November 01, 2014

Congress Passes New Federal Child Welfare Law: Tips for Advocates

Howard Davidson

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

On September 29, 2014 President Obama signed the Preventing Sex Trafficking and Strengthening Families Act (H.R. 4980). The Act is now Public Law 113-183. 

The PST-SFA (Act) has two key titles related to the child welfare system: 

  • Title I on identifying and protecting those in the system who are at risk of sex trafficking. Title I also contains many important provisions related to children in foster care, including elements that should influence legal advocates and courts in better addressing the needs of such children. 

  • Title II is called “improving adoption incentives and extending family connection grants.” 

Because of their larger significance, the foster child-related provisions are highlighted first before analysis of the anti-trafficking provisions.

New tools for legal advocates to help foster children

Acting promptly when children go missing

Foster youth who go “missing” from care should now be promptly reported by the child welfare agency to law enforcement for immediate entry into the FBI missing children’s database, and also reported to the National Center for Missing and Exploited Children. Agencies must further determine:

  • why the child left care, 

  • address those factors related to the child leaving care, 

  • quickly work on locating the child, and 

  • determine what happened to the child during their absence from care. 

Although the law delays when agencies must have protocols in place to do these things, it is difficult to see why such practices shouldn’t begin immediately, if they’re not already being done. Lawyers and judges, who learn a child in care has gone missing, should assure these steps are taken quickly.

Promoting foster child “normalcy”

Foster and kinship care providers will have to be specially prepared by the agency to have knowledge and skill to treat a child according to the Act’s “reasonable and prudent parent standard.” This new standard ensures foster children participate in age or developmentally-appropriate events, promoting their engagement in “social, extracurricular, enrichment, cultural, and social activities.” Examples listed in the Act are: sports, field trips, and overnight activities. 

The Act describes efforts to promote foster child “normalcy,” including signing permission slips and transportation to such activities. States will have to develop standards for foster homes, and (by designating an official within) group care facilities, to facilitate this “reasonable and prudent parent” child normalcy standard. 

The Act also requires liability protections for those carrying out the Act’s normalcy practices. During case reviews, lawyers and judges should examine what “normalcy” steps have been taken and encourage the agency and care provider to help the child participate in these activities. The Act requires such an inquiry at every permanency hearing.

Stopping APPLA as a permanency option for youth under 16 and documenting its need for those 16 and over

The use of the permanency goal “another planned permanent living arrangement” (or, as some states call it, independent living, emancipation, or long-term foster care that youth simply age out of) is now prohibited for any child under age 16. Tribes have three years to implement this provision. If a current case is being heard on a child under 16, and APPLA appears to be the case goal (rather than return home, adoption, permanent legal guardianship, or long-term relative placement), the agency should be reminded of this new federal provision. Congress believes such children should not be deprived of those other, family-focused, permanency goals. 

The Act also mandates for every “permanency hearing” that the agency document on the record “intensive, ongoing, unsuccessful efforts for family placement.” During review of an APPLA plan, the child now must be asked about their desired permanency outcome. If APPLA is to remain the goal, in every case there must be a “judicial determination” at that hearing of compelling reasons why APPLA remains the best permanency plan for that child. 

Empowering transitioning foster youth at the earlier age of 14

Every child in care, age 14 and older, gains new legal rights under this Act, rights that 15 year olds (and even some older foster youth) may not have had. The child may now select up to two individuals (excluding those normally on their case planning team, their foster parent, or their caseworker) to be involved in developing the case plan. The child’s attorney or GAL could be one of those selectees. Agencies can reject selections only if the person wouldn’t be acting in the child’s best interests. The Act says one of these selections can be designated the child’s “chief advisor” entrusted under the Act to help apply the normalcy standards addressed earlier. Additionally, instead of only requiring youth 16 and over to be actively involved in their case planning (as in earlier federal law), the Act has lowered that age to 14.

To help guide foster youth toward “successful adulthood” (the Act here replaces “independent living” with this term) federal law now requires the case plan for all those 14 and over to include a “rights document” that specifically addresses their rights to “education, health, visitation, and court participation.” Lawyers and judges should be sure the child has seen this rights document, had it explained to them in an age-appropriate way, signed it, received a copy of it, and demonstrated that he or she understands it. Legal advocates for children may want to work with the agency to draft a new rights document to use in their state to comply with the Act.

Receiving key documents upon leaving foster care at age 18 or later

Except when a youth was only in care for under six months, the Act says no young adult should leave care without:

  • an official or certified birth certificate, 

  • a Social Security card, 

  • health insurance information (likely including the Medicaid benefit extension through age 26 under the Affordable Care Act), 

  • a copy of their medical records, and 

  • either their driver’s license or a state-issued official identification card. 

At court hearings related to a youth’s exit from the system, there of course should be an inquiry on whether they have received these items.

Requiring new state AFCARS data to understand use of congregate care and identify pregnant/parenting children in foster care

Children not placed with families, but rather in group care and institutions, were a concern addressed in this Act. Beginning in federal FY2016 states will have to report numbers of children in such facilities, their ages, how many of them have APPLA plans, placement duration, numbers in each type of placement, clinically diagnosed special needs of such children, and those receiving specialized education, treatment, counseling, or other services. A separate new AFCARS data element is mandatory state reporting on children in foster care who are pregnant or parenting.

Encouraging sibling placements

The Fostering Connections Act requires prompt notification of relatives whenever a child enters foster care. The new Act adds to the list of those who must be notified of a child’s placement “all parents of a sibling of a child, where such parent has legal custody of such sibling.” The relative notification provision is also amended to, for the first time, broadly define the term “sibling.” There is also, in this section, a “Rule of Construction” that may prove to have legal significance: “Nothing…shall be construed as subordinating the rights of foster or adoptive parents of a child to the rights of the parents of a sibling of that child.”

Mandating HHS to submit a Report to Congress addressing permanent adult connections for children in foster care

Although not a requirement for states, it is significant that the Act requires HHS to report in two years on state sex trafficking initiatives as well as on children who go missing from care. Moreover, that Report must include information on a topic that lawyers and judges should always be conscious of: the need for every foster child to have and maintain “long-lasting connections to caring adults, even when [they] must move to another foster family home or [be placed under] supervision of a new caseworker.” An essential role of legal and judicial advocacy is to help assure at least one adult is consistently involved to provide support during the child’s involvement in and transition from the child welfare system.

Assuring child welfare agencies address sex trafficking

Developing child welfare policies, procedures, and training on sex trafficking

The law adds a new state plan requirement. The child welfare agency must develop, with other agencies, steps (including training) to determine if a child in the care or supervision of the agency is, or is at risk of, being sex trafficked. The agency has the option of gathering information on child sex trafficking for those, up to age 26, who once were in foster care. Lawyers and judges should begin to work with their child welfare agency to implement this provision. 

Most states do not have laws or child welfare agency policies addressing the legal responsibility of the child welfare agency to identify and serve children who have been sex trafficked, unless the “perpetrator” or the facilitator of their trafficking was a parent or legal guardian (thus making it an intrafamilial child maltreatment case). Questions about a child’s involvement in commercial sexual activity may never have been asked at case intake, and reports that a child has been sex trafficked may currently be screened out. Congress wants child welfare agencies to take responsibility in aiding these unique victims, but to do so effectively may take significant changes in state law, policy, and practice.

Reporting children in agency care as sex trafficking victims

States must now develop procedures to help assure immediate reporting of such victims to law enforcement agencies. Two years from now, every state will be required to report to HHS the number of those who became victims; this includes reporting in their AFCARS data the number of children annually who were victims before they entered foster care, as well as while they were in foster care.

State incentives to increase adoptions of older foster youth and permanent legal guardianships

Enhancing the HHS financial incentive (bonus) program for states that increase adoptions of older youth as well as permanent legal guardianships

The Act creates a three-tiered system to provide states financial bonus awards for increasing adoptions (and, for the first time, also permanent legal guardianships): 

  • the foster child permanency rate generally; 
  • the preadolescent permanency rate; and 
  • the older child (14 and over) rate (which grants the highest per-child award). 

States might also get a larger bonus based on their increased rate of “timely” adoptions of foster children. 

Promoting legal permanency through other reforms

These incentive payments must now be used by states to supplement their other funds, so the money should be used to support new services. States will be able to use the funds for up to three years. Another provision of the Act allows states to continue federally subsidized kinship guardianship payments if a guardian dies, or becomes disabled, and is then succeeded by another guardian. 

Mandating that state savings in phasing out the old AFDC eligibility rules for Title IV-E federal foster care support be reinvested

A portion of these state savings must now be spent on post-adoption and post-guardianship services, thus adding to the array of services that might help avoid adoption and guardianship disruption/dissolution. To learn more about such disruption/dissolution, HHS will be required to issue regulations instructing states to collect data on foster care re-entries from legal permanency.

Although several of the Act’s provisions permit delays in implementing these reforms, planning at the state level should start immediately. Lawyers and judges should be an important part of this planning.

 

Howard Davidson, JD, is the director of the ABA Center on Children and the Law, Washington, DC.