Unaccompanied youth: legal rights and legal advocacy

1. NAEHCY Annual Conference, October, 2012 Patricia Julianelle, Legal Director, pjulianelle@naehcy.org Liz McGrath, Co-Director, Pegasus Legal Services for Children, evmcgrath@pegasuslaw.org Unaccompanied youth:legal rights andlegal advocacy

2. Not for the Faint of Heart • Stephanie • Brad • Magdalena

3. Stephanie Age 15 Ran away from home; “couldn’t get along with stepdad” Refused to provide parents’ name or contact info Couch-surfing in your district High school enrolled immediately (hurray!) Mom called! Stephanie ran away to live with older boyfriend Demands disenrollment Preparing to sue 3

4. Stephanie Whose story is true, Stephanie’s or mother’s? School required to locate and contact parents? School required to report to child welfare? School required to report to the police? Harboring a runaway? Contributing to dependency or delinquency? Enrollment and strategies to prevent liability? What to do now? 4

5. Whose story is true? Why might Stephanie not tell the truth? Why might Stephanie’s mother not tell the truth? Strategies to get to the bottom of the situation? 5

6. Is the school required to locate and contact parents when enrolling unaccompanied youth? No; There is no law requiring schools to locate or contact parents when enrolling unaccompanied youth. School is the safest place for unaccompanied youth to be. If a parent contacts the school looking for child, the school cannot lie about the child’s whereabouts. Confirm parent’s identity Talk to youth: are there safety issues? 6

7. Is the school required to contact child welfare / child protective services when enrolling unaccompanied youth? Not as a matter of course. (WI, NM) Educators must report suspected abuse and neglect. Homelessness alone does not qualify. Technically, child welfare should serve almost all unaccompanied youth who are not being cared for by a parent, legal guardian or kinship caregiver. Do they? Do youth want that? 7

8. Is the school required to contact the police when enrolling unaccompanied youth? No; Schools must eliminate barriers to enrollment. Would you go somewhere if you thought you’d be arrested there? “Protocol for Enrolling Unaccompanied Youth in School: Whom Do We Call?” http://naehcy.org/tk/tk.html 8

9. Did the school “harbor a runaway” or “contribute to dependency / delinquency”? Harboring a runaway: Typical definition includes providing shelter to a minor without parental consent or notifying law enforcement. Contributing to dependency or delinquency typically requires some affirmative action against the child, such as abusing a or severely neglecting a child, or criminal behavior Research has not found any case where enrolling and serving an unaccompanied youth in school has been considered harboring or contributing to dependency/delinquency. 9

10. Immediate Enrollment under MV • Without a parent or guardian? • Yes! • Without other enrollment documents, such as school records, immunizations, proof of residency, etc.? • Yes! • The McKinney-Vento Act requires immediate enrollment of homeless children and youth. Lack of a parent/guardian and/or enrollment documents cannot delay or prevent enrollment. • School districts must eliminate barriers to youth’s enrollment in school.

11. What about parental disapproval and school liability? • Liability is based on the concept of negligence, or a failure to exercise reasonable care. • Following federal law and providing appropriate services are evidence of reasonable care. • Violating federal law and denying services are evidence of negligence. • It’s always OK to enroll a student in school!

12. How to be Reasonable • Schools can check if students have been reported missing at www.missingkids.com or 1-800-THE-LOST. • Schools can check lists of missing children (part of many state’s laws) • Connect unaccompanied youth with school counselors or social workers. • Talk with caregivers about their relationship to the youth. • Talk to the youth!

13. And now what? • Assuming we have verified it was mother that called. • Should the school withdraw Stephanie? • Who in the school building, school district and community could help? • Who should talk to Stephanie’s mother? • What would you say? • Who should talk to Stephanie? • What would you say?

14. Brad High school junior Parents kicked him out because he’s gay No contact with parents Staying at shelter High school enrolled immediately (hurray!) Bullying, needs mental health support Swim team Needs physical Coach willing to sign 14

15. Brad Can the coach consent for the physical? Can Brad consent? Strategies to help Brad access medical care? Strategies to help Brad access mental health care? Can the coach consent for Brad to travel to swim competitions? 15

16. Can the coach consent to the physical?Can Brad? What about mental health? • Generally, only persons age 18 and over can consent to their own medical, dental, and health care; minors need consent of a parent or guardian. • State laws provide exceptions, commonly including: • Emergency treatment • Substance abuse treatment (often with age limits) • Mental health services (often with age limits) • Pregnancy related care and care of the youth’s child • Contraception and care for STDs, including HIV (often with age limits) • Married/divorced and emancipated youth can consent

17. Medical and mental health consent (cont.) • Many states have general exceptions that apply to unaccompanied youth • Over a minimum age of 14 or 15 (AL, KS, OR, LA, SC) • Youth living apart from their parents/guardians and managing their own financial affairs (CA, CO, IN, ME, MD, MA, MN, MO, MT, NV, NM, OK, TX, WY) • Any homeless youth (AZ) • Mature minor doctrine: any person of ordinary intelligence and awareness sufficient to comprehend the need for, nature of and risks involved in medical care is competent to consent (ID, AR, courts)

18. What if your state doesn’t allow consent? • Does Brad have a recent physical from a previous school or health care provider? • Have parent sign a health care power of attorney • Phone consent of parent • If parents can’t be contacted, will a relative consent (if state law allows)? • Caregiver’s authorization affidavit • Health care for the Homeless providers • Liaison or other adult advocacy

19. What if your state doesn’t allow consent? • Visit the school counselor • Ask child welfare for help • Generally, any person relying in good faith on representations re: identity, age, relationship will not be held liable for providing care. • NAEHCY Unaccompanied Youth Toolkit • http://naehcy.org/tk/tk.html • Center on Adolescent Health and the Law • http://www.cahl.org/

20. Can Brad swim without the physical? • “The school … shall immediately enroll the homeless child or youth, even if the child or youth is unable to produce records normally required for enrollment, such as previous academic records, medical records, proof of residency, or other documentation.” 42 USC 11432(g)(3)(C) • “The terms ‘enroll’ and ‘enrollment’ include attending classes and participating fully in school activities.” 42 USC 11434a(1) • The answer: Yes. • And be reasonable.

21. Can the coach consent to Brad’s travel? • There is nothing to prevent it. • Remember: Liability is based on negligence. • What can the school do to establish evidence of “reasonableness”? • If the parent tells the school Brad cannot travel with the team: Now we may have a problem.

22. Magdalena 17 years old, High school senior On her own, working, couch-surfing Searching for greater stability SNAP SSI Housing 22

23. Can Magdalena apply for SNAP on her own? • There is no age minimum for SNAP; No parent signature is required; and SNAP cannot be denied due to lack of address or photo ID. • SNAP eligibility is based on the “household”. • If Magda purchases her own food and prepares her own meals, she is her own household. • NAEHCY Unaccompanied Youth Toolkit • http://naehcy.org/tk/tk.html

24. Can Magdalena apply for SNAP as part of one of the families where she’s staying? • If Magda and the family purchase and prepare food together, Magda can be added to their household application. • It’s important for Magda and the family(s) to talk about SNAP and how Magda’s application could affect the household.

25. What information would help Magda decide how to apply for SNAP? • Does she purchase and prepare food alone or as part of a family? • How often does she stay with the family? • Is the family already receiving SNAP? • Considering her income and the size of the family, how would Magda’s participation affect their benefit? • Does she move enough that she should apply on her own?

26. What are some housing ideas for Magdalena? • Stabilize one of her host families • Housing + High School = Success • www.naehcy.org/housingyouth • Housing programs for foster youth • Was she ever in care? • Does she have an open child welfare case? • Can child welfare or other programs for current/former foster youth be convinced to provide services? • Transitional housing programs for youth

27. What are some housing ideas for Magdalena? (cont.) • Rent an apartment (OR law) • Stabilize her employment • Offer her school credit for work • Can school get her a bus pass to help with transportation? • Get her on SNAP • College dorms • Request a dorm that stays open year-round • Apply to be resident advisor / dorm monitor • College work-study

28. Social Security Survivor Benefits • Social Security Survivor benefits are based on a parent’s contributions to Social Security if: • The parent is disabled or retired and entitled to Social Security benefits, or • The parent died after having worked long enough in a job where he or she paid Social Security taxes • Unmarried youth are eligible to age 18, and up to 19 if a full-time high school student • Even if not living with guardian

29. Can Magda get her SS Survivor Benefits in her name? • Yes! Prior to 18th birthday, direct payments can be made to a youth if the youth is: • Living alone and supporting himself or herself • Capable of using the benefits to provide for his or her current needs and no qualified payee is available • Within 7 months of attaining age 18 and is initially filing an application for benefits • Other categories, as well • Benefits automatically transfer to youth on 18th birthday • NAEHCY Unaccompanied Youth Toolkit

30. What about SSI? • Monthly cash payment to individuals with disabilities and limited income. Automatic Medicaid eligibility. • Parents’ or guardians’ income counts only if the youth lives with his or her parents. • Youth 16-18 may sign their own applications, if they: • are mentally competent • have no court appointed representative, and • are not in the care of another person or institution. • For youth under age 16, a court appointed representative, person caring for the youth, or manager of an institution where the youth is residing may sign the application.

31. What if Magdalena is undocumented? • Undocumented immigrants can apply to public colleges and universities, except those in AL, GA and SC. • No in-state tuition (except TX, CA, NY, UT, IL, WA, NE, NM, OK, KS, MD, CT and RI) • No FAFSA • State financial aid only in NM and TX • Some private scholarships are available • Educators for Fair Consideration • http://e4fc.org/home.html

32. What if Magdalena is undocumented? • She may be eligible for legal immigration status • Best to start before she turns 18! • Deferred Action for Childhood Arrivals (DACA) • http://e4fc.org/dacafaqs.html • Immigration and Schools: Supporting Success for Undocumented Unaccompanied Homeless Youth • http://www.naehcy.org/dl/immig.pdf • ACLU’s Immigrant Services Directory: Public Resources for Intake Referrals • http://www.aclu.org/immigrants-rights/immigrant-services-directory-public-resource-intake-referrals

33. Additional Resources • National Association for the Education of Homeless Children and Youth www.naehcy.org • National Center for Homeless Education www.serve.org/nche; 1-800-308-2145 • National Network for Youth www.nn4youth.org • National Runaway Switchboard www.1800runaway.org; 1-800-621-4000

34. Additional Resources • Pegasus Legal Services for Children www.pegasuslaw.org/ • Trevor Project http://www.thetrevorproject.org/ • Stop Bullying http://www.stopbullying.gov/ • It Gets Better Project www.youtube.com/user/itgetsbetterproject