How Do We Make the Best Decisions for Children?

1. How Do We Make the Best Decisions for Children? Supreme Court Commission, Committee on Justice for Children Hon. Jackson Harris, Superior Court, Blue Ridge Judicial Circuit & Michelle Barclay, Attorney and Project Director November 15, 2006

2. Let’s start with the basics • Does Placement Instability cause harm to a child? Yes • Scholarly article from Pediatrics Journal, “Placement Stability and Mental Health Costs for Children in Foster Care”-instability=increased costs • Stability is necessary for attachment

3. What is the definition of a placement stability? • Federal Definition—no more than 2 moves in 12 months • Is this a Reasonable standard? • What about placement stability over a longer period of time?

4. Yes, failed federal review in 2001 Let’s look at the numbers since then, still showing a problem New review coming up in 2007 Is placement stability a problem for GA’s foster care population?

5. Do we know what helps achieve placement stability? Yes! • A GA study of FPBP Study showed that if children were placed with their recommended placement from their assessment, they were 20% more likely to remain in that placement for one year. (that is a big effect) • A number of studies have shown that children placed with relatives are more likely to remain stable for one year.

6. Would greater Court role = greater placement stability? • Assessment recommendations need to made available to courts and all parties. • Relative Diligent Search information needs to aggressively sought and filed within 90 days • Attorneys representing the child need to be notified of all placement moves. • An historical review of the child’s case needs to be read aloud at every hearing • A procedure for triggering a hearing needs to be put in place either before or after a placement move needs to be put in place.

7. Georgia law currently limits Court role • Recent cases: Tidwell and In re: A. N. • Cases affirm statutory construction that once custody granted to DFCS, the agency has control of custodial decisionmaking. • Would you want a greater role for the Court? • Nettlesome questions: Can the agency establish particular religious values to children… or no religious values? What if parents object? • The agency usually seeks Court approval for surgery, but is this required under GA law? • Consent to marriage?

8. Federal Law and “Reasonable Efforts” • To find some guidance, could look to the ACF interpretations of the law, known as the final rule. • Generally before Tidwell, there was a line of thought that courts could not DIRECT a placement, but could reject a placement. • The Court still has an obligation to monitor placements and placement changes a factor in their ongoing review to insure that reasonable efforts are being employed to reunify the child with the parents or to otherwise achieve permanency.

9. How did we get here? How could we get to a better place? • Let’s explore the basic roles of the Judicial, Legislative and Executive branches of state government. • Legislative – enact laws people want • Judicial – at the trial level, apply the laws enacted by the legislature – sometimes through prism of case law • Executive – with purse and sword – provide protection

10. What have other states done? • Several states have laws requiring a petition or a request to a court before the agency can move a child. • Arkansas • Ohio • Some states allow for courts to subpoena all parties to question a placement move

11. Arkansas Law • Arkansas Law--9-28-410. Foster care placements. • (a) The policy of the State of Arkansas is that children in the custody of the Department of Health and Human Services should have stable placements. (b)(1) To reduce the number of placements of children in foster care, if a foster parent requests a foster child be removed from his or her home at any time, excluding an emergency that places the child or a family member at risk of harm, then the foster parent shall attend a staffing that shall be arranged by the Division of Children and Family Services of the Department of Health and Human Services within forty-eight (48) hours to discuss what services or assistance may be needed to stabilize the placement. • (2) The foster child, the child's attorney ad litem, and a court-appointed special advocate, if appointed, shall be notified so that they may attend and participate in the staffing and planning for the child's placement. • (3) If the placement cannot be stabilized, then the foster parent shall continue to provide for the foster child until an appropriate alternative placement is located, but this shall not be longer than five (5) business days. • (c)(1) Other changes in placement shall be made only after notification of the: • (A) Foster child; • (B) Foster parent or parents; • (C) Child's attorney ad litem; • (D) Child's birth parents; and • (E) Court having jurisdiction over the child.

12. Arkansas Law Cont • (2) The notices shall: • (A) Be sent in writing two (2) weeks prior to the proposed change; • (B) Specify reasons for the proposed change; • (C) Convey to the attorney ad litem the address of the proposed new foster home or placement provider; and • (D) Convey to the child the name and telephone number of his or her attorney ad litem and a statement that if the child objects to the change in placement, the attorney ad litem may be able to assist in challenging the change. • (d)(1) Exceptions to the advance notice requirement shall be made if the child's health or welfare would be endangered by delaying a change in placement. • (2) Within twenty-four (24) hours of the change in placement the department shall: • (A) Notify the birth parent of the change; • (B) Notify the child's attorney ad litem of the change; and • (C) Provide the attorney ad litem with the name, address, and telephone number of the new foster care home or placement provider. • (3) Within seventy-two (72) hours of the change in placement, the department shall provide written notice to the attorney ad litem for the specific reasons justifying the change of placement without advance notice. • (e)(1) If an agent, employee, or contractor of the department fails to comply with this section, then an action for violation of this section may be filed by any party to the action against the person who failed to comply with this section, with the assessment of punishment to be determined by the court. • (2) If the court finds that the agent, employee, or contractor of the department failed to comply with this section, then the court may order the department or the agent, employee, or contractor to pay all the costs of the proceedings brought under this section. • (f) All division caseworkers, supervisors, and area managers shall have at least six (6) hours of annual training on separation and placement issues, as well as on issues relating to the grief and loss children experience in foster care with multiple placements

13. Again, So now, what? • Modify the current law through legislation • The question is “Can we agree on how?” • When do you think courts should get involved? Before or After a placement move? • What would be best for children? • Can you justify most placement moves? • What would you recommend as next steps?

14. The End! • Questions? • Contact info: Michelle Barclay 404.657.9219 barclaym@gaaoc.us gajusticeforchildren.org p.s.: know your legislators.