Program oversight – Role and Implications of the Courts New England November2012

A Few Assumptions and Concessions Court and Legal systems are not perfect 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 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 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 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) 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 agency is providing services that are youth specific and meet the youth’s needs. Ensure monthly caseworker visits are occurring. Ensure monthly caseworker visits are occurring. Ensure youth is complying with plan to achieve success and permanency 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 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 Greater awareness of what the youth’s legal rights are Youth feels more positive about staying in care after 18 Youth feels more positive about staying in care after 18 Check on all professionals involved in youth’s case 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 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 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 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 Gives youth more control over their future and their services/cases Give youth access to an advocate not associated with agency Give youth access to an advocate not associated with agency Advocate can oppose closing case and present arguments why the youth isn’t ready for discharge 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 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 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 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 educational and placement stability Ensure continuity of health care services (LGBT) Ensure continuity of health care services (LGBT) Ensures sibling and family contact 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. 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 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?

Should the child have a representative? Should the child have a representative? What should that representation look like? What should that representation look like? How should family of the young adult be involved? How should family of the young adult be involved? Should the family have representation? Should the family have representation? What should the court structure look like? What should the court structure look like? How often should the court be involved? How often should the court be involved? Should the youth be involved in the court hearings? Should the youth be involved in the court hearings? Should other stakeholders being involved in court hearings? Should other stakeholders being involved in court hearings? Who should receive notice of the court hearing? Who should receive notice of the court hearing? What’s the court’s role in re-entry? What’s the court’s role in re-entry? Whether specific findings should be required. Whether specific findings should be required. How should we educate the young person about the court process? 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 Completing secondary education or a program leading to an equivalent credential; Completing secondary education or a program leading to an equivalent credential; Enrolled in an institution which provides post secondary or vocational education; Enrolled in an institution which provides post secondary or vocational education; Participating in a program or activity designed to promote, or remove barriers to, employment; Participating in a program or activity designed to promote, or remove barriers to, employment; Employed for at least 80 hours per month; or Employed for at least 80 hours per month; or 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) 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 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 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 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 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 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 Trial independence and breaks in foster care – do not need new court findings

Reasonable Efforts to Finalize Permanency Plan Court ordered removal – requirement for judicial finding that the agency is making reasonable efforts to finalize the permanency plan 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 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 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 No federal requirement prescribing the forum in which these findings must be made

Permanency Hearings Must be held for young adults Must be held for young adults May be held by a judge or administrative review May be held by a judge or administrative review Should provide notice to young adult Should provide notice to young adult Should involve youth and actively include them in key decision making Should involve youth and actively include them in key decision making 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 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 Identify and recruit permanent placement for child Transition planning discussion Transition planning discussion Determine services youth needs to transition from foster care to independence Determine services youth needs to transition from foster care to independence What does a permanency hearing for a young adult look like: What does a permanency hearing for a young adult look like: Young adult always gets adequate notice Young adult always gets adequate notice Young adult is always present Young adult is always present Has legal representation Has legal representation Is the primary source of information Is the primary source of information Has meaningful participation and input into decisions Has meaningful participation and input into decisions

Transition Plan Required for all children receiving Title IVe reimbursement Required for all children receiving Title IVe reimbursement Youth driven Youth driven Specifics on housing, health insurance, education, local opportunities for mentors and continuation of support services, work force supports, and employment services 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 90 days before child is discharged Use court to monitor this plan’s implementation, especially youth driven requirement Use court to monitor this plan’s implementation, especially youth driven requirement

Transition plan hearing Permanent Connections Permanent Connections 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? 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? 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? Who will you contact after you transition out of foster care if you have any questions health, school, housing? General questions about transition plan General questions about transition plan 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? 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 Specific questions about the required topics 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 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? 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? Has someone at the agency talked to you about this? Has someone at the agency talked to you about this? Do you know the process for reapplying for Medicaid if necessary? 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? 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?

Do you have a job? Will that job continue after you transition out of foster care? 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? Are you in school? What is your plan for future education? What is the plan for post-secondary education or training? What is the plan for post-secondary education or training? What are the supports in place to assist you with continued educational success? What are the supports in place to assist you with continued educational success? What assistance has the young adult received to prepare for and apply to post-secondary education or training, including assistance with financial aid applications? What assistance has the young adult received to prepare for and apply to post-secondary education or training, including assistance with financial aid applications? Have you accessed Chafee services and Education and Training Vouchers (ETVs)? 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? 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 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 a dentist? Can you keep that dentist after you age out of foster care? Do you have health insurance for when you transition? 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? 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? What aftercare services will be provided by the state? Is there anything else you need assistance with? Is there anything else you need assistance with?

Periodic Reviews Must be held for young adults Must be held for young adults May be held by a judge or administrative review May be held by a judge or administrative review Should provide young adult notice and involve her in the hearing Should provide young adult notice and involve her in the hearing Agency should develop a status report Agency should develop a status report Topics to be discussed: Topics to be discussed: Whether young adult is safe in her placement Whether young adult is safe in her placement Whether continued foster care is appropriate Whether continued foster care is appropriate Whether appropriate and meaningful independent living skill services are being developed Whether appropriate and meaningful independent living skill services are being developed The progress made towards achieving independence on a projected date. The progress made towards achieving independence on a projected date. Sibling placements and visitation Sibling placements and visitation Court may order additional services Court may order additional services Hearing day and time should take into account young adult’s schedule 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 be engaged in activities outlined in Title IVE eligibility Youth must not be 21 Youth must not be 21 States have flexibility States have flexibility Benefits to re entry Benefits to re entry Youth don’t want system involvement at 18 but then learn that they need it 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 have a good transition plan but something falls through Youth didn’t know they could stay in care Youth didn’t know they could stay in care Allow youth to make mistakes and still receive support Allow youth to make mistakes and still receive support Safety net for young adult Safety net for young adult Different types of re entry Different types of re entry Explicit trial discharge set by the judge and case remains open for set period of time 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) Create statutory allowance for temporary discharge (e.g. 1 year) Allow youth to come back into care anytime until 21 Allow youth to come back into care anytime until 21

Legal Representation What are the options? What are the options? Traditional attorney Traditional attorney Guardian ad litem (attorney) Guardian ad litem (attorney) CASA – lay advocate CASA – lay advocate Continuing whatever advocate was appointed when child was under 18 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 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 Youth old enough to have opinion and to be heard Advise youth about legal rights for staying in care Advise youth about legal rights for staying in care Advise youth about placement and services available Advise youth about placement and services available Advocate for youth when case may be closed Advocate for youth when case may be closed Holds agency accountable Holds agency accountable Advise youth when she wants to leave care Advise youth when she wants to leave care Confidentiality and zealous advocacy Confidentiality and zealous advocacy Help young adults develop self advocacy skills Help young adults develop self advocacy skills Prepare and debrief young adults for their court hearings Prepare and debrief young adults for their court hearings May need attorney for other legal matters May need attorney for other legal matters LL/T LL/T Immigration Immigration Domestic Domestic Criminal Criminal Public benefits Public benefits Health care Health care In some states youth have to request extension – legal counsel can help them weigh the options and then make that request In some states youth have to request extension – legal counsel can help them weigh the options and then make that request

Parental/Family Involvement 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 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 What ways can a case be terminated? What ways can a case be terminated? The young adult knowingly and voluntarily withdraws consent to participate in care; 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 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 adult is no longer eligible under state eligibility criteria; or The young adults 21st birthday (or the state’s maximum age) The young adults 21st birthday (or the state’s maximum age)

Voluntary Termination Court hearing should be held before termination Court hearing should be held before termination At that hearing, several things should be required At that hearing, several things should be required Young adult and attorney should be present Young adult and attorney should be present Findings by the court Findings by the court Young adult has been informed by the attorney of the right to attend the hearing and has provided written consent to waive this right; 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 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 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 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: Ensure the child has been informed of: The right to request discharge The right to request discharge The right to continued services The right to continued services The right to legal representation The right to legal representation The right to re entry The right to re entry If the young adult requests termination of jurisdiction, the court shall ensure the young adult has been informed of: If the young adult requests termination of jurisdiction, the court shall ensure the young adult has been informed of: Any services or benefits the young adult is eligible for, including Chafee services Any services or benefits the young adult is eligible for, including Chafee services Any services or benefits that may be lost through termination Any services or benefits that may be lost through termination And additional support or services available to the child 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