May 01, 2016

Implementing the Older Youth Permanency Provisions of the Strengthening Families Act: The Court’s Role

Jennifer Pokempner

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.

The Preventing Sex Trafficking and Strengthening Families Act (“SFA”)1 includes new provisions for older youth in foster care. Courts must oversee these provisions and work with the child welfare agency to develop policies and enforce them.

This article outlines the provisions of the SFA relating to older youth permanency, including:

  • the basic legal requirements of the provisions, 
  • how courts can implement the provisions, 
  • questions courts can ask, and 
  • strategies for attorneys and advocates to prepare youth for court and case planning so they benefit from these provisions.

Future articles will detail other provisions: youth engagement and transition planning, normalcy activities, and runaway youth.

Understanding the Law

What are the youth permanency provisions?

Some SFA provisions add elements to the court review process. Others mandate that the child welfare agency document for the court steps it has taken to achieve permanency for the youth. The court must decide how to incorporate these changes into the review process for effective implementation.

Under the Act:

  • Another Planned Permanent Living Arrangement (APPLA) is prohibited for youth under age 16.2

  • To select or maintain the plan of APPLA, the court:
    • Should determine whether the agency has documented the intensive, ongoing, unsuccessful efforts3 to achieve reunification, adoption, guardianship, or placement with a fit and willing relative;4
    • Must find that APPLA is the best permanency plan for the child;5 and
    • Must find that that there is a compelling reason that it is not in the best interest of the youth to return home, be placed for adoption, enter a guardianship arrangement, or be placed with a fit and willing relative.6
  • If APPLA is this proposed permanency plan, the court:
    • Must ask the child about his or her desired permanency outcome.7
    • Should confirm that the agency is taking steps to ensure the reasonable and prudent parent standard is being exercised;8 and
    • Should confirm the agency has documented that the child has regular and ongoing opportunities to engage in age or developmentally appropriate activities.9

How do these provisions change the law?

No APPLAs for Youth Under 16.

For youth under age 16, the law now prohibits APPLA as the permanency plan. There are no permissible uses of APPLA for any child under age 16.

Limited APPLAs for Youth 16 and Older

The law also creates new limits on using APPLA for youth ages 16 and older. Before the SFA, to select or maintain an APPLA goal, the agency was required to document to the court a compelling reason that it was not in the best interest of the child at the date of the hearing to return home, be adopted, enter a guardianship arrangement, or be placed with a fit and willing relative.10

The SFA adds a new section to the law—42 U.S.C.A. § 675a, Additional Case Plan and Case Review System Requirements—which mandates the requirements listed above. The court must now also determine that APPLA is the best permanency plan for the child and document the agency’s intensive, ongoing, and unsuccessful efforts to achieve the more preferred permanency plans.

Direct inquiry with child about desired permanency plan

In addition to increasing the amount and type of evidence the agency must present to maintain or change the plan to APPLA, the SFA now requires that in those cases where the proposed plan is APPLA, the court ask the child about his or her desired permanency plan. While previously the court was required to “consult”11 with all youth on their permanency and transition plans, this new provision explicitly requires a direct inquiry with the child. Finally, the SFA adds a “normalcy” inquiry to the court review. It is recommended that this inquiry apply to all youth regardless of permanency plan.

Court-approved APPLA and detailed court order

Finally, if the court determines the permanency plan will change or remain as APPLA, the APPLA itself must be described and approved by the court. This is not a change in the law, but an existing requirement that is often overlooked to the detriment of older youth permanency outcomes. To fulfill this requirement, the child welfare agency must present the placement, service, and relationships that will be provided or exist that are the child’s planned permanent living arrangement. APPLA is a type of permanency plan; the exact contours of the plan must be described. A court order that contains only the letters APPLA and nothing more is not consistent with the law.12

What are the goals of the permanency provisions? How will they improve outcomes?

APPLA has been overused as a permanency plan for older youth for many years. Often, when APPLA is assigned as a permanency goal, the system gives up on finding permanency for the child. In many cases, youth with the plan of APPLA have no permanent living arrangement at all, but rather are in long-term placements.

Coordinated effort to secure permanency for older youth

The new requirements ensure child welfare agencies and courts work together to secure permanency for all youth, including older youth. These provisions aim to increase the number of older youth who achieve permanency and have the support of family and caring adults as they enter adulthood.

Greater scrutiny of APPLAs

The provisions require more scrutiny when APPLA is selected as a permanency plan or a request is made to maintain APPLA as the plan. In case planning, the child welfare agency provides services to youth and families that reflect the hierarchy of permanency outcomes: reunification, adoption, guardianship, and placement with a fit and willing relative. At each case planning meeting and court review, the hierarchy of goals must be considered; even if APPLA is set as a goal, it must be reviewed repeatedly until the youth leaves care.

Continuous focus on permanency for older youth

These provisions reflect the expectation to strive toward permanency as long as a child is in the child welfare system, including up to age 21. No assumption should be made that older youth, or youth with special and complicated needs, cannot achieve or do not want permanency or family. The law requires consistent focus on that goal.

How can the court implement the provisions?

Under the law, the court has a clear mandate to ensure protections for older youth in care. Several provisions of the SFA clearly impact judicial review of the permanency plan through added requirements for the case-review process.

Evidence supporting the goal of APPLA

Because the standard is now raised for selecting or maintaining a plan of APPLA, the court should make sure sufficient evidence is presented to show:

  • “Intensive, ongoing, and unsuccessful efforts” have been made to achieve the preferred permanency plans;
  • APPLA is the best permanency plan for the child; and
  • Compelling reasons why it is not in the best interest of the child to have one of the more preferred permanency plans.

The court should ensure sufficient evidence is presented and the findings reflect individualized determinations. Compelling reasons are forceful and convincing facts and case-specific evidence. Evidence that is not current or reflects generalizations and assumptions should not be accepted.

Generalizations include: “He is too old for adoption.” “She does not get along in family settings.” “The youth is too disabled to be adopted.” Findings should be specific and detailed. The law raises the bar for promoting and achieving permanency and the court plays a pivotal role ensuring this bar is raised in practice.13

Acceptable APPLA plans

The court must ensure that if APPLA is selected an acceptable APPLA plan is presented to the court. The court should ensure the APPLA plan, at a minimum, provides:

  • placement stability,
  • placement in the least restrictive, most family like setting,14
  • relational permanency demonstrated by connections with family and other supportive adults, and
  • services and supports that meets all special and general well-being needs.15

Children with APPLA plans should be in family-based placements

If the child is in a group placement, the court should require that the child welfare agency demonstrate the time limited treatment need that the current placement serves and the steps that being taken to reduce the level of restriction. See the text box on this page for more details about the role of the court in reducing group placement. Because efforts at reduction can improve permanency outcomes, they should be an important component of implementing the permanency provisions of the SFA. For more information on this topic see the Policy Report, Every Kid Needs a Family.16

Normalcy findings

The court must also ensure youth are experiencing normal childhoods . This includes making “normalcy findings” about the exercise of “the reasonable and prudent parent standard”17 and the youth’s participation in age or developmentally appropriate activities. While ensuring normalcy is important in itself as a legal requirement, it is worth noting the degree to which normalcy and permanency are interdependent. The more exposure youth have to activities and individuals in the community, the more opportunities they have to form healthy, supportive relationships with peers and supportive adults who can facilitate permanency. While federal law requires this inquiry only for youth with APPLA goals, courts are encouraged to make this inquiry in all cases given the importance of normalcy to child development and permanency.

Youth engagement in APPLA plans

Finally, the court must ensure youth are engaged in deciding their permanency plans. Courts now must directly ask the child about his or her desired permanency goal when the child welfare agency seeks the plan of APPLA.  This requirement supports engaging youth in important decisions about their lives and empowering them to participate in these discussions. It also provides an additional “check” for the court when being asked to change the goal to APPLA. The court’s discussion with the youth on his or her desired permanency plan can provide insight about the barriers to achieve permanency and potential services and supports the court can order to overcome those barriers. For example, if the youth tells the court she does not want to be adopted because she does not want to lose touch with her biological parents, the court may conclude more discussions need to occur with the youth about potential ways to maintain contact with her biological family and still be adopted or pursue other options such as guardianship.

How do the new requirements relate to the existing requirement to document reasonable efforts to achieve the permanency plan?

Currently, the law requires the court to make a judicial determination that the child welfare agency “has made reasonable efforts to finalize the permanency plan that is in effect.”18  This finding must be made at least once every 12 months and relates to the efforts to achieve a permanency plan that is in place. When the court makes this finding, it is confirming the child welfare agency has met its duty to work towards the assigned permanency goal.

In addition, under the SFA the court must now also consider the agency’s documented intensive, ongoing, and unsuccessful efforts to achieve the permanency plans of return home, adoption, guardianship or placement with a fit and willing relative in order to rule out these more preferred permanency plans before it can assign or maintain the permanency goal of Another Planned Permanent Living Arrangement (APPLA). When the court considers this, it is confirming the child welfare agency has made appropriate efforts, but has not successfully worked towards the preferred permanency plans. If the court finds that intensive, ongoing, and unsuccessful efforts have been made to achieve the more preferred permanency plan and all the other required findings and inquiries are made that are detailed in this section, the court can assign or maintain the permanency goal of APPLA and delineate the precise APPLA in place for the youth.

Once the court is satisfied that an acceptable APPLA has been presented, it must determine whether reasonable efforts are being made to achieve the APPLA.

Court’s Role in Policy Development

Implementing the new law requires changing child welfare agency and court policy and practice. Courts have an important role as leaders and partners in policy development, and are well-suited to model collaboration.

Questions the Court Can Ask 

  • Have law, regulation, and court rule been amended or developed to implement federal policy?
  • Has the court been involved in developing this policy?
  • Are there areas the court believes it should lead, or for which it should develop its own policy through court rule or other means?
  • Have youth been engaged in developing policy on the permanency provisions?
  • Has the state provided guidance on what must be shown to determine that intensive, ongoing, and unsuccessful efforts19 have been made to achieve the more preferred permanency plans before APPLA can be selected or maintained? Is this something the judiciary has already determined?
  • What permanency services are available in the state? Are there any older youth-focused permanency services?
  • What incentives does the state have to support older youth permanency (e.g., extended adoption and guardianship subsidies, extended foster care, or training kin caregivers to be treatment/therapeutic foster or adoptive parents)?

    • What legal options does the state provide to allow creative permanency arrangements? For example:
    • open adoption or other arrangements that allow contact with biological parents after adoption
    • law or policy to undo termination of parental rights
    • policy on engaging biological parents whose rights were terminated, but may now be a permanency resource
  • Is there policy to ensure judges ask youth about a current or proposed APPLA plan? (e.g., How will youth be notified about court and attend hearings?)
  • Do court personnel need additional training to engage youth in discussions about permanency options?
  • Has the state established a clear policy on what constitutes an acceptable APPLA plan, or what must be presented to the court?
    • When the plan is APPLA, does policy require at least one supportive adult be identified as a connection to the youth?
    • When the plan is APPLA, does policy require that living arrangement and relationship permanency be shown as well as that the child’s well-being and any special needs are being met?

Questions to Ask at all Hearings—Permanency

Questions for the Agency if the Proposed Plan is Return Home, Adoption, Guardianship, or Placement with a Fit and Willing Relative

  • What is the permanency plan for the child? Why has this plan been selected?
  • If the plan has not been achieved, what services and efforts should be made to achieve the goal?

Questions for the Agency if APPLA is the Proposed Plan

  • What services and efforts have been made that serve as the intensive, ongoing, and unsuccessful efforts for family placement?
  • Has family been fully considered? Have the parents of any step- or half- siblings been explored as permanency resources?

    • Have all technologies been used to search? Have all services and supports been considered to make a family arrangement viable?
    • Have kin and nonfamily resources been sought through special recruitment and in-depth case file review?
  • Have all barriers to the youth accepting permanency or establishing relationships been addressed through treatment or supports?

    • What are the barriers to family placement? Do they reflect the youth’s special needs? Do they reflect a need for support by the caregiver?
    • How often has the array of permanency services described been tried? Should any be tried again?
  • What are the compelling reasons that it is not in the child’s best interest to return home, be adopted, placed in a guardianship or with a fit and willing relative? What are the specific facts and reasons for this case?
  • If the child has a sibling, are they placed together? If no, what reasonable efforts have been made to make a joint placement? If joint placement is not possible due to the safety and well-being of either sibling, is visitation occurring? What efforts are being made to sustain and nurture that relationship?

Questions for the Agency to Determine if the APPLA Plan is Acceptable

  • What is the child’s current placement? Does it provide stability and consistency?
  • If the child is in a group placement:

    • How long has he or she been in the placement?
    • What is the treatment rationale for the placement?
    • What services or supports have been considered to support a family-based placement?
    • If the child has a disability, have reasonable accommodations been requested to support a community/family-based placement?
    • What is the action plan for moving the child to a family placement?
  • Are all of the child’s health, education, and transition to adulthood needs being met?
  • Does the child have any special needs? If yes, are they being met and is the child making progress in treatment?
  • How is the child being provided relational permanency? Is the child connected with family or kin? Are any supportive adults identified who are consistent in the child’s life and will be involved as he or she transitions to adulthood?
  • If the child has siblings, is visitation occurring and is the relationship being supported and nurtured?
  • What activities is the child engaged in, such as extracurricular, cultural, social, and community activities?
  • Are there any barriers to the child participating in these activities?
  • Are the child’s caregivers supporting the child in participating in extracurricular, cultural, social, and community activities? Does the caregiver need any support finding or supporting activities for the child?
  • Do any barriers need to be addressed that prevent the child from participating in activities?

    • If the child has a disability, are accommodations needed to make participation possible?
    • If the child identifies as LGBTQ, does the youth or caregiver need support finding activities that are affirming and supportive?
    • If the child is a parent, is support needed (e.g., child care) to participate in activities?
    • If the youth wants to participate in or learn about traditions related to racial, ethnic, or cultural identity, does the youth or caregiver need support or information to make this possible?

Questions for the Child if the Proposed Plan is APPLA

  • Has anyone talked to you about permanency? Do you understand what permanency is?

    • Do you want help strengthening or repairing relationships with your biological family?
    • Do you want to learn more about adoption? (If the state has open adoption or other way to maintain contact with biological family, does the youth understand this?)
    • Do you want to learn more about guardianship? (Does the youth understand that guardianship does not terminate any legal relationships with the biological family?)
    • Do you want to learn more about kinship care and ways to be placed with relatives or people you have a relationship with?
  • Has anyone asked you who you consider family? Do you get to see the people you consider family often? How much time do you get to spend with them? How do you spend time with them?
  • Who are the supportive adults in your life?
  • Do you want help finding supportive adults?
  • If you have siblings, how often do you get to see and talk with them?
  • Are your needs being met in your current placement?
  • Is there anything about your current situation you would like to change?
  • What activities, interests, and hobbies are you involved in? What activities would you like to do?

Preparing Youth for Court

To ensure these provisions are effective, youth will need adequate preparation for court and case planning. Attorneys, advocates, and other adults will also need to prepare to respond to the court’s inquiries, take legal positions, and request orders when necessary. To prepare, attorneys, advocates, and other adults should consider the following questions:

Issues to investigate and discuss with the youth

  • Does the youth understand what permanency is?

    • Does the youth understand the available permanency options and what they mean for living arrangements, services, and involvement with the child welfare agency and court? Does the youth know he or she should receive permanency and transition to adulthood services?
    • What is the youth’s relationship with his or her biological family? Are there services or supports that could help repair or strengthen those connections, including counseling?
    • Is the youth placed or connected with his or her siblings?
    • Is the youth aware of permanency options that would allow him or her to maintain connections with the biological family, if available in the jurisdiction?
    • Who does the youth consider “family”?
    • Can the youth identify at least one supportive adult who will be connected to him or her after transitioning to adulthood and out of the child welfare system?
    • If the youth resists permanency:
      • Have his or her reasons been explored with you, the caseworker, or a therapist?
      • Have trauma issues been addressed through treatment?
      • Have grief and loss issues been addressed through treatment?
      • Has the youth been given multiple opportunities over time to consider and discuss permanency options and his or her feelings about permanency?
  • Is the youth prepared to respond to the court about his or her desired permanency plan?

    • Have you helped the youth practice his or her response verbally or in writing?
    • Have you explained to the youth what will happen in court and who will be present?
    • Do you need to make any special requests or arrangements to ensure the youth is comfortable responding in court about permanency?
      • Would the youth like to submit a written statement?
      • Would the youth like to speak to the judge in chambers if allowed?
      • Would the youth like a support person, like a therapist or friend or mentor?
  • Have you researched the permanency services for youth available in your jurisdiction?20

    • Has the youth had access to all the permanency services? Should certain services be tried again or delivered by a different provider?
    • Are therapeutic services needed to address barriers to permanency for the youth?
    • Are there services that could be provided to a caregiver that would facilitate permanency?
    • Are you prepared to request specific orders for services to achieve the preferred permanency plans?
    • Are you prepared to take a position on the appropriate permanency plan for the child?
  • If APPLA is the proposed permanency plan, are you prepared to describe the planned permanent living arrangement that is being proposed?
    • Is the current placement/living arrangement stable?
    • Are the youth’s basic and special needs being met?
    • Is the youth making progress in all case planning goals, including transition to adulthood goals?
    • Is the youth connected to at least one supportive adult willing to be in his or her life after transitioning to adulthood?
      • What is the nature of this relationship? Has it been normalized in any way, such as the creation of a Permanency Pact21?
      • Are there any services that can support or strengthen this relationship?
    • What permanency services should be tried or repeated in the coming months to continue to achieve the more preferred permanency goals?
    • Are you prepared to request orders for:
      • permanency services,
      • services that address any issues related to the stability or ppropriateness of the placement, and/or
      • any unmet treatment or service needs.

Jennifer Pokempner is a staff attorney at the Juvenile Law Center, Philadelphia, PA. She wrote this article in collaboration with the ABA Center on Children and the Law’s Youth Engagement Project with support from Casey Family Programs.

This article was adapted from Issue Brief: The Role of the Court in Implementing the Youth Provisions of the Strengthening Families Act, February  2016, by the ABA Youth Engagement Project, a project of the ABA Center on Children and the Law.

Endnotes

1. Pub. L. No. 113-183.

2. 42 U.S.C.A. § 675(5)(C)(i).

3. See sidebar, What are intensive and ongoing efforts for family placement?, for more information.

4. 42 U.S.C.A. § 675a(a)(1).

5. 42 U.S.C.A. § 675a(a) (2)(B).

6. 42 U.S.C.A. § 675a(a) (2)(B).

7. 42 U.S.C.A. § 675a(2)(2)(A).

8. 42 U.S.C.A. § 675a(a)(3)(A). 

9. 42 U.S.C.A. § 675a(a)(3)(B).

10. 42 U.S.C.A. § 675(5)(C)(i).

11. 42 U.S.C.A.§ 675(5)(C)(iii).

12. For more information see Cecilia Fiermonte & Jennifer L. Renne. Making It Permanent: Reasonable Efforts to Finalize Permanency Plans for Children in Foster Care 79-84 (American Bar Association 2002), available at  http://goo.gl/iF02GM.

13. Federal regulations, which predate the new law and have not been revised in many years, provide some examples of compelling reasons. 45 C.F.R. § 1356(h)(3). Under the new law, the court would also be required to include the added findings listed above.

14. 42 U.S.C.A. § 675 (5).

15. The Americans with Disabilities Act, 42 U.S.C.A. § 12101, and Rehabilitation Act, 29 U.S.C.A. § 701, prohibit discrimination in the provision of services, including child welfare services and placements. Reasonable accommodations must be provided to avoid discrimination, and individuals must be offered services in the most integrated settings appropriate to their needs.

16. Every Kids Needs a Family: Giving Children in the Child Welfare System the Best Chance for Success (Annie E. Casey Foundation 2015).

17. See ABA Youth Engagement Project. Issue Brief: The Role of the Court in Implementing the Youth Provisions of the Strengthening Families Act, February  2016, for more information on the reasonable and prudent parent standard.

18. 45 C.F.R.§ 1356.21(b)(2)(i).

19. See sidebar, What are intensive and ongoing efforts for family placement?, p. 70, for more information.

20. Ibid.

21. FosterClub’s Permanency Pact.

What are intensive and ongoing efforts for family placement?

While this determination should be individualized for each case, there are some basic principles for the court to consider when evaluating if sufficient efforts for family placement have been made:

  1. Permanency is possible for all children regardless of age or special needs.
  2. Many diverse permanency services can be used. Some services prepare youth for permanency and address barriers to permanency. Others may include seeking an adoptive resource, guardian, or mentor; working with family; and finding supports for those resources.
  3. Permanency services should be tried repeatedly over time. Some services will not be the right fit, others may need to be provided more than once due to changes in opportunities or circumstances.
  4. Some youth say “no” to permanency options not because they do not want family or connection, but because of bad past experiences, trauma, or failures of the system. For example, when a youth is resistant to adoption, it is important for the court to explore what is behind that resistance. A youth’s wishes should be valued and respected, but the system has a duty to find family and supportive connections for every youth.

Permanency Services

  • Family finding, including use of search technology and social media
  • Identifying and rekindling connections with caring adults who are not relatives or kin
  • Child-specific recruitment
  • In-depth review of case file
  • Creating a child profile or life book
  • Preparing and supporting an identified permanency resource
  • Team-based planning (family group decision making, permanency teaming)
  • Helping youth join community activities that will build a support network
  • Post-permanency supports

Permanency services may also include counseling or therapeutic services that address the child’s history of trauma, separation and loss, and other mental health needs. These services may also help address challenges that may reduce the child’s ability to achieve a permanent family. Services may include:

  • Grief and loss therapy
  • Treatments for trauma and other issues that prevent healthy relationships and connections
  • Assessments of emotional security and follow-up therapeutic services
  • Family therapy

Reducing Group Placement and Improving Permanency Outcomes

Reducing group placement and providing appropriate, high quality alternatives is a vital strategy to reduce APPLA and improve permanency outcomes for older youth. As discussed in Every Kid Needs a Family, research clearly shows that group placement produces poor outcomes for youth in terms of educational attainment, criminal justice involvement, and exposure to abuse. It also prevents them from forming the caring and long lasting relationships with family and supportive adults that lead to permanency.

Nearly one in three teens in the child welfare system is placed in group care; many with the permanency plan of APPLA. Courts play a powerful role in reducing the use of group care in individual cases and by developing policies with the child welfare agency to achieve this goal system-wide. The following are key principles to guide the court’s inquiry when a child is placed in group care:

  • Group care should be used rarely.
  • When used, it should be for treatment purposes that cannot be met in a community setting and only for very limited periods of times.
  • There should always be a concrete plan for how family/community placement will be achieved.
  • Having a disability is not sufficient justification for placement in group care.
  • Youth with disabilities can and must—under federal and state anti-discrimination laws—be provided all services and supports in the community and reasonable accommodations must be provided to make this possible.