Law and Policy Developments in Child Protection Reform

1. Law and Policy Developments in Child Protection Reform Howard Davidson Director, ABA Center on Children and the Law howard.davidson@americanbar.org www.americanbar.org/child April 16, 2012

2. A few words about collaboration among those involved in system oversight… SLO, CJA & CRP chairs, and Court Improvement Program director should periodically meet about: -- New or pending state legislation affecting abused and neglected children -- New child protection-related programs initiated by the child welfare agency or by the courts -- Recent reports, or data analysis, of interest to all -- Issues in implementation of federal legislation affecting children in foster care -- Funding collaboration for specific projects/research IDEALLY, JOINT FULL GROUP MEETINGS AS WELL

3. The Child and Family Services Improvement and Innovation Act Public Law 112-34, signed into law on 9/30/11 HIGHLIGHTS • IV-E: State health care plans on health screenings for foster children now should address emotional trauma associated with abuse/neglect and removal, and states must have protocols for use & monitoringof psychotropic medications • IV-B: States must describe what they are doing to reduce time in foster care for children under 5, and what they are doing to address thedevelopmental needs of agency-involved children (not just limited to those in foster care)

4. Recent CAPTA Provisions Related to Infants and Toddlers 2010: 34% of substantiated victims were under 3 (188,000) & 20% of those in foster care (84,000) • CAPTA 2003: States must have “provisions and procedures for referral of a child under the age of 3 who is involved in a substantiated case of child abuse or neglect to early intervention services funded under Part C of the Individuals with Disabilities Education Act” • CAPTA 2010: States must collect data on “the number of children determined to be eligible for referral, and the number of children referred” under Part C of the IDEA (also data on FASD Referrals and Youth who Crossover to JJ System)

5. U.S. Dept. of Education Issues New Part C IDEA Regulations (9/28/2011) • 76 Federal Register 60244 (34 CFR 303) • The Part C program must be coordinated with “CPS and child welfare programs, including programs administered by, and services provided through, the foster care agency and the State agency responsible for administering CAPTA” • Referral procedures must also address specific at-risk infants & toddlers, including those referred from “public agencies and staff in the child welfare system, including CPS and foster care” • Foster parents can be considered “parents” in this IDEA process, or court can appoint another person as “surrogate parent” but not agency or its employee

6. Infant/Toddler Resources from our Centerwww.americanbar.org/groups/child_law/ projects_initiatives/child_and_adolescent_health/ child_health/child_health_publications.html Also… The Judges’ Page -- March 2012(National CASA) Young Children Involved in Dependency Court http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/ b.5301323/k.8E21/Judges_Page.htm

7. www.npr.org/ programs/atc/ features/2003/ mar/juvenile_ court/questions_every_judge_ should_ask.pdf

8. Model Court-Based Programs Babies Can't Wait -- New York State NY Permanent Judicial Commission on Justice for Children-- Identifies, documents, and tracks infants in family court; provides for their special health and developmental needs; and promotes permanency Provides training on infant health and development to those working in the court and child welfare systems Created a judge's bench card for infants that addresses the special developmental and medical needs of infants Works with the child welfare agency to improve how cases involving infants are handled

9. Best for Babies -- Yavapai County, Arizona Developed checklist of essential services, delineating responsibilities of the CPS caseworker, foster parents, provider of mental health services for children and adults, and “systems of support,” a team process developed to help parents in recovery accomplish their case plans for reunification. Project works to convert the checklist from a snapshot in time to a guide for ongoing services, develop a cadre of CASA volunteers to oversee case coordination and collaboration, and enhance case coordination and collaboration among all service providers working with babies and their families.

10. Zero to Three’s “Safe Babies Court Teams” Teams require leadership of a local judge who is a catalyst for change, each team community requires a local community coordinator to provide child development expertise to judge and the team, and coordinate services and resources, and each community has a team of key community stakeholders devoted to restructuring community response to needs of maltreated infants and toddlers, meeting monthly to learn about available resources, identify service gaps, and discuss issues raised by the cases that the team is monitoring Teams focus on foster care cases involving children younger than 36 months, actively uses concurrent planning when recruiting caretakers, reviews cases monthly, facilitates visitation, develops continuum of mental health services, and evaluates impact

11. Current Zero to Three Court Team Sites (based on pilot work in Miami Juvenile Court) Cherokee, North Carolina Des Moines, Iowa Douglasville, Georgia Hattiesburg, Mississippi Honolulu, Hawaii Little Rock, Arkansas New Haven, Connecticut New Orleans, Louisiana Omaha, Nebraska San Francisco, California

12. Continuing with the 2011 Federal Law… • States must describe sources used to gauge number of child maltreatment deaths and how data sources will be broadened (for more accurate counts) • Encourages states to have no less than 90% of foster children visited monthly and, if goal not met, imposes federal financial penalties, and sets a further goal (with penalties for not meeting it) that at least 50% of visits occur in the child’s residence(special state grant program continued) • Extends regional substance abuse grant program • Lists new specific family reunification services:peer-to-peer mentoring; support groups for parents/primary caregivers; facilitating child access to/visitation by parents and siblings

13. Court Improvement Program Reauthorization • Adds language suggesting CIPs (and therefore courts) should address concurrent planning issues Note: IV-E concurrent planning provisions currently include: a) Allowing reasonable efforts to place children for adoption to be made concurrently with reasonable efforts toward family reunification efforts; and b) Allowing TPR petitions to be filed concurrently with agency work to identify, recruit, and approve an adoptive family • Adds to CIP grant purpose: increase and improve engagement of the entire family in court processes, and adds new training element for improvement of suchfamily engagement

14. ABA Resources on Parent Engagement • Articles from the ABA Child Law Practice Related to Parent Partner Programs: • From the Courthouse to the Statehouse: Parents as Partners in Child Welfare • Working with Parent Partners to Achieve Better Outcomes for Families • From Parent to Crisis to Parent Partner www.americanbar.org/groups/child_law/projects_ initiatives/parentrepresentation/written_materials. html • Also see Parent Handbooks at: www.americanbar.org/groups/child_law/projects_ initiatives/parentrepresentation/parents_handbook. html • Fathers Guides (and other related material): www.americanhumane.org/children/programs/ fatherhood-initiative/qic-fatherhood-toolkit/fathers-and-the-courts.html

15. Continuing with the 2011 Federal Law… • States are required to get every foster child who is 16, and then annually thereafter until discharged from care, consumer credit reports, and states must provide the child assistance in interpreting and resolving inaccuracies in those reports, including when feasible getting assistance for the child from the child’s court-appointed advocates • States must now document how state savings, from revisions of law that expand federal funding for adoption/guardianship assistance, are being re-invested in IV-B services, and specifically on reinvestment in post-adoption services

16. Up to 10 new state waivers of IV-E requirements (called Demonstration Projects) are authorized • All waiver applications from states must indicate how they will address At Least 2 of These 10 Policy-Related Areas of Improvement (called Child Welfare Program Improvement Policies): 1. Bill of rights for foster children and youth 2. Better meeting health/mental health needs of foster children and youth 3. Kinship guardianship assistance 4. Extension of IV-E for those youth under age 21 5. Plan for reducing use of congregate care placements (AFCARS 9/30/10-- 25, 000 in group care; 36,000 in institutions)

17. 6. Substantial increases of siblings placed together in foster care, kinship guardianships, or adoptive placements 7. Improving recruitment and retention of high quality foster care providers trained to help children and youth secure permanent families, such as increasing their monthly payments and expanding training, respite care, or other foster parent support services 8. Better preparation of youth for transition from care, such as extracurricular activity involvement, cell phone and computer access, opportunities to obtain drivers licenses, promotion of sibling connections, and provision of counseling and financial support for post-secondary education

18. 9. Better engagement of youth in transition planning that explores reconnection with their biological family and promotes successful and safe reconnection 10. Prevention of foster care entry, including intensive family finding, kinship navigator services, family counseling/peer support, family-based substance abuse treatment, better domestic violence identification and services, or mentoring

19. Recent State Differential Response LawsCT 2011 Act, SB 1199, P.A. 11-240 Commissioner may establish DR program whereby report may be referred to appropriate community providers for family assessment and services without investigation or during investigation, provided there has been initial safety assessment and criminal backgroundchecks on all adults involved in report. Report classified as lower risk may be referred for family assessment/services and later referred for standard CPS if child safety concerns become evident. Report referred for standard CPS may be referred for family assessment/services if lower risk to child found

20. NY 2011 Laws, AB 6823, Chap. 45 and AB 8018, Chap. 377 Makes permanent the DR programs for child protection assessments and investigations. Authorizes the subject of the Family Assessment Response (FAR) report access to those records; authorizes court access to FAR records during duration of services; provides for re-disclosure of FAR records; allows records access to a CPS unit if records are relevant to a child abuse investigation or Family Court action; requires CPS to include such information in the investigation records; requires certain data regarding race or ethnicity for FAR cases.

21. Differential Response in Child Protective Services: A Literature Review – Nov. 2011 “Both families and program staff were more satisfied with the non-investigation pathway than with the investigation pathway. Families were more easily and fully engaged, usually earlier in the service delivery process.” “Regardless of which (evaluation) method was used, family participation in the non-investigation pathway was demonstrated to reduce the numbers of post-program reports for alleged child abuse and neglect, (though the differences were often modest), so that as several evaluators put it, child safety was not compromised as a result of families being served through the non-investigation pathway.”

22. Child Welfare Agencies Aiding Child Victims of Trafficking • ABA Resolution 103A on Child Trafficking -- 8/8/11 • Screen for these victims in all runaway, juvenile & child welfare settings and assure appropriate assistance from child protective service agencies • Establish safe housing and other services for them • Require immediate reporting when children are missing from foster care or other placement (given their vulnerability to trafficking) • Train police, CPS & courts on identifying these victims, and where to get help for them • Give courts protective order authority & provide a basis for civil actions on behalf of child victims

23. Report data on the number of victims served and what services they actually received • Meet the unique needs of girls, boys, gay & transgendered youth who are trafficking victims • Give special attention to non-citizen children, including their proper identification as trafficking victims, mandating their referral to state/local CPS for support & immigration relief, and providing for their immediate protective custody as dependent children in suitable state/county placements • Don’t criminally charge prostituted minors, but rather permit their protective custody, as victim dependent children, in suitable settings (keep them out of delinquency/juvenile justice system)

24. “Building Child Welfare Response to Child Trafficking” Project Purpose of this project is to build capacity of child welfare agencies and professionals to identify and respond to this often invisible and underserved population Primary goals are to ensure children are correctly identified as trafficked persons and that they receive appropriate protections and referrals to specialized services to which they’re entitled under federal and state laws For more information and a copy, see www.luc.edu/chrc/ Monograph.shtml

25. Will CPS “Screen In” Child Trafficking Reports? Models for Legislative Authority of CPS define: • “Dependent child” as child who for “any” cause is in need of the care and protection of the state (e.g., Alabama 12-15-102) or is homeless or destitute or without adequate parental care (through no parental fault) or whose condition or environment warrants the state, in the child’s interests, to assume care (e.g., Ohio 2151.04) • “Child in Need of Services” includes a sexually exploited child (e.g., Massachusetts 119/21) or child who has exhibited behaviors that create a serious risk of harm to them (e.g., Washington 13.32A.030)

26. Mandatory Reporting: What May be Changing? • Issues Being Addressed: 1) Expanding mandatory reporters – “adding to list” (e.g., coaches) or making “everyone mandated reporter”; 2) addressing process of reporting sexual abuse (e.g., universal mandated reporting to police; or for anyone who witnesses it); 3) increasing penalties for failing to report; 4) improving training of reporters and enhancing public awareness of child maltreatment; and 5) special provisions affecting colleges and those employed/volunteering there • There are 98 bills in 30 states (9 in CA alone), plus as of late December at least 8 Congressional bills, to mandate amendment of state child abuse reporting laws

27. Center on Children and the Law Resources • Legal and Judicial Issues Resource Center: Jennifer.Renne@americanbar.org • Parent Representation/“Reunification Day”/LGBTQ Issues Mimi.Laver@americanbar.org • Older Youth in Foster Care/Transitioning Youth Andrea.Khoury@americanbar.org • Kinship (Grandfamilies State Law & Policy Resource Center) Heidi.Epstein@americanbar.org • Child/Adolescent Health Eva.Klain@americanbar.org • State Permanency Barriers Removal/Trial Skills AnneMarie.Lancour@americanbar.org • Legal Center for Foster Care and Education Kathleen.McNaught@americanbar.org

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