of Foster Parent Bill of Rights n n In 16 states, but codified in 10 (AL, GA, IL, LA, MS, MD, MO, OK, TN, WA) Confers rights to be treated with dignity, to receive and give information, to come to court and give a report, to training, to emergency contact, to payment, to communicate with everyone, right of first consideration, right to respite, rights re/loss of license or removal

What Would Help with Adoption Disruption or Dissolution? n n n n 2014 Preventing Trafficking and Strenthening Families Act requires states to collect data on foster care reentries from legal permanency, including adoption disruptions or dissolutions More information to adoptive parents about child Post-termination party status in states for foster parents Pre-adoption services for parents/child Post-adoption services for parents/child to age 21 Special attention to children who are victims of sexual abuse Experienced case workers

Should Foster Parents be Parties? n n n Foster parents adopt approximately 70 percent of foster children who are adopted. Long considered merely temporary caretakers, foster parents now have become the next best choice for permanence. Foster parents can advocate for permanency or permanent connections. Case planning and conferences are more inclusive. Post-adoption contact with birth parents and relatives is common. Post-adoption subsidies and services are necessary. Would right to counsel be next?

Questions/Comments: Linda Britton Linda. Britton@americanbar. org 202 -662 -1730