March 01, 2013

Role of Judges in Implementing Fostering Connections: Tribal Foster Care and Adoption Access Provisions

Grandfamilies State Law and Policy Resource Center

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 primarily designed to promote permanent families for children and youth in foster care. This law encourages:

  • maintaining family connections (June 2012 CLP), 
  • supporting youth transitioning from foster care (August 2012 CLP),
  • ensuring the health and educational well-being for foster youth (October 2012 CLP),
  • maintaining sibling ties (Jan. 2013 CLP), and 
  • providing many Native American children important 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 issue).

Read on for a brief overview of the provisions for Native American Tribes. General judicial considerations for implementation and questions to ask from the bench to help ensure compliance with the law and best practice are provided.

Title III: Tribal Foster Care and Adoption Access

Section 301: Equitable Access for Foster Care and Adoption Services for Indian Children in Tribal Areas

Section 302: Technical Assistance and Implementation

Overview – Section 301

Until passage of Fostering Connections, Indian tribes did not have the option of accessing Title IV-E funds directly in order to administer their own foster care or adoption assistance programs. In the past tribes have had to enter into state tribal agreements with state Title IV-E programs and comply with all state and federal requirements in order to obtain Title IV-E funds for children in tribal care. 

Fewer than 100 tribes have had access to Title IV-E funds through such agreements. Further, the Title IV-E agency is expected to negotiate these agreements in good faith with all parties given the opportunity to contribute to the agreement. Under Fostering Connections, tribes may now directly access Title IV-E funds for local tribal foster care, guardianship assistance and adoption assistance programs.

Fostering Connections encourages tribal-state collaboration and allows states and tribes to continue to operate or create Tribal/State agreements to administer the IV-E program and, for the first time, allows tribes or tribal consortia to directly access funds from the federal government and administer the Title IV-E funds for children in the tribe’s care. Tribes who directly contract with the federal government for Title IV-E funds will have to set up their own programs, standards, rules, and policies that will have to be consistent with federal requirements. 

These tribal programs and policies will permit tribes more flexibility on important cultural issues, such as: licensing standards for foster families, how to define “aggravated circumstances” and “compelling reasons”, not including termination of parental rights as a dependency outcome, and the use of permanent and subsidized guardianships as a permanency outcome rather than adoption. Fostering Connections also allows tribes to access a portion of the state’s Chafee Foster Care Independence Program (CFCIP) funds and requires the tribe to provide independent living services for tribal youth in the state. 

Additionally, nunc pro tunc tribal court orders to document reasonable efforts and contrary to the welfare findings are allowed, if previous orders did not include these findings. These orders are allowed for the first 12 months that a tribe, tribal organization or tribal consortium operates a IV-E funded program under this Act in order to access Title IV-E funding for children who are already placed in care.

Overview—Section 302

To support this initiative, Fostering Connections requires the Secretary of the Department of Health and Human Services to provide technical assistance and implementation services dedicated to improving services and permanency outcomes for Native American children. One time grants of up to $300,000 will be available to tribes that apply for funding to assist in the developing and the transition to administering their own tribal Title IV-E program directly.

See: Technical Assistance Document to Assist Tribes Implement a Direct Title IV-E Program, http://www.acf.hhs.gov/programs/cb/resource/tribal-considerations.

For a list of tribes that have been awarded development grants to date, see: 

  • www.acf.hhs.gov/programs/cb/programs_fund/discretionary/2009.htm, and 
  • www.acf.hhs.gov/programs/cb/programs_fund/discretionary/2010.htm

Judicial Considerations

Is a nunc pro tunc order needed to document reasonable efforts and contrary to the welfare findings?

  • This is allowed only for the first 12 months that the Title IV-E funded program is in effect, if such finding was not previously made by the court.
  • Fostering Connections requires such documentation to determine child and case eligibility for Title IV-E reimbursement.

Have any tribes, tribal organizations or consortia in your jurisdiction applied to administer their own Title IV-E program?

Have any tribes, tribal organizations or consortia in your jurisdiction applied for a Tribal Title IV-E Plan Development Grants to administer their own Title IV-E program? 

See: www.acf.hhs.gov/programs/cb/programs_fund/discretionary/2009.htm, and www.acf.hhs.gov/programs/cb/programs_fund/discretionary/2010.htm

Questions to Ask from the Bench

  • Has the agency determined if the Indian Child Welfare Act (ICWA) applies?
  • Has the Tribe taken jurisdiction over this child for purposes of the Indian Child Welfare Act and Title IV-E?
  • How will services continue to be provided to the child and family once the case is transferred to the Tribe?
  • Does the Tribe need a nunc pro tunc order and if so, what were the reasonable efforts and contrary to the welfare circumstances at the time of the removal?

The Grandfamilies State Law and Policy Resource Center serves as a national legal resource in support of grandfamilies within and outside the child welfare system.  Visit www.grandfamilies.org.