Linda Britton, J.D.Linda Britton, J.D.Commission on Youth at RiskCommission on Youth at Risk

American Bar AssociationAmerican Bar Association

No Bystanders:No Bystanders:Emerging Due Process Protections Emerging Due Process Protections

for Children, Youth and Foster for Children, Youth and Foster Parents in Child Welfare Cases Parents in Child Welfare Cases

Overview

Impact of Being a BystanderImpact of Being a BystanderDue Process Protections for Due Process Protections for Children/YouthChildren/YouthDue Process Protections for Foster Due Process Protections for Foster ParentsParentsThe Big Gaps and Where to Go The Big Gaps and Where to Go

““There are no bystanders in this life.”There are no bystanders in this life.”Sonia Sotomayor, Sonia Sotomayor, My Beloved WorldMy Beloved World

Children and foster parents in the child Children and foster parents in the child welfare system have historically been welfare system have historically been bystanders.bystanders.

Enormous change to child-centered casesEnormous change to child-centered cases Foster parents’ voice remains very smallFoster parents’ voice remains very small Improving due process for children leads Improving due process for children leads

to better case outcomesto better case outcomes Would increased due process for foster Would increased due process for foster

parents also create better outcomes?parents also create better outcomes?

America’s Infinite Possibilities vs. RealityAmerica’s Infinite Possibilities vs. RealityWealth Shapes OutcomesWealth Shapes Outcomes

““Talent is abundant. Opportunity is not.” Nicholas KristofTalent is abundant. Opportunity is not.” Nicholas Kristof

Social mobility is now largely dependent on residence in Social mobility is now largely dependent on residence in mixed-economic neighborhoods that also offer greater civic mixed-economic neighborhoods that also offer greater civic engagement, availability of better school systems, and being engagement, availability of better school systems, and being in two-parent families.in two-parent families.

A smaller percentage of people escape childhood poverty in A smaller percentage of people escape childhood poverty in the United States than in several other rich countries, the United States than in several other rich countries, including Canada, Australia, France, Germany and Japan.including Canada, Australia, France, Germany and Japan.

One of every three 30-year-olds who grew up in the top 1 One of every three 30-year-olds who grew up in the top 1 percent of the income distribution was already making at percent of the income distribution was already making at least $100,000 in family income; among adults who grew up least $100,000 in family income; among adults who grew up in the bottom half of the income distribution, only one out of in the bottom half of the income distribution, only one out of 25 had family income of at least $100,000 by age 30 in 25 had family income of at least $100,000 by age 30 in certain areas. certain areas.

Who Gets to Graduate?Who Gets to Graduate?Wealth Determines College CompletionWealth Determines College Completion

More than 40% of American students who start at a four-More than 40% of American students who start at a four-year college haven’t earned a degree after six years. year college haven’t earned a degree after six years. Include community colleges, and the dropout rate is more Include community colleges, and the dropout rate is more than half, worse than any other country except Hungary.than half, worse than any other country except Hungary.

Rich kids graduate; poor and working class kids do not. Rich kids graduate; poor and working class kids do not. 25% of college freshman born into bottom half of income 25% of college freshman born into bottom half of income

distribution get a bachelor’s degree by age 24distribution get a bachelor’s degree by age 24 90% of freshman born into families in the top quarter of 90% of freshman born into families in the top quarter of

income distribution finish their degree.income distribution finish their degree. Even when they have the same SAT scores – 1000 to 1200 Even when they have the same SAT scores – 1000 to 1200

– kids in top income quartile have a 2 in 3 chance of – kids in top income quartile have a 2 in 3 chance of graduating, and kids in bottom quartile have only a 1 in 6 graduating, and kids in bottom quartile have only a 1 in 6 chance of graduating.chance of graduating.

What happens to children in foster care?What happens to children in foster care?

Educational Outcomes for Children in CareEducational Outcomes for Children in Care

With each move, a child loses six months With each move, a child loses six months of educational achievementof educational achievement

Educational instability places foster Educational instability places foster children in crisis for success in schoolchildren in crisis for success in school

No accountability measures exist for foster No accountability measures exist for foster children because they are invisible children because they are invisible

High school graduation rates are abysmal:High school graduation rates are abysmal: Less than 30% in KansasLess than 30% in Kansas 40% in Texas (70% for all youth)40% in Texas (70% for all youth) 50% estimate nationwide; probably much less50% estimate nationwide; probably much less

Levels of Trauma for Foster Children/YouthLevels of Trauma for Foster Children/Youth

Many children entering foster care have Many children entering foster care have already been exposed to wide range of painful already been exposed to wide range of painful and distressing experiences – often unknown and distressing experiences – often unknown and unreportedand unreported

Disproportionate rates of PTSD – 25.2%, almost Disproportionate rates of PTSD – 25.2%, almost double rate for US war veteransdouble rate for US war veterans

Disproportionate rates of depression, anxiety Disproportionate rates of depression, anxiety and other disordersand other disorders

Lasts a lifetime and moreLasts a lifetime and more ““Money was not going to heal a father who Money was not going to heal a father who

never had been a child.”never had been a child.”

How Permanent is Permanency?How Permanent is Permanency?

In 2012, approximately 400,000 children In 2012, approximately 400,000 children in foster carein foster care

235,000 exited foster care; 235,000 exited foster care; 87% of exited children went to a 87% of exited children went to a

permanent home – adoption, reunification, permanent home – adoption, reunification, legal guardianshiplegal guardianship

77% of children with disabilities went to a 77% of children with disabilities went to a permanent homepermanent home

64% of children over 12 achieved 64% of children over 12 achieved permanencypermanency

Failed Adoptions in OhioFailed Adoptions in Ohiobetween 1990 and 2013between 1990 and 2013

Columbus Dispatch (September 2014)Columbus Dispatch (September 2014) 7% of adoptions didn’t work out7% of adoptions didn’t work out Cost of child in foster care in Ohio $30,334 per yearCost of child in foster care in Ohio $30,334 per year Cost of child in RTC/group home over $100,000 per Cost of child in RTC/group home over $100,000 per

yearyear Children of failed adoptions more than 3 ½ times Children of failed adoptions more than 3 ½ times

likely to be in RTC/group home.likely to be in RTC/group home. Reasons: average child had lived in home for 5 yearsReasons: average child had lived in home for 5 years

Parental expectations didn’t meet realityParental expectations didn’t meet reality Need more post-adoption supports and servicesNeed more post-adoption supports and services Need greater scrutiny of adoptive familyNeed greater scrutiny of adoptive family 83% of children were teenagers 83% of children were teenagers

What are the Outcomes of YouthWhat are the Outcomes of YouthWho Age Out?Who Age Out?

About 24,000 youth age out from foster care each yearAbout 24,000 youth age out from foster care each year Up to 50% of former foster youth end up homeless within 18 Up to 50% of former foster youth end up homeless within 18

months of aging outmonths of aging out 27% of the homeless population spent some time in foster care27% of the homeless population spent some time in foster care 4 years after leaving care, 42% of youth have become parents4 years after leaving care, 42% of youth have become parents 4 years after leaving care, 46% of youth lack a high school 4 years after leaving care, 46% of youth lack a high school

diplomadiploma Less than half of foster youth are employed 2-4 years after Less than half of foster youth are employed 2-4 years after

leaving foster care; only 38% of former foster youth have leaving foster care; only 38% of former foster youth have maintained employment for at least 1 yearmaintained employment for at least 1 year

Parents with a history of foster care are almost twice as likely Parents with a history of foster care are almost twice as likely as parents without that history to see their own children placed as parents without that history to see their own children placed in foster care or become homeless.in foster care or become homeless.

Constitutional Rights of Foster ChildrenConstitutional Rights of Foster Children

Right of foster children to protection Right of foster children to protection and proper careand proper care

Right to maintain family relationshipsRight to maintain family relationships Right to sibling accessRight to sibling access Right to effective assistance of Right to effective assistance of

counselcounsel Right to bodily integrityRight to bodily integrity

Due Due Process Rights for PartiesProcess Rights for Partiesin Child Welfare Casesin Child Welfare Cases

Right to noticeRight to notice Opportunity to be heardOpportunity to be heard Right to counselRight to counsel Right to trial before bench and/or Right to trial before bench and/or

juryjury Right to appealRight to appeal Burden of proof for termination: clear Burden of proof for termination: clear

and convincing evidenceand convincing evidence

Due Process Rights for Children Due Process Rights for Children

In re Gault (1967) “Whatever may be their precise impact, In re Gault (1967) “Whatever may be their precise impact, neither the Fourteenth Amendment, nor the Bill of Rights, is neither the Fourteenth Amendment, nor the Bill of Rights, is for adults alone.” In re Gault, 387 U.S. 1, 13 (1967). for adults alone.” In re Gault, 387 U.S. 1, 13 (1967).

““Constitutional rights do not mature and come into being Constitutional rights do not mature and come into being magically only when one attains the state-defined age of magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Planned Constitution and possess constitutional rights.” Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976).(1976).

Development of Due Process for Development of Due Process for Children in Dependency CasesChildren in Dependency Cases

Federal legislationFederal legislation National standards of practiceNational standards of practice State case lawState case law State statutesState statutes Court rules and policyCourt rules and policy Development of data-driven projects Development of data-driven projects

to confirm and expand rights.to confirm and expand rights.

Federal LegislationFederal Legislation

Serves as the primary means to expand substantive Serves as the primary means to expand substantive and procedural due process for childrenand procedural due process for children

Child and Family Services Improvement Act of 2006Child and Family Services Improvement Act of 2006 Require court proceedings to include consultation by child Require court proceedings to include consultation by child

with judge in an “age appropriate” mannerwith judge in an “age appropriate” manner Fostering Connections 2008Fostering Connections 2008

Expands Chafee program and educational vouchers to those Expands Chafee program and educational vouchers to those adopted or in guardianship after 16adopted or in guardianship after 16

Requires all youth aging out to have transition planning at Requires all youth aging out to have transition planning at least 90 days prior to 18least 90 days prior to 18thth birthday birthday

State plans must show coordination of health care needs for State plans must show coordination of health care needs for childchild

Federal LegislationFederal Legislation

Affordable Care Act 2010Affordable Care Act 2010 Extends Medicaid coverage to age 26 for youth in care at 18Extends Medicaid coverage to age 26 for youth in care at 18

CAPTA Reauthorization 2010CAPTA Reauthorization 2010 Requires GALs to be trained in child & adolescent Requires GALs to be trained in child & adolescent

developmentdevelopment

Child and Family Services Improvement and Child and Family Services Improvement and Innovation Act 2011Innovation Act 2011 States to plan health services to treat trauma, and protocols States to plan health services to treat trauma, and protocols

for psychotropic medicationsfor psychotropic medications Facilitate visits with biological parents and siblingsFacilitate visits with biological parents and siblings Improve educational plansImprove educational plans Child to receive yearly credit reports beginning at age 16Child to receive yearly credit reports beginning at age 16

Federal LegislationFederal Legislation Preventing Trafficking and Strengthening Preventing Trafficking and Strengthening

Families Act of 2014Families Act of 2014 No APPLA under 16 years oldNo APPLA under 16 years old Right to normalcy while in foster careRight to normalcy while in foster care ““Reasonable and prudent” parenting standard Reasonable and prudent” parenting standard

in foster care and group homes applies to in foster care and group homes applies to child’s participation in extracurricular, child’s participation in extracurricular, enrichment, cultural and social activitiesenrichment, cultural and social activities

Youth 14 and older to be involved in case Youth 14 and older to be involved in case planning and transitional planningplanning and transitional planning

All youth leave care with birth certificate, All youth leave care with birth certificate, Social Security card, health ins care, medical Social Security card, health ins care, medical records, DL/state IDrecords, DL/state ID

Expanding Federal Rights ofExpanding Federal Rights ofDependent ChildrenDependent Children

Right as a party to procedural due process: Right as a party to procedural due process: notice, opportunity to be heardnotice, opportunity to be heard

Right to effective GALsRight to effective GALs Rights to family relationshipsRights to family relationships Right to medical information, privacy, and Right to medical information, privacy, and

consent to treatmentconsent to treatment Right to education/normalcyRight to education/normalcy Right to “sound brain”Right to “sound brain” Right to successful transition to adulthoodRight to successful transition to adulthood Greater focus on well-beingGreater focus on well-being

State Statutory Rights forState Statutory Rights forDependent ChildrenDependent Children

Codify federal legislationCodify federal legislation Expand rightsExpand rights

Children given “party” statusChildren given “party” status Children/youth engagementChildren/youth engagement Consultation rightsConsultation rights Expansion of foster care to age 21, re-entry for 18-21Expansion of foster care to age 21, re-entry for 18-21 Tuition waivers for state higher educational Tuition waivers for state higher educational

institutionsinstitutions Transition planning at earlier ageTransition planning at earlier age Emerging areas: limitations on APPLA, normalcyEmerging areas: limitations on APPLA, normalcy No change: right to counselNo change: right to counsel

Example: State Statutes and Court Policies Example: State Statutes and Court Policies on Youth Attendance in Courton Youth Attendance in Court

46 states have statutes, court rules or case law establishing 46 states have statutes, court rules or case law establishing right of children/youth to be present at some court hearings.right of children/youth to be present at some court hearings.

Statutes are often conditional or overly vague, and difficult to Statutes are often conditional or overly vague, and difficult to implement. Poorly-drafted statutes can deny due process rights.implement. Poorly-drafted statutes can deny due process rights.

Example of newer statute:Example of newer statute:

Louisiana CHC Art. 623(C); Art. 661(B); Art. 679(C); Art. 696 (B); Louisiana CHC Art. 623(C); Art. 661(B); Art. 679(C); Art. 696 (B); Art. 706(B) “A child twelve years of age or older shall be present Art. 706(B) “A child twelve years of age or older shall be present in court unless his presence is waived by the court upon motion in court unless his presence is waived by the court upon motion of the child’s counsel.” “A child below the age of twelve years of the child’s counsel.” “A child below the age of twelve years shall be present in court upon the request of counsel for the shall be present in court upon the request of counsel for the child or the court.”child or the court.”

Applies to continued custody, adjudication, disposition, case Applies to continued custody, adjudication, disposition, case review and permanency hearings.review and permanency hearings.

Texas Statutes on Youth EngagementTexas Statutes on Youth Engagement

263.008 Foster Children’s Bill of Rights 263.008 Foster Children’s Bill of Rights

right to participate in court hearingsright to participate in court hearings

right to participate in service and treatment plansright to participate in service and treatment plans 263.009 Permanency Planning Meeting requires dept to 263.009 Permanency Planning Meeting requires dept to

make reasonable efforts to include child, if at least, 7 make reasonable efforts to include child, if at least, 7 years of age, on each meetingyears of age, on each meeting

263.301 requires at least 10 days’ notice of 263.301 requires at least 10 days’ notice of permanency hearings to the child, if 10 years of age or permanency hearings to the child, if 10 years of age or older OR if the court determines it is appropriate for older OR if the court determines it is appropriate for child to receive notice. 263.501 requires same for child to receive notice. 263.501 requires same for permanency review hearings, and child is entitled to permanency review hearings, and child is entitled to present evidence.present evidence.

Texas Statutes on Youth EngagementTexas Statutes on Youth Engagement

263.008 Foster Children’s Bill of Rights 263.008 Foster Children’s Bill of Rights

right to participate in court hearingsright to participate in court hearings

right to participate in service and treatment plansright to participate in service and treatment plans 263.009 Permanency Planning Meeting requires dept to 263.009 Permanency Planning Meeting requires dept to

make reasonable efforts to include child, if at least, 7 make reasonable efforts to include child, if at least, 7 years of age, on each meetingyears of age, on each meeting

263.301 requires at least 10 days’ notice of 263.301 requires at least 10 days’ notice of permanency hearings to the child, if 10 years of age or permanency hearings to the child, if 10 years of age or older OR if the court determines it is appropriate for older OR if the court determines it is appropriate for child to receive notice. 263.501 requires same for child to receive notice. 263.501 requires same for permanency review hearings, and child is entitled to permanency review hearings, and child is entitled to present evidence.present evidence.

Texas Statutes on Youth EngagementTexas Statutes on Youth Engagement

263.02 and 263.501 Permanency/Review Hearings263.02 and 263.501 Permanency/Review Hearings

The child shall attend each permanency [or review] The child shall attend each permanency [or review] hearing unless specifically excused by the court. TYC kids hearing unless specifically excused by the court. TYC kids may attend in person, by phone or by videoconference.may attend in person, by phone or by videoconference.

The court shall consult with the child in a developmentally The court shall consult with the child in a developmentally appropriate manner regarding the child’s permanency appropriate manner regarding the child’s permanency plan, if the child is 4 years of age or older and if the court plan, if the child is 4 years of age or older and if the court determines it is in the best interest of the child.determines it is in the best interest of the child.

263.306 At each permanency hearing the court shall 263.306 At each permanency hearing the court shall

ensure the child has been provided the opportunity to ensure the child has been provided the opportunity to express the child’s opinion on his/her medical care.express the child’s opinion on his/her medical care.

Judicial PerspectiveJudicial PerspectivePermanency Review HearingsPermanency Review Hearings

EXHAUSTING and often heart breaking:EXHAUSTING and often heart breaking: This is not the ivory tower anymore.This is not the ivory tower anymore. Kids are hurting: Kids are hurting:

Too much medicineToo much medicine Too many placementsToo many placements Not any or enough coordination among the Not any or enough coordination among the

many school districts they attendmany school districts they attend No driver’s educationNo driver’s education No school clothesNo school clothes Being bulliedBeing bullied

Placement Review HearingsPlacement Review Hearings

Creative Solutions:Creative Solutions:Appoint Educational AALAppoint Educational AALBullying Speeches to foster group homesBullying Speeches to foster group homesJudge joined an ARD committeeJudge joined an ARD committeePAL transitioning even when not in PAL transitioning even when not in communitycommunityAssisting child in finding family nowAssisting child in finding family nowAssisting the CPS worker, AAL and CASA Assisting the CPS worker, AAL and CASA in finding adoptive homesin finding adoptive homes

National Standards of Practice National Standards of Practice and Evidence-Based Practiceand Evidence-Based Practice

National standards from ABA, NACC, NCJFCJ, Pew National standards from ABA, NACC, NCJFCJ, Pew Commission beginning in late 1990’sCommission beginning in late 1990’s

Bar-Youth began in 2013 to develop with states a pilot Bar-Youth began in 2013 to develop with states a pilot project that has two goals: improve engagement of project that has two goals: improve engagement of youth in court and collect data to link the improved youth in court and collect data to link the improved practice to decision-making and outcomespractice to decision-making and outcomes

Outcomes include well-being and permanencyOutcomes include well-being and permanency Pilot projects also locate and remove barriers to youth Pilot projects also locate and remove barriers to youth

engagement in court, i.e., transportation, quality of engagement in court, i.e., transportation, quality of representation, child-friendly hearings.representation, child-friendly hearings.

Kansas and New Jersey initiated pilot projects in 2013.Kansas and New Jersey initiated pilot projects in 2013.

The Search for Data

Pilot projects in Kansas and New JerseyPilot projects in Kansas and New Jersey Three counties: urban, suburban, ruralThree counties: urban, suburban, rural Enthusiastic judgesEnthusiastic judges Remove barriers, e.g., notice, transportation, Remove barriers, e.g., notice, transportation,

give excused absences for schoolgive excused absences for school Measure youth attendance and participation Measure youth attendance and participation

through surveys and written court through surveys and written court observationsobservations

Extensive planning and TA with NRCLJIExtensive planning and TA with NRCLJI Collect baseline and project dataCollect baseline and project data

Kansas baseline data: January, 2013Kansas baseline data: January, 2013 In 3 pilot counties, 52.5% of youth 12 and older In 3 pilot counties, 52.5% of youth 12 and older attended permanency/review hearingsattended permanency/review hearingsJudicial surveys: Youth’s presence impacted Judicial surveys: Youth’s presence impacted decision-making 71% of time.decision-making 71% of time.Youth surveys:Youth surveys:

100% were glad they went to their hearings;100% were glad they went to their hearings; 92% the judge asked them questions about 92% the judge asked them questions about

what is going on with their lives;what is going on with their lives; Youth: 84% the judge makes fair decisions.Youth: 84% the judge makes fair decisions.

Kansas Peer to Peer Training

Youth in pilot counties in KansasYouth in pilot counties in Kansas Peer trainers from Kansas Youth Advisory CouncilPeer trainers from Kansas Youth Advisory Council Materials: Foster Child Bill of Rights, Youth Materials: Foster Child Bill of Rights, Youth

Calendar, Written ReportCalendar, Written Report Training Session: small, informal, encourage Training Session: small, informal, encourage

questions, explain court process, roles, importance questions, explain court process, roles, importance of being in court, self-advocacy skills, 2 hours in of being in court, self-advocacy skills, 2 hours in lengthlength

Two age groups: 11-14 and 15-17 Two age groups: 11-14 and 15-17 Prezi presentation, video on coming to court, mock Prezi presentation, video on coming to court, mock

hearinghearing Evaluation: 85% agreed “this training helped me Evaluation: 85% agreed “this training helped me

prepare to attend court hearings” (2013)prepare to attend court hearings” (2013)

Preparing Court and Stakeholders:Preparing Court and Stakeholders:New JerseyNew Jersey

Training:Training:All supervisory stakeholders includedAll supervisory stakeholders includedFocus on knowing the child and understanding importance of Focus on knowing the child and understanding importance of trauma and existence of disabilities.trauma and existence of disabilities.Prepare child to come to court. Prepare child to come to court. Make attendance and participation in court understandable to Make attendance and participation in court understandable to child.child.Insure that child is debriefed after the hearing.Insure that child is debriefed after the hearing.

Collection of data is ongoing:Collection of data is ongoing:Surveys by youth (pre and post), judges, and stakeholders Surveys by youth (pre and post), judges, and stakeholders completed after each hearing. Surveys amended to include age of completed after each hearing. Surveys amended to include age of child.child.CIP review of surveys thus far reveals children are positive/neutral CIP review of surveys thus far reveals children are positive/neutral about their experience; stakeholders view children’s presence with about their experience; stakeholders view children’s presence with more concerns. more concerns.

Texas Children’s CommissionTexas Children’s CommissionHearing Quality Observation ReportHearing Quality Observation Report

165 observed hearings over 18 jurisdictions in Texas165 observed hearings over 18 jurisdictions in Texas Report issued March 2014 by Judge Robin Sage (ret.)Report issued March 2014 by Judge Robin Sage (ret.) www.texaschildrenscommission.gov Reported presence of children/parties at hearingsReported presence of children/parties at hearings Measured 15 due process and 24 well-being quality Measured 15 due process and 24 well-being quality

indicatorsindicators Number of both indicators increased when children were Number of both indicators increased when children were

present: 19% increase in due process; 14% increase in present: 19% increase in due process; 14% increase in well-being – issues that most directly impact the child well-being – issues that most directly impact the child

Presence of child was more significant than presence of Presence of child was more significant than presence of any other party, including agencyany other party, including agency

Require children to attend court whenever possible; Require children to attend court whenever possible; encourage engagement with the judge.encourage engagement with the judge.

Note Texas statutes amended in 2013 to require Note Texas statutes amended in 2013 to require attendance of children and consultation with themattendance of children and consultation with them

Improving Youth EngagementImproving Youth Engagement

Need for statutory clarification/amendmentNeed for statutory clarification/amendment Child/youth right to attend all hearingsChild/youth right to attend all hearings Extension of foster care to age 21Extension of foster care to age 21

Review possible barriers to youth engagementReview possible barriers to youth engagement Distance and transportationDistance and transportation Youth-friendly notice with timelinessYouth-friendly notice with timeliness Docket and waiting timesDocket and waiting times Encourage youth to bring support personEncourage youth to bring support person Prepare youth for court; train all stakeholdersPrepare youth for court; train all stakeholders Use hearing to insure all issues are covered and to help child Use hearing to insure all issues are covered and to help child

learn self-advocacy and problem-solving.learn self-advocacy and problem-solving. Greater focus on transition planning and 18-21 Greater focus on transition planning and 18-21

Bill of Rights for Foster ChildrenBill of Rights for Foster Children Abuse, neglect, exploitation, discrimination and harassmentAbuse, neglect, exploitation, discrimination and harassment Food, clothing, shelter and educationFood, clothing, shelter and education Medical, dental, vision, and mental health treatment (and consent)Medical, dental, vision, and mental health treatment (and consent) Emergency behavioral interventionEmergency behavioral intervention Placement with siblings and contact with familyPlacement with siblings and contact with family Privacy and searches, including use of storage, mail, telephonePrivacy and searches, including use of storage, mail, telephone Participation in extra-curricular activitiesParticipation in extra-curricular activities Interaction with teachers, church members, mentors, friendsInteraction with teachers, church members, mentors, friends Contact with all court personnelContact with all court personnel Religious services/activitiesReligious services/activities Confidentiality of recordsConfidentiality of records Job skills, personal finances, preparation for adulthoodJob skills, personal finances, preparation for adulthood Attendance/participation in court hearingsAttendance/participation in court hearings Advocacy and rights regarding any disabilityAdvocacy and rights regarding any disability Any other matter affecting child’s ability to be treated in the least Any other matter affecting child’s ability to be treated in the least

restrictive environment, most like a family setting, consistent with restrictive environment, most like a family setting, consistent with best interest and needs of the childbest interest and needs of the child

On the HorizonOn the Horizon

Enhancing rights to keep vital Enhancing rights to keep vital documents secure/Austin Civic Hack documents secure/Austin Civic Hack for Changefor Change

Right to leave and re-enter care Right to leave and re-enter care between 18-21.between 18-21.

Right to employmentRight to employment Right to normal neurodevelopmentRight to normal neurodevelopment

Emerging Due Process for Foster Parents:Emerging Due Process for Foster Parents:An Ongoing ControversyAn Ongoing Controversy

Historically, the agency speaks for foster parentsHistorically, the agency speaks for foster parents CASA often provides information to/fromCASA often provides information to/from Dilemma is most obvious prior to terminationDilemma is most obvious prior to termination No rights as a party in most states; may No rights as a party in most states; may

intervene in certain states and circumstancesintervene in certain states and circumstances Right to be present, but not to speakRight to be present, but not to speak No consultation by court prior to ordersNo consultation by court prior to orders Seen as temporary, viewed with suspicion as a Seen as temporary, viewed with suspicion as a

group,group, In it for the moneyIn it for the money

Smith v. Organization of Foster FamiliesSmith v. Organization of Foster Familiesfor Equality and Reform, 431 US 816 (1977)for Equality and Reform, 431 US 816 (1977)

Challenge to NY state procedures for removal of children Challenge to NY state procedures for removal of children from foster homefrom foster home

Holding – procedures were constitutionalHolding – procedures were constitutional Dicta – no finding of a liberty interest because states Dicta – no finding of a liberty interest because states

procedures deemed sufficient, but biological families are procedures deemed sufficient, but biological families are not the exclusive determination of the existence of a not the exclusive determination of the existence of a family; familial relationships stem from emotional family; familial relationships stem from emotional attachments that derive from the intimacy of daily attachments that derive from the intimacy of daily association and the role it plays in promoting a way of life association and the role it plays in promoting a way of life through the instruction of children. A foster family is not through the instruction of children. A foster family is not just a collection of unrelated individuals. just a collection of unrelated individuals.

Suggests that a nontraditional family could have a liberty Suggests that a nontraditional family could have a liberty interest in its existence, but that interest does not trump an interest in its existence, but that interest does not trump an interest in which there is a blood relationship.interest in which there is a blood relationship.

Federal Legislation for Foster ParentsFederal Legislation for Foster Parents

Adoption and Safe Families Act 1997Adoption and Safe Families Act 1997 Right to be heard in permanency/review Right to be heard in permanency/review

proceedings about child, does not make them proceedings about child, does not make them a partya party

Can be a written reportCan be a written report Tax legislation to establish creditsTax legislation to establish credits Introduction of Foster Care Tax Credit Act Introduction of Foster Care Tax Credit Act

2015 by Senators Kaine (VA) and 2015 by Senators Kaine (VA) and Heitkamp (ND) to create credits for foster Heitkamp (ND) to create credits for foster care residencies of less than six monthscare residencies of less than six months

Development of Foster Parent Bill of RightsDevelopment of Foster Parent Bill of Rights

In 16 states, but codified in 10 (AL, GA, In 16 states, but codified in 10 (AL, GA, IL, LA, MS, MD, MO, OK, TN, WA)IL, LA, MS, MD, MO, OK, TN, WA)

Confers rights to be treated with dignity, Confers rights to be treated with dignity, to receive and give information, to come to receive and give information, to come to court and give a report, to training, to to court and give a report, to training, to emergency contact, to payment, to emergency contact, to payment, to communicate with everyone, right of communicate with everyone, right of first consideration, right to respite, first consideration, right to respite, rights re/loss of license or removalrights re/loss of license or removal

What Would Help with AdoptionWhat Would Help with AdoptionDisruption or Dissolution?Disruption or Dissolution?

2014 Preventing Trafficking and Strenthening 2014 Preventing Trafficking and Strenthening Families Act requires states to collect data on foster Families Act requires states to collect data on foster care re-entries from legal permanency, including care re-entries from legal permanency, including adoption disruptions or dissolutionsadoption disruptions or dissolutions

More information to adoptive parents about childMore information to adoptive parents about child Post-termination party status in states for foster Post-termination party status in states for foster

parentsparents Pre-adoption services for parents/childPre-adoption services for parents/child Post-adoption services for parents/child to age 21Post-adoption services for parents/child to age 21 Special attention to children who are victims of Special attention to children who are victims of

sexual abusesexual abuse Experienced case workersExperienced case workers

Should Foster Parents be Parties?Should Foster Parents be Parties?

Foster parents adopt approximately 70 percent of Foster parents adopt approximately 70 percent of foster children who are adopted. Long considered foster children who are adopted. Long considered merely temporary caretakers, foster parents now merely temporary caretakers, foster parents now have become the next best choice for permanence.have become the next best choice for permanence.

Foster parents can advocate for permanency or Foster parents can advocate for permanency or permanent connections.permanent connections.

Case planning and conferences are more inclusive.Case planning and conferences are more inclusive. Post-adoption contact with birth parents and Post-adoption contact with birth parents and

relatives is common. relatives is common. Post-adoption subsidies and services are necessary.Post-adoption subsidies and services are necessary. Would right to counsel be next?Would right to counsel be next?

Questions/Comments:Questions/Comments:

Linda BrittonLinda BrittonLinda.Britton@americanbar.org

202-662-1730202-662-1730