November 01, 2016

What the Preventing Sex Trafficking and Strengthening Families Act Means for Your Practice

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 child welfare system is designed to protect and help children, yet growing numbers of children in foster care experience sex trafficking, homelessness, and lack of permanency upon leaving care. For example:

  • Up to 80% of youth who are currently or formerly in foster care become victims of sex trafficking;1
  • Previous child abuse is a common characteristic of youth who are sex trafficked;
  • Between 11 and 37% of youth aging out of foster care experience homelessness after they transition and another 25 to 50 percent face unstable housing;3
  • Youth with APPLA as their permanency goal are among the most at-risk for homelessness;4 and
  • 80% of 18-year-olds who age out of care through emancipation have no permanent families to turn to.5

In response, President Obama signed into law the Preventing Sex Trafficking and Strengthening Families Act (the Act) on September 29, 2014.6 States have implemented many of the required changes to the child welfare system’s response to domestic child sex trafficking, older youth in foster care, normalcy for children in care, and other issues. Many of the Act’s provisions relate to child welfare agency practice but also directly affect roles of dependency courts and attorneys representing parents, children, and child welfare agencies. This article highlights the Act’s major provisions for practitioners and how states are implementing them. 

Responding to Victims of Sex Trafficking

Children and youth involved with the child welfare system and placed in foster care are at high risk of being trafficked, as are children who are homeless, runaway, or otherwise involved in the justice system. Risk factors such as lack of stability, separation and physical distance from friends and extended family, and the related emotional toll on children increase their vulnerability.

A California Child Welfare Council study found between 50 to 80 percent of commercial sexual exploitation victims were involved with child welfare at some point.7 Other studies support this connection – the Connecticut Department of Children and Families found in one study that 86 of 88 children identified as child sex trafficking victims were involved with child welfare services in some capacity.8

Recognizing the vulnerability of many children in foster care, the Act imposes Title IV-E requirements on child welfare agencies to develop policies and procedures to identify, document, and determine appropriate services for child victims of sex trafficking and those at risk. The agency also has the option to gather information for youth up to age 26 who may or may not have ever been in foster care. States were required to develop these policies and procedures within one year of enactment, and must show they are implementing them within two years (September 29, 2016).9

Practice tips:

Agencies must consult experts in law enforcement, juvenile justice, health care, education, and services for at-risk youth as part of these requirements. This consultation not only provides knowledge and expertise from other disciplines, but may also provide data from other agencies and service providers to inform the agency’s approach. 

  • Advocates for youth and courts can work with the child welfare agency to ensure this requirement is met and legal considerations are included in the agency’s approach.

State examples:

Some jurisdictions are considering enhanced or specialized court responses depending on the number and types of cases local courts handle. These courts can focus on only specific cases, such as identifying and addressing child sex trafficking dependency cases or multijurisdictional cases involving both juvenile justice and child welfare-involved youth.10

  • In Los Angeles in 2015, the County Board of Supervisors dedicated nearly $7 million for sex trafficking initiatives, including creating a specialized court for trafficked children in the child welfare system. This court would complement the STAR Court, or Succeeding through Achievement and Resilience, which serves youth who have been trafficked and arrested. Among the girls involved with the STAR court, nearly 80 percent had prior contact with the child welfare agency.11
  • In Pennsylvania, the courts and state agency are working closely together on a coordinated response to the Act’s mandate. They have developed a trafficking screening tool that will be administered by the child welfare agency. Other states are also using screening tools that have already been developed, such as the Trafficking Victim Identification Tool,12 or adapting a state-specific tool.

Reporting Children Missing from Care to Law Enforcement

When youth run from foster care, they are at greater risk of being trafficked. To better understand the number of children who run and locate missing children quickly, the child welfare agency must now report when children are missing from care to local law enforcement within 24 hours so the youth can be entered into the National Crime Information Center (NCIC) database at the Federal Bureau of Investigation (FBI). A report to the National Center for Missing & Exploited Children (NCMEC) must also occur within 24 hours. As the national clearinghouse on missing and exploited children, NCMEC provides support to social service agencies searching for children missing from care, including case management, poster distribution, social media, on-site law enforcement technical assistance and outreach teams, and case analysis.13

Practice tips:

  • In their oversight role, judges with cases involving children who run from care can inquire and verify that the required report has been made. 
  • Similarly, attorneys representing children who have run from care should confirm the agency has made a report and is using all available information to locate their client.

Responding to Youth Who Run from Care

The Act significantly changes how child welfare agencies respond to children who run from care. In addition to the reporting requirements to law enforcement and NCMEC, agencies must develop policies to quickly locate youth who run or are missing. 

Several states have programs that further the Act’s requirements. For instance, a CPS Special Investigations Program in San Antonio, Texas, locates runaways and returns them to their placements. The investigators get involved with the children, form bonds, and help keep them away from potential traffickers.14 

The Michigan Supreme Court years ago recognized that any effort to locate children missing from court-ordered placements without court permission must involve the court and agency together. Through an administrative order, all circuit courts in the state must develop a plan for reviewing cases involving children absent from care. The plan must establish a special docket or other expedited process for review of such cases.15 While this order predates the Act, other states can adopt similar strategies to meet the Act’s requirements.

More recently, Kentucky passed a habitual runaway statute16 that addresses children absent from their lawful residence without permission for at least three days within one year. The juvenile court followed with Provisional Juvenile Court Rules of Procedure and Practice (JCRPP) describing the response to a new emergency protective custody order, which only applies to habitual runaways and can be used to help child victims of trafficking and missing children.17

Also significant is added information the agency must gather to help inform future responses. The agency must identify ways to:

  • determine the primary factors that cause youth to run from foster care and then respond to those factors as they affect “current and subsequent placements,”18 and
  • determine the child’s experiences while absent from foster care, including whether the child was a possible sex trafficking victim.

While much is known about the connection between child welfare and trafficking, much more data on this population is needed. This information will guide policy and prevention efforts, including:

  • characteristics of children who run
  • potential factors associated with running from care (e.g., reason for entering care, length of stay in care, placement type )
  • information on experiences while away
  • trends regarding runaway youth and trafficking victims
  • state efforts to provide specialized services and placements for children who are sex trafficking victims
  • state efforts to ensure children form and maintain long-lasting connections to caring adults 

Practice tips:

  • Attorneys and judges can help enforce these provisions by ensuring reporting systems are in place and the required data is being collected. 
  • Attorneys can request judicial oversight of the agency’s progress attempting to locate a missing client. 
  • When a child returns to care, an attorney can advocate for and the judge can ensure appropriate screening for sex trafficking is conducted and any identified services and interventions are provided.19 
  • Attorneys and judges play a significant role determining how to address the factors that led the youth to run and how those circumstances or conditions can be adjusted to stabilize the youth in the least-restrictive, most family-like placement.

Providing Services through the Child Welfare System

The Act’s requirements to provide appropriate services for youth who are victims of or at risk of sex trafficking align with the legislative trend to provide Safe Harbor protections so youth receive services rather than enter the criminal or juvenile justice systems. The Los Angeles County Probation Department found 59 percent of the 174 juveniles arrested for prostitution-related charges had been in foster care.20 Many of these victims had been recruited while living in group home settings.

Although state statutes vary, Safe Harbor generally refers to a spectrum of state law provisions:21

  • classification of trafficking victims as abused or neglected children 
  • training to identify child victims of trafficking
  • diversion programs or immunity from prosecution for child victims of sex trafficking
  • specialized services for victims
  • funding for services 
  • establishment of a task force or commission
  • public awareness efforts
  • in-court protections
  • expungement of any criminal offenses
  • establishment of a trafficking victim compensation fund

In response to the mandates in the Act, some states are amending their statutes to include some Safe Harbor law provisions or are implementing those laws in line with the Act’s provisions.22 The related provisions may be scattered throughout the statutory code or found together in one Act; together they aim to treat youth who are trafficked as victims rather than offenders, and serve victims within the child welfare system while avoiding criminal or juvenile justice involvement when possible.

The Act also includes changes to improve youth engagement opportunities for children in foster care and support permanency. Several provisions affect how courts and agencies engage older youth in their cases and in the child welfare system more broadly.

Improving Use of Another Planned Permanent Living Arrangement

One provision limits Another Planned Permanent Living Arrangement (APPLA) as a permanency plan for youth age 16 and over.23 That change was effective September 29, 2015 (September 29, 2017 for tribes), and most states have updated their statutes and policies to reflect it.24 When a youth’s permanency plan becomes or remains APPLA (or its state-specific equivalent), additional case plan approval and case review requirements must be satisfied under the Act:25

  • The court must determine whether the youth’s current placement is appropriate at each permanency hearing by:
    • asking the child about his or her desired permanency outcome; 
    • making a judicial determination that explains why APPLA is the best permanency plan for the child; and 
    • providing compelling reasons why it remains not in the best interest of the child to achieve another permanency plan.
  • The agency must document at each permanency hearing:
    • the “intensive, ongoing, unsuccessful efforts” to return the child home or secure another placement; and
    • its efforts to ensure the child’s placement (foster home, group home, etc.) is following the reasonable and prudent parent standard and the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities. (See the reference to “normalcy” provisions below.)

Practice tips:

Child welfare attorneys can ensure this increased attention to using APPLA for youth 16 and over is implemented effectively and consistently. Practitioners can:

  • Prepare youth for their court hearings and to express their wishes regarding permanency, placement, and other matters.26
  • Confirm that no children under 16 have APPLA plans, and determine what efforts the agency can make to achieve another permanency plan for youth over 16 with APPLA plans (e.g., ask if any relatives were unexplored, whether the agency discussed adoption with the youth more than once and in meaningful ways, if other permanency services are available for the youth).

  • Ensure youth are developing connections with adults who could provide support when they leave care by asking youth or the agency about adults in the youth’s life (e.g., teachers, coaches, clergy, friends’ parents, etc.), opportunities to establish connections with supportive adults, etc.

  • Raise similar questions and request information between permanency hearings and during other court appearances or agency meetings, as formal permanency hearings often occur only once per year.27

Engaging Youth in Case and Transition Planning

The Act calls on youth age 14 and over to be more engaged in their case and transition planning. Agency case plans must be developed and modified in consultation with youth 14 or over. Each youth may choose up to two people (other than the foster parent or caseworker) to be part of the case-planning team.28

To empower older youth in transition planning for successful adulthoods, the Act requires that the case plan include a “list of rights” for youth 14 and over. That list describes the rights of the child regarding “education, health, visitation, and court participation, the right to be provided with [certain] documents…, and the right to stay safe and avoid exploitation.”29 The documents referred to in the list of rights include a credit report on the child that the agency must give the child every year until the child leaves care.30 Additionally, when exiting care at age 18 or older, the youth must be provided an official copy of his/her birth certificate, social security card, health insurance information, medical records, and a driver’s license or identification card.

State examples: 

Nebraska enacted legislation in 2016 that implemented the older youth and other provisions of the Act and took steps to support and empower youth further.31 For example, the Nebraska child welfare agency now allows youth of any age to be involved in developing their case plans, not just youth age 14 or older.32

Nebraska youth 16 and older with a permanency plan of APPLA must have a court-approved permanency plan that identifies supportive adults willing to be involved as the youth transition to adulthood.33 Pennsylvania similarly instructs the juvenile court to make a finding in a permanency hearing whether a youth has a significant connection to at least one supportive adult; that adult must be willing to be involved in the child’s life as the child transitions to adulthood. If no supportive adult is identified, the permanency plan must show efforts have been made to identify one.34

Additionally, Nebraska youth aging out of care must be given not only the documents required by the Act, but also information on siblings, relatives, aftercare services and benefits, and more.35 The court must make a finding regarding whether the youth has received the required discharge documents during the final hearing before the youth leaves care.36

Practice tips: 

To promote youth engagement in their court proceedings, practitioners can:

  • Ensure each child client has received his or her list of rights and ask what questions your client has about any of those rights.
  • Determine whether and how the agency is involving youth 14 and older in developing case plans and confirm that child clients know they can request the presence of two adults of their own choosing in case plan meetings. 
  • Request to attend the case plan meetings.
  • Advocate at the agency or legislative level for measures like those in the Nebraska Strengthening Families Act that go beyond the requirements of the Act to further empower and engage youth in foster care.

Supporting Normalcy for Youth in Care

Other efforts to improve opportunities for children in the foster care system include supporting “normalcy” activities for children by instituting a reasonable and prudent parent standard for decision-making by caregivers, and encouraging youth participation in age-appropriate activities.37 For additional information about how states are implementing the normalcy provisions, see “The Reasonable and Prudent Parent Standard,” in the October 2016 CLP.

Support for Adoptions, Guardianships, and Relative Placements 

The Act strengthens permanency options for children in the child welfare system under a provision called Improving Adoption Incentives and Extending Family Connections Grants. Provisions related to reauthorizing and amending the Adoption Incentives Program and reauthorizing Family Connections Grants most directly affect the practice of the child welfare agency. However, their impact on outcomes and supports for children and their caregivers make them critical for legal practitioners to understand and apply in individual cases.

Incentive Payments Program

The Act expanded the existing Adoption Incentive Program to include guardianship arrangements, renaming the program for Adoption and Legal Guardianship Incentive Payments.38 As a result, states may seek incentive payments based on rates of finalized guardianships as the means of children exiting care. (The award structure for adoptions also changed to a rate-based one.)39 Additionally, depending on available funds, states may access awards for adoptions completed in less than 24 months from the date of the child’s removal date.40 

Practice tips:

The Act recognizes the value of guardianships as a permanency plan for children in foster care. To support this recognition, practitioners can:

  • Encourage your state to participate in the federal Guardianship Assistance Program (GAP), if it does not already. GAP funds are federal IV-E dollars that support guardianship assistance payment programs for eligible relative caregivers who are foster parents and want to become the legal guardians of these children in their care.41
     
  • Inform youth unwilling to be adopted (after repeated counseling on the topic) and caregivers unwilling to adopt of the guardianship option, including any forms of subsidized guardianship available in your jurisdiction.

Identifying Successor Guardians

The stability that a legal guardian provides a former foster child can easily be disrupted if that guardian dies or becomes incapable of caring for the child. The Act allows designating a “successor guardian” in the original guardianship assistance agreement that is required for subsidized guardianship. With a successor guardian already named in the agreement, that person may immediately begin caring for the child and receive the guardianship assistance payments, without the child having to return to foster care first to remain eligible for the subsidy.

State examples:

Several states have enacted legislation that permits naming successor guardians in any guardianship agreement and facilitates the transfer of payments to that guardian. 

  • In 2015 Connecticut updated its subsidized guardianship statute so that “in the case of the death, severe disability or serious illness of a caregiver who is receiving a guardianship subsidy, the [C]ommissioner [of Children and Families] may transfer the guardianship subsidy to a successor guardian who meets the department’s foster care safety requirements if such successor guardian has been identified in the subsidy agreement, or an addendum thereto, and such successor guardian is appointed as legal guardian by a court of competent jurisdiction.”42 
  • Maryland’s policy regarding successor guardians notes that a child’s GAP payments can be transferred, even if the successor guardian named in the original agreement (or an addendum) is not a relative of the child or relative guardian.43

Practice tips:

Practitioners can take steps to ensure a successor guardian is designated for children cared for by guardians.

  • Ensure a successor guardian has been named and included in the guardianship assistance agreement before it is finalized.
  • Request a court order identifying the successor guardian, for purposes of clarity and certainty.
  • Determine (or help develop) the process to modify a guardianship order and assistance agreement if the guardian dies or becomes incapacitated: 
    • Is a court hearing required? 
    • Does a temporary guardianship order go into effect immediately? 
    • Who would be notified of any needed hearings? 
    • Do you want to be notified?

Encouraging Placement with Siblings

As part of its emphasis on identifying and engaging relatives of children in care, the Fostering Connections Act of 2008 required agencies to notify all of a child’s adult relatives that the child has entered foster care. The Act adds clarifying language to that notification requirement, adding parents of siblings of the child to the list of individuals to be notified within 30 days of the child’s removal, as long as that parent has legal custody of the sibling.44 The Act calls for “sibling” to be defined as either one under state law or one who would have been considered a sibling under state law if not for the termination or other disruption (e.g., death) of the rights of the child’s parent.45

Practice tips:

By expanding notification of relatives, these provisions may allow for children to be placed more frequently with siblings who remain outside the child welfare system. To help maintain those sibling connections, practitioners can:

  • Inquire (informally and/or on the record) which parents of the child’s siblings have been notified of the child’s involvement in the foster care system, and the response of the parents.
  • Talk with child clients about their siblings, those siblings’ parents, and the child’s relationships with those parents.
  • Advocate for the child’s placement with his or her siblings, as appropriate.

Extending the Family Connections Grant Program

The Family Connections Grants Program, created by the Fostering Connections Act, connects children within and outside the child welfare system to relatives by funding efforts that help support families. Grants can be used for:

  • kinship navigator programs (which provide a lifeline for relatives caring for children who may otherwise be in the child welfare system by connecting those relatives to benefits and services that they or the children may need); 
  • family-finding efforts that identify relatives who may be able to care for the child rather than formal, nonrelative foster parents; 
  • family group decision making, which can bring parents and relatives together to resolve issues before the child actually needs to be removed; and 
  • residential family substance abuse treatment programs that prevent separation or promote reunification while parents receive comprehensive treatment services.

The Act slightly changed the program outline and reauthorized it through FY2014. Although the program has expired, practitioners can:

  • Identify kinship navigator and other programs that support relative caregivers within and outside the child welfare system, as those programs may continue to be supported by state or local funds. 
  • Inform clients of resources that may be of use to them.
  • Advocate for renewed federal support of the Family Connections Grant Program.

Conclusion

Courts and legal practitioners have important roles to play implementing the Preventing Sex Trafficking and Strengthening Families Act. To maximize the benefit of these legislative changes on children and youth in the child welfare system, judges and attorneys should understand the Act’s provisions, adapt their practice accordingly, and ensure youth have access to the rights, protections, and opportunities newly available to them.

This article was developed in collaboration with the Pelican Center for Children and Families, which administers the Louisiana Court Improvement Program under a sub-grant agreement with the Louisiana Supreme Court.

Cristina Cooper, JD, is senior counsel and Eva J. Klain, JD, is director of child and adolescent health at the ABA Center on Children and the Law.

Endnotes

1. Gluck, Elliott & Rricha Mathur, Child Sex Trafficking and the Child Welfare System. State Policy Advocacy and Reform Center, July 2014.

2. Ibid.

3. U.S. Department of Housing and Urban Development. Housing for Youth Aging out of Foster Care, 2014, 5-6.

4. New Avenues for Youth and School of Social Work, Portland State University, Positive Transitions for Youth in Foster Care: Preventing Homelessness, 2012 [Positive Transitions].

5. Amy Taylor. Older Youth in Foster Care: Challenges and Opportunities. National Conference of State Legislatures, December 2010.

6. Pub. L. No. 113-183 (2014).

7. Walker, Kate. Ending the Commercial Sexual Exploitation of Children: A Call for Multi-System Collaboration in California. California Child Welfare Council, 2013.  

8. U.S. Health and Human Services, Administration on Children, Youth and Families. Children’s Bureau Guidance to States and Services on Addressing Human Trafficking of Children and Youth in the United States, 2013, 2, 3.

9. Pub. L. No. 113-183, Sec. 101.

10. See Center for Court Innovation. Responding to Sex Trafficking in Your Jurisdiction: A Planning Toolkit, June 2015.

11. “Board of Supervisors Approves Funding to help Trafficked Children,” April 15, 2015.

12. Vera Institute. Guidelines for Administering the Trafficking Victim Identification Tool (TVIT), June 2014.

13. National Center for Missing & Exploited Children and National Council of Juvenile and Family Court Judges. Missing Children, State Care, and Child Sex Trafficking: Engaging the Judiciary in Building a Collaborative Response, 2015.

14. Rachel Chaney, “Trafficked and Neglected: Finding San Antonio’s Lost Children,” January 4, 2016.

15. Michigan Supreme Court, Administrative Order 2002-4 (November 19, 2002).

16. Kentucky Rev. Stat. 600.020(30).

17. JCRPP 10.

18. Pub. L. No. 113-183, Sec. 104.

19. ABA Center on Children and the Law and the Juvenile Law Center. “Questions to Ask When a Youth is Missing from Foster Care” and “Questions to Ask When a Youth Returns from a Runaway Episode.” In Issue Brief: The Role of the Court in Implementing the Older Youth Provisions of the Strengthening Families Act, February 2016.

20. Sewell, Abby. “Most of L.A. County Youths Held for Prostitution Come from Foster Care.” Los Angeles Times, November 27, 2012.

21. ECPAT-USA. Steps to Safety: A Guide to Drafting Safe Harbor Legislation to Protect Sex-Trafficked Children, 2015.

22. Ken. Rev. Stat. 620.030 (3).

23. Pub. L. No. 113-183, Sec. 112(a). 

24. See, e.g., La. S.A. Ch. C. Art. 702(C)(5)(b) (Louisiana); 42 Pa. C.S.A. § 6351(f.1)(5)(i) & Pa. Juv. Ct. R. 1608(D)(2) (Pennsylvania); Utah C.A. 78A-6-314(5) (Utah).

25. Pub. L. No. 113-183, Sec. 112(b).

26. While the requirement that the court ask youth their opinion about a permanent plan may involve a culture shift in some child welfare practices, other states have already successfully transitioned that direction in recent years (and still other states have invited children to dependency court hearings for years). For example, since 2012, Louisiana has required that a child 12 or over be present in court for adjudication hearings, unless his or her presence is waived by the court upon motion of the child’s counsel. And children under 12 shall be present upon the request of the court or counsel for the child. See La. S.A. Ch.C. § 661(B), amended by Act No. 730 of 2012. 

27. For comprehensive discussions of court implementation of these and all provisions of P.L. 113-183 affecting older youth, including suggested strategies for attorneys and advocates, see Issue Brief: The Role of the Court in Implementing the Older Youth Provisions of the Strengthening Families Act, February 2016, by the ABA Center on Children and the Law and the Juvenile Law Center.

28. Pub. L. No. 113-183, Sec. 113(a), (b).

29. Ibid., Sec. 113(d).

30. Ibid., Sec. 114(a).

31. The Nebraska Strengthening Families Act, LB 746, was signed by the Governor on April 18, 2016. For additional information, see Nebraska Appleseed’s Fact Sheet on LB 746.

32. Neb. L.B. 746, sec. 18, codified at Neb. Rev. Stat. § 43-1312(1)(g).

33. Neb. L.B. 746 sec. 20, codified at Neb. Rev. Stat. § 43-1312(a).

34. 42 Pa. C.S.A. § 6351(f.1)(5)(iv)(D).

35. Neb. L.B. 746, sec. 17, codified at Neb. Rev. Stat. § 43-1311.03(9).

36. Ibid., sec. 16, codified at Neb. Rev. Stat. § 43-285(2)(d).

37. Pub. L. No. 113-183, Sec. 111.

38. Ibid., Sec. 203.

39. Ibid., Sec. 202.

40. For more information on these incentives, see Children’s Defense Fund. Incentives for Moving Children out of Foster Care through Adoption and Guardianship: FY2014 Incentive Awards, 2015.

41. As of spring 2016, 33 states and six tribes can claim federal GAP funds.

42. Conn. G.S.A. 17a-126(f)(2),(i).

43. Maryland Department of Human Resources Policy SSA-CW #15-25, April 15, 2015, 8.

44. Pub. L. No. 113-183, Sec. 209, codified at 42. U.S.C.A. 671(a)(29).

45. Ibid. codified at 42 U.S.C.A. 675.