1 Courts’ Role in Interstate Foster Care and Adoptive Placements: Results of the State Assessments Judge Stephen W. Rideout (ret.) & Scott Trowbridge National

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Courts’ Role in Interstate Foster Care and Adoptive Placements:

Results of the State Assessments

Judge Stephen W. Rideout (ret.) & Scott Trowbridge

National Child Welfare Resource Center for Legal and Judicial IssuesABA Center on Children and the Law

CIP MeetingOctober 14, 2008

© ABA MMVII, MMVIII

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Disclaimer: This presentation does not necessarily reflect official Children’s Bureau or ABA policy.

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Contents of presentation:

Introduction Assessment Findings Next Steps The New ICPC

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Introduction

ICPCSafe and Timely ActThe Assessments’ MethodologiesOur Overview Process

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The Interstate Compact on the Placement of Children

o What is it? o When does the Compact apply?o Key terminology.o What is the basic process?

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Basic Process

1. Local Office

2. In-State ICPC Office

3. Out-of-State ICPC Office

4. Out-of-State Local Office

5. Out-of-State ICPC Office

6. In-State ICPC Office

7. Local Office

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Impetus for the Safe and Timely Act

The ICPC wasn’t working well and interstate placements take needlessly long

Because of flaws in the ICPC, some courts evade it, creating concerns for child safety

Courts could play a more constructive role There was a pending revision of the ICPC (Act

encourages States to enact the new ICPC)

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Safe and Timely Interstate Placement of Foster Children Act of 2006

The Safe and Timely Act required states to assess the “role, responsibilities, and effectiveness of State courts” and determine the best strategies to expedite interstate placements including a review of how courts cooperate in the sharing of information obtain information and testimony from agencies and

parties, and permit the participation of parents, children, attorneys,

and other necessary parties without requiring interstate travel.

42 U.S.C.A. § 629h (2006).

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The Act also added timeframes

“[W]ithin 60 days after the State receives from another State a request to conduct a study of a home environment for purposes of assessing the safety and suitability of placing a child in the home, the State shall, directly or by contract—

(I) conduct and complete the study; and(II) return to the other State a report on the

results of the study, which shall address the extent to which placement in the home would meet the needs of the child;”

Social Security Act, 42 U.S.C. §671(a)(26)(A)(i)

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Assessment MethodologiesPercentage of assessments that used these methods.

Review of Law 94% Surveys 84% Administrative Data 76% Interviews 65% Case File Reviews 53% Focus Group Interviews 35%

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Interviews

I ntervi ewstotal number of respondents i n al l states

76

22

44

31

0

80

J udges At t or neys Agency st aff Gr oup i nt er vi ews

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Surveys

Surveystotal number of respondents i n al l states

483

716644

713

0

800

J udges At t or neys Agency st aff Uni dent i fi ed

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IntroductionAssessment FindingsNext StepsThe New ICPC

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Our Review

Received a total of 49 AssessmentsReviewed half‘Laundry List’ OutlineReviewed (or Re-Reviewed) All

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Limitations

Some limitations of the Overview Apples to Oranges

Differing standards for qualitative and quantitative data What was ‘recommended’?

Underreporting of strengths Assessment Coverage Varied

So, while we can’t report highly specific data, we have a good idea about generalizations.

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The Numbers

By “X% of states/assessments reviewed Y…,” we mean, that percentage of assessments reported their findings in that area.

Again, no assessment covered all areas reviewed, so…

By “of those,” or “those states,” we mean “of those states that looked at Y, X% found…”

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For Example….

76% of assessments (37 reports out of 49) addressed problems with processing home study documents.

Of those (that addressed documentation issues), 46% (17 of 37) found that incomplete packets were a significant issue.

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The Overview

Some things we hope will come out of doing a national overview: Sharing findings? Sharing recommendations? Are there possible shared tasks? Support for national improvements?

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Broad Topics

As noted above, Safe and Timely Act required assessment of courts’ role in general and in: Sharing information Obtaining information and testimony, and Permitting participation

Many assessments took a broad view and not only at the courts’ role in working within existing law, but where law or practice needed to change to improve the safety and timeliness of interstate placements.

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Broad Topics (cont.)

A ‘big picture’ way to look at the assessments is that they reviewed: The common sources of delay The constructive role of the courts The role of the court in ensuring fairness

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Findings: Sources of Delay

Documentation 76% of assessments addressed issues around

home study documents (requests, home study reports).

Of those 46% found there were significant issues with

incomplete packets, 22% with insufficient quality of reports, and 16% found that paperwork being burdensome was a

significant issue.

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Local Offices (other than documentation) 69% of assessments found significant delays in

local offices/agencies Of those

44% found that lack of local to local office communication, and

32% that lack of case prioritization were significant issues.

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Negotiations between states A fair number (24%) of assessments looked at

this issue, but only 33% of those found it was often a significant cause of delay.

State ICPC offices 67% reviewed whether ICPC offices were a

common source of delay Of those, 47% found notable delays usually due

to time it took to process requests.

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Multiple Layers A number of assessments (22%) found that

often it was not a single source of delay that caused unacceptable time frames. Rather, because a typical case went through six layers of processing, small delays at each step added up. Three states noted that this was especially problematic with county based systems.

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Background Checks 65% reviewed whether criminal and child abuse

background checks were a common source of delay

Of those, 59% found they were often while, 25% found they were rarely a problem.

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Resource Parent Training and Licensing 43% of the reports reviewed this issue Of those,

A fair number (38%) found training commonly delays the process, and

A common issue was that some states required full training and licensure for relatives before a child could be placed. 38% of the reports discussed this issue, though many were criticizing the practice in other states.

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Border States 41% of the assessments addressed issues with bordering

states. Of those, only 4 states noted they had agreements in

place

Training Judges, Agency Staff, and Attorneys The vast majority of the reports (78%) noted that delays or

threats to safety were caused by general lack of familiarity with the ICPC.

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Findings: Constructive Role of Courts

The Safe and Timely Act added sections to the Social Security Act requiring courts to consider potential out-of-state placements in reasonable efforts determinations and permanency hearings.

Many assessments discussed this in relation to analysis of the court's ability to provide constructive oversight of ICPC cases.

42 U.S.C. §671(a)(15)(C) & (E)(i); 42 U.S.C. § 675(5)(C)(i).

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Oversight Role in General61% of the reports reviewed the

constructive role of court in general. Of those, 23% found courts commonly provided

oversight as to the interstate aspects of cases, while 30% found it was rare.

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Regulation 7 authorizes courts to initiate an expedited placement process when the child is to be placed with a parent or with a specified list of close relatives, so long as the placement is NOT for licensed foster care or adoption AND the child: Is under two OR Is in an emergency shelter OR Has lived for substantial time with person with

whom the child is to be placed


Regulation 7 details a special and speedier than usual process for interstate placements: Deadlines for multiple steps of the process Court sends notice and documentation to its local

agency in two business days Local sending state agency sends notice to its state

ICPC office in two business days Sending state ICPC office sends materials to receiving

state ICPC office in three business days Receiving state ICPC office sends home study and

answer within 20 business days


Incidentally, there is a little known added section in Regulation Seven: If home studies are held up more than 30

business days And if the sending state provided proper

documentation The judge may also seek help from a judge in

another stateOf states looking at Regulation 7 issues

43% found it was rarely understood or used.

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Special Reviews 51% of states looked at whether courts held special

reviews to address ICPC issues. Of those, 12% found reviews were rare, 32% occasional, and 32% often held by courts.

Placement & Post-Placement Issues 47% looked at issues surrounding events after home

study approval, most of those 43% reported that either lack of progress reports or insufficient quality of reports was a threat to safety or permanency.

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Judge to Judge Communication 76% looked at judge to judge communications. Of

those, 32% found that their existing laws adequately allowed contact and 22% that the law needed clarification.

Of those that addressed how frequently contact was made in practice, 57% found it was rare while 43% found it occurred often or sometimes when there were delays.

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51% of the assessments commented on what they perceived as violations of the letter or spirit of the interstate laws. The most common concern was sending children

on ‘visits’ (52%) contrary to Regulation 9.

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Findings: Role of the Court - Fairness

Appeals 88% of the assessments that looked into appeals

processes thought there was no adequate mechanism for a party to appeal an unfavorable decision. Agency perspective - absolute veto power of both

states Family perspective - ‘arbitrary decisions,’ inconsistent

criteria Given the lack of ability to appeal, many assessments

looked to the ability of parents, relatives, the child, and others to participate effectively at the trial stage to ensure their voices were heard.

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Receiving Documentary Evidence Most states (54%) found their existing laws were

adequate to allow appropriate receipt of documents across state lines. Few reviewed the frequency of practice. Many that did said that though documents could be

sent by out-of-state participants, usually the only documents used are those sent via the agency.

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Receiving Testimony Most states (57%) found their existing laws were

adequate to allow testimony by phone or video, while 21% required changes to the law, and 14% had no laws that allowed or prohibited the practice.

50% of assessments found that testimony was often taken across state lines via phone (or less often video), while 33% found it was sometimes, and only 17% said it was rarely done in practice.

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Solutions: Sources of Delay

Documentation 43% of those studying documentation issues (33% of total

states) recommended documents be transmitted electronically because of delays created by ‘snail mail.’

49% that looked at issues with documentation (37% of all assessments) found that due to varying home study formats there should be national home study format. One recommended the Structured Analysis Family

Evaluation (SAFE).

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Local Offices44% of reports that looked into local office

issues took issue with the lack of local to local communication.

32% discussed lack of case prioritization. Vast majority of those recommended ICPC specialists.

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State OfficesThere were few recommendations specific

to the state ICPC office. Multiple Layers AKA the “funnel” 22% of the states looked at multiple layers

as a barrier. Of those most (55%) recommended simultaneous transmission of ICPC documentation.

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Background Checks 25% of the assessments recommended electronic

fingerprinting.

Training and Licensing of Homes 29% of the assessments recommended

provisional placements for relatives. Few discussed details.

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Border StatesAbout half the states (45%) reviewing this

issue found border agreements were needed.

A quarter recommended changes to the ICPC allowing workers to cross state lines.

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Training judges, attorneys, agency staffOf those addressing training needs,

virtually all (95%) recommended training for either the courts, child welfare agency, or attorneys. Almost all recommended training for all participants.

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Development67% of assessments discussed

development of systems, programs, or materials to address multiple areas of delay. The most common were development or update of data systems to monitor ICPC cases 52% training guides 42%, and judicial bench cards/books 36%

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Development (cont.)

Texas recommended a national computer based system which would include all ICPC requests. The system would allow transmission and downloading home study

requests, automatically gather state and national data on the

timeliness of the processing of requests, include the various mandatory ICPC forms for

documentation, and include the email and telephone addresses for local

and central ICPC offices.

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Solutions: Constructive Role of Court

Court Oversight53% of those addressing court oversight in

general, (33% of total reports) recommended courts more actively provide oversight.

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Exploring Resources 55% of states that looked at how well courts ensure the

agency explores possible out-of-state resource homes found courts should be more active.

Special Reviews 36% of courts looking at special reviews recommended

courts increase the practice with either formal or informal reviews.

Post-Placement Reviews Should there be national standards for progress reports?

If so, what information should they include? Few assessments made recommendations, though many found this was an issue.

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Judge to Judge Communications 39% of those addressing judge to judge

communications recommended increased contact to address barriers.

Should the UCCJEA be used as a model for avoiding inappropriate ex parte communications? There was no consensus as to whether it usually

applied in ICPC cases A few states suggested it should be a model for a

national law clarifying appropriate judge to judge communications.

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Violations of Letter or Spirit of Interstate Laws Visits: Again, most common concern was extended ‘visits’.

Why should we be concerned about extended 'visits'? Safety: might not know about safety issues, as there hasn't

been a home inspection Permanency: when violation is discovered state might reject

request and make you start over or worse Wellbeing: child may be ineligible for services, school

enrollment Non-Placement Home Studies: Although not a large number,

16% of states looking at violations noted that 'home studies' were completed that did not allow placement, but were said to comply with 30/60 day time frames. Is this a loophole we should address?

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Solutions: Role of the Court - Fairness

Receiving Documentary Evidence31% recommended increased agency

contact by the court in this area to address lack of information, and

17% recommended allowing the use of technology (filing reports by e-mail or fax) to improve the receipt of documents across state lines for hearings and reviews.

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Receiving Testimony Not usually a problem in the law, especially

regarding telephonic testimony. But some states lack equipment.

No national law about who can testify in an ICPC hearing. Few assessments addressed this.

Testifying only? What about 'attending' hearings, even if not offering testimony?

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Appeals76% of the assessments that addressed

appeals recommended some form of national appeals system. What should it look like? Most states did not get

into the details. A couple (12%) recommended that the receiving

state court hear appeals. Most will presumably be by families in the receiving state that had their home studies denied.

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The New ICPC

New ICPC Overview Events that shaped changes

ABA House of Delegates passed resolution in 2003 NCJFCJ passed two resolutions in 2004 Conference of Chief Justices and Conference of State

Court Administrators passed resolution in 2004 New ICPC drafted by group of experts and APHSA

57http://www.aphsa.org/Policy/icpc2006rewrite.htm

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The New ICPC – Sources of Delay

Documentation Electronic submission v. snail mail?

“The procedures for making and the request for an assessment shall contain all information and be in such form as provided for in the rules of the Interstate Commission.” 2008 ICPC Art. V. E.

New Compact authorizes the Commission to promulgate “Forms and procedures”, Art. XI. H. 2.

Uniform home study? Art. V. J. “The Interstate Commission may develop uniform

standards for the assessment of the safety and suitability of interstate placements.”

(Emphasis added)

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Training and Licensing of Homes New ICPC would allow provisional placements, “a determination

made by the public child placing agency in the receiving state that the proposed placement is safe and suitable, and, to the extent allowable, the receiving state has temporarily waived its standards or requirements otherwise applicable to prospective foster or adoptive parents so as to not delay the placement. Completion of the receiving state requirements regarding training for prospective foster or adoptive parents shall not delay an otherwise safe and suitable placement.” Art. II Q.

“…If the proposed placement is a placement with a relative, the public child placing agency of the sending state may request a determination for a provisional placement.” Art. V. F.

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Training of judges, attorneys, agency staff Art. IX. P. will give the Interstate Commission authority

“coordinate and provide education, training and public awareness regarding the interstate movement of children for officials involved in such activity.”

Development As to data systems, Art. IX. E. will give the Interstate

Commission authority to “[c]ollect standardized data concerning the interstate placement of children subject to this compact as directed through its rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements.”

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The New ICPC – Constructive Role

Ensuring Timely PermanencyCombining

Art. V. H. “The public child placing agency in the receiving state shall approve a provisional placement and complete or arrange for the completion of the assessment within the timeframes established by the rules of the Interstate Commission.”

With The court's existing oversight role.

Could strengthen the court's ability to mandate completion of home study process within reasonable periods of time.

(emphasis added)

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Exploring Resources Though not directly related to ensuring courts

encourage exploration, the new ICPC defines relative. A “Relative” means someone who is related to the child

as a parent, step-parent, sibling by half or whole blood or by adoption, grandparent, aunt, uncle, or first cousin or a non-relative with such significant ties to the child that they may be regarded as relatives as determined by the court in the sending state.” Art. II T.

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Placement & Post-Placement Issues “The public child placing agency in the receiving state shall

provide, or arrange for the provision of, supervision and services for the child, including timely reports, during the period of the placement.” Art. VII. D.

Judge to Judge Communications New Compact authorizes the Commission to promulgate rules

regarding “Sharing of information/confidentiality.” Art. XI. H. 8.

It also includes a UCCJEA-like clause “When an issue of child protection or custody is brought before

a court in the receiving state, such court shall confer with the court of the sending state to determine the most appropriate forum for adjudication.” Art. IV B.


New Proposed Language "To aid in the implementation of the compact in cases

that are before courts subject to the compact, the taking of testimony for hearings before any judicial officer may occur in person or by telephone, audio-video conference, or such other means as approved by the rules of the Interstate Commission; and Judicial officers may communicate with other judicial officers and persons involved in the interstate process as may be permitted by their Canons of Judicial Conduct and any rules promulgated by the Interstate Commission."

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The New ICPC - Fairness

Appeals “If the public child placing agency in the receiving state does

not approve the proposed placement then the child shall not be placed. The receiving state shall provide written documentation of any such determination in accordance with the rules promulgated by the Interstate Commission. Such determination is not subject to judicial review in the sending state.” Art. VI. B.

“If the proposed placement is not approved, any interested party shall have standing to seek an administrative review of the receiving state’s determination. 1. The administrative review and any further judicial review associated with the determination shall be conducted in the receiving state pursuant to its applicable administrative procedures.” Art. VI. C.

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Other Next Steps

Will the New ICPC be passed by 35 states?How will regulations be created?What can CIPs do?

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To Contact Us:

Mark Hardin, 202-662-1750, [email protected] Judge Stephen Rideout, [email protected] Scott Trowbridge, 202-662-1747, [email protected]

National Child Welfare Resource Center on Legal and Judicial Issues

ABA Center on Children and the Law740 15th Street, NWWashington, DC 20005-1022Website: http://www.abanet.org/child/nrclji

Documents

1 Courts’ Role in Interstate Foster Care and Adoptive Placements: Results of the State Assessments Judge Stephen W. Rideout (ret.) & Scott Trowbridge National