Courtroom Advocacy for Young Children in Foster Care Sheryl Dicker, J.D. Assistant Professor of Pediatrics Albert Einstein College of Medicine Former Executive Director NY Permanent Judicial Commission on Justice for Children

Health Profile of Young Children in Foster Care Over 1/2 have chronic medical conditions Over 1/2 have significant developmental delays Over 1/2 over age 3 require clinical intervention for behavioral/emotional problems

Health Status of Children Entering Foster Care: Infants  Drug Exposure 50%  HIV Exposure times community  Growth Failure 20-40%  Immunization Delay in 75% at 7 months  Developmental Delay-50%  Developmental/emotional neglect  Abuse

Young Children in Foster Care  More likely to enter, remain in care, re-enter child welfare system  Largest cohort of victims of substantiated abuse & neglect  Half of all substantiated medical neglect

Connections to Permanency  Parenting a child with health problems or disability can drain emotional, financial and physical resources of families  Children with disabilities are maltreated twice as often as children without disabilities  Emotionally neglected 3x as often  Physically abused and neglected 2x as often (National Center on Child Abuse and Neglect)

Adoption & Safe Families Act of 1997  Emphasized child welfare system’s goals of –Safety –Permanency –Child & family well-being  Clarifies circumstances under which states do or do not remove or reunify  Child’s health and safety is the paramount concern  Time frame for Termination Parental Rights –15/22 months

ASFA Regulations  Federal ASFA regulations specifically hold States accountable for providing services to address the "safety, permanency and well-being of children and families." (45 C.F.R. Part 1357 § b (2))  States must ensure that:  "families have enhanced capacity to provide for their children's needs;  children receive appropriate services to meet their educational needs; and  children receive adequate services to meet their physical and mental health needs." (45 C.F.R. Part 1357 § b(1)(iii))

CFSR  HHS monitors every State’s compliance with ASFA through the Child and Families Services Review  No State passed  Most States failed the well-being requirements: –Physical Health –Mental Health –Education

Medicaid/EPSDT  All foster children eligible for Medicaid  All children under age 21 enrolled in Medicaid are entitled under federal law to receive Early Periodic Screening Diagnosis and Treatment (EPSDT) services  Includes immunizations, hearing, dental,vision, lead exposure screening and physical and mental health care to correct or ameliorate diagnosed conditions

Fostering Connections to Success and Increasing Adoption Act of 2008  Kinship guardianship assistance(live 6mos w. relative in foster care; same rate as fc)  Oversight and coordination of health care( state plans)  Improves state adoption assistance  Promotes educational stability for school- aged children

Part C- Early Intervention Program  Children from birth to 3 rd birthday  Based on research finding that if intervene early can address or ameliorate developmental delays and disabilities  Based on research finding that infants and toddlers require an array of health, education, social and therapeutic services in the context of families

Part C  Part C is a part of IDEA while procedural provisions apply, it is not special education  2- generation program- parents( bio, foster,adoptive, relatives) and eligible children can receive services on IFSP  Eligible child: functional definition of delay in 1 of 5 domains( physical development,cognitive, communication, social-emotional, adaptive)or having a condition with a high probability of resulting in delay( ie Downs syndrome, fetal alcohol syndrome)

Child and family support services-Child and family support services- Assistive technology devices and services Audiology Family training, counseling, home visits and parent support groups Medical services only for diagnostic or evaluation purposes Nursing services Nutrition services Occupational therapy Physical therapy Psychological services Service Coordination Social Work services Special instruction Speech-language pathology Vision services Health services Transportation and related costs

Part C  Administered by lead state agency not local school districts  Surrogate parents may be needed to consent to evaluation, IFSP, services  Major issue- transition– in 2 nd circuit no ‘stay put’ provision—

Why It is Important to Connect Maltreated Children to Early Intervention National Indicators for Early Intervention to Young Children in Foster Care. American Academy of Pediatrics and the Child Welfare League of America recommend that children in foster care receive a developmental evaluation as early as possible. (AAP,2000; CWLA, 1988). National Institute of Medicine recommendation that all children under age three in the protective services system should be referred to EIP. (Shonkoff & Phillips, 2000). Research showing that children with disabilites are two to three times more likely to be maltreated than children without disabilities (Jaudes & Shapiro, 1999). Recent trends in child welfare law and practice to focus on children’s well-being and permanency, including ASFA 1997, which makes children’s health and safety paramount in child protective proceedings and its regulations require states to address the medical, eductional, and mental health needs of children in foster care. (Pub. L )

The Keeping the Children and Families Safe Act of 2003 Amended the Child Abuse and Prevention Treatment Act (CAPTA) (P.L ) and requires that each state develop “provisions and procedures for referral of a child under age 3 who is involved in a substantiated case of child abuse or neglect to early intervention services funded under Part C of the Individuals with Disabilities Act (IDEA).”

Individuals with Disabilities Act Part C of 2004  States receiving Part C funds must describe “State policies and procedures that require the referral for Early Intervention services of a child under the age of three who is involved in a substantiated case of abuse or neglect”

American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases  Primary duty to protect legal rights of child  Same duties of loyalty, confidentiality and competent representation as is due to adult clients  Must advocate a child’s articulated position  Not mere fact-finder, but zealous advocate

American Bar Association Standards of Practice General Authority and Duties The child’s attorney should:  Obtain copies of all pleadings and relevant notices  Participate in depositions, negotiations, discovery, pretrial conferences and hearings  Inform other parties of representation and expectation of reasonable notification of hearings, changes in placement and permanency plans  Reduce case delays and ensure court recognizes need to promote timely permanency  Counsel child on proceedings, rights and lawyer’s role  Identify appropriate family and professional resources for the child (including counseling, educational and health services, substance abuse programs for child and other family members, housing and entitlements)

American Bar Association Standards of Practice Actions to be Taken  Meet with the child  Investigate  File Pleadings  Request Services

American Bar Association Standards of Practice Meeting Child and Investigations  Meet with child prior to all court appearances and when apprised of significant events  Conduct thorough, ongoing and independent investigations and discovery which may include files concerning child protective services, developmental disabilities, health, mental health and education  Contact lawyers for other parties, GALs and CASAs  Obtain authorizations for release of information  Attend treatment, placement, administrative and other proceedings involving legal issues and school case conferences

American Bar Association Standards of Practice File Pleadings Relief requested may include, but not limited to:  Mental or physical examination of party or child  Parenting, custody or visitation evaluation  Visitation changes  Restraining or enjoining change in placement  Contempt for non-compliance with court order  TPR  Request services for child or family  Dismissal of petitions or motions

American Bar Association Standards of Practice Request Services Consistent with child’s wishes and by court order if necessary:  Family preservation or reunification services  Sibling and family visitation  Child support  Domestic violence services  Medical and mental health care  Substance abuse treatment  Parenting education  Independent living services  Education  Recreation and social services  Housing

American Bar Association Standards of Practice Children with Special Needs  Attorney should assure child receives services to address physical, mental or developmental disabilities including: – Early Intervention –Special education and related services –SSI –Therapeutic foster or group home care –Residential and outpatient psychiatric treatment

American Bar Association Standards of Practice Implementation of Court Orders  Attorneys should monitor implementation of court orders  Ensure services are provided and that court orders are implemented in a complete and timely manner  Lawyer should consider filing any necessary motions to compel implementation

Checklist for the Healthy Development of Foster Children We would move closer to achieving the goal of healthy development and permanency for every foster child if at least one person involved in a child welfare case asks questions to highlight that child’s health needs and identify gaps in services --Ensuring the Healthy Development of Foster Children: A Guide for Judges, Advocates and Child Welfare Professionals (1999)

Permanent Judicial Commission on Justice for Children Checklist for the Development of Foster Children  Has the child received a comprehensive health assessment since entering foster care?  Are the child’s immunizations complete and up-to-date for his or her age?  Has the child received hearing and vision screening?  Has the child received screening for lead exposure?  Has the child received regular dental services?  Has the child received screening for communicable diseases?

Permanent Judicial Commission on Justice for Children Checklist for the Development of Foster Children  Has the child received a developmental screening by a provider with experience in child development?  Has the child received mental health screening?  Is the child enrolled in an early childhood program?  Has the adolescent child received information about healthy development?

Ensuring the Healthy Development of Infants in Foster Care: A Guide for Judges, Advocates and Child Welfare Professionals

What are the medical needs of this infant?  What health problems and risks are identified in the infant’s birth and medical records (e.g. low birth weight, premature birth, prenatal exposure to toxic substances)?  Does the infant have a medical home?  Are the infant’s immunizations complete and up-to-date?

Common Medical Diagnoses Seen in Infants in Foster Care  Fetal Alcohol Syndrome  Congenital infections-HIV, hepatitis and syphilis  Growth failure, failure to thrive  Shaken Baby Syndrome  Lead poisoning  Respiratory illness  Hearing and vision problems

What are the developmental needs of this infant?  What are the infant’s risks for developmental delay or disability?  Has the infant had a developmental screening/assessment?  Has the infant been referred to the Early Intervention Program?

Developmental Red Flags  Premature birth  Low-birth weight  Abuse or neglect  Prenatal exposure to substance abuse

What are the attachment and emotional needs of this infant?  Has the infant had a mental health assessment?  Does the infant exhibit any red flags for emotional health problems?  Has the infant demonstrated attachment to a caregiver?  Has concurrent planning been initiated?

Emotional Health Red Flags  Chronic sleeping or feeding disturbances  Excessive fussiness  Incessant crying with little ability to be consoled  Multiple foster care placements  Failure to thrive

What challenges does this caregiver face that impact his or her capacity to parent this infant?  What are the specific challenges faced by the caregiver in caring for this infant (e.g. addiction to drugs and/or alcohol, mental illness, cognitive limitations)?  What are the learning requirements for caregivers to meet the infant’s needs?  What are specific illustrations of this caregiver’s ability to meet the infant’s needs?

Caregiver Capacity Red Flags  Noncompliance with the infant’s scheduled health appointments, medication or therapeutic regimens  Caregiver substance abuse and noncompliance with psychiatric treatment and medications  Confirmed instances of child abuse or neglect  Incomplete immunizations and a child’s poor growth or arrested development  Inability to learn about child’s medical needs and treatment