Permanency Options Under Adoption and Safe Families Act

1. Jennifer Renne Resource Center on Legal and Judicial IssuesABA Center on Children and the LawFaculty, Georgetown University Law CenterProviding Permanency for Adolescents: The Legal ContextRichmond, Virginia

2. Permanency Options Under Adoption and Safe Families Act • Return to the Parent • Adoption • Legal Guardianship • Permanent Placement with a Fit and Willing Relative • *Another Planned Permanent Living Arrangement (APPLA) • (*must document compelling reason)

3. Permanency Options Under Virginia Law §16.1-282.1 • Return custody to prior family • Custody to relative other than prior family • Terminate parental rights (Adoption) • *Permanent Foster Care • *Services to achieve independent living status for child 16 and over • *Another Planned Permanent Living Arrangement (Residential Care) • (* must document compelling reason)

4. Permanency Options Under Virginia Law §16.1-282.1 • In Virginia these permanency options are all considered APPLA for federal purposes and must be documented with compelling reasons: • Permanent Foster Care • Services to achieve independent living status for child 16 and over • Another Planned Permanent Living Arrangement (Residential Care)

5. Compelling Reasons • 2 different provisions: • 1.The agency determines it has a “compelling reason” not to file a termination petition for child who has been in care “15 of the last 22 months.” • 2. “Compelling reason” why “another planned permanent living arrangement” is being selected as a permanency option.

6. Compelling Reasons2 types are separate and distinct • There must be a documented compelling reason for why TPR is not being pursued, and there must be documented compelling reason why one of the four ( in Va. three) preferred permanency options is not being selected. • Court may address compelling reasons in court order, but is not required to do so.

7. Compelling Reasons Examples cited in federal regulations: • 1. An older teen who specifically requests that emancipation be established as his/her permanency plan; • 2. The case of a parent and child who have a significant bond, but the parent is unable to care for the child because of an emotional or physical disability; and the child’s foster parents have committed to raising him/her to the age of majority and to facilitate visitation with the disabled parent; or • 3. The Tribe has identified another planned permanent living arrangement for the child. • 45 C.F.R. § 1356.21 (h)(3)(i), (ii), & (iii).

8. Definition of Permanency • A safe, nurturing and stable home environment and set of relationships • Opportunity to live in a permanent home, one which can be returned to for support even as an adult • Home intended to last indefinitely • Family which gives a commitment to continuity for the child and allows for a lasting, supportive lifetime family relationship to be established • Gives child a sense of belonging and a definitive legal and social status

9. What is an “APPLA?” ASFA defines the term as “any permanent living arrangement not enumerated in the statute.” 42 U.S.C. 475(5)(C) “Planned” means the arrangement is intended, designed, considered, premeditated, or deliberate. “Permanent” means enduring, lasting, or stable. Includes: • physical placement of the child • quality of care • supervision • nurture

10. What is an “APPLA?” • Permanency goal for the child. • The objective is to craft the most stable, secure arrangement possible. • “Permanency” includes something more than merely meeting the child’s immediate physical, educational, social, and mental health needs. • Key to the child’s future happiness and success is the development of relationships with members of the child’s family and communities.

11. Long-Term Foster Care / Permanent Foster Care Group Care / Residential Treatment Independent Living Emancipation

12. Use of Long-Term Foster Care • The statute struck the term “long-term foster care.” • The preamble to the regulations further explains: “Far too many children are given the permanency goal of long-term foster care, which is not a permanent living situation for a child.” 65 Fed. Reg. 4036. • LTF/C is not stable, may disrupt often, leading to frequent moves for the child and instability.

13. What about Group Care/Residential Treatment? Rarely is group care a living arrangement that is planned and permanent. • Consider group care a step towards achieving the child’s permanency plan of adoption, reunification, etc., not a goal. • Group care should not be considered an APPLA, if the child’s release from group care is reasonably likely during the child’s minority. • Group care as an APPLA should require clear evidence that the young person will not be able to function in a family setting before reaching adulthood.

14. What about Group Care/Residential Treatment? Factors to consider: • Temporary versus permanent nature of group care • Advocate or Guardian - Has the agency made attempts to locate/identify? - Does a close relationship exist? - Will relationship continue indefinitely? - Can paid staff ever qualify to perform that role? • Are there designated contacts--relatives, for example, who provide respite care?

15. What about Residential Treatment in Va. under§ 16.1-282.1 A.2. ? • Virginia’s permanency option of “another planned permanent living arrangement” as set out in § 16.1-282.1 A.2. is applicable only to a child in foster care who requires long-term residential treatment for a severe and chronic emotional, physical, or neurological disabling condition. • Requires higher priority permanency goals to be ruled out by court before APPLA is selected. • Requires court review of placements every 6 months and continuing appropriateness of placement determined. • Requires court finding at review as to whether reasonable efforts have been made to place child in a timely manner in accordance with permanency plan.

16. What about Independent Living & Emancipation? • Consider Independent Living a set of services, not a permanency goal. • IL services should meet the child’s physical, psychological, emotional, educational needs • Job skills • Safe housing • Connections to family, i.e. siblings • Continuing education • Peer connections • Cultural identity

17. Frame this as a “reasonable efforts” issue APPLA: R/E to Finalize the Permanency Plan • Second required R/E finding under ASFA. • Judicial finding - whether the agency provided reasonable efforts to finalize the permanency plan. • Within 12 months of the child’s entry into foster care and every 12 months thereafter. • A negative, late, insufficient or missing finding means the agency is ineligible for IV-E dollars until the court makes a positive finding. • The finding must be detailed and child specific.

18. Frame this as a “reasonable efforts” issue • The agency should provide reasons why the living arrangement is expected to endure • What services has the agency provided to: 1. meet needs of child? 2. ensure stability of placement? • What support structures are being put in place? • What efforts has the agency made to enhance the safety, quality, and stability of the APPLA?

19. Reasonable Efforts Inquiry • Have other permanency options been fully considered and ruled out for valid reasons? • Review compelling reasons at each and every permanency hearing and at each review to determine whether a more preferred permanency option is possible. • What efforts has the agency made to identify and recruit a permanent placement for the child? •  Parents? • Relatives? • Current and former caretakers? • Mentors, coaches, teachers, counselors, or employers? • Have we asked the child? • Is this placement the best way to meet child’s needs?

20. Reasonable Efforts Inquiry • Did the agency conduct a timely assessment and provide relevant services when the case first came in? • Permanency planning should begin when children are initially placed in out-of-home care. • Sometimes the child is left in an arrangement that was originally intended as an emergency placement. • The agency’s reasonable efforts should include early assessment and planning to reduce the likelihood of a child being in a nonpermanent long-term arrangement by default instead of a more permanent one by design. • Permanency planning becomes more complicated as the child becomes attached to the foster parents. • What might have been a successful reunification case, or relative placement case, has now become an APPLA.

21. CONCURRENT PLANNING Reasonable Efforts to finalize an alternate permanency plan APPLA and : Reunification? Adoption? Relative Placement?

22. CONCURRENT PLANNING IN VA. • Va. Dept. of Social Services began efforts in early 2003 to implement concurrent planning statewide. 7 pilot agencies began this effort in May mentored by Fairfax Dept. of Family Services which began in 2001. Localities involved are: • Albemarle and Greene Counties • Charlottesville • Chesterfield/Colonial Heights • Prince William • Warren • Franklin County • A second group of agencies will • be solicited by VDSS in early 2004.

23. Recommendations for Advocates and Courts • Don’t use “APPLA” as a catchall for temporary plan. (Remember APPLA includes PF/C & IL) (Is the proposed plan a permanent living arrangement?) • Conduct an individual assessment of the youth’s placement at each permanency hearing. • Review the youth’s service agreement. • Consider all issues pertaining to well-being of child, including issues of visitation with parents, siblings, and others.

24. Recommendations for Advocates and Courts • Ideally, the plan will involve a specific adult or couple (as opposed to an organization) • certain powers and responsibilities • playing permanent and important roles in the child’s life • likely live with the young person, although not necessarily • familial relationship with the child will continue beyond the life of the dependency case : • Focus on building relationships between the child and those adults who will be a network of support for the child • The court order should reflect that the arrangement is a permanent one, and should include all the elements that make it permanent.

25. The Chafee Act • Background Information • Signed December 14, 1999 • Title I: Foster Care Independence Program – Independent Living • Title I Subtitle C: Medicaid for ages 19-21 • 1995 General Accounting Office: “… as a group, [children in foster care] are sicker than homeless children and children living in the poorest sections of inner cities.”

26. FCIA and the Chafee Program • Purposes. To identify youth likely to remain in foster care, and help them: • Transition out of the system • Get education, and services for employment • Prepare for post-secondary education • Have personal and emotional support • Get Life-skills education and support • Have vouchers for education available

27. Requirements of the State • Allow youth up to $10,000 in savings. (previous cap at $1000) • Use federal dollars for training foster parents, foster and adoptive parents, group home workers, & case managers about adolescents and independent living. • Provide services for youth with disabilities. • Make benefits and services available to Native American youth in the same way they are available to other youth. • Youth must be involved in designing their own program.

28. Other Chafee Issues • Increases funding for independent living services - $140 million • Concurrent planning: independent living services & permanency planning • Services to include personal and emotional support, i.e. mentors • Increased accountability: outcome measures • Collaboration with private and public sector

29. Parameters for States • Broad discretion • States can use up to 30% of their Chafee money to provide room and board for youth who have aged out of foster care after turning 18 and are under 21. • Some states elect to use the whole 30% for housing, while others use less. • States have the option to extend the Medicaid coverage of youth in foster care until age 21. Only a few states have elected to use this particular Medicaid extension option, but a number of others provide alternative avenues for extending health care coverage.

30. Services the State can provide No exhaustive list of services. • Assistance in obtaining a high school diploma or GED • Career exploration, training, job placement, retention • Training in daily living skills, finances • Substance abuse prevention • Preventive health activities • Education • Training and employment services • Preparation for postsecondary training and education • Mentors and interactions with adults

31. Expanded Medicaid Eligibility • New optional Medicaid eligibility group for youth who are or were in foster care at their 18th birthday (Usually they lost Medicaid when exiting Foster Care) • States can limit this group through one or more of: • An income or resource test – cannot be more restrictive than for the State’s low-income families with children eligible, • A maximum age – through 18 or 19 years, for example, rather than 21, • Foster Care status – only to children who were eligible for maintenance payments or independent living services under IV-E.

32. The Importance of Medicaid Eligibility Entitles youth to the full Medicaid package • Includes the Early Periodic Screening, Diagnostic, and Treatment Program (EPSDT) • When EPSDT identifies a physical or mental condition, the young person is eligible for all additional diagnostic, treatment, and follow-up services allowed under the Medicaid Program that are medically necessary • The young person is eligible even if they are not specified in the State’s Medicaid plan.

33. Medicaid State Match States are responsible for the non-Federal share • The Federal Medical Assistance Package (FMAP) is from 50 to 76.8% • The FMAP percentage is the same one applied to Federal funding under Federal Foster Care and Adoption Assistance Programs (FFCAAPs)

34. Chafee- Education • Secondary education • Assistance in obtaining a high school diploma, career exploration, vocational training, job placement and retention • Assistance in receiving the education, training, and services necessary to obtain employment • Post-Secondary education • Prepare for and enter postsecondary training and education institutions

35. Education and Training Vouchers • For two and four year universities, vocational training programs, and job training programs. • Wide discretion as to who receives an ETV voucher, how much it is worth, and what costs qualify. • Federal law allows up to $5000 per year or the cost of attendance, whichever is less. • States have similar latitude in plan design under the ETV program as the other Chafee programs. • States decide the best method of distribution including application forms and criteria. • 20% match by the state, 80% by federal funds.

36. Education and Training Vouchers • Youth who meet their state’s eligibility requirements for Chafee services will qualify for ETVs. Two exceptions: • Youth receiving ETVs, in some form of higher education at age 21, and making satisfactory progress, can continue through 23. • Older youth who were adopted out of foster care after they turned 16 may also receive ETVs if they are continuing post-secondary education after turning 18. They can also continue through age 23.

37. Education – Other Federal Laws McKinney-Vento Act • “Homeless” youth receive free, appropriate education. Removes obstacles delaying or preventing access, like residency, record, guardianship requirements, and lack of transportation. All school districts must have a liaison. • Includes youth “awaiting foster care placement.” • Applies to some youth in foster care & some who have aged out and haven’t finished high school. • The youth or their advocate must contact the McKinney-Vento liaison for the school district they attend to gain enrollment.

38. Education – Other Federal Laws No Child Left Behind (NCLB) • Youth attending schools that have been designated “in need of improvement” for two consecutive years must be able to attend better schools. The schools provide transportation. • Youth attending schools designated as “persistently dangerous” or who have been the victim of a crime at school, have a right to transfer. • Youth attending schools that have been designated “in need of improvement” for three of the four previous years must be offered supplemental education services at the school system’s expense.

39. The Role Courts Can Play • In Virginia, the court’s authority to rule on youth’s cases extends to age 21. (In some states, it extends to 18 or 19 -Sen. Feinstein) • Judges can monitor the provision of services to youth, ensuring that agency services are not prematurely terminated • As Judge Pariente stated in L.Y. and Melody v. Department of Health and Rehab. Servs., juvenile court jurisdiction should coextend with the child welfare agency’s obligation to provide services to individuals who have been previously placed in foster care.

40. The Role Courts Can Play • Ensure that a youth’s case plan must include a written description of these programs and services • Under the FCIA, termination of agency commitment or custody before their 18th birthdays will deprive them of eligibility for independent living and Medicaid benefits • Education of all parties involved, including and especially the youth themselves, is essential.

41. Housing Realities Major Issues: • Affordability • Availability/Safety • Sustainability • Addiction • Returning to Inappropriate Family Environments

42. Housing • Goal for most federal and state programs is to provide short-term housing while giving educational assistance, job training, life-skills training, and others • There are other ways. Many youth leaving care may be more creative. They may live with family, former foster parents, a friend’s parents, coach, or employer • Since judges and attorneys link youth to services and resources before and often after they turn 18, these non-traditional resources should not be overlooked. • For some youth, these alternative choices provide a better safety net than traditional housing options discussed below.

43. Chafee- Housing • Allows each state to spend up to 30% of the Chafee dollars on housing for youth ages 18 to 21. • Housing may also be covered under Chafee’s ETV program as education-related expenses. • Texas – specifies 30% of Chafee funds for “aftercare room and board.” • Illinois - housing and counseling services, start-up and supplemental money for up to 12 months • A foster child emancipated from foster care before 18th birthday is not eligible for any housing under FCIA. This applies even to runaway youth, so be sure not to close the youth’s case until after 18.

44. Housing – Other Federal Laws Title IV-E Foster Care Funding • States may use their Title IV-E funds to create a variety of programs addressing housing needs specific to older youth under 18. • States have been creative in addressing this need, for example, by providing supervised independent living programs for older youth to create an environment similar to that of living on their own while maintaining the child welfare safety net. • States cannot use Chafee dollars for housing programs for youth under the age of 18.

45. Housing – Other Federal Laws Transitional Living Program (TLP) under the Runaway and Homeless Youth Act • Longer-term supportive housing for up to 18 months. May include job, life-skills training, basic education and GED classes, on-site health care. • “homeless” means ages 16-21 who cannot live with a relative and have no other safe place to go. • a social worker, homeless shelter, doctor, or legal advocate can refer youth. Most programs also allow for self-referrals • The National Resource Center for Youth Development maintains a listing of TLP programs organized by region. Over 150.

46. Housing – Other Federal Laws Housing Choice Vouchers (Section 8) • Three major requirements: • 18 years old or older. • Employed or have a steady stream of income. • Must be “very low income,” not exceeding 80% of the median income for the area. • The recipient pays 1/3 of his or her salary for rent. • If other people are benefiting from the voucher, then it may be revoked. Everyone must be listed on the application, and must be “family.” Although this may include cousins, grandparents and nieces, this does not include friends and acquaintances.

47. Housing – Other Federal Laws Family Unification Program (FUP) • Uncertainty in HUD’s finances affects FUPs funding. • A protection for families in danger of losing children due inadequate housing. In 2000, coverage extended to youth aging out, or who left foster care after their 16th birthday. • Not currently funded, but it was for two years. • Allows access to special Section 8 vouchers. Most have no time limit, but FUPs are 18 months or less. • FUP also requires the agency referring the youth to the program to be responsible for their aftercare

48. Housing – Other Federal Laws Supportive Housing Program (SHP) / McKinney-Vento Act • Must be homeless before housing assistance • Youth no longer in foster care, who ran away, or left their foster parents or group home may qualify • HUD awards funds as annual competitive grants • can be used on a variety of services in the state: emergency shelter, supportive housing programs, financial help to those who received eviction notices

49. Contact Information Jennifer Renne, 202-662-1731 Rennej@staff.abanet.org National Child Welfare RC on Legal and Judicial Issues ABA Center on Children and the Law 740 15th Street, NW Washington, DC 20005-1022