Transcript Slides - American Bar Association

Fostering Connections to Success
and Increasing Adoptions Act of
2008:
What Court Systems Need to Know
Overview and Kinship Provisions
National Resource Center on Legal
and Judicial Issues
February 1, 2011
Agenda
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Overview of Fostering
Connections Act
Kinship Provisions
Other Provisions:
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© 2011 ABA Center on Children and the Law
Tribal Foster Care and
Adoption Access
Coordinated Health Plan
Adoption Provisions
Funds for Expanded Child
Welfare Training
Progress for Children and Families
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Fostering Connections to Success and Increasing
Adoptions Act (P.L. 110-351) signed into law on
October 7, 2008
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Most significant federal reform for abused and
neglected children in more than a decade
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Some provisions are optional and others are
mandatory
 May require legislation, policy changes and/or
submission of amended title IV-E plans
© 2011 ABA Center on Children and the Law
Summary of Law
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© 2011 ABA Center on Children and the Law
The new law promotes:
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Permanent families for
children with relatives
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Adoption for foster
children with special needs
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Linkages through Family
Connections Grants
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Reasonable efforts to place
and connect children in
foster care with siblings
Summary of Law (cont’d)
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Expanded support and transition planning for older
youth in foster care
Educational stability and attendance requirements for
children in foster, kinship and adoptive families
Coordinated health planning for children in foster care
Direct access of tribes to IV-E funds and technical
assistance upon submission of plan
Expanded funding for training to cover private agency
staff, judges, attorneys, CASA, relative guardians, and
others
© 2011 ABA Center on Children and the Law
Children’s Bureau Guidance
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Program Instruction (PI) on the law (7/9/10):
ACF-CB-PI-10-11
 ACYF-CB-PI-10-11 or download pdf at
www.fosteringconnections.org
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Revised Title IV-E plan pre-print that incorporates Fostering
Connections:
 http://www.acf.hhs.gov/programs/cb/laws_policies/policy/p
i/2009/pi0908.htm
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A list of key Children's Bureau policy, guidance and other
implementation activities related to Fostering Connections:
 http://www.acf.hhs.gov/programs/cb/laws_policies/impleme
ntation_foster.htm
© 2011 ABA Center on Children and the Law
Role of the Judge
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Judicial oversight at every hearing to ensure
successful implementation of new law
 law only effective if properly implemented
 ASFA well being inquiry
Judge may be the only one who asks implementation
questions
Convince state legislators and agency to take
advantage of optional provisions and need for proper
implementation and training
© 2011 ABA Center on Children and the Law
Provisions Affecting Kinship Families
Promoting Permanent Placements
with Grandparents and Other Relatives
© 2011 ABA Center on Children and the Law
The Numbers
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6 million children live with relatives with/without parents
 2.5 million have no parents in the home
 2010 data: 6.5 % of children in the US live with their
grandparents, a 20-year high and an increase of 8 %
compared with 2009
 Vast majority of children are outside of the foster care
system, only
 1 of every 18 children living with relative is in
foster care
© 2011 ABA Center on Children and the Law
Kinship Care Improves Child
Welfare Outcomes
Reinforces safety, stability, well-being
 Reduces trauma
 Reinforces child’s sense of identity
 Helps keep siblings together
 Honors family and cultural ties
 Expands permanency options
 Can reduce racial disproportionality
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*Is Kinship Care Good for Kids?, Tiffany Conway and Rutledge Q. Hutson, Center for Law and Social Policy,
March 2007
© 2011 ABA Center on Children and the Law
General Challenges of Kinship Care
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Kinship care policy and practice is challenging because:
 Complicated family relationships
 Philosophical tensions: law, policy and practice
 Funding limitations
 Service delivery in “silos”
 Balancing training and licensing requirements to meet
unique needs of kinship caregivers
 Diversion: providing help and preventing system
re-entry
© 2011 ABA Center on Children and the Law
Challenges for Kinship Care Families
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Access to accurate information & fear of “systems”
Public housing and other public benefits
Enrolling children in school and accessing medical care
Understanding legal options & finding affordable legal
services
Trauma and guilt over decisions of adult children
Physical and mental health issues: caregivers & children
Corrosive myths – “apple doesn’t fall far from the tree”
© 2011 ABA Center on Children and the Law
Challenges to the Courts
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Balancing best interests of the
child with family needs
Ensuring compliance with
complex state and federal
laws
Lack of systemic and
community resources for
children and families
Lack of access to key case
and family information to
guide decisions
© 2011 ABA Center on Children and the Law
Guardianship Assistance (GAP)
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State option to use Title IV-E funds to provide assistance
to children who leave foster care for legal guardianship
with a relative
 Known as subsidized guardianship or GAP
Children are eligible for Medicaid
Children not required to have “special needs”
Monthly amount up to foster care payment amount (may
not exceed)
Payments available until child turns 18 (or 21)
States must pay non-recurring costs of legal guardianship
(e.g., legal fees) up to $2,000
© 2011 ABA Center on Children and the Law
Guardianship Assistance (GAP)
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If child is eligible for federal adoption assistance
when placed with guardian, child continues to be
eligible if guardian wants to adopt the child later
Guardianship agreement remains in effect even if the
guardian moves to another state.
Effective 10/7/08, state must amend IV-E plan, some
states need legislation
Program instructions:ACYF-CB-PI-10-07 and 10-01
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http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2010/pi10
07.htm
http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2010/pi10
01.htm
© 2011 ABA Center on Children and the Law
Guardianship Assistance:
Eligible Children
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Must be eligible for Title IV-E foster care
Must live with licensed relative for 6 consecutive months prior
to guardianship
Must demonstrate a strong attachment to the prospective
relative guardian
If age 14 and older, must be consulted about guardianship
arrangement before it is finalized
May include siblings of eligible children and those children
already receiving guardianship assistance under federal waiver
as of September 30, 2008
 PI allows states to define “sibling” for purposes of GAP
© 2011 ABA Center on Children and the Law
Guardianship Assistance:
Eligible Guardians
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Must be relatives
 PI gives states discretion to define “relative” either
narrowly or broadly
 Should have consistent definition with notice
Willing to assume legal guardianship of the child
Have a strong commitment to care for the child
permanently
Must have cared for child for at least 6 consecutive
months as a licensed foster parent (need criminal record
and child abuse registry checks)
© 2011 ABA Center on Children and the Law
Guardianship Assistance:
State Requirements
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States who opt to provide payments must:
 Amend and submit a revised state Title IV-E plan to the
Administration for Children and Families
 Provide state and local dollars required to match federal
dollars for the program
 Although law does not require states to amend current
laws, amendments/new laws may be needed to implement
 Negotiate a written assistance agreement (similar to
adoption assistance agreements) with prospective
guardians
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Must specify amount of payment and manner of adjustment of
payment
© 2011 ABA Center on Children and the Law
Guardianship Assistance:
Suggested Court Findings
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Once program is established, states must document and court
should make findings on:
 Why return home and adoption are not appropriate
permanency options,
 The reasons for any separation of siblings,
 The reasons why a subsidized guardianship is in the child’s
best interests,
 The ways in which the child meets the eligibility
requirements,
 efforts to discuss adoption with kinship caregivers and
guardianship with parents
© 2011 ABA Center on Children and the Law
Status of State Guardianship
Option
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8 states have passed laws adopting this option: Alabama,
Arkansas, Colorado, Michigan, New York, Texas, Vermont and
Washington.
 By law, no state legislation is required to implement
2 States have pending legislation: California, Pennsylvania
12 states have submitted plans to HHS and are awaiting
approval: Alabama, Connecticut, Louisiana, Maryland,
Massachusetts, Missouri, Nebraska, Oklahoma, South Dakota,
Texas, Vermont, and Washington.
11 state plans have been approved: Colorado, District of
Columbia, Illinois, Maine, Michigan, Montana, New Jersey,
Oregon, Pennsylvania, Rhode Island and Tennessee.
See: www.grandfamilies.org to track this legislation
© 2011 ABA Center on Children and the Law
Judicial Considerations
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How does your state define relative?
• Is licensing for relatives required by state law?
• Are fictive kin included in definition?
• Maternal and paternal relatives
Is guardianship the most appropriate option and in child’s best
interest?
• Why reunification and adoption are not an option
Does child demonstrate a strong attachment to the prospective
relative guardian? How demonstrate?
Was the child age14 and older consulted and younger if
developmentally appropriate?
Is the guardian committed and able to care for child
permanently?
© 2011 ABA Center on Children and the Law
Judicial Considerations
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What is relationship between guardian and parents – orders
should include:
• Contact, visitation plan - supervised, location, frequency,
best interest controls
• Plan to keep siblings connected
• Rights of guardians and rights of parents
• Named successor or standby guardian or require hearing
Are there any other necessary provisions or conditions?
Is there a clear process for modifications, parental petitions for
visitation and to re-gain custody?
Are there trained lawyers to represent relatives in your area legal fees are covered by non-recurring costs
© 2011 ABA Center on Children and the Law
Family Connection Grants
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Authorizes $15 million annually for the Family Connection
Grant Program (no new grants for 2010)
 Reserves $5 million for kinship navigator programs
Competitive federal grants may be used for:
 Kinship navigator programs
 Intensive family finding
 Family group decision-making or other similar conferencing
 Residential, family-based substance abuse treatment
Available to states, tribes, large metro areas and non-profits
working with children in foster or kinship care
24 recipients announced September 2009:
http://www.acf.hhs.gov/programs/cb/programs_fund/discretionary/2009.htm
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up to one million dollars per year for up to 3 years
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Determine if there are any of these programs in your
area, either created by grant or existing
If there are such programs, learn about eligibility
requirements
Refer families and/or ensure referrals have been made
to programs, if appropriate
Are there other similar programs that help maintain
family connections?
© 2011 ABA Center on Children and the Law
Notice Requirements
Requires states to use due
diligence to identify and
notify all adult relatives
 Exception for family and
domestic violence
 Notice within 30 days of
removal from parents’
custody
 Effective 10/7/08 unless
state legislation required
and permission for delay
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© 2011 ABA Center on Children and the Law
Notice Requirements (cont’d)
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Notice must:
 Specify the child removed from parent(s) custody
 Explain options to participate in care and/or placement
and options lost for failure to respond
 Describe requirements to become foster parents
 Outline available services and supports
 Describe GAP, if state has chosen this option
Can use Federal Parent Locator Service to locate
PI encourages engagement of relatives for children at risk
of removal and encourages notice in writing
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Ask agency if they have identified and notified relatives at the
first hearing and all subsequent hearings
 What due diligence efforts were made & how documented
 how is due diligence defined in your state
 combination of good casework and technological
resources
 Paternal, maternal and non custodial relatives notified
Be familiar with your state notice laws and policies
 How are relatives defined in your state (consistent with GAP)
Are there reasons to use family or domestic violence exceptions
 Who will make this determination – court, agency
 How will this be applied/defined and by whom
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Ask parents and child from the bench to help identify
relatives and possible placement and family resources
 if parents refuse, advise them child may be placed with
people they don’t know
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Help clarify placement options and make sure relatives
understand ALL options – formal and informal
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Ensure that families, including the relative caregiver
understand the role of the relative in the process
 Are the family members aware of ways that they may stay
connected with the child and engaged in the child’s case,
even if they are not a placement option for the child?
© 2011 ABA Center on Children and the Law
Licensing for Relative Caregivers
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To increase the availability of licensed foster care homes with
relatives, the new law:
 Allows states to waive “non-safety”-related licensing
standards for relatives on a case-by-case basis (e.g. square
footage requirements)
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States have discretion to establish licensing standards and
define which are non-safety
 Requires HHS to submit report to Congress by 10/10 on state
licensing standards for relatives and recommendations to
increase the number of licensed relative foster homes
See www.grandfamilies.org for all state waiver laws and policies
and new resource: Relative Foster Care Licensing Waivers in the
States: Policies and Possibilities
© 2011 ABA Center on Children and the Law
Judicial Considerations
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What are your states licensing requirements for relatives?
 What is the state’s philosophy and practice re: licensing
relatives as foster parents
 What are the common reasons why relatives are not licensed?
 What are the barriers for licensing a relative for this child?
What are the minimum licensing requirements
 Which standards are considered safety vs. non safety
standards
 Ensure safety standards are not waived
What is your state’s policy on waivers of licensing requirements?
 Are waivers consistently applied to all by all and reason for
waiver documented?
 Does policy differ from actual practice?
© 2011 ABA Center on Children and the Law
Sibling Provisions
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States must make reasonable efforts to place siblings together in
foster, kinship and adoptive homes unless contrary to the safety
or well-being of a child
If siblings not placed together, states must document why not
and:
 Must make reasonable efforts to provide frequent visitation
or other on-going contact between siblings,
 unless states document that contact would be contrary to the
safety or well-being
PI encourages periodic assessment of placement and visitation
and allows states to define siblings
 Frequent visitation defined as at least monthly
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Courts should review documentation of “reasonable efforts” to
keep siblings together and if not together, why not
 Inquire at each hearing if circumstances have changed that
would allow for placement with siblings
Siblings should have written visitation plan to ensure visits
 Sibling visits can not be dependent on parental visits
How does your state plan for siblings with varying needs?
 Older vs. younger, adoption vs. other permanency options
What about the child’s wishes with regard to sibling placement
and visitation?
How does your state define sibling?
 What about visits with siblings not in care, half siblings,
siblings placed with different sides of the family (paternal)?
© 2011 ABA Center on Children and the Law
Other Provisions
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Tribal Foster Care and Adoption Access
Coordinated Health Plan
Adoption Provisions
Funds for Expanded Child Welfare Training
© 2011 ABA Center on Children and the Law
Tribal Foster Care and
Adoption Access
Direct Tribal Access to IV-E funds
© 2011 ABA Center on Children and the Law
Direct Tribal Access to IV-E funds
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Allows tribes or tribal consortia, as of 10/1/09, to administer their
own Title IV-E programs and receive funds directly from the
federal government
 Allows for direct tribal access to foster care, adoption
assistance and guardianship assistance for IV-E eligible
children only
 Must submit a plan including a description of service areas
and populations to be served (one tribe to date)
Alternatively tribes may choose to continue to administer child
welfare programs and receive funds through tribal/state
agreements
 PI - Title IV-E agency required to negotiate agreement “in
good faith” (all parties have opportunity for input)
Tribes may apply for state’s Chaffee funds, to be taken from
tribe’s allotment and provided directly to the tribe
© 2011 ABA Center on Children and the Law
Tribal Foster Care
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Nunc pro tunc tribal court orders documenting reasonable efforts
and contrary to the welfare findings
 allowed for the first 12 months that a tribe, tribal organization
or tribal consortium operates a IV-E plan
 requires such documentation to determine child and case
eligibility for Title IV-E reimbursement.
Requires HHS to provide technical assistance and grants to assist
with transition to administer their own programs
 One time development grants of up to $300,000 are available
to tribes that apply to assist in developing tribal Title IV-E
programs
 Technical assistance document to assist tribes implement a
direct title IV-E program:
http://www.acf.hhs.gov/programs/cb/laws_policies/tribal_cons
iderations.htm
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Has the agency determined if the Indian Child Welfare Act
(ICWA) applies?
 Has the Tribe taken jurisdiction over a specific Indian child
for purposes of ICWA and IV-E purposes?
 How will services continue to be provided to the child and
family once the case is transferred?
Does the tribe require a nunc pro tunc order and if so, what
were the reasonable efforts and contrary to the welfare
circumstances at the time of the removal?
Have any tribes, tribal organizations or consortia applied to
administer their own Title IV E program in your jurisdiction?
 http://www.acf.hhs.gov/programs/cb/programs_fund/discret
ionary/2009.htm
© 2011 ABA Center on Children and the Law
Coordinated Health Plan
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The new law requires states to
develop a plan as part of their
IV-B Plan for the ongoing
oversight and coordination of
health care services for children
in foster care
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The plan must be developed in
coordination & collaboration
with the state Medicaid agency,
pediatricians and other
appropriate experts
© 2011 ABA Center on Children and the Law
Coordinated Health Plan
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The plan must describe how:
 Initial and follow up health screenings will be
provided (schedule)
 Health needs will be monitored and treated
 Medical information will be updated and shared
 Steps to ensure continuity of health care services
(may include establishing a medical home)
 Oversight of prescription medications, including
psychotropic drugs, will be ensured
© 2011 ABA Center on Children and the Law
Patient Protection and Affordable Care
Act (P.L. 111-148)
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Law signed on March 23, 2010
Ensures that children receiving independent living services
and/or education and training vouchers and those who are
aging out of foster care have:
 information and education about the importance of having a
health care power of attorney or health care proxy and
 provides the youth with the option to execute such a
document.
See program instruction:
http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2
010/pi1010.htm
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Ask how the child’s health care needs are being coordinated?
Ensure regular, proper health, mental health, dental services
are being provided
 How often does the child see a doctor?
 What is the overall quality of the health care the child is
receiving?
 Does the child have a medical passport?
Have there been periodic assessments of prescription
medication, including psychotropic drugs?
Courts can act as powerful and effective conveners of multiple
systems
 If necessary, a judge can request a meeting or order the
provision of specific services
© 2011 ABA Center on Children and the Law
Adoption Provisions
Supporting Adoptive Families
for Children in Foster Care
© 2011 ABA Center on Children and the Law
Adoption Assistance: De-Link
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Gradually removes the link between a child’s eligibility for
federal adoption assistance payments and the parent’s AFDCeligibility requirements at time of removal, as required by Title
IV-E
 Child must still be special needs to qualify
Automatically qualifies SSI-eligible children (based solely on
medical and disability requirements) for adoption assistance
Requires states to reinvest any state funds saved in other child
welfare services
Program instruction listing criteria for de linking:
http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2
009/pi0910.htm
© 2011 ABA Center on Children and the Law
Adoption Assistance: Phased-in Eligibility
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Beginning with adoptions finalized on 10/1/09, makes eligible
those children who are special needs and:
 Have been in care 60 consecutive months
 Siblings of eligible children placed in same home
Incremental, beginning with the oldest youth
 Adds, by age, a new group of children, by 2 years, each
fiscal year—16 and older on 10/1/2009
 14 and older on 10/1/10 (FFY 2011) and so on
 Also includes siblings of eligible children
By 10/1/17, makes all children with special needs, regardless
of income or age, eligible for federal adoption assistance
PI – states may not target to a subset of children
© 2011 ABA Center on Children and the Law
Adoption Incentive Payments Program
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Renews Adoption Incentive Payments Program until 2013
Resets adoption baseline based on # of adoptions in FY 2007
Doubles the incentive payments for adoptions of older children
and children with special needs
 Increase for children ages nine and older to $8000
 Increase for children with special needs to $4000
Gives states 24 months to spend their adoption incentive
payments (previously had 12 months)
Awards additional incentive payments to states that exceed
their highest adoption rates since 2002 (if sufficient funds)
Adoption incentive information memo:
http://www.acf.hhs.gov/programs/cb/laws_policies/policy/im/2
009/im0903.htm
© 2011 ABA Center on Children and the Law
Expanded Outreach: Adoption Tax Credit
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The new law requires states to inform all people who are
adopting or considering adoption of a child in state custody
about their potential eligibility for the adoption tax credit
 Tax credit for qualifying expenses paid to adopt eligible
child
Research shows majority of taxpayers who use adoption tax
credit adopt children through private agencies and attorneys
In March 2010, Public Law 111-148, the Patient Protection and
Affordable Care Act, extended the adoption tax credit to
12/31/11
 Increased the per-child credit for 2010 by $1000 and made
the credit refundable for 2010 and 2011.
© 2011 ABA Center on Children and the Law
Judicial Considerations
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What are the agency’s recruitment efforts for adoptive parents?
What efforts has the agency made to find an adoptive placement
for this child?
What are the barriers to finalizing an adoption?
 Who has the ability to remove the barriers to adoption?
 When will those barriers be removed?
Review timelines for completing adoptions in your jurisdiction
 Expedite backlogs and appeals for adoption cases
Conduct frequent reviews of freed children to speed finalization
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Has the child been in care for greater than 60 months or older
than 16 years of age?
 Create a sense of urgency for adoption of youth in care over
60 months
Encourage adoptions of older youth and youth with special
needs
Has adoption been explained and discussed with the child?
Ask prior to finalization if the adoptive parent has received
information about the adoption tax credit
 What efforts are made to ensure they understand the
eligibility requirements?
© 2011 ABA Center on Children and the Law
Funds for Expanded Child Welfare
Training
© 2011 ABA Center on Children and the Law
Expands Training
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Allows states to claim Title IV-E training funds for:
 CASAs,
 private
child welfare staff,
 court personnel,
 attorneys,
 guardian ad litems and
 prospective relative guardians
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Phases in the match rate for new trainees starting at 60% in
FFY 2010, to increase by 5% each FFY, up to 75% in FFY
2013
© 2011 ABA Center on Children and the Law
Judicial Considerations
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Identify specific training needs and necessary resource
materials for the education and training of professionals
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Develop or contract for training curricula and/or
collaborate on providing training for lawyers, volunteer
GAL/CASAs, court personnel and legal training for
relative caregivers and private agency staff
 Has the court conducted any such training?
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Has the court encouraged cross training between the
judiciary and other professionals?
© 2011 ABA Center on Children and the Law
Judicial Considerations
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How has the state planned for the use of training dollars for
these legal training purposes?
 Can the training dollars be combined with other resources,
such as Court Improvement Project funding?
 In order to claim these IV E Funds, courts should enter an
inter-agency agreement with the state IV E agency
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Has the state IV E agency amended its quarterly IV-B plan, to
indicate that it may expand training costs to new entities as
allowed under Fostering Connections Act
 Not required, but would enable the state to claim training
costs both prospectively and retroactively (to 10/07/08 or
up to 2 years, whichever is less).
© 2011 ABA Center on Children and the Law
Additional Resources
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NEW RESOURCE: coming Spring 2011 - Judicial Guide to
Implementing the Fostering Connections to Success and
Increasing Adoptions Act of 2008: www.grandfamilies.org
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For summaries, full text of law and additional resources:
www.grandfamilies.org and www.fosteringconnections.org
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Extensive Kinship Q & A - New Help for Children Raised by
Grandparents and Other Relatives: www.grandfamilies.org
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Other resources available at: www.abanet.org/child/,
www.fosteringconnections.org, www.clasp.org ,
www.childrensdefense.org
© 2011 ABA Center on Children and the Law
For more information or kinship
technical assistance requests contact:
Heidi Redlich Epstein, JD, MSW
Director of Kinship Policy
ABA Center on Children and the Law
202-662-1725
[email protected]
© 2011 ABA Center on Children and the Law