developments in law and policy affecting child protective services-- 2015
TRANSCRIPT
Howard DavidsonDirector, ABA Center on Children
and the [email protected]
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Developments in Law and Policy Affecting
Child Protective Services-- 2015
16th ABA NATIONAL CONFERENCE ON
CHILDREN & THE LAW
Fetal Alcohol Spectrum Disorders Webpage
New ABA Publication on Foster Home Licensing
http://grandfamilies.org/Portals/0/ Model%20Licensing%20 Standards%20FINAL.pdf
Includes a “Cross-Walk Tool” that allows users to compare the Model with their own current state standards and laws
We are also hosting one-day Regional Kinship Care Summits (“Improving Family Connections: A Legal Focus on Extended Families”)
Published by the National Association for Regulatory Administration
• In 2014: our CLP continued to report on key appellate court decisions, e.g., many state cases on termination of parental rights and new federal cases on child welfare agency liability
• CLP also had a feature article series on 1) children with disabilities who are victims of abuse/neglect and 2) trauma-informed legal practices, plus legal articles on, e.g., “failure to train” lawsuits, child trafficking, immigrant families, restoration of parental rights, liability protections, broken adoptions, child competency, homeless & transitioning foster youth, the ICPC, and foster youth education outcomes
Children’s Bureau’s Capacity-Building Center for Courts [email protected]
Parent Representation / “Reunification Day” / LGBTQ [email protected]
Older Youth in Foster Care / Transitioning [email protected]
Kinship (Grandfamilies State Law & Policy Resource Center)[email protected]
Child Trauma / Child Trafficking / Health [email protected]
State Permanency Barriers Removal / Trial Skills [email protected]
Immigration [email protected]
ICPC / ICWA [email protected]
Legal Center for Foster Care and [email protected]
16th ABA National Conference onChildren and the Law
Advancing Access to Justice forChildren and Families
July 24-25, 2015
Pre-Conference on Kinship CareJuly 23, 2015
Proposed New AFCARS State Reporting Elements
(to be in 45 CFR Part 1355)HHS proposed in the Federal Register on 2/9/15 new data elements to better understand characteristics of children in foster care and provide better context for their outcomes. Some examples: Timeliness of written plans to transition youth out
of foster care Child’s educational level, educational stability and
involvement with special education Type of child’s existing and previous health,
behavioral and mental health conditions, and timeliness of health assessments
Types of group placements children are in
Timeliness /frequency of caseworker visits with children
Data on child entering care after sex trafficking Data on minor parents who have their children with
them in foster care, sibling groups and whether or not siblings are placed together
Children’s past domestic and inter-country adoptions and prior adoptions and guardianships
New elements to better track Tribal, State and Federal financial support of foster care, adoption and guardianships
Involvement with juvenile justice agencies Some have proposed requiring state data on children
in foster care who have a parent who was detained or deported by immigration authorities, as well as data on the immigration status of children in foster care
9/29/14 President Obama Signs the First Major Federal Child Welfare Law Since 2011
Preventing Sex Trafficking and Strengthening Families Act (H.R. 4980), P.L. 113-183
16 key elements
1. Foster youth who go missing from care must be promptly reported to police and NCMEC (11/4 CB I.M. on CW links to runaway & homeless youth programs)
2. APPLA is prohibited for children under 16
3. Every permanency hearing has a new requirement of documenting “intensive, ongoing, unsuccessful efforts for family placement”
4. Care providers must be prepared and supported to promote “child normalcy” -- with liability protection for reasonable and prudent parenting
Early State Law Model for This:CA Welfare & Institutions Code §362.04 and .05
“Reasonable and prudent parent” or “reasonable and prudent parent standard” means the standard characterized by careful and sensible parental decisions that maintain the child’s health, safety, and best interest
“Every child adjudged a dependent child of the juvenile court shall be entitled to participate in age-appropriate extracurricular, enrichment, and social activities. No state or local regulation or policy may prevent, or create barriers to, participation in those activities.”
“Each…entity shall ensure that…agencies that provide foster care services to dependent children have policies consistent with this section and that those agencies promote and protect the ability of dependent children to participate in age-appropriate extracurricular, enrichment, and social activities. A group home administrator, a facility manager, or his or her responsible designee, and a caregiver…shall use a reasonable and prudent parent standard…in determining whether to give permission for a child residing in foster care to participate in extracurricular, enrichment, and social activities.”
“A group home administrator, a facility manager, or his or her responsible designee, and a caregiver shall take reasonable steps to determine the appropriateness of the activity in consideration of the child’s age, maturity, and developmental level. [They are] encouraged to consult with social work or treatment staff members who are most familiar with the child at the group home in applying and using the reasonable and prudent parent standard.”
5. With every remaining APPLA plan, child must be asked at hearings about their desired permanency outcome, and there must be a judicial finding of “compelling reasons” to keep APPLA as the plan
6. Every foster youth age 14 and over must be informed they can select up to two people to be involved in their case planning
7. Those 18 and over leaving care must now get their birth certificate, social security card, health insurance information, medical records, and drivers license or official state ID card
8. Those 14 and over in care must also be given a “rights document” addressing their right to education, health, visitation, and court participation
Examples of These “Rights Documents”
Connecticut General Statutes 17a-16
Rights of children and youth under the supervision of the Commissioner of Children and Families Massachusetts Foster Child Bill of Rights
Published by the MA Department of Children and Families and developed by the Department’s Youth Advisory Board
9. In FY16, states will have to report to AFCARS data on children in congregate care, and on pregnant and parenting youth in care
10. New foster placement “notice” extension: to all parents of any sibling of the child in care, where the parent has custody of that sibling
11. States will have to develop new child welfare agency policies, procedures, and training on addressing child sex trafficking victims
12. In two years, state will have to report to HHS number of child sex trafficking victims who entered care, and those who became victims while in care
13. State “Adoption Incentives” is modified to include Permanent Legal Guardianships and more $ for kids 14 and over and for “timely” permanency
14. The “Incentive” payments from HHS must now be used to supplement other money by adding new services
15. A portion of state savings from the AFDC IV-E “Phase Out” must now be spent on post-adoption and post-guardianship services
16. Federally subsidized guardianship of a child can be continued if a guardian dies and is succeeded by another guardian
7/22/14 President Signs New Employment Training Law with Foster Care
Implications
The Workforce Innovation and Opportunities Act P.L. 113-128
Law focuses on helping job seekers access jobs, training, and support to succeed in labor market
Enhances federal support for Out-of-School Youth, defined to include “youth who are in or have aged out of foster care system” (includes youth in Chafee Act programs or any out-of-home placement)
The youth formula grant funds share for Out-of-School Youth goes up from 30% to 75%
ACYF Information Memoranda of Interest
5-30-14 ACYF-CB-IM-14-02
Re-homing of adopted children; responsibilities for states and opportunities in provision of post-adoption services (AR, CO, FL, LA, WI have laws on this) States are encouraged to develop and provide a continuum
of post-adoption services for adoptive families, both domestic and international, and HHS reminds states that they may use IV-B $ for such services for both types of adoptive families, and that families may use “family preservation funds” under PSSF law (IV-B, subpart 2), Adoption Incentive $, & re-investment of savings from IV-E de-linking from AFDC
HHS says 45% of 45 state child welfare agencies responding helped international adoptive families
In one study, only 26% of adoptive families in the U.S. felt they received quality mental health services
”
Commission created by the “Protect Our Kids Act” – P.L. 112–275 (1/14/13)
I presented on this issue at their July 2014 meeting
HHS Seeks Comments: CAPTA Guidance on State Disclosure of Information on Child
Fatalities
On 3/31/15 HHS published in Federal Register a request for comments related to public disclosure of findings or information about a case of child abuse or neglect which results in a child fatality or near fatality, including Challenges obtaining information from states about
child fatalities/near fatalities which resulted from abuse or neglect
Concerns about the state’s definition of “near fatalities” States saying that they cannot disclose information
due to confidentiality protections, and why Availability of public reports from child fatality review
panels/commissions, and the content of those
HHS Says CW Must Release, At a Minimum Upon Request, After a Child Fatality or Near-Fatality…
1. Causes of and circumstances regarding the fatality or near fatality
2. Age and gender of that child
3. Information on any previous reports of abuse or neglect
4. Investigations pertinent to the abuse or neglect that led to the fatality or near fatality
5. Result of such investigations
6. Services provided by, and actions of the State, on behalf of that child, that are pertinent to the abuse or neglect that led to the fatality or near fatality
Release of CPS Information in Other Cases
States should consider, and CAPTA may need to explicitly permit, laws (as in AK, AZ, CO, CT, IL, KS, KY, LA, ME, MI, MT, NB, NY, SC) permitting some CPS information disclosures to the public, in other than fatality/near fatality cases, if those cases become otherwise publicized, so that CPS actions in that case can be made clear
Elisa’s Law in NY (1996) enacted following a very publicized child death – Social Services Law 422-a
Permits disclosure unless the commissioner/director finds it would not be in the best interests of the child, the child’s siblings, or other children in the home to release the information
Key Reforms in Release of CPS Records and Access to Information Related to Child
Safety
1. State laws should mandate “feedback” to reporters of abuse/neglect, at least upon request by professional reporters, that includes the CPS investigation results and child welfare agency actions later taken
2. Cross-state CPS record sharing and access should be clearly mandated for social services, licensing, and law enforcement agencies upon request, especially if a maltreating parent has left the state (This is important due to the mobility of families involved in child maltreatment)
3. States should consider, and CAPTA may need to explicitly permit, laws (like Elisa’s Law in New York State) permitting some CPS information disclosures to the public, in other than fatality/near fatality cases, if cases become otherwise publicized, so CPS actions in a case can be made clear
4. There should be explicit legal authority for public release of information about children missing from foster care, group care, or from homes where they’ve been under protective supervision (This is related to compliance with the new federal legislation)
5. State laws should improve immunity protections for those who CPS asks to assist it in serving abused or neglected children (Fear of liability inhibits professionals from sharing information and aiding maltreated children)
6. CPS agencies should develop and utilize – with parents – voluntary, standard, and clearly understandable consent/release of information forms permitting release of otherwise confidential information that not only addresses child welfare information but also acknowledges HIPAA, FERPA, and Substance Abuse Treatment record protections
7. State laws (often misapplying a CAPTA provision) have limited a future child protection/safety tool: The use of earlier unsubstantiated reports by, for example, expunging them from access (This must be changed in state that require destruction of past unsubstantiated reports)
8. State laws should clearly mandate appropriate “cross-reporting” from CPS to police and prosecutors, and vice-versa (e.g., in physical and sex abuse cases)
9. State laws should permit the sharing of abuse/neglect information, as appropriate, about a child at Family Team Meetings (e.g., NJ permits this)
10. The Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248), in addition to mandating prospective foster /adoptive parent background checks, and requiring CPS Central Registry checks from all states where a parent lived in the last 5 years, includes a little-known provision giving CPS agencies opportunity for direct access to a important potential child safety tool, the FBI’s National Crime Information databases, for use during “an investigation relating to an incident of child abuse or neglect” (e.g., data on felony arrests/convictions, sex offender data, probation/parole information)
Child safety should be enhanced by doing record checks of adults in the home during an investigation, and especially after substantiation or prior to reunification – so that workers will be aware of adults with violent criminal histories that suggest they may endanger children
Child welfare agencies should apply for FBI NCIC terminal access to securely run these checks from within the agency (FL was first state to do so)
State law should also authorize, for any adult in the home, that state criminal history on that adult be accessible for child protection purposes as part of any investigation [e.g., VA §63.2-1505(C)]
Handling Cases Involving Unaccompanied Immigrant Minors – The SIJS Issue
Since October 2013 almost 2,500 of these children have been released by HHS/ORR to “sponsors” in the New England States
2/20/15 HHS/CB issued an Information Memorandum (ACYF-CB-IM-15-02) to advice child welfare agencies on handling cases for families affected by immigration enforcement (referencing the 2013 ICE Parental Interests Directive and the Unaccompanied Children/SIJS issue)
ICE Memo: www.ice.gov/doclib/detention-reform/ pdf/parental_interest_directive_signed.pdf
Our Center is working with an ABA Presidential Working Group on Unaccompanied Minors re. the SIJS issue (obtaining SIJS findings in state court)
HHS Memo said child welfare agencies should screen all children in care without immigration status for SIJS eligibility status and provide support to help those children get that status
Child may come into care if their placement with a sponsor disrupts
Families “sponsoring” these children may need legal help obtaining guardianship/custody orders along with a court order with written “findings” of “dependency”, not being returned to parent due to abuse, neglect, or abandonment , & that return to home country is not in their best interests
Helping Assure Compliance With the Indian Child Welfare Act (ICWA)
On March 20, 2015 the U.S. Department of the Interior, Bureau of Indian Affairs, issued proposed “Regulations for State Courts and Agencies in Indian Child Custody Proceedings”
These followed upon new 2/19/15 BIA “Guidelines for State Courts and Agencies in Indian Child Custody Proceedings”
Goal of both of these is to help assure that child welfare agencies and courts effectively comply with ICWA, assuring in every case that an inquiry is made as to whether this law applies, and that the law is fully complied with
Caseworkers, agency administrators, and judges must be given information so they know, e.g.: When ICWA appliesWhen ICWA’s required “active efforts” to prevent
removal from an Indian parent or custodian applyWhat time limits and extensions apply to safeguard
the rights of Indian parentsThe process for removing an Indian child in an
emergencyWhat special rights Indian parents have in these
casesWhen the court must involve a “qualified expert
witness” in these cases and who can serve as suchHow to apply the Act’s placement preferencesHow to make the “good cause” exception from these
U.S. Supreme Court CaseOhio v. Clark
Cert petition granted on October 2, 2015
Docket Number 13-1352 Decision expected this term
Ohio Attorney General appealed decision of their state’s Supreme Court, holding that a teacher eliciting child abuse information from a 3½ year old was acting as a state law enforcement agent and that the child’s statements about abuse were elicited in a non-emergency situation and primarily for criminal justice purposes, and thus they were testimonial in nature and should not have been admitted at criminal trial.
Dissent said the majority decision threatens the safety of children and creates a beneficial catch-22 for pedophiles and other abusers of children. It said that because of this decision children in Ohio will go unprotected. Said there is no indication the Ohio legislature intended to deputize mandated reporters as agents of law enforcement.
Majority opinion calls the dissent a passionate rant and a “parade of horribles”.
18 Elements of Continuing Problems in 8 States with Class Action Consent Decrees
1. Getting all foster children health services
2. Quality of many case plans remain poor
3. Not enough relative and non-relative foster homes, and overuse of shelters/institutional placements
4. Caseloads still above court-ordered limits
5. Still too many poor quality & untimely investigations
6. Too few children who’ve been in care a year or longer are getting permanent homes
7. Too many children are in unlicensed homes
8. Struggles to report accurate child welfare data
9. Visitation frequency remains a problem for foster children (with both caseworkers, separated siblings, and parents) – also, lack of parental visits by their caseworkers is a problem
10. Too many foster children still having two or more school placements during their first year in care
11. Too many children who are leaving care are re-entering care within a year
12. Too many children are waiting for adoption after TPR
13. Double-digit maltreatment by substitute caregivers
14. Too many children not fully assessed on their needs
15. Family reunification % goals set were not met
16. Too many foster parents still not getting the support they believe they need to meet their role and responsibilities
17. Too many foster parents still not receiving timely and complete information on the foster children they are being asked to care for
18. Need to reduce the numbers of youth on runaway status from care, and the length of time they are on runaway status
THANK YOU, CITIZEN REVIEW PANELS!
I’M RETIRING FROM THE ABA IN EARLY JULY, BUT NOT FROM THE FIELD OF CHILD WELFARE LAW ENTIRELY -- I AM STILL AVAILABLE FOR SPECIAL PROJECTS AND ASSIGNMENTS
REACHABLE AT: [email protected] OR AT 240/437-7212