Annual Court Improvement Project Meeting Plenary Session July 22, 2010

1. Fostering Connections to Success and Increasing Adoptions Act of 2008: Judicial Considerations Annual Court Improvement Project Meeting Plenary Session July 22, 2010

2. Overview of Fostering Connections Act Kinship Provisions Education Provisions Older Youth Provisions Other Provisions Questions Agenda

3. Progress for Children and Families • Fostering Connections to Success and Increasing Adoptions Act (P.L. 110-351) signed into law on October 7, 2008 • Most significant federal reform for abused and neglected children in more than a decade • Some provisions are optional and others are mandatory • May require legislation, policy changes and/or submission of amended title IV-E plans

4. Summary of Law • The new law promotes: • Permanent families for children with relatives • Adoption for foster children with special needs • Linkages through Family Connections Grants • Reasonable efforts to place and connect children in foster care with siblings

5. Summary of Law (cont’d) Expanded support and transition planning for older youth in foster care Educational stability and attendance requirements for children in foster, kinship and adoptive families Coordinated health planning for children in foster care Direct access of tribes to IV-E funds and technical assistance upon submission of plan Expanded funding for training to cover private agency staff, judges, attorneys, CASA, relative guardians, and others

6. Children’s Bureau Guidance • Newly issued Program Instruction (PI) on the law (7/9/10): ACF-CB-PI-10-11 • http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/ or download pdf at www.fosteringconnections.org • Revised Title IV-E plan pre-print that incorporates Fostering Connections: • http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2009/pi0908.htm • A list of key Children's Bureau policy, guidance and other implementation activities related to Fostering Connections: • http://www.acf.hhs.gov/programs/cb/laws_policies/implementation_foster.htm

7. Role of the Judge • Judicial oversight at every hearing to ensure successful implementation of new law • law only effective if properly implemented • ASFA well being inquiry • Judge may be the only one who asks implementation questions • Convince state legislators and agency to take advantage of optional provisions and need for proper implementation and training

8. Provisions AffectingKinship Families Promoting Permanent Placements with Grandparents and Other Relatives

9. Guardianship Assistance (GAP) • State option to use Title IV-E funds to provide assistance to children who leave foster care for legal guardianship with a relative • Known as subsidized guardianship or GAP • Children are eligible for Medicaid • Children not required to have “special needs” • Monthly amount up to foster care payment amount (may not exceed) • Payments available until child turns 18 (or 21) • States must pay non-recurring costs of legal guardianship (e.g., legal fees) up to $2,000

10. Guardianship Assistance (GAP) • If child is eligible for federal adoption assistance when placed with guardian, child continues to be eligible if guardian wants to adopt the child later • Guardianship agreement remains in effect even if the guardian moves to another state. • Effective 10/7/08, state must amend IV-E plan, some states need legislation • Program instructions:ACYF-CB-PI-10-07 and 10-01 • http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2010/pi1007.htm • http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2010/pi1001.htm

11. Guardianship Assistance: Eligible Children • Must be eligible for Title IV-E foster care • Must live with licensed relative for 6 consecutive months prior to guardianship • Must demonstrate a strong attachment to the prospective relative guardian • If age 14 and older, must be consulted about guardianship arrangement before it is finalized • May include siblings of eligible children and those children already receiving guardianship assistance under federal waiver as of September 30, 2008 • PI allows states to define “sibling” for purposes of GAP

12. Guardianship Assistance: Eligible Guardians • Must be relatives • PI gives states discretion to define “relative” either narrowly or broadly • Should have consistent definition with notice • Willing to assume legal guardianship of the child • Have a strong commitment to care for the child permanently • Must have cared for child for at least 6 consecutive months as a licensed foster parent (need criminal record and child abuse registry checks)

13. Guardianship Assistance: State Requirements • States who opt to provide payments must: • Amend and submit a revised state Title IV-E plan to the Administration for Children and Families • Provide state and local dollars required to match federal dollars for the program • Although law does not require states to amend current laws, amendments/new laws may be needed to implement • Negotiate a written assistance agreement (similar to adoption assistance agreements) with prospective guardians • Must specify amount of payment and manner of adjustment of payment

14. Guardianship Assistance: Court Findings • Once program is established, states must document and court make findings on: • Why return home and adoption are not appropriate permanency options, • The reasons for any separation of siblings, • The reasons why a subsidized guardianship is in the child’s best interests, • The ways in which the child meets the eligibility requirements, • efforts to discuss adoption with kinship caregivers and guardianship with parents

15. Status of State Guardianship Option • 8 states have passed laws adopting this option: Alabama,Arkansas, Colorado, Michigan, New York (budget line only), Texas, Vermont and Washington. • By law, no state legislation is required to implement • 3 States have pending legislation: California, New York, Pennsylvania • 11 states have submitted plans to HHS and are awaiting approval: Connecticut, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Missouri, Montana, New Jersey, Oregon, and Washington. • 4 state plans have been approved: Michigan, Pennsylvania, Rhode Island and Tennessee. • See:www.grandfamilies.org to track this legislation

16. Judicial Considerations • How does your state define relative? • Is licensing for relatives required by state law? • Are fictive kin included in definition? • Maternal and paternal relatives • Is guardianship the most appropriate option and in child’s best interest? • Why reunification and adoption are not an option • Does child demonstrate a strong attachment to the prospective relative guardian? How demonstrate? • Was the child age14 and older consulted and younger if developmentally appropriate? • Is the guardian committed and able to care for child permanently?

17. Judicial Considerations • What is relationship between guardian and parents – orders should include: • Contact, visitation plan - supervised, location, frequency, best interest controls • Plan to keep siblings connected • Rights of guardians and rights of parents • Named successor or standby guardian or require hearing • Are there any other necessary provisions or conditions? • Is there a clear process for modifications, parental petitions for visitation and to re-gain custody? • Are there trained lawyers to represent relatives in your area - legal fees are covered by non-recurring costs

18. Family Connection Grants • Authorizes $15 million annually for the Family Connection Grant Program (no new grants for 2010) • Reserves $5 million for kinship navigator programs • Competitive federal grants may be used for: • Kinship navigator programs • Intensive family finding • Family group decision-making or other similar conferencing • Residential, family-based substance abuse treatment • Available to states, tribes, large metro areas and non-profits working with children in foster or kinship care • 24 recipients announced September 2009: http://www.acf.hhs.gov/programs/cb/programs_fund/discretionary/2009.htm • up to one million dollars per year for up to 3 years

19. Judicial Considerations • Determine if there are any of these programs in your area, either created by grant or existing • If there are such programs, learn about eligibility requirements • Refer families and/or ensure referrals have been made to programs, if appropriate • Are there other similar programs that help maintain family connections?

20. Notice Requirements • Requires states to use due diligence to identify and notify all adult relatives • Exception for family and domestic violence • Notice within 30 days of removal from parents’ custody • Effective 10/7/08 unless state legislation required and permission for delay

21. Notice Requirements (cont’d) • Notice must: • Specify the child removed from parent(s) custody • Explain options to participate in care and/or placement and options lost for failure to respond • Describe requirements to become foster parents • Outline available services and supports • Describe GAP, if state has chosen this option • Can use Federal Parent Locator Service to locate • PI encourages engagement of relatives for children at risk of removal and encourages notice in writing

22. Judicial Considerations • Ask agency if they have identified and notified relatives at the first hearing and all subsequent hearings • What due diligence efforts were made & how documented • how is due diligence defined in your state • combination of good casework and technological resources • Paternal, maternal and non custodial relatives notified • Be familiar with your state notice laws and policies • How are relatives defined in your state (consistent with GAP) • Are there reasons to use family or domestic violence exceptions • Who will make this determination – court, agency • How will this be applied/defined and by whom

23. Judicial Considerations • Ask parents and child from the bench to help identify relatives and possible placement and family resources • if parents refuse, advise them child may be placed with people they don’t know • Help clarify placement options and make sure relatives understand ALL options – formal and informal • Ensure that families, including the relative caregiver understand the role of the relative in the process • Are the family members aware of ways that they may stay connected with the child and engaged in the child’s case, even if they are not a placement option for the child?

24. Licensing for Relative Caregivers • To increase the availability of licensed foster care homes with relatives, the new law: • Allows states to waive “non-safety”-related licensing standards for relatives on a case-by-case basis (e.g. square footage requirements) • States have discretion to establish licensing standards and define which are non-safety • Requires HHS to submit report to Congress by 10/10 on state licensing standards for relatives and recommendations to increase the number of licensed relative foster homes • See www.grandfamilies.org for all state waiver laws and policies

25. Judicial Considerations • What are your states licensing requirements for relatives? • What is the state’s philosophy and practice re: licensing relatives as foster parents • What are the common reasons why relatives are not licensed? • What are the barriers for licensing a relative for this child? • What are the minimum licensing requirements • Which standards are considered safety vs. non safety standards • Ensure safety standards are not waived • What is your state’s policy on waivers of licensing requirements? • Are waivers consistently applied to all by all and reason for waiver documented? • Does policy differ from actual practice?

26. Sibling Provisions • States must make reasonable efforts to place siblings together in foster, kinship and adoptive homes unless contrary to the safety or well-being of a child • If siblings not placed together, states must document why not and: • Must make reasonable efforts to provide frequent visitation or other on-going contact between siblings, • unless states document that contact would be contrary to the safety or well-being • PI encourages periodic assessment of placement and visitation and allows states to define siblings • Frequent visitation defined as at least monthly

27. Judicial Considerations • Courts should review documentation of “reasonable efforts” to keep siblings together and if not together, why not • Inquire at each hearing if circumstances have changed that would allow for placement with siblings • Siblings should have written visitation plan to ensure visits • Sibling visits can not be dependent on parental visits • How does your state plan for siblings with varying needs? • Older vs. younger, adoption vs. other permanency options • What about the child’s wishes with regard to sibling placement and visitation? • How does your state define sibling? • What about visits with siblings not in care, half siblings, siblings placed with different sides of the family (paternal)?

28. Education Provisions Promoting School Stability

29. School Stability and Children in Foster Care • On average, a child in care may changes schools two to three times per year. • With each move, a child falls three to six months academically behind their classmates. • Academic difficulties are more likely to go unnoticed; records misplaced, credits lost and academic placements may be inappropriate. • Almost half of foster youth nationally do not complete high school.

30. Appropriateness and Proximity • The child’s case plan must include “assurances that the placement of a child in foster care takes into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement.”

31. School Stability • The child’s case plan must include • “(I) an assurance that the state [or local child welfare agency] has coordinated with appropriate local education agencies … to ensure that the child remains enrolled in the school in which the child was enrolled at the time of placement” • Unless moving is in the child’s best interest – in which case – go to part II.

32. School Stability Determination Issues • How is best interest determined/what are factors to address? (see next two slides for sample questions to consider when making school selection decisions) • Who ultimately decides best interest? • What is the role of the parents (or other person with education decision-making authority) in making these decisions? • How will disputes be resolved? • How will child welfare and education collaborate?

33. Key Questions to Consider When Making a Best Interest Determination • How long is the child’s current placement expected to last? • What is the child’s permanency plan? • How many schools has the child attended over the past few years? How many schools has the child attended this year? How have the school transfers affected the child emotionally, academically and physically? • How strong is the child academically? • To what extent are the programs and activities at the potential new school comparable to or better than those at the current school? • Does one school have programs and activities that address the unique needs or interests of the student that the other school does not have? • Which school does the student prefer?

34. Key Questions to Consider When Making a BI determination cont…. • How deep are the child’s ties to his or her current school? • Would the timing of the school transfer coincide with a logical juncture such as after testing, after an event that is significant to the child, or at the end of the school year? • How would changing schools affect the student’s ability to earn full credits, participate in sports or other extra-curricular activities, proceed to the next grade, or graduate on time? • How would the length of the commute to the school of origin impact the child? • How anxious is the child about having been removed from the home and/or any upcoming moves? • What school do the child’s siblings attend? • Are there any safety issues to consider?

35. Resource for Making Best Interest Decisions • School Selection for Students in Out-of-Home Care This brief provides a framework for local homeless education liaisons, educators, child welfare caseworkers, and other child welfare advocates for assessing best interest when selecting a school for students in out-of-home care. http://www.serve.org/nche/downloads/briefs/school_sel_in_care.pdf • ACYF-CB-PI-10-11: lists examples of factors agencies may want to consider, including child’s preference, safety, appropriateness of each education programs.

36. Transportation • The term foster care maintenance payments includes “reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.”

37. Transportation Issues • Permissible use (Admin or Maintenance) • Applies only to IV-E eligible children, although case plan requirement to ensure same school applies to ALL children in care. • Requires state to fund match for IV-E eligible children; no federal dollars to support transportation for non IV-E eligible children. • How can reimbursements can be calculated?

38. Transportation Remember: Not all children in care will require transportation to remain in their same school. Total # of children in care minus # not yet school age minus # graduated/left HS minus # placed within the school boundaries minus # in their BI to be immediately enrolled in new school minus # covered under McKinney Vento minus # have transport. in IEP EQUALS # of children who may need transportation to remain in current school

39. Even when transportation is needed… • Transportation that doesn’t cost any additional dollars • child who can cross street or be dropped at a bus stop close by • school district bus routes converge • adult who’s existing commute compliments the child’s transportation need • adding a child to a preexisting bus route • Transportation that can be provided at minimal cost • reimburse mileage to foster parent or relative • bus passes or other public transportation vouchers

40. Immediate Enrollment in a New School • If remaining in the same school is not in the best interest of the child, the child’s case plan must include • “(II) … assurances by the State agency and the local education agencies to provide immediate and appropriate enrollment in a new school, with all of the education records of the child provided to the school.” 42 U.S.C.A. 675(1)(G)(ii).

41. Attendance • State plan attendance requirement: states must include in their state plan, for all IV-E eligible children (including adoption assistance and guardianship assistance), “assurances that each child who has attained the minimum age for compulsory school attendance under state law…is a full-time elementary or secondary school student or has completed secondary school…” 42 U.S.C.A. 671. • Elementary or secondary school student includes: • A child enrolled or in the process of enrolling in school • Home schooling, as permitted by state law • Independent study program • Incapable of attending due to medical condition that precludes participation

42. Judicial Considerations • Ask questions about enrollment and appropriateness of school • ASFA well being inquiry includes education issues • Ask if child is enrolled & attending school at each hearing • Was the appropriateness and proximity of the child’s school considered? • Court’s authority to address may depend on jurisdiction; court may: • Make best interest determination - if not maintained in school of origin, ask why not and to review case plan • Convene parties to collaborate • Order school to enroll child

43. Judicial Considerations • Order school representative to appear in court to explain delays in enrollment or record transfers • Order access to education records by particular individuals (through FERPA court order exception) • Order child welfare advocate to address partial credit or graduation requirement issues • Issue court order to: • Pursue transportation options or provide transportation • What individual is the child’s education decision maker? • State law could require that educational stability plan (in case plan) is presented to court at all permanency review hearings

44. Implementation of education provisions How do we actually implement these provisions? Increasing attention to education issues within state and local child welfare agencies, as well as the courts Full engagement of education partners in efforts related to children in foster care Individual agency and court responsibilities clearly identified Coordination and collaboration across agencies and courts- ongoing and meaningful interactions Support from leadership in child welfare and education agencies, and the court Change policies, procedures and practice to reflect the collaboration Track efforts and improvements- refine collaboration based on real impact on children and families

45. Improving Outcomes for Older Youth Assistance for Older Youth to age 21

46. Eliminates Disincentive to Permanency • Extends eligibility for Independent Living Services to youth who enter kinship guardianship or were adopted at age 16 or older. • Extends eligibility for Education Training Vouchers (ETVs) to youth who enter kinship guardianship or were adopted at age 16 or older.

47. Current Requirements for Case Reviews • At least once every 6 months for all Title IV-E eligible youth (including youth over 18). • The court must find what services are needed for a youth 16 and older to transition from foster care to independence. • The court must find that reasonable efforts are being made to finalize the permanency plan. • Permanency hearing must be held under conditions that support active engagement of youth in key decisions • States must implement procedural safeguards to ensure that at all hearings, including “any hearing regarding the transition of the child from foster care to independent living,” the court consults “in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.” 42 U.S.C. § 675(5); 45 C.F.R. § 1356.21(b)(2)(i).

48. Caseworker visits • Monthly caseworker visits include youth over 18 • Well planned and focused on issues pertinent to case planning and service delivery • Youth and social worker should determine jointly the content of the visit • State must collect data on percentage of children who are visited by caseworker monthly • This data collection doesn’t currently involve youth over 18 (but could be required in future)

49. Other provisions • AFCARS – if state extends IV-E foster care maintenance payments, state must collect and report data to AFCARS on all youth receiving IV-E payment including youth over 18 • NYTD – youth over 18 receiving IV-E foster care maintenance payments must be considered to be in foster care • Monitoring – CFSR and Title IV-E eligibility reviews will include a youth 18 and over who are receiving Title IV-E payment • Child of a parent in foster care – For states that extends IV-E foster care assistance to youth age 18 and older, the requirement to cover the costs of the child of the parent in foster care will also apply to the youth 18 and older in a foster family home, child care institution or supervised independent living setting • Medicaid also applies to that child

50. New Requirement for Transition Planning Each state’s case review system must include procedures that ensure that: During the 90-day period immediately prior to the date the child will attain age 18 (or other age if the state elects), the agency must provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child, includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services, and is as detailed as the child may elect. 42 U.S.C. § 675(5)(H).