1 Using Title IV-E in the Juvenile Justice System ABA Center on Children and the Law National Child Welfare Resource Center on Legal and Judicial Issues … A Program of the Children’s Bureau Mark Hardin January 29, 2003 Copyright © 2003 by the American Bar Association

2 How does Title IV-E apply to youth in the juvenile justice system? Title IV-E has been applied to delinquents for a long time. Foster care matching funds have been available for eligible delinquents in foster care since the early 80s. Some states have collected such matching funds for many years.

3 Can Title IV-E benefit youth in the juvenile justice system? Most delinquents are not yet major felons. Delinquents are still kids and they need close supervision and oversight. They need immediate consequences for misbehavior. They need someone carefully keeping track of them. They need more positive ways to coping with their problem. …And Title IV-E can help states meet these needs.

4 When is a delinquent or ungovernable youth in foster care? 42 U.S.C. §672 (b) Federal foster care matching funds may only be paid for a child who is: (1) in a foster family home or (2) in a child care institution. “(c) For the purposes of this part, (1) the term "foster family home" means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State having responsibility for licensing homes of this type, as meeting the standards established for such licensing; and (2) the term "child care institution" means a private child care institution, or a public child care institution which accommodates no more than twenty ‑ five children, which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing or approval of institutions of this type, as meeting the standards established for such licensing, but the term shall not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.” (emphasis added)

5 What is detention and what are detention facilities? Is it a secure lock up or does it restrict movement equivalent to a lock up? What is a facility operated “primarily for detention?” Who operates the facility? For what purposes does it exist? Is it licensed and approved? If so, for what use and by whom? From whom does it receive its major financial resources? What type of children are residents? Would it be viable without the need to house children adjudicated delinquent? Is the facility physically restrictive?

6 Timing of reasonable efforts and best interests (contrary to the welfare) findings. Findings of reasonable efforts and that placement is in the child’s best interests are required at the same times as for other youth in foster care, no matter why the young person has been removed from home. Best interests findings must be included in the first court order authorizing the child’s removal. Reasonable efforts findings must be made within 60 days after removal.

7 Deadline for case plans. The case plan must be prepared within 60 days of the time a youth enters foster care.

8 Clock for six month case reviews, permanency hearings, and termination of parental rights petitions. The clock starts when child is “considered to have entered foster care.” 1. If a child was placed in eligible foster care when first removed from home, the clock starts 60 days after removal. 2. If a child was moved from ineligible care (such as detention) into foster care within 60 days after removal from home, the clock starts 60 days after removal. 3. If a child was moved from ineligible care into foster care more than 60 days after removal from home, the clock starts when child was moved into foster care.

9 Example 1: Case review deadline for delinquent or ungovernable youth in foster care. Youth placed in detention facility for three months and then placed in Title IV-E foster care. Youth is “considered to have entered foster care” the day the youth is moved into Title IV-E foster care. Case review is due six months after a youth is considered to have been placed into foster care. Therefore, case review is due six months after youth is placed into eligible foster care.

10 Example 2: Case review deadline for delinquent or ungovernable youth in foster care. A delinquent youth is removed from home and placed immediately in Title IV-E eligible foster care group home. There is no judicial finding of abuse or neglect. Youth is “considered to have entered foster care” 60 days after removal from home. Case review is due six months after youth is considered to have entered foster care. Therefore, in this situation, case review is due 60 days plus six months after youth is placed into foster care.

11 Example 3: Case review deadline for delinquent or ungovernable youth in foster care. A delinquent youth is removed from home and placed into detention, but after 30 days after that is placed into a Title IV-E eligible foster care group home. There is no judicial finding of abuse or neglect. Youth is “considered to have entered foster care” 60 days after removal from home where the youth was moved from an ineligible out-of-home placement into foster care within 60 days after removal. Case review is due 60 days after youth is considered to have entered foster care. Therefore, in this situation, the first case review is due 60 days plus six months after youth was originally removed from home.

12 Case example: Timing of six month review, permanency hearing, and TPR petition. A child is placed in a detention facility for more than 60 days pursuant to a judicial finding of delinquency and later is moved into foster care. In this case, the child is “considered to have entered foster care” at the time the child is moved to foster care. Therefore, the first six month review is due six months after the child was moved in foster care. Similarly, the first permanency hearing is due 12 months after the child was moved into foster care. Similarly, unless an exception applies, the state must file a petition for termination of parental rights when a child has been in foster care for 15 of the most recent 22 months.

13 ASFA requirements posing special challenges in juvenile justice cases. Judges must make detailed and case specific findings, when removing a child from home, to the effect that removal is in the child’s best interests. Judges must make detailed and case specific findings concerning reasonable efforts to prevent placement. Judges must make detailed and case specific findings concerning reasonable efforts to achieve permanency.

14 ASFA requirements posing special challenges in juvenile justice cases (2). Judges must hold permanency hearings in which they must more seriously consider possible permanent placements for delinquents – including adoption. Parents must be parties to permanency hearings and termination of parental rights proceedings. Foster parents, among others, now must have advance notice of court hearings and the opportunity to be heard.

15 Many juvenile justice professionals started applying IV-E strictly for the federal money. But after they seriously were applying IV-E requirements, they realized that that really helped the youth.

16 What benefits can Title IV-E help provide? Work with parents to improve their care and supervision of the young person – or with other adults if parents aren’t willing to cooperate. Written case plans to meet the needs of the young person and to achieve permanency. Additional services for the young person. Periodic review of case progress. Court proceedings to achieve a permanent home for the young person – return home where possible or other permanent legal arrangements where parents drop out of the child’s life.

17 There are a number of studies of intensive probation – and intensive family services in delinquency cases. These programs sharply reduce recidivism. These are examples of how to use the additional funds that can become available when Title IV-E is used to pay for the cost of out of home care. These are examples of “reasonable efforts” as it applies to juvenile justice.

18 Why do these programs work? When you are a teen, the time that matters is now. When you are a teen, you need close oversight. Programs like intensive probation and intensive preventive services create immediate consequences for minor bad behavior. These programs also try to identify and correct other causes of bad behavior. These programs help plug in the parents – whose detachment or inability to supervise often is behind the delinquent behavior.

19 How can we make Title IV-E requirements fit delinquency and unruliness cases? By a bit of creativity. By using Title IV-E to create and fund helpful interventions.

20 Reasonable efforts to prevent placement in juvenile justice cases. A key example: crime prevention – to keep the youth at home rather than in detention. Monitoring the youth to prevent future crimes. Unannounced home visits to see if the youth is home at night. Working with the parents to help them establish discipline and keep closer track of the youth. Recruiting relatives to help monitor the youth. Arranging counseling for the youth with the goal of ending the youth’s criminal behavior – and easing underlying emotional problems contributing to the criminal behavior. Working with the parents and others to help them deal with the youth’s emotional problems that contribute to the youth’s criminal behavior.

21 Reasonable efforts to reunify the family in juvenile justice cases. Working with the parents and schools to put in place a plan to monitor the youth and reinforce improvements in behavior. Counseling the youth to stop the criminal behavior – and to ease underlying emotional problems contributing to the criminal behavior. Working with the parents and others to help them deal with the youth’s emotional problems that contribute to the criminal behavior.

22 Judicial findings that continuation in the home would be in the child’s best interests. Removal might be in the child’s best interests because the home and neighborhood environment is drawing the young person into a life of serious crime. Removal might be necessary to help prevent future prolonged imprisonment and to improve the youth’s chances for a successful life. Removal might be necessary to halt the youth’s involvement in gang activities – which are likely to lead to the youth’s serious injury.

23 Case plans for delinquent and ungovernable youth in foster care. Focus at least in part on behavior oversight and control. Address the youth’s education and medical care. Set forth a strategy for the youth’s return home or other permanent plan.

24 Permanency hearings for delinquent and ungovernable youth in foster care. Permanency hearings make sense in these cases: If a delinquent youth remains in non-detention foster care for a long period of time, it probably is in part because of problems at home. In some cases, parental abandonment may be an issue. In some other cases, parents may be neglectful or abusive. In abandonment, neglect, and abuse cases, the youth may need a permanent placement with a relative or even an adoptive parent.

25 Permanency hearings for delinquent and ungovernable youth in foster care (2). If delinquent and ungovernable youth can’t safely return home, then what? Permanent placement with a relative? Legal guardianship? Adoption? Another planned permanent living arrangement? Stable and close ties to an adult fulfilling a parental or quasi parental role. Stable and safe places to live.

26 Permanency hearings for delinquent and ungovernable youth in foster care (3). What procedural requirements are necessary for a permanency hearing for a delinquent or ungovernable youth? Notice on parents and party status because they risk losing parental rights. Notice on foster parents and the opportunity to present information. Notice and party status for the young person. Note: Amendments in state law may be needed.

27 Termination of parental rights (TPR) and adoption of delinquent and ungovernable youth in foster care. Some delinquent and ungovernable youth can and should be placed for adoption – TPR is necessary to make this possible. Adoption subsidies are available to defray costs, at least where such youth are otherwise eligible for Title IV-E.

28 Termination of parental rights (TPR) and adoption of delinquent and ungovernable youth in foster care (2). Procedural implications: Parents must be made a party to the proceedings. Grounds must exist in spite of possible lack of prior involvement of child welfare agency. Amendments in state legislation may be needed.

29 Compelling reasons not to seek TPR for delinquent and ungovernable youth in foster care for 15 of the most recent 22 months. Examples, based on the individual circumstances of the youth: No grounds exist. Youth doesn’t agree to TPR despite diligent efforts to provide adoption counseling. Parents are willing and able to provide proper care for the youth. Relatives are willing and able to permanently care for the youth and this will avoid traumatic conflict between the youth and parents. Adoption within a reasonable time is unrealistic, given the characteristics of the youth and the placement record of available adoption placement agencies.

30 The National Child Welfare Resource Center on Legal and Judicial Issues Services and products: On-site technical assistance Consultation and training Child CourtWorks (free) Child Law Practice (paid subscription) Listserv groups (free) Website and online catalog of Court Improvement materials Annual national Court Improvement Progress Report Publications

31 To Contact Us Jennifer Renne, , Mark Hardin, , National Child Welfare Resource Center on Legal and Judicial Issues ABA Center on Children and the Law th Street, NW Washington, DC