Coordinating Protection of Children in Probate Court and Juvenile Court Virginia G. Weisz Elizabeth Armstrong Robin Stolk Presentation at: National Association of Counsel for Children August 22, 2009

Children in Kinship Care in US 2.5 million children live without either parent outside foster care 125,000 children live in kinship foster care 20 times more children live with kin without child protection agency oversight than live in kinship foster care

2007 Casey Kinship Foster Care Survey of 50 States and DC Agencies 50% states: State agency has no involvement with kin caring for abused and neglected children outside state custody 39 states allow and 29 states require caseworkers to seek kin to care for children outside foster care Most states do NOT open case when kin available to divert child from foster care States more willing than in previous years to divert children from foster care even where there is greater risk to child 523,000 children in foster care in 2002 reduced to 496,000 in 2007 after diversion practice increased

Massachusetts Action re Kinship Caregivers Office of the Child Advocate created, 2008 Department of Children and Families renamed and major child welfare statutes amended, 2008 Protecting Children reported on guardianship of minors in Probate and Family Court, Oct Caregiver Affidavit implemented, 2009 Grandparents Raising Grandchildren Commission formed, 2009 Article V, Uniform Probate Code creates higher standards for Probate Court and Juvenile Court guardianship of minors including annual reports on each child, effective July 1, 2009

Children in Kinship Care in Massachusetts 30,615 children live with grandparents or other relative with no parent in the home in or out of foster care DCF reports 27% children in out of home foster care live with relative caregivers 2007 DCF reports 1,803 in kinship foster care 17 times more children live with kin without foster care oversight than live in kinship foster care

Kin Caregivers in Massachusetts 67,781 children living in grandparent-headed households (4.5% of all children in the state) 19,721 children living in households headed by other relatives (1.3% of all children in the state) Of the children living in households headed by grandparents or other relatives in MA, 30,615 are living without either parent AARP GrandFacts Report, March 2008

Challenges to Caregivers Lack of financial resources No information on where to get resources No understanding of legal options and implications when raising grandchildren Emotional rollercoaster of protecting children from their parents Fear of not being around to support children into adulthood Many children have experienced trauma and have special needs creating extra demands

Grandmother’s comments DCF opened case after birth and hospitalization for extended times Infant placed with grandparents DCF never told them what services available for child or option of being foster parents before going to probate court Childcare is a big expense

ProgramDescriptionFundingEligibility Transitional Aid to Families with Dependent Children (TAFDC aka Welfare) Government program that gives cash assistance and other benefits to low-income families with dependent children Federal GovernmentProbate Guardians can file on behalf of child *Guardians who adopt the child can lose this benefit Emergency Aid to Elders, Disabled, and Children (EAEDC) Provides cash and other benefits to low-income elders, disabled and children, who do not qualify for other cash assistance programs Massachusetts State Funded Program Income Based Cash Assistance Programs

ProgramDescriptionFundingEligibility Supplemental Security Income (SSI) Need-based cash assistance program that gives help to elders, and adults or children who are blind or disabled Federal Government *State funded, as well Probate Guardian can file on behalf of child (if eligible) Food StampsHelps low-income households pay for food so they can have a healthy diet Managed by the US Department of Agriculture *In MA- Department of Transitional Assistance Income Based School Meals ProgramFree/reduced price meals and milk are offered to low-income children Run by the MA Department of Education *State and federal funded Income Based

Foster Care v. TANF Monthly Payments in Massachusetts Age of ChildFoster Care, guardianship, adoption: daily X 30 days 0-5 years$17.10$ years$17.96$ years$18.59$ Age not a factorTANF BENEFITSmonthly 1 child$428 2 children$531

Child Custody in Massachusetts Courts Juvenile Court Care and Protection Custody Guardianship Adoption CHINS Delinquency Probate and Family Court Paternity Child Support, visitation, custody Guardianship Adoption Divorce Custody Child Support Visitation Post-Divorce

Guardianship of Minor and Care and Protection Petitions Filed

DSS Data for Matched GM Cases

Protecting Children study in Massachusetts Findings 36% increase in probate court filings for guardianship of minors in past 10 years 54% of children in probate court study had been subject to child abuse investigation prior to the filing for guardianship in probate 47% of children were found by DCF to have been abused or neglected prior to filing of probate court guardianship petition; 19% had supported investigations after probate filing 69% of 401 children in probate court study were found in DCF database

Time and Type of DSS Contact

Protecting Children: Legal Issues Raised Legal protections in juvenile court not required in probate court Attorney for parents (and child until July 1, 2009 when probate court provides attorney for child if requested) “Reasonable efforts” finding required to keep child in home of parent or reunify in timely fashion Time frames for hearings, reunification, permanence Parents entitled to reunification services provided by DCF Child entitled to services provided through DCF including case management, day care, permanency

Juvenile and Probate Connection Protecting Children: abused and neglected children directed to probate court by DCF experience potentially perilous parallel court system 2007 Casey Kinship Foster Care National Survey also shows DCF diversion from juvenile court No juvenile court oversight of DCF decision to divert to probate court

Required Juvenile Probate Attorney for child Attorney for parent(s) YES YES If requested NO NO Reasonable efforts finding YES YES NO NO Clear and convincing evidence of unfitness removes custody from parents YES YES Court reviews of services and permanence YES YES NO NO Reunification/other services ordered YES YES NO NO

Fostering Connections to Success & Increasing Adoptions Act of 2008 Title I: Connect and support relative caregivers Title II: Improve outcomes for children in care Title III: Increase tribal foster care and adoption access Title IV: Improve incentives for adoption

New Federal Funding Requirements (Fostering Connections) Relative notification when child removed Educational attendance and stability Health oversight and coordination Sibling placement Transition plan for youth leaving care at 18+ State option for kinship guardianship funds State option for year olds in care

State Agency Required to Provide Notification to Relatives Agency must exercise due diligence to identify and notify all child’s relatives of the child’s removal from parent (exceptions due to family or domestic violence) within 30 days of child’s removal from parents Explain relative’s options to care for child Describe requirements to become foster family and services and supports available Explain availability of kinship guardianship assistance payments, if state has opted to make payments Title I Section 103

Kinship Guardianship Payments States can choose federal Title IV-E option for children in foster care raised by relative caregivers After at least 6 consecutive months in foster care in home of relative who is committed to permanence Return to parents or adoption not likely Child attached to guardian and if over 14, has been consulted Criminal record check on guardian and other adults in home Kinship payment may equal but not exceed foster care payment and must include Medicaid eligibility Child entering guardianship after age 16 is eligible for independent living services and education vouchers Siblings of child may also be placed and supported Title I Section 101

Educational Attendance & Stability State plan for foster care and adoption assistance must assure: Every school-age child receiving subsidy must be in school full-time or medically excused from full-time study with regular medical updates in case plan Child welfare agencies must include in case plan Assurance that state agency has coordinated with local educational agencies to ensure child remains in school Foster care placement considers appropriateness and proximity of current school Child must remain in school of origin if in best interest of child If not in best interest of child, must be enrolled immediately in another school with child’s school records provided Transportation to school part of foster care payment Title II Section 204

Health Oversight and Coordination State plan to ensure coordinated strategy with Medicaid agency and pediatric experts for ongoing oversight must include: – Schedule for health, mental health, and dental screening and follow- up screenings – How health needs identified and addressed – How medical info on each child updated and appropriately shared – Steps to ensure continuity of health care which may include medical home for each child – Prescription oversight – Consultation of State with experts on assessing and treating children in foster care appropriately Title II Section 205

Sibling Placement States must make reasonable efforts to Place siblings in same placement unless contrary to safety or well-being of any If not possible to place together, to provide for frequent visitation or ongoing interaction between siblings unless State documents why contrary to safety or well-being of any of the siblings. Title II Section 206

Possible Reasons for Diversion of Children from Foster Care by DCF Caseworker overload Pressure from feds to decrease number of children taken into care Title IV-B funds available for in-home services are limited and are for parents, not kin providing safety Title IV-E funds for foster care are open-ended Fostering Connections Act has many new requirements DCF may lack resources to provide Caseworker may not be trained on new notification of relatives requirement under Fostering Connections Act

Should court review DCF decision to divert from juvenile court to probate court? DCF decision could be motivated by issues juvenile court is familiar with and probate court is not: Fiscal savings for agency Reduction in caseload and paperwork Title IV-B in-home services funding limited Title IV-E reasonable efforts findings required Increased Fostering Connections requirements Juvenile court hearings numerous and parties represented by counsel Family wishes to avoid foster care Family wishes to avoid involvement with DCF and/or DCF desires to end involvement with family

A Grandparent Guardian Speaks Mother physically abused child Child placed with grandmother DCF worker visited grandmother and child and arranged daycare, but never offered foster care Grandmother got Probate guardianship “ I get $400 in welfare each month. I’m saving money now to afford to adopt.”

Decision maker for probate filing DCF social worker (current practice in MA) Kinship caregiver (able to make informed decision with Fostering Connections notification of relatives requirements) Juvenile Court Judge Juvenile Court clerk/magistrate Probate Court Judge Probate Court clerk/magistrate

Probate Court Decision Basis “Best interest of the child” must consider: Does petitioner understand differences in services, stipend, permanence, legal process, etc. between juvenile and probate court? Are services available outside DCF custody to meet child’s needs? Can petitioner manage child’s expenses with lower monthly TANF stipend? Does age of child affect likelihood of long-term stability? Does parent need reunification services? Would child need adoption services in future? Would child prefer not to have foster care stigma? What are kinship caregiver’s and child’s wishes & needs?