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Overview and Kinship Provisions National Resource Center on Legal and Judicial Issues February 1, 2011 Fostering Connections to Success and Increasing.

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Presentation on theme: "Overview and Kinship Provisions National Resource Center on Legal and Judicial Issues February 1, 2011 Fostering Connections to Success and Increasing."— Presentation transcript:

1 Overview and Kinship Provisions National Resource Center on Legal and Judicial Issues February 1, 2011 Fostering Connections to Success and Increasing Adoptions Act of 2008: What Court Systems Need to Know

2 © 2011 ABA Center on Children and the Law Agenda Overview of Fostering Connections Act Kinship Provisions Other Provisions: Tribal Foster Care and Adoption Access Coordinated Health Plan Adoption Provisions Funds for Expanded Child Welfare Training

3 © 2011 ABA Center on Children and the Law Progress for Children and Families Fostering Connections to Success and Increasing Adoptions Act (P.L ) signed into law on October 7, 2008 Most significant federal reform for abused and neglected children in more than a decade Some provisions are optional and others are mandatory May require legislation, policy changes and/or submission of amended title IV-E plans

4 © 2011 ABA Center on Children and the Law Summary of Law The new law promotes: Permanent families for children with relatives Adoption for foster children with special needs Linkages through Family Connections Grants Reasonable efforts to place and connect children in foster care with siblings

5 © 2011 ABA Center on Children and the Law Summary of Law (contd) Expanded support and transition planning for older youth in foster care Educational stability and attendance requirements for children in foster, kinship and adoptive families Coordinated health planning for children in foster care Direct access of tribes to IV-E funds and technical assistance upon submission of plan Expanded funding for training to cover private agency staff, judges, attorneys, CASA, relative guardians, and others

6 © 2011 ABA Center on Children and the Law Childrens Bureau Guidance Program Instruction (PI) on the law (7/9/10): ACF-CB-PI ACYF-CB-PI or download pdf at ACYF-CB-PI Revised Title IV-E plan pre-print that incorporates Fostering Connections: i/2009/pi0908.htm i/2009/pi0908.htm A list of key Children's Bureau policy, guidance and other implementation activities related to Fostering Connections: entation_foster.htm entation_foster.htm

7 © 2011 ABA Center on Children and the Law Role of the Judge Judicial oversight at every hearing to ensure successful implementation of new law law only effective if properly implemented ASFA well being inquiry Judge may be the only one who asks implementation questions Convince state legislators and agency to take advantage of optional provisions and need for proper implementation and training

8 © 2011 ABA Center on Children and the Law Provisions Affecting Kinship Families Promoting Permanent Placements with Grandparents and Other Relatives

9 © 2011 ABA Center on Children and the Law The Numbers 6 million children live with relatives with/without parents 2.5 million have no parents in the home 2010 data: 6.5 % of children in the US live with their grandparents, a 20-year high and an increase of 8 % compared with 2009 Vast majority of children are outside of the foster care system, only 1 of every 18 children living with relative is in foster care

10 © 2011 ABA Center on Children and the Law Kinship Care Improves Child Welfare Outcomes Reinforces safety, stability, well-being Reduces trauma Reinforces childs sense of identity Helps keep siblings together Honors family and cultural ties Expands permanency options Can reduce racial disproportionality * Is Kinship Care Good for Kids?, Tiffany Conway and Rutledge Q. Hutson, Center for Law and Social Policy, March 2007

11 © 2011 ABA Center on Children and the Law General Challenges of Kinship Care Kinship care policy and practice is challenging because: Complicated family relationships Philosophical tensions: law, policy and practice Funding limitations Service delivery in silos Balancing training and licensing requirements to meet unique needs of kinship caregivers Diversion: providing help and preventing system re-entry

12 © 2011 ABA Center on Children and the Law Challenges for Kinship Care Families Access to accurate information & fear of systems Public housing and other public benefits Enrolling children in school and accessing medical care Understanding legal options & finding affordable legal services Trauma and guilt over decisions of adult children Physical and mental health issues: caregivers & children Corrosive myths – apple doesnt fall far from the tree

13 © 2011 ABA Center on Children and the Law Challenges to the Courts Balancing best interests of the child with family needs Ensuring compliance with complex state and federal laws Lack of systemic and community resources for children and families Lack of access to key case and family information to guide decisions

14 © 2011 ABA Center on Children and the Law Guardianship Assistance (GAP) State option to use Title IV-E funds to provide assistance to children who leave foster care for legal guardianship with a relative Known as subsidized guardianship or GAP Children are eligible for Medicaid Children not required to have special needs Monthly amount up to foster care payment amount (may not exceed) Payments available until child turns 18 (or 21) States must pay non-recurring costs of legal guardianship (e.g., legal fees) up to $2,000

15 © 2011 ABA Center on Children and the Law Guardianship Assistance (GAP) If child is eligible for federal adoption assistance when placed with guardian, child continues to be eligible if guardian wants to adopt the child later Guardianship agreement remains in effect even if the guardian moves to another state. Effective 10/7/08, state must amend IV-E plan, some states need legislation Program instructions:ACYF-CB-PI and htm 07.htm 01.htm 01.htm

16 © 2011 ABA Center on Children and the Law Guardianship Assistance: Eligible Children Must be eligible for Title IV-E foster care Must live with licensed relative for 6 consecutive months prior to guardianship Must demonstrate a strong attachment to the prospective relative guardian If age 14 and older, must be consulted about guardianship arrangement before it is finalized May include siblings of eligible children and those children already receiving guardianship assistance under federal waiver as of September 30, 2008 PI allows states to define sibling for purposes of GAP

17 © 2011 ABA Center on Children and the Law Guardianship Assistance: Eligible Guardians Must be relatives PI gives states discretion to define relative either narrowly or broadly Should have consistent definition with notice Willing to assume legal guardianship of the child Have a strong commitment to care for the child permanently Must have cared for child for at least 6 consecutive months as a licensed foster parent (need criminal record and child abuse registry checks)

18 © 2011 ABA Center on Children and the Law Guardianship Assistance: State Requirements States who opt to provide payments must: Amend and submit a revised state Title IV-E plan to the Administration for Children and Families Provide state and local dollars required to match federal dollars for the program Although law does not require states to amend current laws, amendments/new laws may be needed to implement Negotiate a written assistance agreement (similar to adoption assistance agreements) with prospective guardians Must specify amount of payment and manner of adjustment of payment

19 © 2011 ABA Center on Children and the Law Guardianship Assistance: Suggested Court Findings Once program is established, states must document and court should make findings on: Why return home and adoption are not appropriate permanency options, The reasons for any separation of siblings, The reasons why a subsidized guardianship is in the childs best interests, The ways in which the child meets the eligibility requirements, efforts to discuss adoption with kinship caregivers and guardianship with parents

20 © 2011 ABA Center on Children and the Law Status of State Guardianship Option 8 states have passed laws adopting this option: Alabama, Arkansas, Colorado, Michigan, New York, Texas, Vermont and Washington. By law, no state legislation is required to implement 2 States have pending legislation: California, Pennsylvania 12 states have submitted plans to HHS and are awaiting approval: Alabama, Connecticut, Louisiana, Maryland, Massachusetts, Missouri, Nebraska, Oklahoma, South Dakota, Texas, Vermont, and Washington. 11 state plans have been approved: Colorado, District of Columbia, Illinois, Maine, Michigan, Montana, New Jersey, Oregon, Pennsylvania, Rhode Island and Tennessee. See: to track this legislationwww.grandfamilies.org

21 © 2011 ABA Center on Children and the Law Judicial Considerations How does your state define relative? Is licensing for relatives required by state law? Are fictive kin included in definition? Maternal and paternal relatives Is guardianship the most appropriate option and in childs best interest? Why reunification and adoption are not an option Does child demonstrate a strong attachment to the prospective relative guardian? How demonstrate? Was the child age14 and older consulted and younger if developmentally appropriate? Is the guardian committed and able to care for child permanently?

22 © 2011 ABA Center on Children and the Law Judicial Considerations What is relationship between guardian and parents – orders should include: Contact, visitation plan - supervised, location, frequency, best interest controls Plan to keep siblings connected Rights of guardians and rights of parents Named successor or standby guardian or require hearing Are there any other necessary provisions or conditions? Is there a clear process for modifications, parental petitions for visitation and to re-gain custody? Are there trained lawyers to represent relatives in your area - legal fees are covered by non-recurring costs

23 © 2011 ABA Center on Children and the Law Family Connection Grants Authorizes $15 million annually for the Family Connection Grant Program (no new grants for 2010) Reserves $5 million for kinship navigator programs Competitive federal grants may be used for: Kinship navigator programs Intensive family finding Family group decision-making or other similar conferencing Residential, family-based substance abuse treatment Available to states, tribes, large metro areas and non-profits working with children in foster or kinship care 24 recipients announced September 2009: up to one million dollars per year for up to 3 years

24 © 2011 ABA Center on Children and the Law Judicial Considerations Determine if there are any of these programs in your area, either created by grant or existing If there are such programs, learn about eligibility requirements Refer families and/or ensure referrals have been made to programs, if appropriate Are there other similar programs that help maintain family connections?

25 © 2011 ABA Center on Children and the Law Notice Requirements Requires states to use due diligence to identify and notify all adult relatives Exception for family and domestic violence Notice within 30 days of removal from parents custody Effective 10/7/08 unless state legislation required and permission for delay

26 © 2011 ABA Center on Children and the Law Notice Requirements (contd) Notice must: Specify the child removed from parent(s) custody Explain options to participate in care and/or placement and options lost for failure to respond Describe requirements to become foster parents Outline available services and supports Describe GAP, if state has chosen this option Can use Federal Parent Locator Service to locate PI encourages engagement of relatives for children at risk of removal and encourages notice in writing

27 © 2011 ABA Center on Children and the Law Judicial Considerations Ask agency if they have identified and notified relatives at the first hearing and all subsequent hearings What due diligence efforts were made & how documented how is due diligence defined in your state combination of good casework and technological resources Paternal, maternal and non custodial relatives notified Be familiar with your state notice laws and policies How are relatives defined in your state (consistent with GAP) Are there reasons to use family or domestic violence exceptions Who will make this determination – court, agency How will this be applied/defined and by whom

28 © 2011 ABA Center on Children and the Law Judicial Considerations Ask parents and child from the bench to help identify relatives and possible placement and family resources if parents refuse, advise them child may be placed with people they dont know Help clarify placement options and make sure relatives understand ALL options – formal and informal Ensure that families, including the relative caregiver understand the role of the relative in the process Are the family members aware of ways that they may stay connected with the child and engaged in the childs case, even if they are not a placement option for the child?

29 © 2011 ABA Center on Children and the Law Licensing for Relative Caregivers To increase the availability of licensed foster care homes with relatives, the new law: Allows states to waive non-safety-related licensing standards for relatives on a case-by-case basis (e.g. square footage requirements) States have discretion to establish licensing standards and define which are non-safety Requires HHS to submit report to Congress by 10/10 on state licensing standards for relatives and recommendations to increase the number of licensed relative foster homes See for all state waiver laws and policies and new resource: Relative Foster Care Licensing Waivers in the States: Policies and Possibilitieswww.grandfamilies.org

30 © 2011 ABA Center on Children and the Law Judicial Considerations What are your states licensing requirements for relatives? What is the states philosophy and practice re: licensing relatives as foster parents What are the common reasons why relatives are not licensed? What are the barriers for licensing a relative for this child? What are the minimum licensing requirements Which standards are considered safety vs. non safety standards Ensure safety standards are not waived What is your states policy on waivers of licensing requirements? Are waivers consistently applied to all by all and reason for waiver documented? Does policy differ from actual practice?

31 © 2011 ABA Center on Children and the Law Sibling Provisions States must make reasonable efforts to place siblings together in foster, kinship and adoptive homes unless contrary to the safety or well-being of a child If siblings not placed together, states must document why not and: Must make reasonable efforts to provide frequent visitation or other on-going contact between siblings, unless states document that contact would be contrary to the safety or well-being PI encourages periodic assessment of placement and visitation and allows states to define siblings Frequent visitation defined as at least monthly

32 © 2011 ABA Center on Children and the Law Judicial Considerations Courts should review documentation of reasonable efforts to keep siblings together and if not together, why not Inquire at each hearing if circumstances have changed that would allow for placement with siblings Siblings should have written visitation plan to ensure visits Sibling visits can not be dependent on parental visits How does your state plan for siblings with varying needs? Older vs. younger, adoption vs. other permanency options What about the childs wishes with regard to sibling placement and visitation? How does your state define sibling? What about visits with siblings not in care, half siblings, siblings placed with different sides of the family (paternal)?

33 © 2011 ABA Center on Children and the Law Other Provisions Tribal Foster Care and Adoption Access Coordinated Health Plan Adoption Provisions Funds for Expanded Child Welfare Training

34 © 2011 ABA Center on Children and the Law Tribal Foster Care and Adoption Access Direct Tribal Access to IV-E funds

35 © 2011 ABA Center on Children and the Law Direct Tribal Access to IV-E funds Allows tribes or tribal consortia, as of 10/1/09, to administer their own Title IV-E programs and receive funds directly from the federal government Allows for direct tribal access to foster care, adoption assistance and guardianship assistance for IV-E eligible children only Must submit a plan including a description of service areas and populations to be served (one tribe to date) Alternatively tribes may choose to continue to administer child welfare programs and receive funds through tribal/state agreements PI - Title IV-E agency required to negotiate agreement in good faith (all parties have opportunity for input) Tribes may apply for states Chaffee funds, to be taken from tribes allotment and provided directly to the tribe

36 © 2011 ABA Center on Children and the Law Tribal Foster Care Nunc pro tunc tribal court orders documenting reasonable efforts and contrary to the welfare findings allowed for the first 12 months that a tribe, tribal organization or tribal consortium operates a IV-E plan requires such documentation to determine child and case eligibility for Title IV-E reimbursement. Requires HHS to provide technical assistance and grants to assist with transition to administer their own programs One time development grants of up to $300,000 are available to tribes that apply to assist in developing tribal Title IV-E programs Technical assistance document to assist tribes implement a direct title IV-E program: iderations.htm iderations.htm

37 © 2011 ABA Center on Children and the Law Judicial Considerations Has the agency determined if the Indian Child Welfare Act (ICWA) applies? Has the Tribe taken jurisdiction over a specific Indian child for purposes of ICWA and IV-E purposes? How will services continue to be provided to the child and family once the case is transferred? Does the tribe require 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? Have any tribes, tribal organizations or consortia applied to administer their own Title IV E program in your jurisdiction? ionary/2009.htm ionary/2009.htm

38 © 2011 ABA Center on Children and the Law Coordinated Health Plan The new law requires states to develop a plan as part of their IV-B Plan for the ongoing oversight and coordination of health care services for children in foster care The plan must be developed in coordination & collaboration with the state Medicaid agency, pediatricians and other appropriate experts

39 © 2011 ABA Center on Children and the Law Coordinated Health Plan The plan must describe how: Initial and follow up health screenings will be provided (schedule) Health needs will be monitored and treated Medical information will be updated and shared Steps to ensure continuity of health care services (may include establishing a medical home) Oversight of prescription medications, including psychotropic drugs, will be ensured

40 © 2011 ABA Center on Children and the Law Patient Protection and Affordable Care Act (P.L ) Law signed on March 23, 2010 Ensures that children receiving independent living services and/or education and training vouchers and those who are aging out of foster care have: information and education about the importance of having a health care power of attorney or health care proxy and provides the youth with the option to execute such a document. See program instruction: 010/pi1010.htm 010/pi1010.htm

41 © 2011 ABA Center on Children and the Law Judicial Considerations Ask how the childs health care needs are being coordinated? Ensure regular, proper health, mental health, dental services are being provided How often does the child see a doctor? What is the overall quality of the health care the child is receiving? Does the child have a medical passport? Have there been periodic assessments of prescription medication, including psychotropic drugs? Courts can act as powerful and effective conveners of multiple systems If necessary, a judge can request a meeting or order the provision of specific services

42 © 2011 ABA Center on Children and the Law Adoption Provisions Supporting Adoptive Families for Children in Foster Care

43 © 2011 ABA Center on Children and the Law Adoption Assistance: De-Link Gradually removes the link between a childs eligibility for federal adoption assistance payments and the parents AFDC- eligibility requirements at time of removal, as required by Title IV-E Child must still be special needs to qualify Automatically qualifies SSI-eligible children (based solely on medical and disability requirements) for adoption assistance Requires states to reinvest any state funds saved in other child welfare services Program instruction listing criteria for de linking: 009/pi0910.htm 009/pi0910.htm

44 © 2011 ABA Center on Children and the Law Adoption Assistance: Phased-in Eligibility Beginning with adoptions finalized on 10/1/09, makes eligible those children who are special needs and: Have been in care 60 consecutive months Siblings of eligible children placed in same home Incremental, beginning with the oldest youth Adds, by age, a new group of children, by 2 years, each fiscal year16 and older on 10/1/ and older on 10/1/10 (FFY 2011) and so on Also includes siblings of eligible children By 10/1/17, makes all children with special needs, regardless of income or age, eligible for federal adoption assistance PI – states may not target to a subset of children

45 © 2011 ABA Center on Children and the Law Adoption Incentive Payments Program Renews Adoption Incentive Payments Program until 2013 Resets adoption baseline based on # of adoptions in FY 2007 Doubles the incentive payments for adoptions of older children and children with special needs Increase for children ages nine and older to $8000 Increase for children with special needs to $4000 Gives states 24 months to spend their adoption incentive payments (previously had 12 months) Awards additional incentive payments to states that exceed their highest adoption rates since 2002 (if sufficient funds) Adoption incentive information memo: 009/im0903.htm 009/im0903.htm

46 © 2011 ABA Center on Children and the Law Expanded Outreach: Adoption Tax Credit The new law requires states to inform all people who are adopting or considering adoption of a child in state custody about their potential eligibility for the adoption tax credit Tax credit for qualifying expenses paid to adopt eligible child Research shows majority of taxpayers who use adoption tax credit adopt children through private agencies and attorneys In March 2010, Public Law , the Patient Protection and Affordable Care Act, extended the adoption tax credit to 12/31/11 Increased the per-child credit for 2010 by $1000 and made the credit refundable for 2010 and 2011.

47 © 2011 ABA Center on Children and the Law Judicial Considerations What are the agencys recruitment efforts for adoptive parents? What efforts has the agency made to find an adoptive placement for this child? What are the barriers to finalizing an adoption? Who has the ability to remove the barriers to adoption? When will those barriers be removed? Review timelines for completing adoptions in your jurisdiction Expedite backlogs and appeals for adoption cases Conduct frequent reviews of freed children to speed finalization

48 © 2011 ABA Center on Children and the Law Judicial Considerations Has the child been in care for greater than 60 months or older than 16 years of age? Create a sense of urgency for adoption of youth in care over 60 months Encourage adoptions of older youth and youth with special needs Has adoption been explained and discussed with the child? Ask prior to finalization if the adoptive parent has received information about the adoption tax credit What efforts are made to ensure they understand the eligibility requirements?

49 © 2011 ABA Center on Children and the Law Funds for Expanded Child Welfare Training

50 © 2011 ABA Center on Children and the Law Expands Training Allows states to claim Title IV-E training funds for: CASAs, private child welfare staff, court personnel, attorneys, guardian ad litems and prospective relative guardians Phases in the match rate for new trainees starting at 60% in FFY 2010, to increase by 5% each FFY, up to 75% in FFY 2013

51 © 2011 ABA Center on Children and the Law Judicial Considerations Identify specific training needs and necessary resource materials for the education and training of professionals Develop or contract for training curricula and/or collaborate on providing training for lawyers, volunteer GAL/CASAs, court personnel and legal training for relative caregivers and private agency staff Has the court conducted any such training? Has the court encouraged cross training between the judiciary and other professionals?

52 © 2011 ABA Center on Children and the Law Judicial Considerations How has the state planned for the use of training dollars for these legal training purposes? Can the training dollars be combined with other resources, such as Court Improvement Project funding? In order to claim these IV E Funds, courts should enter an inter-agency agreement with the state IV E agency Has the state IV E agency amended its quarterly IV-B plan, to indicate that it may expand training costs to new entities as allowed under Fostering Connections Act Not required, but would enable the state to claim training costs both prospectively and retroactively (to 10/07/08 or up to 2 years, whichever is less).

53 © 2011 ABA Center on Children and the Law Additional Resources NEW RESOURCE: coming Spring Judicial Guide to Implementing the Fostering Connections to Success and Increasing Adoptions Act of 2008: For summaries, full text of law and additional resources: and Extensive Kinship Q & A - New Help for Children Raised by Grandparents and Other Relatives: Other resources available at:

54 © 2011 ABA Center on Children and the Law For more information or kinship technical assistance requests contact: Heidi Redlich Epstein, JD, MSW Director of Kinship Policy ABA Center on Children and the Law


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