July 01, 2013 Articles

Tackling Foster Care Age-Out Issues

By Kimberly A. McFarlane

While every state has a well-established foster care system to serve vulnerable child populations, state responses to their "age-out" populations have been less well defined and uniform. What happens when a person between the ages of 17 and 21 "ages out" of foster care? What can child-welfare professionals do to secure necessary resources for them both before and after children age out? These critical questions were the subject of a recent ABA teleconference "What Lawyers, Judges, and Agencies Should Be Doing for Kids Aging out of Foster Care," cosponsored by the American Bar Association Section of Litigation and the Center for Professional Development. The call can be heard and materials from the teleconference can be downloaded here. 

But first, why should you care? Because overwhelmingly, today's young adults are insufficiently prepared—economically, educationally, emotionally, and in maturity—to successfully and independently support themselves. It is for this reason that we do not ask or expect our young adults to do it alone: Today's families increasingly support their "kids" well into adulthood with economic and in-kind contributions to education, housing, food, financial investments, health insurance, etc. The startling statistics show that parents support their children to the tune of approximately $38,000 (or $2,200 a year) until age 34, and provide an average of 367 hours of assistance each year. Nearly one in 5 men and one in 10 women between the ages of 25 and 34 still live with their parents. It is against this backdrop that we must examine our efforts to aid children exiting foster care.

Unlike the kids described above, for youth whose parents were the state, the buck literally stopped on their age-out date. As a result, one study by the University of Chicago shows that foster youth experience a significantly poorer quality of life as adults than do non-foster youth: They are less likely to have earned high school diplomas or GEDs and are less likely to go on to college than their non-foster youth counterparts. They are less likely to have secured regular employment, and once they do, they earn less than non-foster youth do. They are at increased risk of contact with the criminal-justice system and incarceration (the records of which further diminish employment—and earnings—prospects). Much of this can be traced to the rootlessness of institutional care, multiple placements, and the lack of a solid, reliable support network over time.

The statistics beg the question, what can be done?  For starters, a hodgepodge legislative approach to addressing some of the challenges faced by aging-out foster youth has evolved over the years: In 1987, federal funding specifically for the aging-out population was first offered.  In 1999, the Chaffee Act increased funding for housing, education, and Medicaid up until age 21. The 2010 Fostering Connections to Independence Act expanded access to funding and resources (also until age 21), and attempted to secure lasting contacts in the community on whom children could rely for parent-like support post-foster care. In 2014, access to medical coverage will be extended to age 26 through the Health Care Reform Act. But states can do more: Georgia, for instance, went beyond Fostering Connections in requiring local social-services officials to identify, within the first 30 days of a placement, any persons in the community who have "demonstrated an ongoing commitment" to a child. However despite these federal and state efforts, foster children still lag far behind their non-foster care counterparts in economic stability.  More can, and must, be done to serve this population into young adulthood. 

Adult Connections
Permanency planning for children includes cultivating positive, stable, and lasting relationships that will extend, hopefully, beyond the foster care years. Former foster children have identified these types of relationships as playing an important role in their overall success, and statistics show that these relationships directly correlate with the extent to which children engage in services. Child-welfare professionals, therefore, should not overlook the importance of consulting with children to identify potential long-lasting community resources: Children are often able to provide the names of coaches, ministers, and teachers with whom they are comfortable, and then the relationship- building process can begin in earnest. California's Assembly Bill 408 (Steinberg 2003) looks beyond traditional methods and compels alternative means of identification, such as using the Internet to track down possible resources. Advocates can and should reach out to less obvious sources of support, such as a sibling's foster or adoptive parent, to get involved in the child's planning.

Identity and Other Documents
Obtaining documentation needed for employment or training can sometimes pose a challenge for foster youth: Access to birth certificates or other identification is crucial. Despite the availability of services set aside specifically for foster children, the services sometimes remain inaccessible to youth lacking identity documents. Tactically, advocates can make use of permanency hearings, transition round tables, and the like to ask the agency to produce comprehensive records and necessary forms of identification for a child prior to their exiting foster care or their transition. 

Another helpful law is 42 U.S.C.A. § 675 (5)(I), which mandates that foster youth over 16 years of age be provided with their credit report, as well as assistance in correcting credit errors or addressing credit issues. (This provision is the result of widespread complaints about foster youths' vulnerability to identity theft, due to their records being available for inspection by untold numbers of persons responsible for some aspect of their care.)  Likewise, 42 U.S.C.A. § 675 (5)(D) provides that upon turning 18, a copy of a foster child's medical and educational records shall be provided to him.

Using the Law Strategically
Knowing the applicable local law and using it to a child's advantage is also critical. Sometimes timing is everything. For example, in Georgia, a child who achieves permanency by his or her 16th birthday is at something of a financial disadvantage due to local funding laws that favor persons under 16 years of age. However, advocates may circumvent this issue by waiting until one day after the child's 16th birthday to achieve their permanency.

Also, objecting to "reasonable efforts" findings can be an effective tool whenever the agency's efforts seem insufficient. Advocates should object to a finding of reasonable efforts whenever the plan seems inadequate to meet a client's permanency, transitional, or independent living needs. Georgia requires a finding on the record that sufficient permanency efforts have been made. Without a reasonable efforts finding, the state cannot obtain federal foster care reimbursement for that child's placement. This tactic may be especially useful in seeking to counter a goal change to APPLA [Another Permanent Planned Living Arrangement], which goal is now disfavored for the disadvantages it brings to the foster child who remains unconnected —legally—to a significant adult in the community.

Transitional Planning
Transitional planning is distinct and separate from permanency planning. Transitional planning is a major component of a child's preparation for adulthood, and it addresses housing, health, education, and employment.  Transitional planning can be used in conjunction with Independent Living Planning (ILP).

Federal law, under 42 U.S.C.A. § 675(1)(G), requires a case plan to include a plan for educational stability. This provision seeks to improve a child's school performance by requiring the agency to assess, for each foster care placement, the appropriateness of a proposed educational setting and proximity of that placement to the foster home. It also requires that the state child-welfare agency coordinate with appropriate local agencies to ensure that, whenever possible, a child remains in the same school where he or she was in attendance prior to being placed into foster care. If it is not possible to remain in the same school (say, because doing so would not be in the child's best interest), then the law requires not only prompt enrollment in a new school, but also prompt transfer of school records. This law is especially important because foster children are less likely to earn diplomas than non-foster youth. Any educational help goes a long way.

Georgia provides an example of a useful statute designed to improve permanency planning. It requires a Written Transitional Living Plan (WTLP) within 90 days of discharge, but it requires that the process of identifying the plan's features begin as soon as possible. Recognizing that 90 days is insufficient to complete an investigation and design individual planning, Georgia requires its child-welfare agencies to begin identifying children eligible for independent living as early as 14 years of age. Also, every six months, Georgia reaches out to persons "demonstrating an ongoing commitment" to the child, and includes them in their transitional roundtables, to help plan for the child.

A critical component of transitional planning is the ability to retain services actually obtained. Children's attorneys should counsel their clients carefully on the need to follow through or possibly lose these services.

Addressing Health and Disability Issues During Transitional Planning
Foster youth often suffer from chronic conditions and emotional issues, and are also less likely to have health insurance after exiting foster care. Young women are also at increased risk of pregnancy (and therefore in need of prenatal care), and these issues were in part responsible for the optional program to extend Medicaid to 21, under 42 U.S.C. §1396a(a)(10)(A)(ii)(XVII).

In furtherance of this commitment, although many states opted into this program, as of January 2014 the federal government will mandate that all states extend coverage to exiting fostering children up to the age of 26, under the Patient Protection and Affordable Care Act (PPACA). See 42 U.S.C. §1396a(a)(10)(a)(i)(IX) (2014).  To benefit from this provision, a child must have been in foster care on his or her 18th birthday and have been enrolled in Medicaid at the time.

Under the PPACA, a state must submit an extensive Title IV-B Child Welfare Plan. (See 42 U.S.C. §622(b)(15).) This statute requires that states consult the local child-welfare agency, the local agency that administers Medicaid, pediatricians, and former recipients of child-welfare services. This gathering of perspectives is intended to improve mental health care, dental care, and transitional services for foster youth with special medical needs.

In addition, children with mental or physical disabilities may be eligible for additional assistance. For example, those under the age of 21 receiving payment under the adoption assistance program or Kinship Guardianship Assistance Payment Program may receive an extension of support until age 21.

Finally, explore whether your state has opted, under the Fostering Connections Act, to extend foster care beyond age 18. Note that youth participation is conditioned upon enrollment in school, pursuit of higher education, or seeking of employment. However, children whose chronic physical or mental health condition prohibits participation in transitional activities are exempted from many programmatic requirements.

Other available services include Special Education Transitional Planning, which is used to ensure that a child's Individualized Education Program contains transition services necessary to assist the child in achieving their postsecondary educational goals. See 20 U.S.C. §1401(34), § 1414(d)(1)(A)(VIII); the Early Periodic Screening, Diagnosis and Treatment program, §§1396a(a)(10), 1396a(a)(43), 1396d(a)(4)(B), & 1396d(r) (which finances necessary pediatric services to improve the health of low-income children); and Supplemental Security Income, 42 U.S.C. § 1381.

The Importance of Supplemental Security Income
Disabled youth face increased barriers compared with their peers, and are often unable to work. With this in mind, once screened and identified by their state, disabled youth participating in extended foster care may pursue post-foster care stability by seeking out permanent, affordable and supportive housing. Both Supplemental Security Income (SSI) and Social Security also allow for the pursuit of education/training or employment, without forfeiting program eligibility. These options can be explored on a case-by-case basis.

If your state is in need of legislation to address the SSI needs of disabled foster youth, California had success in this area with Assembly Bill 1633 (2006), requiring their local social services districts to (1) manage SSI benefits in the youth's best interest, (2) assist youth in receiving direct payment or finding a payee, (3) inform youth of the process of maintaining eligibility as adults, and most significantly 4) develop uniform best practice guidelines to follow. As a result of the success of Assembly Bill 1633, the following year California followed up with Assembly Bill 1331 (2007), which requires counties to screen youth for SSI eligibility between the ages of 16.5 and 17.5. Not only does the bill capture more SSI-eligible youth, it identifies them well before the expiration of the 90-day application period while the youth are still in care. Finally, if screened eligible, the county is required to apply for SSI on the child's behalf.

Independent Living Programs for Extended Foster Care Stays
States that have not opted into extended foster care may implement the Title IV-E Reimbursement Placement Setting, 42 U.S.C.A. § 672 (c)(2). This new provision addresses youth between the ages of 18 and 21 by amending the definition of "child-care institution" to include "a supervised setting in which the individual is living independently . . . . " This amendment makes it possible for states to expand certain placement options and may significantly influence a child's desire to opt into the program. With this provision, states may design dorms or apartments, or even authorize direct payment to the youth. Two programs in particular may be of interest to aging-out youth: Supervised Independent Living Placement (SILP) and Transitional Housing Placement + Foster Care (THP + FC). Youth seek out these placements because of the level of autonomy and independence offered. 

Because these new placements offer a degree of autonomy and independence, participants in California's SILP are subject to readiness assessments and placement approval by a child welfare employee prior to placement. In an effort to set the youth up for successful independent living, based on the outcome of the assessment, a child undergoes a Health and Safety Inspection. Following the inspection the youth receives a rate of $776 per month. If the youth is also a parent, additional funds are provided to help care for the child or children.

Foster Care Reentry
"Fostering Connections" states also may allow youth to reenter foster care under the Federal Fostering Connections Act. Eligibility for reentry includes meeting IV-E criteria for federal financial participation. Youth may satisfy the criteria by expressing an intention to meet the requirements. States may even construct provisions allowing multiple foster care reentries, depending on circumstances. A valid placement order at the time a youth turns 18 is required as a prerequisite; after that, if the youth wishes to re-enter care, the youth must sign a Voluntary Placement Agreement on his or her own behalf.  Often, the signing of the voluntary agreement alone (before a case is re-calendared) is enough to get the agency started in re-providing services to a youth.

These same services are available to many youth adjudicated as delinquent, as well: Those living in licensed group homes or foster homes, or placed with relatives or guardians, are eligible. These youth, who often come from similar backgrounds to foster youth and who experience the same chronic emotional disabilities as nondelinquent foster youth, are often in need of monitoring by probation following their rehabilitation. In order to participate, the state's child welfare agency or another public state agency must take responsibility for the child's placement in care. Unfortunately, after completing their rehabilitation goals, the youth often resent continued supervision.

California offers three potential paths to adjudicated delinquent youths who wish to return to care after 18 (Cal. Welf. & Inst. Code §§450 & 607.2): (a) maintain the youth in extended foster care under delinquency jurisdiction; (b) return the former foster youth to dependency from their delinquency case, or (c) transfer the youth into "transition jurisdiction," which allows the youth to undergo supervision by probation without subsequent consequences. Through transfer jurisdiction, youth are not only able to determine whether to be supervised by probation or child welfare, but also able to determine which court provides supervision.

Former foster youth and foster care agencies have spoken, and their overwhelming concerns and messages are being addressed. Many states are answering the call to provide increasingly broad safety nets for this needy population. For those attorneys representing foster youth or former foster youth in states without established provisions for foster youth between the ages of 17 and 21 and beyond, consider lobbying for some of the legislation described in this article and in the teleconference's materials, and seeking out the local remedies that may be available to you.

For more information on understanding the dilemmas faced by former foster youth and potential remedies, visit the ABA Section of Litigation's Children's Rights Litigation Committee's Programs & Materials page.

Keywords: litigation, children's rights, foster youth, age out, transitional planning, Fostering Connections Act, Supplemental Security Income, Independent Living Programs

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Kimberly A. McFarlane – July 1, 2013