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Update on Child Welfare Law 2010

Update on Child Welfare Law 2010. Howard Davidson, Director ABA Center on Children and the Law davidsonha@staff.abanet.org. One New Federal Legislative Development of Importance to Child Welfare Agencies.

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Update on Child Welfare Law 2010

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  1. Update on Child Welfare Law 2010 Howard Davidson, Director ABA Center on Children and the Law davidsonha@staff.abanet.org

  2. One New Federal Legislative Development of Importance to Child Welfare Agencies • Affordable Care Act (P.L. 111-148), signed 3/23/10, in Section 10909 extended the federal Adoption Tax Credit • Amount increased by $1,000, bringing amount to 13,170 for tax year 2010 • Credit was made refundable for all types of adoptions finalized in 2010 and 2011 • Credit extended through 12/31/11

  3. PART I What Agency Attorneys Should Know About Federal Monitoring of State Child Welfare Programs

  4. How Does HHS Monitor/Oversee State Child Protection/Child Welfare? • Child and Family Service Reviews State assessments, reviews, program improvement plans-- See for your State’s: http://library.childwelfare.gov/cwig/ws/ cwmd/docs/cb_web/SearchForm • Title IV-E Eligibility Reviews See for your State’s: http://www.acf.hhs.gov/programs/cb/ cwmonitoring/final/index.htm

  5. There are two additional key federal monitoring and oversight mechanisms that require State Plan submissions: • A Child and Family Services Plan (every 5 years) • An Annual Progress and Service Report

  6. April 20, 2010 Children’s Bureau Instruction to States • ACYF-CB-PI-10-09 States must submit to CB an APSR (Annual Progress & Service Report, which is an update of their CFSP) • Every 5 years each state must submit a “Child and Family Services Plan” (CFSP) • Required for getting CAPTA, IV-B, Chafee, and Education/Training Voucher $

  7. States’ APSRs Must Discuss in Detail • Title IV-B, Part 1 program implementation • Title IV-B, Part 2 services • Monthly Caseworker Visit funding use • Training Activities related to the ASPR • CAPTA funding use and law/policy changes that might affect eligibility • Chafee Program activities • ETV Program activities You can find your APSR and CFSP at: http://library.childwelfare.gov/cwig/ws/ cwmd/docs/state_search/SearchForm

  8. For Each APSR, the State Must List • Year’s accomplishments/progress • Child outcome improvement plans • Revisions to CFSP goals • Updating of progress in responding to CFSR, IV-E, and AFCARS program improvement plans • Changes or additions to services to be provided • Also address improved collaborations (including with the courts), new training populations, and tribal support

  9. How “Health Care Coordination Plans” for foster children are progressing • Review and updating of their child welfare system disaster plan • Updating accomplishments in foster and adoptive parent recruitment • Steps being taken to assure that by 10/1/11 at least 90% of all foster children are visited at least monthly by a caseworker • How “Adoption Incentive” funds are being spent

  10. Chafee Developments that States Must Include For Current & Ex-Foster Youth • Transition to self-sufficiency and employment preparation aid • Post-secondary education and mentoring • Aid to emancipated foster youth 18-21, including education & training vouchers • Aid to older youth who were placed for adoption or guardianship at age 16 or later • Good coordination with other federal funding • Training of caretakers & professionals on meeting needs of transitioning youth

  11. Use of Chafee “Trust Fund” $ for individual youth funds, or for collective use • Youth involvement (up to 21) in planning & program improvement • Expanding Medicaid to “aged out” 18-20 years olds (In 2014: it will be automatic until age 26) • Consultation with tribes on helping youth transitioning/transitioned from foster care • Steps to implement the new Youth in Transition Database (1st report due 5/15/11) • Accomplishments/progress of ETV program

  12. Annual Statistics that Must be in Every State’s APSR • Number of youth getting ETVs • Number of children in child welfare custody transferred to custody of juvenile justice agency (was in CAPTA 2003 – but I have yet to see any national or state data) • Number of children placed in care due to disrupted international adoptions • Caseworker visit data (due 12/15/10)

  13. Part II Recent Child Welfare Federal Policy Issuances

  14. HHS Program Instructions to States on Implementation of the Fostering Connections Act and Other Laws • July 9: ACYF-CB-PI-10-1120 Key Provisions • For post-18 foster youth not in school, job, or employment program, foster child’s case plan must record a precluding medical condition; states given flexibility in applying post-18 IV-E education and employment conditions reqs. • IV-E allowed if youth leaves care & re-enters at 18 or older (including up to 6 month “trial independence” or longer if court authorized; youth does voluntary placement agreement; court orders placement (should maintain jurisdiction)

  15. What about post-18 IV-E means testing? Its based on youth’s income NOT on parents/guardians, and no annual income redeterminations needed • State given discretion on types of supervised living arrangements for post-18 IV-E youth (and innovation encouraged, including settings where care payments will be made directly to youth) • Post-18 permanency plans/reviews should continue to focus on youth safety & successful adult independence and permanent connections • Post-18 parents still in care will continue to have their children also IV-E and Medicaid eligible • Transition Plans encouraged to address sexual health services; “youth peer groups” encouraged to aid in development of recommended transition planning elements

  16. For “relative” guardianships, states have discretion to include “fictive kin”, but HHS encourages same “relative” definition for both notice and guardians • Likewise, states have flexibility in defining “siblings” for purposes of IV-E guardianship assistance program (e.g., including step-siblings, half-siblings, & adoptive siblings) • In computing 6-month in relative care IV-E guardianship req., gaps of up to 14 days allowed where child ran away, and interruptions due to detention or hospitalization also authorized • Should work with schools on barriers to expeditious enrollment, esp. across jurisdictions (e.g., use “education passport” file with essential documents), & monitor actual attendance & school progress

  17. Agencies encouraged to update child’s education “stability plan” whenever child changes school; rationale for not staying in same school must be documented in case plan (“cost of transportation” is not an acceptable reason for school change) • Each year, agency must in its CFSP include copy of state’s Health Care Oversight and Coordination Plan, including how consulting health care experts were selected and how Medicaid agency helped develop it; agencies must have schedules for child health screenings that meet “standards of medical practice”; encouragement to address oversight of psychotropic medication in mental health treatment & address mental health/medical needs of LGBTQ youth; §2955(c), P.L. 111-148, requires (eff. 10/1) the Plan to address health insurance options & treatment decision-making (proxies)

  18. Protocols encouraged for decisions on when its “contrary to” child safety/well-being to have siblings co-placed or have frequent visitation • “Frequent” sibling visitation required by law should be at least monthly (and is IV-E cost allowable) • Protocols encouraged for identifying/notifying relatives whenever child removed from home; using several notification methods (mail, oral), as is a focus on improving notice to noncustodial parents and paternal relatives (and note: notice improvements are IV-E cost allowable) • Reminds that IV-E administrative $ can be used for beds, cribs, smoke detectors needed to license/approve foster home, and that HHS Report to Congress is forthcoming about waivers of non-safety related relative licensing standards

  19. For adopted child’s adoption assistance non-means tested IV-E eligibility after 10/1, child must reach 14 before 9/30/11 and state is given flexibility in how it calculates requirement that child has been in foster care for 60 consecutive months • In developing Tribal IV-E Agreements, all parties must have opportunity for input in its development • Examples given for expanded IV-E (65%) training $ use to implement Fostering Connections Act: preparing youth for independent living; contract negotiation & monitoring; effects of separation, grief & loss; child and adolescent development; visitation, trauma & exposure to violence; adoption assistance agreements; permanency planning including kinship care; & improved social work practice (including work with LGBTQ youth)

  20. HHS Guidance on National Youth in Transition Database (NYTD) Reporting within SACWIS Systems • April 2, 2010: ACYF-CB-PI-10-04 • Discusses relationship of NYTD reporting obligations to SACWIS systems. If states have a SACWIS, it must incorporate NYTD case management data collection and reporting; IV-E SACWIS $ can be used for system development related to NYTD for foster youth, but must only use Chafee or non-federal funds for SACWIS enhancement related to NYTD data on former foster youth, or on non-IV-E older foster youth • NYTD data and reporting requirements apply both to current and former foster youth

  21. Program Instruction on the New IV-E Relative GuardianshipAssistance Program • February 18, 2010: ACYF-CB-PI-10-01 • Supersedes policy from ACYF-CB-08-07 that had limited federal reimbursement to only new guardianships, and ACYF-CB-PI-09-04 • Allows conversion of prior kinship legal guardianships, including those supported previously by state or tribal funds, to the new federal IV-E Guardianship Assistance Program (GAP) eligibility

  22. Sample State Legislation to Extend Foster Care, Adoption and Guardianship Protections, Services and Payments to Young Adults Age 18 and Older June 2010 American Bar Association Center on Children and the Law Center for Law and Social Policy Children’s Defense Fund Juvenile Law Center

  23. ARTICLE 1. GENERAL PROVISIONS SECTION 101. SHORT TITLE SECTION 102. DEFINITIONS ARTICLE 2. EXTENSION OF CARE SECTION 201. ADOPTION AND GUARDIANSHIP ASSISTANCE SHALL BE EXTENDED TO AGE 21 FOR ELIGIBLE YOUNG ADULTS SECTION 202. FOSTER CARE SHALL BE EXTENDED TO AGE 21 SECTION 203. TERMINATION OF CARE—GENERAL PROVISIONS SECTION 204. VOLUNTARY TERMINATION OF CARE SECTION 205. OPPORTUNITY TO RE-ENTER CARE

  24. ARTICLE 3. COURT SUPERVISION SECTION 301. LEGAL REPRESENTATION AND CASA ADVOCACY FOR THE YOUNG ADULT IN HIS OR HER DEPENDENCY CASE SECTION 302. LAST COURT REVIEW PRIOR TO CHILD TURNING 18 SECTION 303. PERIODIC REVIEWS FOR YOUNG ADULTS SECTION 304. RIGHTS OF THE YOUNG ADULT ARTICLE 4. PROGRAM STRUCTURE SECTION 401. SERVICES THAT SHALL BE PROVIDED TO THE YOUNG ADULT SECTION 402. TRANSITION PLAN

  25. Part III Litigation Developments

  26. Class Action Lawsuits • Children’s Rights, Inc. Litigation DG ex rel. Strickland v. Devaughn, 594 F.3d 1188 (10th Cir. OK 2/8/10) • Oklahoma foster children’s 2008 suit (failure to protect children in custody, including lack of monthly home visits; excessive caseworker caseloads; unsafe foster homes; excessive caseloads and dangerous monitoring/oversight practice; unsafe & overcrowded emergency shelter use; denying development of family relationships; multiple harmful moves) • Appeal of federal district court’s class certification; lower court decision affirmed

  27. Brian A. v. Bredsen (U.S.D.C. Middle Dist. TN, 9/09) • Suit to enjoin TN law: state would only pay for daily costs of foster care for a prescribed number of children in each county, with fiscal penalties for counties where judges placed children in foster care more than three times the statewide average; alleged law interfered with judicial decision-making • Restriction/penalty law was repealed in March Lashawn A. ex rel. Moore v. Fenty, 701 F.Supp.2d 84 (U.S.D.C. DC, 4/10) – 1989 suit • Plaintiffs moved for civil contempt, granted due to non-consultation in hiring new agency director. Defendants sought federal court exit. Good discussion on non-applicability of Horne v. Flores in 45 page opinion. Court monitor’s role to continue.

  28. Connor B. v. Patrick (U.S.D.C. W.MA 4/10) • Claims that MA DCF fails to protect children from abuse/neglect in care; unnecessary multiple moves; placements in unsuitable homes; failure to provide prompt safe permanency & essential services (visitation with parents & siblings; adequate health, mental health, and dental care; adequate educational services); inappropriate caseloads and poor worker training; inadequate recruitment/retention of foster parent & kinship care placements; inappropriate placements; lack of foster home safety; not sustaining family ties & supporting safe reunification; failing to assure timely adoption, to adequately prepare youth for independence, or to access available federal funding

  29. Sam and Tony M. ex rel. Elliott v. Carcieri, 608 F.3d 77 (1st Cir. RI 6/10) - Dismissal of 2007 complaint appealed (foster children neglected/abused & deprived of care and protection & safe living environments; placed in settings not meeting their needs & in temporary settings for inordinate periods) because “Next Friends” lacked capacity to sue on behalf of child plaintiffs. Reversed. - Next Friends appointed under Rule 17(c)(2) weren’t children’s court-appointed GAL (CASA or CASA attorneys), but that didn’t preclude appointment, since GAL appointments limited to state family court cases - Next Friends need not show “significant relationship” to foster child plaintiffs, but be “truly dedicated” to child’s best interests & acting in good faith

  30. National Center for Youth Law Litigation Henry A. v. Willden (U.S.D.C. NV, 4/10) • Suit against Nevada & Clark County (Las Vegas) on behalf of foster children. 74 page complaint claims include failures to: adequately train/supervise caseworkers; meet children’s needs; conduct legally required visits with children; have investigations comply with state law & professional standards; appoint a GAL for children in care; provide appropriate mental health services (& not misuse psychotropic medication); adequately investigate potential relative placements & assure safety standards are met; comply with federal/state law on transfer of children out of the state & monitor those placements; refer to early intervention services

  31. Child Welfare Liability Cases(all reported in ABA Child Law Practice) • J.R. v. Gloria, 593 F.3d 73 (1st Cir. RI 1/10) Affirmed District Court holding that defendant social worker and supervisor were entitled to qualified immunity, as there was no evidence of deliberate indifference or egregious (conscience-shocking) conduct, since they could not have reasonably foreseen that men in foster home (who never had background checks) would injure children • V.S. v. Muhammad, 595 F.3d 426 (2nd Cir. NY 2/10) Qualified immunity found where caseworkers could, in seizing child pursuant to court order, rely on a doctor’s shaken baby diagnosis (she had unreliably made misdiagnoses in the past)

  32. Doe ex rel. Johnson v. S.C. DSS, 597 F.3d 163 (4th Cir. SC 3/10) – suit by girl through adoptive parents Affirmed qualified immunity (caseworker placed siblings in foster care & brother sexually abused sister & other children (his full sexual abuse history not fully disclosed); girl’s constitutional right not clearly established in Circuit at time of placement -- no clearly established “right” of full disclosure; gross negligence claim remanded to state court • Werncke v. Garcia, 591 F.3d 386 (5th Cir. TX 12/09) Reversed denial of summary judgment, where worker entered home (in medical neglect case) with removal order, but without warrant/court order to enter home; BUT later removal (due to home conditions) done absent exigent circumstances (no imminent danger)

  33. Kovacic v. Cuyahoga Cty. DCFS, 606 F.3d 301 (6th Cir. OH 5/10) 2½ years after removal, suit (after state statute of limitations had run) alleged unconstitutional removal, but children’s constitutional rights violation claims (against workers who sought & obtained removal order) allowed to go forward (Rooker-Feldman doctrine didn’t apply because these were claims independent of dismissed state court suit) • Greene v. Camreta, 588 F.3d 1011 (9th Cir. OR 10/09) Seizure & 2-hour school interrogation of child 3 days after report (police actively investigating & present; case had been cross-reported to them) without warrant or parental consent is unconstitutional violation of 4th Amendment—no “special needs” exception applied; no exigent circumstances here

  34. Recent 9th Circuit Case on Fair Foster Care Payment Rates • California State Foster Parent Association et al. v. Wagner, 2010 W.L. 3385532 (9th Cir. No. 09-15025; 8/30/10) Action alleged rates too low, violating federal child welfare law [Title IV-E: 42 U.S.C. § § 672(a) & 675(4)(A)]. Foster parents have access to §1983 remedy for higher payments. Remedy was mediated. See also, C.H. v. Payne, 683 F. Supp. 2d 865 (S.D. Ind. 2010) See: Children’s Rights 10/07 report: “Hitting the M.A.R.C.” (on minimally adequate FC rates) at-- http://www.childrensrights.org/wp-content/uploads /2008/06/hitting_the_marc_summary_october_2007 .pdf

  35. Part IV Child Maltreatment Central Registries

  36. State’s Child Abuse/Neglect Central Registries – Current National Implications 36 Section 633 of The Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248, 42 U.S.C. 16990) requires the U.S. Department of Health and Human Services to establish a national child abuse registryand to conduct a feasibility study regarding implementation issues that would need to be addressed. Also requires states to check state registries in all states a prospective foster/adoptive parent lived in during the past five years.

  37. Key Features of a National Registry (as specified in the Adam Walsh Act) 37 The Secretary of HHS “shall collect in a central electronic registry information on persons reported as ... perpetrators of a substantiated case of child abuse or neglect.” Information provided to the Secretary of HHS “shall be coextensive with” a state or Indian tribe’s equivalent electronic registry if it maintains one (e.g., state SACWIS). The registry “shall contain case-specific identifying information that is limited to the name of the perpetrator and the nature of the substantiated case of child abuse or neglect.”

  38. Key Features (continued) 38 HHS may not require states and tribes to modify existing registries or child maltreatment records to comply with the Act. The law provides no financial incentives for a state that maintains a child abuse registry to submit data to a national registry, and there are no consequences for not doing so. The national registry “shall only be accessible to any Federal, State, Indian Tribe or local government entity, or any agent of such entities, that has a need for such information in order to carry out its responsibilities under law to protect children from abuse or neglect.”

  39. Requirements of the Feasibility Study 39 The law requires that the feasibility study address the following issues: The costs and benefits of such data collection standards. Data collection standards currently employed by each State, Indian tribe or political subdivision of a State. Data collection standards that should be considered to establish a model of promising practices. A due process procedure for a national registry.

  40. Components of the Initial Feasibility Study and Comprehensive Assessment 40 Literature Search Analysis of the Statutory Language Descriptive Analysis of State Registries Identification of Related Federal Activities Stakeholder Discussions Consideration of Interactions with the Federal Privacy Act Assessment of Due Process Considerations Identification of Cost Considerations

  41. Conclusions from the Initial May 2009 Initial Feasibility Study on a National Registry 41 See http://aspe.hhs.gov/ (under child welfare) Potential benefits are largely unknown A lack of incentives for participation could result in a database that includes little information and does not fulfill its intent Before implementation could begin, legislative change would be needed to permit collection of sufficient information to accurately identify perpetrators Clarification is required on several key issues ambiguous in the authorizing statute; must be resolved either within HHS or by Congress before implementation could proceed

  42. Significant Challenges Assuring adequate due process protections for individuals listed in a national registry Risk is that a national registry will be vulnerable to legal challenges if state/local due process is not adequate Accurate identification of perpetrators, given the lack of biometric information (name only) Risk is that a national system could provide high numbers of inaccurate identifications Responding promptly to queries, while restricting data to authorized users How would HHS determine inquiry is from a valid source? Securely exchanging data with, and verifying data that comes to HHS from, many sources Statute envisions submissions by states & at state option, counties, as well as Indian Tribes

  43. Next Steps Identified Prevalence Study. An effort to determine how frequently child maltreatment perpetrators offend in multiple states. Lack of information prevents us from assessing the potential benefits of a national child abuse registry. Systems Review. Review of data systems comprising state child maltreatment registries will enable HHS to respond to the Act’s requirement that we catalog state data standards and identify potential standards for a national child registry.

  44. Further Assess State Interest.Further contacts with states to assess interest in participating in a national child abuse registry, and to identify in more detail factors that would hinder participation. Better understanding of these issues will allow us to determine whether a voluntary registry, without $ incentives for participation, will have sufficient coverage to make it a useful child protection tool. • Due Process & Privacy Act Considerations(ABA Center on Children and the Law has been looking at these issues)

  45. Some Issues We’re Looking for Input On 45 Do substantiated child maltreatment perpetrators move from state-to-state? What percentage of substantiated child maltreatment perpetrators have been substantiated previously in other states? What percentage of those matches occur only in neighboring states? Do interstate perpetrators commit more serious types of maltreatment than other perpetrators?

  46. Key Informant Survey 46 • Attorneys representing State Child Welfare Agencies will be asked about: • Due process considerations regarding the finding of abuse and neglect, and appellate provisions • Due process considerations regarding being designated as a maltreatment perpetrator on the data repository, and appellate provisions • Legal issues related to giving access to the CR information to out-of-state entities • Potential benefits/problems with the State participating in a national registry

  47. 47 • Directors of State Child Welfare Agencies, or their designees, will be asked about: • The processes for requesting and responding to CR inquiries from other States • Their State’s experiences with requesting CR information from other States • How much of a burden is required for requesting, and responding to, CR inquiries • Potential State benefits/problems in participating in a national registry

  48. 48 • Administrators responsible for the Central Registry or Equivalent Data System that maintains perpetrator information will be asked: • Which agencies provide data for the current CR system • What data elements are maintained on perpetrators • How accurate, current, and thorough is this data • Potential State benefits/problems in participating in a national registry

  49. PART V Other Information of Interest

  50. Information at: http://new.abanet. org/child/Pages/ nationalreunificationday.aspx

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