Enhancing attorney advocacy for Well-Being outcomes for foster children

1. Judge Rob Hofmann, Texas Child Protection Court of the Hill CountryJenny Hinson,Division Administrator for Permanency, Texas Department of Family and Protective ServicesLori Duke, Clinical Professor, University of Texas School of Law Children’s Rights ClinicIan Spechler, Advocacy Attorney, Disability Rights Texas Enhancing attorney advocacy for Well-Being outcomes for foster children

2. Presentation Outline Introduction Psychotropic Medications Education Transitioning Youth Normalization and Sibling Contact Q/A

3. Introduction

4. The Law • The Adoption and Safe Families Act (ASFA) identified three goals for children in foster care systems: • Safety • Permanency • Well-being Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997).

5. The Reality • The combined work of the Toolkit for Court Performance Measures in Child Abuse and Neglect Cases and the federal Child and Family Services Reviews has been overwhelmingly successful in improving outcomes in the areas of: • safety • permanency • Most attorneys focus primarily on these outcomes, as well Toolkit for Court Performance Measurement in Child Abuse and Neglect Cases. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (2009), available at: http://www.ojjdp.gov/publications/courttoolkit.html. More information on the Children’s Bureau and the CFSR process available at: http://www.childwelfare.gov/management/reform/cfsr/.

6. The Response • ASFA regulations equate well-being outcomes with safety and permanency outcomes by finding that “the safety and well-being of children and of all family members is paramount.” • ASFA identifies a well-being dimension of performance measures • Well-being measures are an accepted part of the federal review process for child welfare agencies • Citations to each of these bullets are in the paper

7. Where Are We Now? • What is right is often forgotten by what is convenient.” - BodieThoene • All too often, the convenient decision is wrapped in a package as the right one. • Good judging is the art of making perfect decisions with imperfect evidence.

8. Where Should We Be? • “It's not hard to make decisions when you know what your values are.” - Roy Disney • State-level well-being measures • The Texas Blueprint: Transforming Education Outcomes for Children and Youth in Foster Care • http://texaschildrenscommission.gov/media/98/thetexasblueprint.pdf • National Center for State Courts and their partners

9. Advocating for Appropriate Use of Psychotropic Medications NO MEDICAL EXPERIENCE REQUIRED

10. What’s a Psychotropic Medication? A medication prescribed to help manage psychiatric or other mental health disorders. They can include stimulants, mood stabilizers, anti-psychotic meds, and anti-anxiety meds.

11. What’s the Problem with Meds? Perhaps nothing; meds could be appropriate. However, overuse of meds is rampant and disturbing. Meds need to be just part of a balanced treatment regimen.

12. What’s the Problem with Meds? The Government Accountability Office (GAO) issued a comprehensive report in December 2011 following an analysis of psychotropic medication use among foster youth in five states. Despite no evidence supporting the usefulness of the practice, hundreds of children in those states were on 5 or more psychotropic medications at once.

13. What’s the Problem with Meds? 20,965 children were prescribed unsafe doses of medications above the maximum FDA approved dosage levels. Foster children were prescribed psychotropic drugs at 2.7-4.5 times the rate of their non-foster children peers. Report available at http://www.gao.gov/assets/590/586570.pdf.

14. What’s the Problem with Meds? In 2007, the Preschool Psychopharmacology Working Group developed some guidelines for the use of psychotropic medications among preschoolers. Study found that there is little research around effects of drugs on this age group. Found a rapid rising in the use of psychotropic meds in general, and multiple psychotropic meds in particular, among the age group. Recommended that more research is needed. Available at http://resources.childhealthcare.org/resources/Psychopharm_for_very_young_children_context_and_guidelines.pdf.

15. What’s the Role of a Lawyer? ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings states that before every hearing lawyer for child needs to investigate and take appropriate legal action regarding medical well-being of child. Section 7(b)(7).

16. What’s the Role of a Lawyer? In Texas, under Chapter 266 of the Family Code, lawyers for children can request medication reviews for clients. Court is required to review medical care at every hearing and make findings. Tex. Fam. Code 266.007. Lawyers can request hearing to determine that children 16 and older be allowed to consent to medical care on their own. Tex. Fam. Code 266.010.

17. What’s the Role of a Lawyer? Lawyers are entitled to participate in staffings about the child conducted by an authorized agency. Tex. Fam. Code 107.003(3)(F). ABA Model Act in the commentary mentions that lawyers should participate or ensure adequate representation in ancillary proceedings.

18. But I’m not a Doctor! You don’t have to be a doctor. You don’t have to be a nurse or pharmacist. It’s ok if you only went to law school because you failed organic chemistry sophomore year of college. Here are some practice tips:

19. 1. Be Informed Determine whether the person authorized to consent has given informed consent for the psychotropic medication. Did the person participate in the medical appointment where the medication was prescribed? How about treatment team or IEP meetings for your child? If the person authorized to consent is NOT the foster parent, ask how many other children has he or she been appointed to consent to medical care. If the person authorized to consent is not fully participating in medical appointments, ask the court to appoint another person. Find out whether your child is informed about why he or she is taking medication and what are the benefits, risks and side effects of the medication.

20. 1. Be Informed (cont.) Learn about your child’s diagnosis and how it was arrived at. Don’t be afraid to ask your child’s treating physician. Be aware of your child’s mental health history. This includes the medications and other forms of mental health treatment that he or she received in the past. For each psychotropic medication prescribed for your child, know what diagnosis and symptoms are being treated by the medication.

21. 1. Be Informed (cont.) Look for physical signs such as changes in weight, sleepiness, over-sedation, overstimulation, slurred speech, confusion, disorientation, increased agitation, irritability and restlessness that may be indicators of the child’s adverse reaction to the medication. Talk to the child about how he or she feels about the medication. Take any concerns expressed by the child seriously.

22. 1. Be Informed (cont.) Obtain as much information about the benefits, risks and side effects of the psychotropic medication. Ask the physician for the written documentation provided as part of the informed consent process when the medication was prescribed. Make sure the lab work and any other follow-up required for the medication is being done.

23. 1. Be Informed (cont.) Need general guidance? Texas has some great parameters for psychotropic med use complete with a list of items that trigger red flags and then a comprehensive list of recommended dosages of meds. http://www.dfps.state.tx.us/documents/Child_Protection/pdf/TxFosterCareParameters-December2010.pdf.

24. 2. Have Courage Don’t be afraid to question physicians and other mental health professionals. Prepare in writing the questions that you want answered. Don’t abdicate clinical decisions to the experts. If your child is being treated by a physician who is not a child psychiatrist and is not improving, request that he be seen by a child psychiatrist.

25. 3. Request a Medication Review Either at a hearing or by a motion, request that the court conduct a review of the child’s medications. This can occur after noticing changes in your client’s mood, weight, energy level, or noticing other physical signs in your client. Could also occur after reviewing records and noticing red flags like two or more concomitant antipsychotics or stimulants or three or more concomitant mood stabilizers, five or more medications, more than one med being changed at a time, excessive dosages, absence of a DSM diagnosis, or prescription of meds before attempting other therapies.

26. 4. Involve the Court Document your concerns about medications in any reports to the court. Raise your concerns in court. Make sure that at all review hearings, your child has an opportunity to express his or her concerns about psychotropic medications to the court. This could even occur in chambers if your child is shy.

27. 5. Don’t Be Complacent Remember psychotropic medications are not the panacea for fixing all of your child’s problems. Your child might be a victim of trauma. Request trauma sensitive programming. Advocate that your child be placed in the least restrictive (most family-like) setting. If your child has not responded to treatment, find an expert to review the child’s case to get new ideas.

28. Education Advocacy How Attorneys Can Effectively Advocate for Clients’ Educational Goals

29. Education • Foster youth are at least twice as likely to repeat a grade • Only 54% of young adults discharged from care have completed high school • Only 2% of youth aging out of care obtain a bachelor’s degree • Education is the Lifeline for Youth in Foster Care (October 2011), National Working Group on Foster Care and Education: • www.casey.org/Resources/Publications/pdf/EducationalOutcomesFactSheet.pdf

30. Roles for All Students The Lawyer The Advocate

31. The Lawyer’s Tools Appointment Order - Same access as parent - Educational records - Obtain Records - Communicate with teachers, counselors, administrators - See children at school - Attend meetings, IEPs - Notification of disciplinary actions Appointment Order Court’s Authority Existing Laws

32. The Lawyer’s Tools Specific Orders - evaluations - findings needed by schools - tutoring Subpoena witnesses - hearings - trials - questions about education Appointment order Court’s Authority Existing Laws

33. The Lawyer’s Tools McKinney-Vento - Idea is to keep children in the same school until end of academic year - In your state, “homeless” may be foster/kinship care -Children eligible for public education, preschool/HS -Transportation, Liaisons, Coordination, Immediate Enrollment, Comparable Services Appointment order Court’s Authority Existing Laws

34. The Lawyer’s Tools Fostering Connections - Requires consideration of proximity and appropriateness - Collaboration to remain in same school - Immediate enrollment in new school - Transportation included as foster care payments -State plan requirement to ensure enrollment & attendance - Requirements for transition plan, including education - Foster Care Liaisons Appointment Order Court’s Authority Existing Laws

35. The Advocate’s Tools • Tutoring • Extra-curricular • Fine Arts/Music/Theatre • School Trips • Community • Safe harbor from chaos - Magnet schools - Fine Arts Academies - On-line courses - Charter schools - Home schools - Credit recovery programs - Summer school - Alternative education - Private school Recognize strengths of schools Community Education Options

36. The Advocate’s Tools • Reasonable requests for flexibility - Application deadlines - Permission logistics - Try-outs for sports, music, etc. • Communicate with foster parents/agencies - Importance of education - How support education - What it takes to get into college Be a voice for your client

37. Placement Changes Or, how all your plans can be changed • Education calendar - Grading periods - Testing schedules - Credit transfers • Transportation collaboration • Know client’s programs and services • Make sure client enrolled ASAP and put into proper classes • Records timely transferred

38. Before Aging Out Driver’s license Social Security Card Birth Certificate Immunization Records School Records Immigration issues resolved Medicaid coverage Set up email account Scan and email legal documents to client Ensure client has original documents Keep copies of documents Knows how to contact benefits coordinator Memorized your phone number and email

39. Education Advocacy For Special Education Students in Dependency Cases

40. ABA Model Rules ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings says lawyers should have access to education records. Section 8(a)(2). 1996 ABA Standards of Practice For Lawyers Who Represent Children in Abuse and Neglect Cases states that lawyers should review their clients’ education records. C-2(1).

41. IDEA and FERPA An “education record” is a record directly related to a student and maintained by an educational agency or institution or by a party action for the agency or institution. 34 CFR 99.3. Education agencies may not release special education records to anyone other than a parent without parental consent unless it falls into a FERPA exception spelled out in 34 CFR 99. 34 CFR 300.571. Schools can issue records if in accordance with a judicial order or subpoena. 34 CFR 99.31(a)(9)(i).

42. IDEA and FERPA Practice Tips Ask judges to specify access to education records in all court orders. Speak with educational surrogate or child welfare agency about signing consent ahead of time. Pay attention to your own state law on this issue. Obtain records directly from child welfare agency.

43. Special Education Law and Purpose • Sources of Special Education Law: - IDEA 20 U.S.C. § 1400 et. seq. (34 CFR Part 300) - State law often has more or at least corollary protections. • To ensure that all children with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. 42 U.S.C. § 1400(d)(1)(A). • To ensure that the rights of children with disabilities and parents of such children are protected. 42 U.S.C. § 1400(d)(1)(B).

44. Eligibility • To be eligible, the student must meet the definition of one of several enumerated disabilities and, “by reason thereof,” need special education and related services. 42 U.S.C. § 1401(3). • These disabilities include: - Intellectual disability - Hearing impairments, including deafness - Speech or language impairments - Visual impairments, including blindness - Serious emotional disturbance - Orthopedic impairments - Autism - Traumatic brain injury - Other health impairments, such as a terminal or chronic disorder or ADHD - Specific learning disabilities, such as dyslexia

45. Entitlement and FAPE IDEA guarantees that all students with disabilities age 3 through 21 have the right to a “free and appropriate public education” (FAPE). 21 means 21 at the beginning of a school year. Thus, 22 year olds can often be served in a district. The right to a FAPE ends when a student graduates with a regular high school diploma. 34 C.F.R. § 300.102(a)(3)(i). This does not include students who have received a certificate of attendance or a certificate of graduation that is not a regular high school diploma. Id. § 300.102(a)(3)(ii). School districts deliver FAPE by providing “special education services” and “related services.”

46. IEP Meeting • When - Meets at least once a year to develop student’s Individual Educational Program (IEP) - Parent must receive notice 5+ school days before meeting and school must attempt to work with parent’s schedule • Who attends - Members of Committee: • Parents and Student • Representative of school district knowledgeable about special ed. services • 1+ special ed. teacher • 1+ regular ed. teacher (if student is or may be in regular ed. classes) • Someone who can interpret evaluations. - Member does not have to be present if school and parents agree in writing. 20 U.S.C. § 1414(d)(1)(c)(i) and (iii). But, if member’s area of curriculum or related services is being discussed, member must provide written input to committee before meeting. 20 U.S.C. § 1414(d)(1)(c)(i) and (iii)

47. IEPs IEPs must include: • Present levels of academic achievement and functional performance; and • A statement of measurable annual goals including both academic and functional goals. 20 U.S.C. § 1414(d)(1)(A)(i)(I)(II). • In simple terms, IEPs must address: goals, placement, FBAs and BIPs where appropriate, related services, transition services and supplements.

48. Who is Considered a “Parent” Under IDEA? • Biological or adoptive parent • Foster parent unless prohibited by state law • Guardian generally authorized to act as the child’s parent or to make educational decisions for the child • Person acting in place of a parent and who the child lives with (can be non-relative) • Person legally responsible for the child • Surrogate parent 34 C.F.R. § 300.30(a)

49. Surrogate Parent • A surrogate must be appointed for a child if: - The child is a ward of the state under state law; - No parent can be identified; - No parent can be located after reasonable efforts; or - The child is an unaccompanied homeless youth under McKinney-Vento. 34 C.F.R. § 300.519(a)

50. Surrogate Parent Must not be an employee of the school district, state education agency, or any other agency involved in the care or education of the child. No personal or professional interest that conflicts with the interest of the child. Knowledge and skills that ensure adequate representation of the child. 34 C.F.R. § 300.519(d)(2).