Transcript Program oversight – Role and Implications of the Courts

Program oversight – Role
and Implications of the
Courts
New England
November
2012
A Few Assumptions and
Concessions
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Court and Legal systems are not perfect
Remember a time when the court or an
attorney assisted you in securing a service
for your child
Sometimes what is fiscally conservative is
not the best solution
Ultimately we want states to extend foster
care beyond 18 – look at compromises to
achieve that desired end
Why is it important to continue
judicial oversight?
Determine whether youth meets eligibility criteria for extended care (e.g. incapacitated)
Ensure agency is providing services that are youth specific and meet the youth’s needs.
Ensure monthly caseworker visits are occurring.
Ensure youth is complying with plan to achieve success and permanency
Ensure school and board of education is giving youth what they need and what they have a
right to
Greater awareness of what the youth’s legal rights are
Youth feels more positive about staying in care after 18
Check on all professionals involved in youth’s case
Greater awareness of resources for youth – caseworkers have to recommend placement and
services that are within budget and easily accessible – court does not have those restrictions
Greater access to people who will provide stability when youth ages out
Agency may want to end care when youth are oppositional – having the court as the arbiter
can level the playing field between the youth and the agency
Gives youth more control over their future and their services/cases
Give youth access to an advocate not associated with agency
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Advocate can oppose closing case and present arguments why the youth isn’t ready for discharge
Chapin Hall 2008 study – court advocacy plays a primary role in retaining youth in care
Help agencies determine whether SILS comply with federal requirements to receive IVe
funding
Let potential guardians know about legal rights to assistance and subsidies and whether they
qualify under the state regulations/statute
Ensure educational and placement stability
Ensure continuity of health care services (LGBT)
Ensures sibling and family contact
Remaining in care after turning 18 should not affect the rights that all individuals gain when
they become legal adults.
Agency contractors sometimes have to be pushed to provide appropriate services
What are some of elements to
consider/questions to discuss
when we think about court
oversight that may be
different for a youth over 18?
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Should the child have a representative?
What should that representation look like?
How should family of the young adult be involved?
Should the family have representation?
What should the court structure look like?
How often should the court be involved?
Should the youth be involved in the court hearings?
Should other stakeholders being involved in court hearings?
Who should receive notice of the court hearing?
What’s the court’s role in re-entry?
Whether specific findings should be required.
How should we educate the young person about the court process?
Let’s look at what is required under
FCA’s extension provision
Title IVE eligibility
May extend care beyond 18 (until 21) by expanding definition of child to
include those over 18
If states opt to extend to an age less than 21, state must explain that age to
RO (programmatic and/or practical reasons)
States have flexibility to determine eligibility from these options
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Completing secondary education or a program leading to an equivalent
credential;
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Enrolled in an institution which provides post secondary or vocational
education;
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Participating in a program or activity designed to promote, or remove
barriers to, employment;
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Employed for at least 80 hours per month; or
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Incapable of doing any of the activities described above due to a medical
condition, which incapability is supported by regularly updated information
in the case plan of the young adult (state has flexibility to determine
medical condition and how to document it)
The agency must determine how to verify that youth continues to meet these
requirements (How are states implementing this?)
Removal from home
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Court ordered removal prior to age 18 – continuing jurisdiction –
no new court order to required after 18 – written consent from
youth for the agency to have care and placement responsibility
Voluntary placement prior to age 18 – continuing jurisdiction – no
new voluntary agreement required after 18
Court ordered removal after age 18 – need contrary to the
welfare and reasonable efforts findings based on the
circumstances requiring removal – court order can give care and
placement responsibility to agency
Voluntary placement after age 18 – need a voluntary agreement
signed by the youth, including language that gives consent to
agency having care and placement responsibility – if voluntary
placement lasts longer than 180 days need a judicial
determination that remaining in foster care beyond 180 days is in
the best interests of the child
Trial independence and breaks in foster care – do not need new
court findings
Reasonable Efforts to Finalize
Permanency Plan
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Court ordered removal – requirement for
judicial finding that the agency is making
reasonable efforts to finalize the permanency
plan
Voluntary placement agreement – no judicial
finding requirement
Most permanency plans for this population will
be independence and the reasonable efforts
should be outlined in the transition plan
No federal requirement prescribing the forum
in which these findings must be made
Permanency Hearings
Must be held for young adults
May be held by a judge or administrative review
Should provide notice to young adult
Should involve youth and actively include them in key decision making
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If young adult isn’t present, the court should make a finding a finding as to
whether the young adult was given notice and made an informed decision not
to attend or postpone the hearing
Identify and recruit permanent placement for child
Transition planning discussion
Determine services youth needs to transition from foster care to
independence
What does a permanency hearing for a young adult look like:
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Young adult always gets adequate notice
Young adult is always present
Has legal representation
Is the primary source of information
Has meaningful participation and input into decisions
Transition Plan
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Required for all children receiving Title IVe
reimbursement
Youth driven
Specifics on housing, health insurance,
education, local opportunities for mentors and
continuation of support services, work force
supports, and employment services
90 days before child is discharged
Use court to monitor this plan’s
implementation, especially youth driven
requirement
Transition plan hearing
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Permanent Connections
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General questions about transition plan
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Where do you go for holidays? Who do you call for support, help, advice and in
emergencies? Will those people be available after you transition out of foster care?
Do you keep in touch with family (parents, siblings, other relatives)? Do you know how
to get in touch with them?
Who will you contact after you transition out of foster care if you have any questions
health, school, housing?
Did you work with your social work on writing the transition plan? What do you like
most about your transition plan? What do you like least? Is there anything you don’t
understand about it?
Specific questions about the required topics
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Who is your doctor? Do you know whether you can continue with this doctor after
foster care terminates? If not, who will your doctor be? Doctor = general doc, ob/gyn,
psychiatrist, etc
Do you have an understanding about the importance of having a health care power of
attorney or health care proxy to make health care decisions on your behalf?
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Has someone at the agency talked to you about this?
Do you know the process for reapplying for Medicaid if necessary?
Where do you live? Are you going to live there after the case closes? If not, where are
you going to live? Do you have information on landlord/tenant rights? Where should
you go to get that information?
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Do you have a job? Will that job continue after you transition out of foster
care?
Are you in school? What is your plan for future education?
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What assistance has the young adult received to prepare for and apply to
post-secondary education or training, including assistance with financial aid
applications?
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What is the plan for post-secondary education or training?
What are the supports in place to assist you with continued educational
success?
Have you accessed Chafee services and Education and Training Vouchers
(ETVs)?
Are you eligible for other scholarships or financial assistance programs targeted
at youth in foster care including available state tuition assistance programs?
Do you know how to get access to your medical records or health passport?
Do you have a dentist? Can you keep that dentist after you age out of
foster care?
Do you have health insurance for when you transition?
Does the youth/young adult have an understanding of the basic
governmental, community and housing services available to them after
discharge?
What aftercare services will be provided by the state?
Is there anything else you need assistance with?
Periodic Reviews
Must be held for young adults
May be held by a judge or administrative review
Should provide young adult notice and involve her in the hearing
Agency should develop a status report
Topics to be discussed:
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Whether young adult is safe in her placement
Whether continued foster care is appropriate
Whether appropriate and meaningful independent living skill services
are being developed
The progress made towards achieving independence on a projected
date.
Sibling placements and visitation
Court may order additional services
Hearing day and time should take into account young adult’s
schedule
Re entry
Youth must be engaged in activities outlined in Title IVE
eligibility
Youth must not be 21
States have flexibility
Benefits to re entry
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Youth don’t want system involvement at 18 but then learn that they
need it
Youth have a good transition plan but something falls through
Youth didn’t know they could stay in care
Allow youth to make mistakes and still receive support
Safety net for young adult
Different types of re entry
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Explicit trial discharge set by the judge and case remains open for set
period of time
Create statutory allowance for temporary discharge (e.g. 1 year)
Allow youth to come back into care anytime until 21
Legal Representation
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What are the options?
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Traditional attorney
Guardian ad litem (attorney)
CASA – lay advocate
Continuing whatever advocate was appointed
when child was under 18
Why attorney?
Due Process - Technically an adult now going through court and
complicated administrative proceedings without legal counsel
Youth old enough to have opinion and to be heard
Advise youth about legal rights for staying in care
Advise youth about placement and services available
Advocate for youth when case may be closed
Holds agency accountable
Advise youth when she wants to leave care
Confidentiality and zealous advocacy
Help young adults develop self advocacy skills
Prepare and debrief young adults for their court hearings
May need attorney for other legal matters
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LL/T
Immigration
Domestic
Criminal
Public benefits
Health care
In some states youth have to request extension – legal counsel can help
them weigh the options and then make that request
Parental/Family Involvement
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Presumption should be family participation
in administrative reviews and court
hearings, but judges may exclude them
when appropriate, including at the request
of the young adult
Termination of Care
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What ways can a case be terminated?
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The young adult knowingly and voluntarily
withdraws consent to participate in care;
The young adult exits foster care to a
permanent home consistent with her
permanency plan;
The young adult is no longer eligible under
state eligibility criteria; or
The young adults 21st birthday (or the
state’s maximum age)
Voluntary Termination
Court hearing should be held before termination
At that hearing, several things should be required
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Young adult and attorney should be present
Findings by the court
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Young adult has been informed by the attorney of the right to
attend the hearing and has provided written consent to waive
this right;
The young adult has been informed of the potential negative
effects of terminating care early, the option to re enter care
before reaching age 21, the procedure and limitations on re
entering care, the availability of after care services, and that the
young adult has signed a document attesting that she has been
so informed and understands these provisions; and
The department has implemented a transition plan
What should the last hearing
before a child turns 18 look like?
Court should address whether the child plans to remain in foster
care, and if so, ensure the child’s transition plan includes a plan
for meeting one or more of the IVE eligibility criteria
Ensure the child has been informed of:
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The
The
The
The
right
right
right
right
to
to
to
to
request discharge
continued services
legal representation
re entry
If the young adult requests termination of jurisdiction, the court
shall ensure the young adult has been informed of:
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Any services or benefits the young adult is eligible for, including
Chafee services
Any services or benefits that may be lost through termination
And additional support or services available to the child
Andrea Khoury
American Bar Association
Center on Children and the Law
Bar Youth Empowerment Project
National Child Welfare Resource Center on
Legal and Judicial Issues
[email protected]
202-662-1730