December 01, 2012

Child Welfare Bills of Rights for Foster Children

Jill Reyes

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 Waiver Demonstration Project is made available under the Child and Family Services Improvement and Innovation Act (Public Law 112-34), signed into law on September 30, 2011 by the President.  Under this Act, the U.S. Department of Health and Human Services was authorized to approve funding support to states and tribal organizations that have demonstrated innovative and creative child welfare programs. States and tribal organizations must implement at least two of the demonstration projects listed in the statute within three years of applying. 

One of the demonstration projects is to create a child welfare bill of rights for children in foster care. As the title suggests, the bill of rights lists the indisputable rights all children and youth in foster care deserve. 

The Child Waiver Demonstration Project recommends including the following provisions in the child welfare bill of rights: (1) frequent contact with parents, siblings, or family members; (2) frequent contacts with the youth’s caseworker; (3) access to the youth’s guardian ad litem, attorney, or courts; (4) wide distribution of the bill of rights; (5) youth participation in age-appropriate school activities; and (6) procedures for complaints and enforcement of the rights. 

State Trends: Child Welfare Bills of Rights

Before the Child and Family Services Improvement and Innovation Act was passed, 10 states had statutes creating a child welfare bill of rights for foster children. In 16 states, local child welfare agencies have put forth policies concerning the rights of foster children. Thus, a total of 26 states have a statute or policy that lists the rights afforded to youth in care.

Of the 10 states with child welfare bill of rights statutes, Arizona and Florida, are the only ones that include all recommended provisions.  Of the 16 states with policies establishing child welfare bills of rights, New Mexico and the District of Columbia are the only states that cover all recommended provisions. 

Most states that have a policy adopted the “Bill of Rights for Foster Children” ratified in Congress Hall in Philadelphia in 1973.3 The articles in this Philadelphia Bill of Rights do not cover all recommended provisions, but do include the provisions regarding frequent contact with parents, siblings, and family members, foster youth’s access to their advocates and the courts, and participation in age-appropriate school activities.

In addition to the recommended provisions, the ABA Center on Children and the Law (ABA) has also assessed which states’ child welfare bill of rights include:

  • protection against abuse or corporal punishment,
  • access to healthcare,
  • protections against excessive medication, and
  • preparation for independence. 

Of the states that have made the child welfare bill of rights a law, five states—California, Colorado, Maryland, Nevada, and Pennsylvania—include these additional provisions.  The child welfare bill of rights policies of Hawaii, Maine, New Mexico, New York, Texas, and Wisconsin also include these additional provisions.

In addition to the Child Waiver Demonstration Project’s recommended provisions and the ABA’s provisions, some states provide other protections.  For example:

  • Arizona and Massachusetts both allow youth to receive copies of all of their records when they leave care. 
  • California, Maine, Maryland, Texas, and Wisconsin highlight the need to protect foster youth from discrimination.
  • Colorado’s law titled “Protections for Youth in Foster Care” offers protection against discrimination and identity theft. 
  • Connecticut’s law titled “Rights of children and youths under the supervision of the Commissioner of Children and Families” allows for the youth to petition the superior court for any violations of the law, including temporary or injunctive relief.
  • Florida is the only state that emphasizes the need to ensure foster youth receive psychological and mental health services.

Advocacy Tips

States with child welfare bills of rights can take several steps to strengthen their bills and ensure children in care receive their protections.

Revisit Bills

States with child welfare bills of rights created by law or policy should
consider revisiting their bills.  The Child Welfare Demonstration Project recommended specific provisions to include in the bill of rights, and only a few states include them.  To improve child welfare bills of rights, states should include recommended provisions by the Child Welfare Demonstration Project and the ABA.

Raise Awareness

In states with child welfare bills of rights, protecting these rights requires that caseworkers, attorneys, and advocates inform foster children of the rights.  More importantly, these rights should be widely shared with all parties who come in touch with a foster youth, such as teachers, medical practitioners, day care providers, etc.  Making more people aware of these rights improves the likelihood that children in foster care will be protected and their rights will be respected and recognized.

Inform State Leaders

Many states do not have a child welfare bill of rights as a statute or policy.  Attorneys and advocates can inform their state’s leaders of the need for a child welfare bill of rights. Writing letters to local newspapers and letters to your state’s political leaders about the need to protect foster children by enacting into law a child welfare bill of rights are simple steps to bring the issue to light.  In the meantime, attorneys and advocates can collaborate and create their own proposed child welfare bill of rights policy for agencies to follow.

Involve Youth

Taking steps to disseminate existing child welfare bill of rights laws and policies or to create the first child welfare bill of rights law in a state should involve children in foster care.  Although the Child Welfare Demonstration Project and the ABA have listed recommended provisions to include in a Child Welfare Bill of Rights, these rights should include feedback from youth in care.  Their perspective is crucial to ensure rights for youth in care are identified and protected.

Children enter the foster care system when their families are unable to properly care for them and provide them the support they need.  The foster care system is supposed to provide that parental care and support to ensure that children in the system will be well cared for.  Implementing a foster care bill of rights in your state is one way to assure that children in care are protected and their rights and lives are valued while in foster care. The Child and Family Services Improvement and Innovation Act provides that if states choose to create a bill of rights they can receive funding for that project. This creates an incentive for states to continue to improve foster youth outcomes.

Jill Reyes is a fellow for the Center for Children’s Rights at Whittier Law School in Costa Mesa, CA and will be a proud alumnus of Whittier this December 2012. As a former elementary school teacher, Jill hopes to continue to advocate for children and underrepresented families as a children’s rights advocate.

Endnotes
1. https://cbexpress.acf.hhs.gov/index.cfm?event=website.viewArticles&issueid=136&sectionid=1&articleid=35302.  Section 201(D)(7)(A), P.L. 112-34, The Child and Family Services and Improvement Act of 2011 (42 U.S.C. § 1320a-9)

3. Example: www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=1973&sessInd=0&billBody=H&billTyp=R&billNbr=0180&pn=2698 Citation: H.R. 180, 1973 Leg., Reg. Sess. (Pa. 1973).