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 Fostering Connections to Success and Increasing Adoptions Act—Public Law 110-351, (“Fostering Connections”) is a federal law designed to promote permanent families for children and youth in foster care. This law encourages:
- maintaining family connections (see article in June 2012 CLP),
- supporting youth transitioning from foster care (this issue),
- ensuring the health and educational well-being for foster youth, and
- providing many Native American children federal protections and support for the first time by allowing tribes to directly administer their local programs authorized by Title IV-E of the Social Security Act.
This and future articles will briefly overview each section of Fostering Connections, outline some general judicial considerations for implementation and provide questions to be asked from the bench to ensure compliance with the law and best practice.
Title II: Improving Outcomes for Children in Foster Care
Section 201: State Option for Children after Attaining Age 18
Before Fostering Connections was enacted, a number of states provided some measure of services and supports to young adults in foster care beyond age 18 using state or local dollars or federal dollars provided to states under the Chafee Program. Under Fostering Connections, states have the option to elect to provide federal Title IV-E support for eligible youth and young adults in foster care and those who exit to adoption or guardianship at age 16 or older up to 19, 20, or 21 years old provided the youth/young adult is:
- Completing high school or its equivalent;
- Enrolled in post-secondary or vocational training;
- Participating in a program to promote or remove barriers to employment;
- Employed 80 hours/month; or
- Incapable of doing any of the activities described in 1 through 4 due to a medical condition. The incapability must be supported by regularly updated information in the child’s case plan.
Judges should provide judicial leadership to get their state to opt in. If a state decides to extend foster care for young adults beyond age 18 as part of their Title IV-E state plan, all of the requirements and protections of Title IV-E apply to these young adults in foster care, including court oversight. This includes requirements set by the Adoption and Safe Families Act (ASFA), such as holding a permanency review hearing at least once every 12 months conducted by a court.
Also required every 12 months is a judicial finding, reflected in the court order, pertaining to whether the agency made reasonable efforts to finalize the permanency goal. In addition, under ASFA the youth or young adult’s case plan must be reviewed by a court or administrative body at least once every six months.
Additionally, effective October 1, 2010, for youth who have attained 18 years of age “a supervised setting in which the individual is living independently” will also be considered a Title IV-E eligible placement. A title IV-E agency has the discretion to develop a range of supervised independent living settings. For example, supervised settings may include host homes, college dorms, shared housing, semi-supervised apartments, supervised apartments or another housing arrangement when paired with a supervising agency or supervising worker. See: Program Instruction, ACYF-CB-PI-10-11 for examples of a supervised setting.
As previously stated, before Fostering Connections, some states were already using state and local funds as well as some federal funds provided to states under the Chafee Program to extend support past the age of majority for young adults in foster care or those eligible for adoption assistance or subsidized guardianship assistance payments.
Nothing in Fostering Connections prohibits states from continuing these programs and using their own funds to extend assistance for those youth/young adults who are not Title IV-E eligible and cannot qualify for continued federal assistance. However, states that currently allow youth to stay in care past age 18 and now extend care under Fostering Connections may see cost savings because of the availability of federal Title IV-E funds, which used to stop when the child reached age18.
Under Fostering Connections, federal support for young adults beyond age 18 is only available when the young adult is participating in one of the activities listed above and is otherwise IV-E eligible. To provide more young adults with support, some states may continue or begin to provide support for young adults age 18 or older who are not IV-E eligible, or do not qualify for another reason under the federal requirements through a state or locally funded program or for Chafee Program activities. For states that extend support and services under Fostering Connections, it is important to be aware of the differences between services and supports available, if any, as well as the differing eligibility requirements of any state programs including Chafee or aftercare support.
Has your state taken the option to extend care beyond age 18?
Are young adults continuing to benefit from all protections they are entitled to under Title IV-E?
Are federally required hearings being held for all children in foster care including those over 18?
- Court jurisdiction must be extended past the age of majority and some states may need to amend state law to allow this.
Is the court making the required judicial determinations of the agency’s reasonable efforts to finalize a permanency plan?
- Are reasonable efforts being made toward the youth’s permanency plan?
- Is the court checking that when APPLA is chosen as a permanency plan that compelling reasons are documented as to why each of the other preferred permanency plans are not appropriate for the individual youth?
- Do these reasonable efforts for youth with permanency plans of APPLA, based on a documented compelling reason, include activities outlined in a youth’s transition plan and/or case plan? For more information, see below - Section 202: Transition Plan for Children Aging out of Foster Care.
- Do these reasonable efforts contain planning for a successful transition to adulthood which includes efforts to establish permanent adult connections and permanency?
Is the youth present and meaningfully engaged in all court proceedings and encouraged to participate?
- Is the judge consulting with the youth in an age-appropriate manner as required by law? 42 U.S.C. § 675(5)(C) requires that “procedural safeguards must be applied to assure that in any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, the court consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.”
- Did the youth help develop and agree with their case plan? Fostering Connections requires that youth play an active role in planning for their present and future. See the next section of Fostering Connections, 202 - Transition Plan for Children Aging Out of Foster Care.
Is the youth notified and present at court hearings?
- Court orders should document if the youth is present or not. If the youth is not present, the order should document why and what assistance, such as transportation, should be provided by stakeholder parties to enable future attendance if the youth desires.
- Timing of hearings should not conflict with the youth’s school schedule.
- Final hearings should not occur without the youth present.
Are hearings held under conditions that facilitate and support active and meaningful engagement of the youth in key decisions?
- Are questions addressed directly to the youth/young adult to encourage his/her participation?
- Do hearings provide ample time and opportunity for the youth to discuss his/her transition and permanency plan?
- Are case plans developed jointly with the youth/young adult and does this planning include discussions that reflect agreements made between the agency and the youth/young adult to obtain independent living skills and the benchmarks that indicate a successful transition?
What rights do young adults who have attained 18 years of age have as compared to youth in care younger than 18? In particular, are young adults represented in court by a client-directed attorney?
What processes are used to end the care and jurisdiction of young adults in care beyond age 18?
- What is the process if the young adult wishes to exit care?
- In what circumstances can the state terminate care and jurisdiction?
- Under what circumstances can a youth re-enter care after age 18 and what is the process for trial independence or re-entry under each?
- What information has the youth received about services and supports that may be available as well as opportunities to re-enter care?
Where appropriate, the court should consider holding additional hearings or (if possible) extending care until the court is satisfied that:
- The youth has been adequately notified of the opportunity to remain in care or receive other services and supports;
- The youth is knowingly consenting to the termination of the case; and
- The agency and youth have made progress towards the goals of the transition plan (See Section 202) and that adequate supports and services are in place to assure the youth/young adult’s successful transition to adulthood.
For states that have extended care beyond age 18, do all youth have legal representation? Is that attorney acting as a client-directed counsel as opposed to a best interest attorney?
Questions to Ask from the Bench
Ask the agency:
Is the youth/young adult present? If not, why not? How and when was the youth/young adult notified of the hearing?
How has the youth/young adult been made aware of the state’s policies regarding extended care, if applicable?
How has the youth been made aware of the services available, if applicable, if he or she remains in care versus the services if he or she chooses to exit care?
What specific services and supports has the youth/young adult been offered?
If the young adult plans to remain in care, what are the plans for ensuring the young adult remains eligible for continued care?
What steps have been taken to ensure that the youth understands the consequences of choosing to exit care and the process, if applicable, for returning to care?
- What services and supports does the young adult remain eligible for if he or she chooses to leave care?
- What services and supports will the youth/young adult lose if he or she chooses to leave care?
- If applicable, what is the process and timeframe for re-entering care?
What are your plans for ensuring permanency?
Ask the youth/young adult:
How were you prepared for this court hearing? By whom? Do you have a lawyer? Have you seen him or her?
How were you actively engaged in developing your transition plan? (See Section 202).
What is the state’s proposed permanency plan for you? Do you agree with this plan? If not, what is your desired permanency plan and why?
If the state extends care beyond age 18:
- Do you understand that you have the option to continue receiving services and support after you turn 18? What are your plans?
- Do you understand the consequences if you choose to exit care as well as any services and supports that may be available to you?
- What information has been provided to you regarding any opportunities to re-enter care?
- If the young adult plans to remain in care, what are your plans to participate in one of the required activities? Will you be going to school? Working? Participating in a job training or treatment program?
Section 202: Transition Plan for Children Aging out of Foster Care
Fostering Connections requires that a personal transition plan for youth/young adults be in place within 90 days before their 18th birthday or whatever later age as the state may elect under section 201 of Fostering Connections. This does not replace the previously required independent living plan “for youth ages 16 and older” under ASFA at 42 U.S.C. § 675 (1)(D) or the case review documentation for youth age 16 and above of “the services needed to assist the child to make the transition from foster care to independent living” at 42 U.S.C. § 675(5).
Instead, this plan complements these plans. Further, the transition plan is not the same as the ASFA permanency plan, which focuses on the permanency goal and efforts being made to achieve permanency. The transition plan is a more detailed plan about the youth/young adult’s future goals and objectives.
It is important to also note that this newly required transition plan does not preclude the state from beginning transition and life planning discussions at an earlier age rather than waiting until three months before the age of 18; indeed such early planning is preferable and required as part of the ASFA independent living plan. The transition plan serves as a final check to ensure the youth/young adult is prepared for the transition to adulthood.
Finally, the plan must be as detailed as the youth/young adult chooses and include specific plans for housing, health insurance, education, local opportunities for mentoring, continuing support services, health care power of attorney or proxy, work force supports, and employment services. If the youth has special health, behavioral health, or intellectual needs, the child welfare agency should assist the youth engage adult-service systems to ensure appropriate services and benefits are provided. An agency caseworker, and, as appropriate, other representatives of the youth/young adult, such as the youth’s attorney, CASA, and/or mentor, can also help the youth/young adult develop the transition plan.
The Program Instruction emphasizes that courts play an important role in monitoring the development of the transition plan.
The transition plan should build on the independent living plan developed at least by the time the youth reaches age 16.
Although not specifically required by Fostering Connections, it is recommended that the court hold a hearing with the youth present after completing the transition plan or at least 90 days before the youth/young adult exits care to:
- assure that the youth/young adult participated fully in developing the transition plan; and
- ensure the services and supports identified in the transition plan are available and adequate to assure the young adult’s successful transition to adulthood.
Questions about the transition plan should also be directed to both the staff of the agency, to the youth/young adult, and his or her counsel.
Where appropriate, the court should consider holding additional hearings or (if possible) extending care until the court is satisfied that progress towards the goals of the transition plan is sufficient and that adequate supports and services are in place to assure the youth/young adult’s successful transition to adulthood.
Questions to Ask from the Bench
Ask the agency:
When did the independent living planning and transition planning begin?
How was the youth/young adult involved in developing the plan? If he or she was not involved, why not? How will he or she participate in transition planning in the future?
Does the youth/young adult qualify, starting in 2014, for the extension of Medicaid coverage to age 26 for all youth who were in foster care on their 18th birthday (or a higher age) and have aged out (under the Patient Protection and Affordable Care Act - P.L. 111-148)? Note: under previous law, states could extend coverage to age 21 at their option.
Has the youth/young adult received comprehensive sexual education, counseling, and health care to prevent unintended pregnancy and sexually transmitted infections?
If the youth/young adult is pregnant or parenting, what appropriate housing, medical, child care, and educational services are in place to help the youth care for the child?
What behavioral health, mental health, developmental health, reproductive health services, drug/alcohol or medical services are in place for the young adult if continued services are needed?
- Is the youth/young adult taking any prescription medication, and if so, what is the transition plan for this?
If the youth is not able to make his or her health care and other legal decisions as an adult due to an intellectual or other disability, have legal proceedings been initiated to ensure that a legal decision-maker is in place?
- Does a new attorney or GAL need to be appointed?
What supports are in place to assist the youth/young adult with continued educational success in high school, post-secondary education (college) or vocational training?
What services has the young adult received to prepare for and apply to post-secondary education or training, including assistance with financial aid applications?
Ask the youth/young adult:
Were you consulted and how were you able to meaningfully participate in developing your transition plan?
Do you believe your transition plan will support your successful transition to adulthood?
- Is there anything you think needs to be added to your plan to assist you better?
- What do you like most about your transition plan? What do you like least?
Do you feel you are able to obtain, understand, and act on health information and make appropriate health decisions (health literacy)?
- Who are your current doctors and dentist?
- Do you know whether you can continue with these doctors and dentists after foster care ends? If not, do you have a plan for accessing health care?
Do you understand the importance of having a health care power of attorney or health care proxy to make health care decisions on your behalf if you are unable to do so?
- Who, if anyone, at the agency has talked to you about this?
- Have you identified a person to be your health care proxy?
What do you know about the process for reapplying for Medicaid, if necessary?
- Can you identify a supportive adult to help you with this process?
Where are you going to live when you leave foster care?
- Where do you live now? Are you going to live there after your case closes?
- If not, where are you going to live?
- Do you have information and have a general understanding of landlord/tenant rights? Do you know where to go to get that information if you need it?
What else do you think you need to assist you in transitioning to adulthood and out of foster care?
Ask either the agency or the youth/young adult (preferably engage the youth/young adult):
Who are his or her permanent connections? Who are the stable adults the young adult identifies as resources to rely on for advice and in emergencies?
What is the plan for the youth/young adult to remain connected to siblings and other relatives?
What is the source of current and future income including job training, educational programs, disability benefits, etc. after the case closes? If the youth is working, where is he or she working?
What is the youth/young adult’s current educational status?
- What is the youth/young adult’s plan for post-secondary education or training?
- What supports are in place to assist the youth/young adult with continued educational success?
What assistance has the youth/young adult received to prepare for and apply to postsecondary education or training, including assistance with financial aid applications?
- Has the youth/young adult accessed Chafee services and Education and Training Vouchers (ETVs)?
- Is the youth/young adult eligible for other scholarships or financial assistance programs targeted at youth in foster care including available state tuition assistance programs?
Does the youth/young adult have a medical home or a regular medical care provider?
Does the youth/young adult have access to his or her medical records or health passport, if one has been kept?
Does the youth/young adult have a dental home or a regular dental care provider?
What will be the source of their future health insurance coverage?
This article was adapted from the Judicial Guide to Implementing the Fostering Connections to Success and Increasing Adoptions Act of 2008, by the ABA Grandfamilies State Law and Policy Resource Center. The June 2012 CLP focused on the relative caregiver provisions. View the guide and more resources on grandfamilies and kin at www.grandfamilies.org.