Seen and Heard Involving Children in Dependency Court

1. Seen and HeardInvolving Children in Dependency Court Kristin Kelly Staff Attorney American Bar Association Center on Children and the Law Bar-Youth Empowerment Project Wyoming Court Improvement Project February 10, 2011

2. All I ever wanted was to be heard and not just dismissed… Youth in foster care

3. Outline of Presentation • Benefits of Youth Participation • Federal and State Law and National Perspective • Concerns about Youth Involvement • Policy and Practice Considerations • Tips/roles for involving youth in court proceedings • Study • Additional Resources

4. Benefits of Youth Involvement

5. Youth Involvement • Case level: • Empowered in transition and permanency planning • Assure necessary services and supports • Sense of control • Understanding the process • Information for the court • System level: • Advocacy and effective implementation

6. Federal and State Law and National Perspective

7. Current Federal Requirements for Case Plans • “Case plans” must include an independent living plan “where appropriate for youth ages 16 and older.” 42 U.S.C. 675 (1)(D)

8. Current Federal 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. • 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); 45 C.F.R. § 1356.21(b)(2)(i).

9. Current Federal Requirements for Case Reviews, cont. • 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).

10. Organizational Support • NCJFCJ – Resource Guidelines • ABA – Standards for Representing Children in Abuse and Neglect Cases • NACC – ABA Standards Amended • Pew Commission – Fostering the Future • UNLV conference on Representing Children in Families

11. Around the country • Age • Kansas – 14 • New Mexico – 14 (compelling v. best interest) • Virginia – 12 • Michigan - 11 (notification) • Idaho – 8 (notice and right to be heard) • Other criteria • Minnesota – children have the right • Florida – best interests • California – children’s right

12. Wyoming • Rules of Procedure for Juvenile Court – Rule 2 Presence of the Child. A child who is not of suitable age to understand or participate in the proceedings need not be present at hearings in abuse and neglect actions unless the court so orders.A child alleged or adjudicated to be delinquent, or in need of supervision, shall be present at all hearings unless otherwise ordered by the court. A child alleged or adjudicated to be delinquent, or in need of supervision, shall be present at any hearing where the court is required to advise the child of the contents of a Petition and the child's rights under any applicable statute.Upon motion of a party, the court may excuse the presence of a child alleged or adjudicated to be delinquent, or in need of supervision, who is of suitable age, if attendance would be detrimental to the child; or allow a child to appear by telephone. • Rules of Procedure for Juvenile Court – Rule 8 Duties of Court Appointed Special Advocates. 8. Ascertain the wishes of the child and assist in making the wishes known to the parties

13. Guardian Ad Litem Program/Rules • (xi) In recognition of federal law encouraging the presence of children at hearings in which they are the subject and in recognizing the best interests of the child, children should attend all significant court hearings, unless, for their best interests, they should be excluded. A decision to exclude the child from the hearing should be made based on a particularized determination that the child does not want to attend, is too young to sit through the hearing, would be severely traumatized by such attendance, or for other good reason would be better served by nonattendance. The lawyer should consult the child, therapist, caretaker or any other knowledgeable person in determining the effect on the child of being present at the hearing. The lawyer should also ensure that the state/custodian meets its obligation to transport the child to and from the hearing and ensure the presence of someone to accompany the child any time the child is temporarily absent from the hearing;

14. The presence of children in court proceedings that affect them is invaluable, even when they are too young to express themselves. The child’s presence alone can give a face to what would otherwise be simply words on paper. Nothing can substitute for personally observing and engaging a child.-Judge William G. Jones (ret)

15. Concerns • Harm to youth • Youth feel responsible • Youth are upset when they don’t get what they want • Logistics • School

16. Policy and Practice Considerations • What are youth’s wishes? • How old is the youth? • What is the developmental level of the youth? • Will attending court upset the youth?

17. Policy and Practice Considerations • Will attending court disrupt the youth’s routine? • Will court be confusing or boring to the youth? • Who will transport the youth? • Will the court need additional time for the hearings? • What type of hearing is scheduled?

18. Tips for involving youth in court proceedings • Have the youth present throughout the hearing • Present the youth’s testimony in chambers • Arrange in advance visit to the courthouse • Have the youth wait in a waiting area for the hearing • Exclude the youth from court during harmful testimony

19. GAL prepares the child Provide the youth with at least 2 weeks notice of the hearing. Let the youth know that he may have to wait for a couple of hours and to bring school work or other things to occupy his time. Discuss who will be present at the hearing and what their roles are. Determine whether the youth wants a supportive person present during the hearing. Explain your role as guardian ad litem and that you have to advocate for the youth’s best interests. Let the youth know what is in the GAL’s report to the court. Tell the youth that you will tell the judge what she wants. Discuss what is expected to happen. Let the youth read the child welfare agency’s report to the court (or tell the youth the pertinent portions) and find out whether the youth has any responses. Find out what the youth wants to the judge to know. If the youth’s position is different that yours, request alternative counsel be appointed.

20. Determine how and whether the youth wants to speak with the judge directly (i.e. during the court proceeding with parties present or in chambers (if possible)). Include in the report to court whether the youth will attend the hearing and any accommodations that should be made. Respond to the youth’s questions about the hearing. Decide whether the youth should attend the entire hearing or be excused for certain portions. Decide with the youth whether he should speak directly to the judge during the hearing and discuss what he will say. Ensure arrangements are made to bring the youth to the hearing.

21. What role do foster parents play in preparing the youth? Arrange transportation Make any schedule changes so the youth does not miss out on activities Contact the school to inform them and get homework Be available as a support person for the youth during the hearing

22. What role does social worker play in preparing the child? Provide the youth 2 weeks notice of the hearing Let the youth know that he may have to wait for a couple of hours and to bring school work or other things to occupy his time Discuss who will be present at the hearing and what their roles are Arrange for a supportive person present during the hearing Let the youth know what is in the social workers’ report to the court Help the youth write down what the youth wants the judge to know

23. Social workers Tell the GAL what the youth’s opinion is on placement, goals, services, visitation, etc. Tell the GAL whether the youth wants to speak with the judge in chambers Tell the GAL whether the youth should attend the whole hearing or be excused for portions Arrange transportation to the hearing with the youth’s placement provider

24. Youth in Court Checklist

25. Preparing for Court • Logistics • Description of courtroom • Number of people present • Appropriate behavior and dress • Availability of comforts: bathroom, food, drink • Activities while waiting: toys, books, cell phones • Transportation • School and Schedule • Attendees and Roles • Purpose of the Hearing • Questions Youth Might Be Asked/What Youth Wants To Tell The Judge • Special Issues- Fears, Concerns

26. During the Hearing • Introduce youth and family members • Support person • Allow youth to speak • Engage youth (See benchards) • Bifurcate hearing, if appropriate • In chambers consultation

27. Debrief Afterwards • Review court order • GAL ensures youth understands what happened and what will happen next • Allow youth to ask questions • Follow up with therapy around court issues, if necessary • Follow up in several weeks to see if youth has questions

28. Research

29. Study results Children with more advanced general legal understanding are less distressed about their hearing and understand more about decisions made in their cases Overall, most children do not experience negative emotional reactions to court participation and prior knowledge about the court process may make the experience even more positive Children need help understanding the legal system, particularly the decisions made on their behalf Teens consider fairness in their overall satisfaction with case outcomes Positive perceptions about legitimacy of legal system were associated with lower rates of delinquent behavior

30. Children who attended hearings felt They were given a chance to tell their side of things The judge listened to them when they talked in court They were treated fairly during the hearings Their GAL and their case worker did a good job telling the judge about their situation Trust in the judge to do what’s best for them Felt nervous about hearings but not upset in court and felt comfortable answering judge’s questions Children who did not attend hearings reported Lower ratings about whether they were given a chance to tell their attorney GAL about their situation Less positive perceptions about whether the judge knew enough to make the right decision Less confidence about whether someone at the hearing told the judge what they think Less positive perceptions about whether their perspectives are valued

31. Resources • American Bar Association Bar-Youth Empowerment Project www.abanet.org/child/empowerment • Judicial Benchcards • Older Youth Court Handbook • Top 10 Concerns and Solutions • Legal Ethics of Youth Involvement in Court • Judicial Considerations around Fostering Connections Act (Available March 2011) • Improving Outcomes for Older Youth http://www.nrcys.ou.edu/yd/

32. Sample Transition Planning Questions

33. Permanent Connections • Where do you go for holidays? Who do you call for support, help, advice and in emergencies? Will those people be available after you transition out of foster care? • Do you keep in touch with family (parents, siblings, other relatives)? Do you know how to get in touch with them? • Who will you contact after you transition out of foster care if you have any questions health, school, housing? General questions about transition plan • Did you work with your social work on writing the transition plan? What do you like most about your transition plan? What do you like least? Is there anything you don’t understand about it? Specific questions about the required topics • Who is your doctor? Do you know whether you can continue with this doctor after foster care terminates? If not, who will your doctor be? Doctor = general doc, ob/gyn, psychiatrist, etc • Do you have an understanding about the importance of having a health care power of attorney or health care proxy to make health care decisions on your behalf? • Has someone at the agency talked to you about this? • Do you know the process for reapplying for Medicaid if necessary? • Where do you live? Are you going to live there after the case closes? If not, where are you going to live? Do you have information on landlord/tenant rights? Where should you go to get that information?

34. Do you have a job? Will that job continue after you transition out of foster care? • Are you in school? What is your plan for future education? • What is the plan for post-secondary education or training? • What are the supports in place to assist you with continued educational success? • What assistance has the young adult received to prepare for and apply to post-secondary education or training, including assistance with financial aid applications? • Have you accessed Chafee services and Education and Training Vouchers (ETVs)? • Are you eligible for other scholarships or financial assistance programs targeted at youth in foster care including available state tuition assistance programs? • Do you know how to get access to your medical records or health passport? • Do you have a dentist? Can you keep that dentist after you age out of foster care? • Do you have health insurance for when you transition? • Does the youth/young adult have an understanding of the basic governmental, community and housing services available to them after discharge? • What aftercare services will be provided by the state? • Is there anything else you need assistance with?

35. Kristin KellyStaff AttorneyABA Center on Children and the LawBar-Youth Empowerment Project202-662-1733Kristin.Kelly@AmericanBar.orgwww.abanet.org/child/empowerment