Program oversight – Role Program oversight – Role and Implications of the and Implications of the

CourtsCourts

New EnglandNew England

NovemberNovember

20122012

A Few Assumptions and A Few Assumptions and ConcessionsConcessions

Court and Legal systems are not perfectCourt and Legal systems are not perfect Remember a time when the court or an Remember a time when the court or an

attorney assisted you in securing a attorney assisted you in securing a service for your childservice for your child

Sometimes what is fiscally conservative Sometimes what is fiscally conservative is not the best solutionis not the best solution

Ultimately we want states to extend Ultimately we want states to extend foster care beyond 18 – look at foster care beyond 18 – look at compromises to achieve that desired compromises to achieve that desired endend

Why is it important to Why is it important to continue judicial continue judicial oversight?oversight?

Determine whether youth meets eligibility criteria for extended care (e.g. Determine whether youth meets eligibility criteria for extended care (e.g. incapacitated)incapacitated)

Ensure agency is providing services that are youth specific and meet the youth’s Ensure agency is providing services that are youth specific and meet the youth’s needs.needs.

Ensure monthly caseworker visits are occurring.Ensure monthly caseworker visits are occurring. Ensure youth is complying with plan to achieve success and permanencyEnsure youth is complying with plan to achieve success and permanency Ensure school and board of education is giving youth what they need and what they Ensure school and board of education is giving youth what they need and what they

have a right tohave a right to Greater awareness of what the youth’s legal rights areGreater awareness of what the youth’s legal rights are Youth feels more positive about staying in care after 18Youth feels more positive about staying in care after 18 Check on all professionals involved in youth’s caseCheck on all professionals involved in youth’s case Greater awareness of resources for youth – caseworkers have to recommend Greater awareness of resources for youth – caseworkers have to recommend

placement and services that are within budget and easily accessible – court does not placement and services that are within budget and easily accessible – court does not have those restrictionshave those restrictions

Greater access to people who will provide stability when youth ages outGreater access to people who will provide stability when youth ages out Agency may want to end care when youth are oppositional – having the court as the Agency may want to end care when youth are oppositional – having the court as the

arbiter can level the playing field between the youth and the agencyarbiter can level the playing field between the youth and the agency Gives youth more control over their future and their services/casesGives youth more control over their future and their services/cases Give youth access to an advocate not associated with agencyGive youth access to an advocate not associated with agency

Advocate can oppose closing case and present arguments why the youth isn’t ready for dischargeAdvocate can oppose closing case and present arguments why the youth isn’t ready for discharge Chapin Hall 2008 study – court advocacy plays a primary role in retaining youth in careChapin Hall 2008 study – court advocacy plays a primary role in retaining youth in care Help agencies determine whether SILS comply with federal requirements to receive IVe Help agencies determine whether SILS comply with federal requirements to receive IVe

funding funding Let potential guardians know about legal rights to assistance and subsidies and Let potential guardians know about legal rights to assistance and subsidies and

whether they qualify under the state regulations/statutewhether they qualify under the state regulations/statute Ensure educational and placement stabilityEnsure educational and placement stability Ensure continuity of health care services (LGBT)Ensure continuity of health care services (LGBT) Ensures sibling and family contactEnsures sibling and family contact Remaining in care after turning 18 should not affect the rights that all individuals gain Remaining in care after turning 18 should not affect the rights that all individuals gain

when they become legal adults. when they become legal adults. Agency contractors sometimes have to be pushed to provide appropriate servicesAgency contractors sometimes have to be pushed to provide appropriate services

What are some of elements What are some of elements to consider/questions to to consider/questions to discuss when we think discuss when we think about court oversight that about court oversight that may be different for a may be different for a youth over 18?youth over 18?

Should the child have a representative?Should the child have a representative? What should that representation look like?What should that representation look like? How should family of the young adult be involved?How should family of the young adult be involved? Should the family have representation?Should the family have representation? What should the court structure look like?What should the court structure look like? How often should the court be involved?How often should the court be involved? Should the youth be involved in the court hearings?Should the youth be involved in the court hearings? Should other stakeholders being involved in court hearings?Should other stakeholders being involved in court hearings? Who should receive notice of the court hearing?Who should receive notice of the court hearing? What’s the court’s role in re-entry? What’s the court’s role in re-entry? Whether specific findings should be required.Whether specific findings should be required. How should we educate the young person about the court How should we educate the young person about the court

process?process?

Let’s look at what is required Let’s look at what is required under FCA’s extension provisionunder FCA’s extension provision

Title IVE eligibilityTitle IVE eligibilityMay extend care beyond 18 (until 21) by expanding definition of child May extend care beyond 18 (until 21) by expanding definition of child

to include those over 18to include those over 18If states opt to extend to an age less than 21, state must explain that If states opt to extend to an age less than 21, state must explain that

age to RO (programmatic and/or practical reasons)age to RO (programmatic and/or practical reasons)States have flexibility to determine eligibility from these optionsStates have flexibility to determine eligibility from these options Completing secondary education or a program leading to an Completing secondary education or a program leading to an

equivalent credential;equivalent credential; Enrolled in an institution which provides post secondary or Enrolled in an institution which provides post secondary or

vocational education;vocational education; Participating in a program or activity designed to promote, or Participating in a program or activity designed to promote, or

remove barriers to, employment;remove barriers to, employment; Employed for at least 80 hours per month; orEmployed for at least 80 hours per month; or Incapable of doing any of the activities described above due to a Incapable of doing any of the activities described above due to a

medical condition, which incapability is supported by regularly medical condition, which incapability is supported by regularly updated information in the case plan of the young adult (state has updated information in the case plan of the young adult (state has flexibility to determine medical condition and how to document it)flexibility to determine medical condition and how to document it)

The agency must determine how to verify that youth continues to The agency must determine how to verify that youth continues to meet these requirements (How are states implementing this?)meet these requirements (How are states implementing this?)

Removal from homeRemoval from home Court ordered removal prior to age 18 – continuing Court ordered removal prior to age 18 – continuing

jurisdiction – no new court order to required after 18 – jurisdiction – no new court order to required after 18 – written consent from youth for the agency to have care and written consent from youth for the agency to have care and placement responsibilityplacement responsibility

Voluntary placement prior to age 18 – continuing jurisdiction Voluntary placement prior to age 18 – continuing jurisdiction – no new voluntary agreement required after 18 – no new voluntary agreement required after 18

Court ordered removal after age 18 – need contrary to the Court ordered removal after age 18 – need contrary to the welfare and reasonable efforts findings based on the welfare and reasonable efforts findings based on the circumstances requiring removal – court order can give care circumstances requiring removal – court order can give care and placement responsibility to agencyand placement responsibility to agency

Voluntary placement after age 18 – need a voluntary Voluntary placement after age 18 – need a voluntary agreement signed by the youth, including language that agreement signed by the youth, including language that gives consent to agency having care and placement gives consent to agency having care and placement responsibility – if voluntary placement lasts longer than 180 responsibility – if voluntary placement lasts longer than 180 days need a judicial determination that remaining in foster days need a judicial determination that remaining in foster care beyond 180 days is in the best interests of the childcare beyond 180 days is in the best interests of the child

Trial independence and breaks in foster care – do not need Trial independence and breaks in foster care – do not need new court findings new court findings

Reasonable Efforts to Finalize Reasonable Efforts to Finalize Permanency PlanPermanency Plan

Court ordered removal – requirement for Court ordered removal – requirement for judicial finding that the agency is making judicial finding that the agency is making reasonable efforts to finalize the reasonable efforts to finalize the permanency planpermanency plan

Voluntary placement agreement – no Voluntary placement agreement – no judicial finding requirementjudicial finding requirement

Most permanency plans for this population Most permanency plans for this population will be independence and the reasonable will be independence and the reasonable efforts should be outlined in the transition efforts should be outlined in the transition planplan

No federal requirement prescribing the No federal requirement prescribing the forum in which these findings must be forum in which these findings must be mademade

Permanency HearingsPermanency Hearings Must be held for young adultsMust be held for young adults May be held by a judge or administrative reviewMay be held by a judge or administrative review Should provide notice to young adultShould provide notice to young adult Should involve youth and actively include them in key decision Should involve youth and actively include them in key decision

makingmaking If young adult isn’t present, the court should make a finding a finding If young adult isn’t present, the court should make a finding a finding

as to whether the young adult was given notice and made an as to whether the young adult was given notice and made an informed decision not to attend or postpone the hearinginformed decision not to attend or postpone the hearing

Identify and recruit permanent placement for childIdentify and recruit permanent placement for child Transition planning discussionTransition planning discussion Determine services youth needs to transition from foster care to Determine services youth needs to transition from foster care to

independenceindependence What does a permanency hearing for a young adult look like:What does a permanency hearing for a young adult look like:

Young adult always gets adequate notice Young adult always gets adequate notice Young adult is always presentYoung adult is always present Has legal representationHas legal representation Is the primary source of informationIs the primary source of information Has meaningful participation and input into decisionsHas meaningful participation and input into decisions

Transition PlanTransition Plan Required for all children receiving Title Required for all children receiving Title

IVe reimbursementIVe reimbursement Youth drivenYouth driven Specifics on housing, health insurance, Specifics on housing, health insurance,

education, local opportunities for education, local opportunities for mentors and continuation of support mentors and continuation of support services, work force supports, and services, work force supports, and employment servicesemployment services

90 days before child is discharged90 days before child is discharged Use court to monitor this plan’s Use court to monitor this plan’s

implementation, especially youth driven implementation, especially youth driven requirementrequirement

Transition plan hearingTransition plan hearing Permanent ConnectionsPermanent Connections

Where do you go for holidays? Who do you call for support, help, advice and Where do you go for holidays? Who do you call for support, help, advice and in emergencies? Will those people be available after you transition out of in emergencies? Will those people be available after you transition out of foster care?foster care?

Do you keep in touch with family (parents, siblings, other relatives)? Do you Do you keep in touch with family (parents, siblings, other relatives)? Do you know how to get in touch with them?know how to get in touch with them?

Who will you contact after you transition out of foster care if you have any Who will you contact after you transition out of foster care if you have any questions health, school, housing?questions health, school, housing?

General questions about transition planGeneral questions about transition plan Did you work with your social work on writing the transition plan? What do Did you work with your social work on writing the transition plan? What do

you like most about your transition plan? What do you like least? Is there you like most about your transition plan? What do you like least? Is there anything you don’t understand about it?anything you don’t understand about it?

Specific questions about the required topicsSpecific questions about the required topics Who is your doctor? Do you know whether you can continue with this doctor Who is your doctor? Do you know whether you can continue with this doctor

after foster care terminates? If not, who will your doctor be? Doctor = after foster care terminates? If not, who will your doctor be? Doctor = general doc, ob/gyn, psychiatrist, etcgeneral doc, ob/gyn, psychiatrist, etc

Do you have an understanding about the importance of having a health care Do you have an understanding about the importance of having a health care power of attorney or health care proxy to make health care decisions on your power of attorney or health care proxy to make health care decisions on your behalf? behalf?

Has someone at the agency talked to you about this?Has someone at the agency talked to you about this? Do you know the process for reapplying for Medicaid if necessary?Do you know the process for reapplying for Medicaid if necessary? Where do you live? Are you going to live there after the case closes? If not, Where do you live? Are you going to live there after the case closes? If not,

where are you going to live? Do you have information on landlord/tenant where are you going to live? Do you have information on landlord/tenant rights? Where should you go to get that information?rights? Where should you go to get that information?

Do you have a job? Will that job continue after you transition out Do you have a job? Will that job continue after you transition out of foster care? of foster care?

Are you in school? What is your plan for future education?Are you in school? What is your plan for future education? What is the plan for post-secondary education or training? What is the plan for post-secondary education or training? What are the supports in place to assist you with continued What are the supports in place to assist you with continued

educational success? educational success? What assistance has the young adult received to prepare for and What assistance has the young adult received to prepare for and

apply to post-secondary education or training, including assistance apply to post-secondary education or training, including assistance with financial aid applications? with financial aid applications?

Have you accessed Chafee services and Education and Training Have you accessed Chafee services and Education and Training Vouchers (ETVs)?Vouchers (ETVs)?

Are you eligible for other scholarships or financial assistance programs Are you eligible for other scholarships or financial assistance programs targeted at youth in foster care including available state tuition targeted at youth in foster care including available state tuition assistance programs? assistance programs?

Do you know how to get access to your medical records or health Do you know how to get access to your medical records or health passport?passport?

Do you have a dentist? Can you keep that dentist after you age Do you have a dentist? Can you keep that dentist after you age out of foster care?out of foster care?

Do you have health insurance for when you transition? Do you have health insurance for when you transition? Does the youth/young adult have an understanding of the basic Does the youth/young adult have an understanding of the basic

governmental, community and housing services available to them governmental, community and housing services available to them after discharge?after discharge?

What aftercare services will be provided by the state? What aftercare services will be provided by the state? Is there anything else you need assistance with?Is there anything else you need assistance with?

Periodic ReviewsPeriodic Reviews Must be held for young adultsMust be held for young adults May be held by a judge or administrative reviewMay be held by a judge or administrative review Should provide young adult notice and involve her in the Should provide young adult notice and involve her in the

hearinghearing Agency should develop a status reportAgency should develop a status report Topics to be discussed: Topics to be discussed:

Whether young adult is safe in her placementWhether young adult is safe in her placement Whether continued foster care is appropriateWhether continued foster care is appropriate Whether appropriate and meaningful independent living skill Whether appropriate and meaningful independent living skill

services are being developedservices are being developed The progress made towards achieving independence on a The progress made towards achieving independence on a

projected date.projected date. Sibling placements and visitationSibling placements and visitation

Court may order additional servicesCourt may order additional services Hearing day and time should take into account young Hearing day and time should take into account young

adult’s scheduleadult’s schedule

Re entryRe entry Youth must be engaged in activities outlined in Title Youth must be engaged in activities outlined in Title

IVE eligibilityIVE eligibility Youth must not be 21Youth must not be 21 States have flexibilityStates have flexibility Benefits to re entryBenefits to re entry

Youth don’t want system involvement at 18 but then learn that Youth don’t want system involvement at 18 but then learn that they need itthey need it

Youth have a good transition plan but something falls throughYouth have a good transition plan but something falls through Youth didn’t know they could stay in careYouth didn’t know they could stay in care Allow youth to make mistakes and still receive supportAllow youth to make mistakes and still receive support Safety net for young adultSafety net for young adult

Different types of re entryDifferent types of re entry Explicit trial discharge set by the judge and case remains open Explicit trial discharge set by the judge and case remains open

for set period of timefor set period of time Create statutory allowance for temporary discharge (e.g. 1 Create statutory allowance for temporary discharge (e.g. 1

year)year) Allow youth to come back into care anytime until 21Allow youth to come back into care anytime until 21

Legal RepresentationLegal Representation

What are the options?What are the options? Traditional attorneyTraditional attorney Guardian ad litem (attorney)Guardian ad litem (attorney) CASA – lay advocateCASA – lay advocate Continuing whatever advocate was Continuing whatever advocate was

appointed when child was under 18appointed when child was under 18

Why attorney? Why attorney? Due Process - Technically an adult now going through court and Due Process - Technically an adult now going through court and

complicated administrative proceedings without legal counselcomplicated administrative proceedings without legal counsel Youth old enough to have opinion and to be heardYouth old enough to have opinion and to be heard Advise youth about legal rights for staying in careAdvise youth about legal rights for staying in care Advise youth about placement and services availableAdvise youth about placement and services available Advocate for youth when case may be closedAdvocate for youth when case may be closed Holds agency accountable Holds agency accountable Advise youth when she wants to leave careAdvise youth when she wants to leave care Confidentiality and zealous advocacyConfidentiality and zealous advocacy Help young adults develop self advocacy skillsHelp young adults develop self advocacy skills Prepare and debrief young adults for their court hearingsPrepare and debrief young adults for their court hearings May need attorney for other legal mattersMay need attorney for other legal matters

LL/TLL/T ImmigrationImmigration DomesticDomestic CriminalCriminal Public benefitsPublic benefits Health careHealth care

In some states youth have to request extension – legal counsel can In some states youth have to request extension – legal counsel can help them weigh the options and then make that requesthelp them weigh the options and then make that request

Parental/Family InvolvementParental/Family Involvement

Presumption should be family Presumption should be family participation in administrative participation in administrative reviews and court hearings, but reviews and court hearings, but judges may exclude them when judges may exclude them when appropriate, including at the request appropriate, including at the request of the young adultof the young adult

Termination of CareTermination of Care

What ways can a case be terminated?What ways can a case be terminated? The young adult knowingly and voluntarily The young adult knowingly and voluntarily

withdraws consent to participate in care;withdraws consent to participate in care; The young adult exits foster care to a The young adult exits foster care to a

permanent home consistent with her permanent home consistent with her permanency plan; permanency plan;

The young adult is no longer eligible The young adult is no longer eligible under state eligibility criteria; orunder state eligibility criteria; or

The young adults 21st birthday (or the The young adults 21st birthday (or the state’s maximum age)state’s maximum age)

Voluntary TerminationVoluntary Termination Court hearing should be held before terminationCourt hearing should be held before termination At that hearing, several things should be requiredAt that hearing, several things should be required

Young adult and attorney should be presentYoung adult and attorney should be present Findings by the courtFindings by the court

Young adult has been informed by the attorney of the right to Young adult has been informed by the attorney of the right to attend the hearing and has provided written consent to attend the hearing and has provided written consent to waive this right;waive this right;

The young adult has been informed of the potential negative The young adult has been informed of the potential negative effects of terminating care early, the option to re enter care effects of terminating care early, the option to re enter care before reaching age 21, the procedure and limitations on re before reaching age 21, the procedure and limitations on re entering care, the availability of after care services, and that entering care, the availability of after care services, and that the young adult has signed a document attesting that she the young adult has signed a document attesting that she has been so informed and understands these provisions; andhas been so informed and understands these provisions; and

The department has implemented a transition planThe department has implemented a transition plan

What should the last hearing What should the last hearing before a child turns 18 look like?before a child turns 18 look like?

Court should address whether the child plans to remain in Court should address whether the child plans to remain in foster care, and if so, ensure the child’s transition plan foster care, and if so, ensure the child’s transition plan includes a plan for meeting one or more of the IVE includes a plan for meeting one or more of the IVE eligibility criteriaeligibility criteria

Ensure the child has been informed of:Ensure the child has been informed of: The right to request dischargeThe right to request discharge The right to continued servicesThe right to continued services The right to legal representationThe right to legal representation The right to re entryThe right to re entry

If the young adult requests termination of jurisdiction, the If the young adult requests termination of jurisdiction, the court shall ensure the young adult has been informed of:court shall ensure the young adult has been informed of:

Any services or benefits the young adult is eligible for, Any services or benefits the young adult is eligible for, including Chafee servicesincluding Chafee services

Any services or benefits that may be lost through Any services or benefits that may be lost through terminationtermination

And additional support or services available to the childAnd additional support or services available to the child

Andrea KhouryAndrea KhouryAmerican Bar Association American Bar Association

Center on Children and the LawCenter on Children and the LawBar Youth Empowerment ProjectBar Youth Empowerment ProjectNational Child Welfare Resource National Child Welfare Resource Center on Legal and Judicial IssuesCenter on Legal and Judicial IssuesAndrea.khoury@americanbar.org

202-662-1730202-662-1730