ENHANCING ATTORNEY ADVOCACY FOR WELL-BEING OUTCOMES FOR

FOSTER CHILDREN

Judge Rob Hofmann, Texas Child Protection Court of the Hill Country

Jenny Hinson,Division Administrator for Permanency, Texas Department of Family and Protective Services

Lori Duke, Clinical Professor, University of Texas School of Law Children’s Rights Clinic

Ian Spechler, Advocacy Attorney, Disability Rights Texas

Presentation Outline

Introduction

Psychotropic Medications

Education

Transitioning Youth

Normalization and Sibling Contact

Q/A

Introduction

The Law

The Adoption and Safe Families Act (ASFA) identified three goals for children in foster care systems:

SafetyPermanencyWell-being

Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997).

The Reality

• The combined work of the Toolkit for Court Performance Measures in Child Abuse and Neglect Cases and the federal Child and Family Services Reviews has been overwhelmingly successful in improving outcomes in the areas of:

safety permanency

Most attorneys focus primarily on these outcomes, as well

Toolkit for Court Performance Measurement in Child Abuse and Neglect Cases. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (2009), available at: http://www.ojjdp.gov/publications/courttoolkit.html.

More information on the Children’s Bureau and the CFSR process available at: http://www.childwelfare.gov/management/reform/cfsr/.

The Response

ASFA regulations equate well-being outcomes with safety and permanency outcomes by finding that “the safety and well-being of children and of all family members is paramount.”

ASFA identifies a well-being dimension of performance measures

Well-being measures are an accepted part of the federal review process for child welfare agencies Citations to each of these bullets are in the paper

Where Are We Now?

What is right is often forgotten by what is convenient.” - Bodie Thoene

All too often, the convenient decision is wrapped in a package as the right one.

Good judging is the art of making perfect decisions with imperfect evidence.

Where Should We Be?

“It's not hard to make decisions when you know what your values are.” - Roy Disney

State-level well-being measures

The Texas Blueprint: Transforming Education Outcomes for Children and Youth in Foster Care http://texaschildrenscommission.gov/media/98/thetexasblueprint.pdf

National Center for State Courts and their partners

NO MEDICAL EXPERIENCE REQUIRED

Advocating for Appropriate Use of Psychotropic Medications

What’s a Psychotropic Medication?

A medication prescribed to help manage psychiatric or other mental health disorders. They can include stimulants, mood stabilizers, anti-psychotic meds, and anti-anxiety meds.

What’s the Problem with Meds?

Perhaps nothing; meds could be appropriate.However, overuse of meds is rampant and

disturbing.Meds need to be just part of a balanced

treatment regimen.

What’s the Problem with Meds?

The Government Accountability Office (GAO) issued a comprehensive report in December 2011 following an analysis of psychotropic medication use among foster youth in five states.

Despite no evidence supporting the usefulness of the practice, hundreds of children in those states were on 5 or more psychotropic medications at once.

What’s the Problem with Meds?

20,965 children were prescribed unsafe doses of medications above the maximum FDA approved dosage levels.

Foster children were prescribed psychotropic drugs at 2.7-4.5 times the rate of their non-foster children peers.

Report available at http://www.gao.gov/assets/590/586570.pdf.

What’s the Problem with Meds?

In 2007, the Preschool Psychopharmacology Working Group developed some guidelines for the use of psychotropic medications among preschoolers.

Study found that there is little research around effects of drugs on this age group.

Found a rapid rising in the use of psychotropic meds in general, and multiple psychotropic meds in particular, among the age group.

Recommended that more research is needed.Available at http://

resources.childhealthcare.org/resources/Psychopharm_for_very_young_children_context_and_guidelines.pdf.

What’s the Role of a Lawyer?

ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings states that before every hearing lawyer for child needs to investigate and take appropriate legal action regarding medical well-being of child. Section 7(b)(7).

What’s the Role of a Lawyer?

In Texas, under Chapter 266 of the Family Code, lawyers for children can request medication reviews for clients.

Court is required to review medical care at every hearing and make findings. Tex. Fam. Code 266.007.

Lawyers can request hearing to determine that children 16 and older be allowed to consent to medical care on their own. Tex. Fam. Code 266.010.

What’s the Role of a Lawyer?

Lawyers are entitled to participate in staffings about the child conducted by an authorized agency. Tex. Fam. Code 107.003(3)(F).

ABA Model Act in the commentary mentions that lawyers should participate or ensure adequate representation in ancillary proceedings.

But I’m not a Doctor!

You don’t have to be a doctor. You don’t have to be a nurse or pharmacist.It’s ok if you only went to law school because

you failed organic chemistry sophomore year of college.

Here are some practice tips:

1. Be Informed

Determine whether the person authorized to consent has given informed consent for the psychotropic medication. Did the person participate in the medical appointment where the medication was prescribed? How about treatment team or IEP meetings for your child?

If the person authorized to consent is NOT the foster parent, ask how many other children has he or she been appointed to consent to medical care. If the person authorized to consent is not fully participating in medical appointments, ask the court to appoint another person.

Find out whether your child is informed about why he or she is taking medication and what are the benefits, risks and side effects of the medication.

1. Be Informed (cont.)

Learn about your child’s diagnosis and how it was arrived at. Don’t be afraid to ask your child’s treating physician.

Be aware of your child’s mental health history. This includes the medications and other forms of mental health treatment that he or she received in the past.

For each psychotropic medication prescribed for your child, know what diagnosis and symptoms are being treated by the medication.

1. Be Informed (cont.)

Look for physical signs such as changes in weight, sleepiness, over-sedation, overstimulation, slurred speech, confusion, disorientation, increased agitation, irritability and restlessness that may be indicators of the child’s adverse reaction to the medication.

Talk to the child about how he or she feels

about the medication. Take any concerns expressed by the child seriously.

1. Be Informed (cont.)

Obtain as much information about the benefits, risks and side effects of the psychotropic medication. Ask the physician for the written documentation provided as part of the informed consent process when the medication was prescribed.

Make sure the lab work and any other follow-up required for the medication is being done.

1. Be Informed (cont.)

Need general guidance? Texas has some great parameters for psychotropic med use complete with a list of items that trigger red flags and then a comprehensive list of recommended dosages of meds. http://www.dfps.state.tx.us/documents/Child_Protection/pdf/TxFosterCareParameters-December2010.pdf.

2. Have Courage

Don’t be afraid to question physicians and other mental health professionals. Prepare in writing the questions that you want answered.

Don’t abdicate clinical decisions to the experts.

If your child is being treated by a physician who is not a child psychiatrist and is not improving, request that he be seen by a child psychiatrist.

3. Request a Medication Review

Either at a hearing or by a motion, request that the court conduct a review of the child’s medications.

This can occur after noticing changes in your client’s mood, weight, energy level, or noticing other physical signs in your client.

Could also occur after reviewing records and noticing red flags like two or more concomitant antipsychotics or stimulants or three or more concomitant mood stabilizers, five or more medications, more than one med being changed at a time, excessive dosages, absence of a DSM diagnosis, or prescription of meds before attempting other therapies.

4. Involve the Court

Document your concerns about medications in any reports to the court.

Raise your concerns in court.

Make sure that at all review hearings, your child has an opportunity to express his or her concerns about psychotropic medications to the court. This could even occur in chambers if your child is shy.

5. Don’t Be Complacent

Remember psychotropic medications are not the panacea for fixing all of your child’s problems.

Your child might be a victim of trauma. Request

trauma sensitive programming.

Advocate that your child be placed in the least restrictive (most family-like) setting.

If your child has not responded to treatment, find an expert to review the child’s case to get new ideas.

HOW ATTORNEYS CAN EFFECTIVELY ADVOCATE FOR CLIENTS’ EDUCATIONAL

GOALS

Education Advocacy

Education

Foster youth are at least twice as likely to repeat a grade

Only 54% of young adults discharged from care have completed high school

Only 2% of youth aging out of care obtain a bachelor’s degree

Education is the Lifeline for Youth in Foster Care (October 2011), National Working Group on Foster Care and Education: www.casey.org/Resources/Publications/pdf/Educationa

lOutcomesFactSheet.pdf

Roles for All Students

The Lawyer

The Advocate

The Lawyer’s Tools

Appointment Order

- Same access as parent- Educational records - Obtain Records- Communicate with teachers, counselors, administrators- See children at school- Attend meetings, IEPs- Notification of disciplinary actions

Appointment Order

Court’s AuthorityExisting Laws

The Lawyer’s Tools

Specific Orders- evaluations- findings needed

by schools- tutoring

Subpoena witnesses- hearings- trials- questions about education

Appointment orderCourt’s AuthorityExisting Laws

The Lawyer’s Tools

McKinney-Vento

- Idea is to keep children in the same school until end of academic year- In your state, “homeless” may be foster/kinship care-Children eligible for public education, preschool/HS-Transportation, Liaisons, Coordination, Immediate Enrollment, Comparable Services

Appointment order

Court’s Authority

Existing Laws

The Lawyer’s Tools

Fostering Connections- Requires consideration of proximity and appropriateness- Collaboration to remain in same school- Immediate enrollment in new school- Transportation included as foster care payments-State plan requirement to ensure enrollment & attendance- Requirements for transition plan, including education- Foster Care Liaisons

Appointment OrderCourt’s AuthorityExisting Laws

The Advocate’s Tools

Tutoring Extra-curricular Fine Arts/Music/Theatre School Trips Community Safe harbor from chaos

- Magnet schools- Fine Arts Academies- On-line courses- Charter schools - Home schools- Credit recovery programs- Summer school- Alternative education- Private school

Recognize strengths of schools

Community Education Options

The Advocate’s Tools

Reasonable requests for flexibility- Application deadlines- Permission logistics- Try-outs for sports, music, etc.

Communicate with foster parents/agencies- Importance of education- How support education- What it takes to get into college

Be a voice for your client

Placement Changes

Or, how all your plans can be changed

Education calendar- Grading periods- Testing schedules- Credit transfers

Transportation collaboration

Know client’s programs and services

Make sure client enrolled ASAP and put into proper classes

Records timely transferred

Before Aging Out

Driver’s license Social Security Card Birth Certificate Immunization Records School Records Immigration issues resolved Medicaid coverage Set up email account Scan and email legal documents to client Ensure client has original documents Keep copies of documents Knows how to contact benefits coordinator Memorized your phone number and email

FOR SPECIAL EDUCATION STUDENTS IN DEPENDENCY CASES

Education Advocacy

ABA Model Rules

ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings says lawyers should have access to education records. Section 8(a)(2).

1996 ABA Standards of Practice For Lawyers Who Represent Children in Abuse and Neglect Cases states that lawyers should review their clients’ education records. C-2(1).

IDEA and FERPA

An “education record” is a record directly related to a student and maintained by an educational agency or institution or by a party action for the agency or institution. 34 CFR 99.3.

Education agencies may not release special education records to anyone other than a parent without parental consent unless it falls into a FERPA exception spelled out in 34 CFR 99. 34 CFR 300.571.

Schools can issue records if in accordance with a judicial order or subpoena. 34 CFR 99.31(a)(9)(i).

IDEA and FERPA Practice Tips

Ask judges to specify access to education records in all court orders.

Speak with educational surrogate or child welfare agency about signing consent ahead of time.

Pay attention to your own state law on this issue.

Obtain records directly from child welfare agency.

Special Education Law and Purpose

Sources of Special Education Law:- IDEA 20 U.S.C. § 1400 et. seq. (34 CFR Part 300)- State law often has more or at least corollary protections.

To ensure that all children with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. 42 U.S.C. § 1400(d)(1)(A).

To ensure that the rights of children with disabilities and parents of such children are protected. 42 U.S.C. § 1400(d)(1)(B).

Eligibility

To be eligible, the student must meet the definition of one of several enumerated disabilities and, “by reason thereof,” need special education and related services. 42 U.S.C. § 1401(3).

These disabilities include:- Intellectual disability- Hearing impairments, including deafness- Speech or language impairments- Visual impairments, including blindness- Serious emotional disturbance- Orthopedic impairments- Autism- Traumatic brain injury- Other health impairments, such as a terminal or chronic disorder or ADHD- Specific learning disabilities, such as dyslexia

Entitlement and FAPE

IDEA guarantees that all students with disabilities age 3 through 21 have the right to a “free and appropriate public education” (FAPE). 21 means 21 at the beginning of a school year. Thus, 22 year olds can often be served in a district.

The right to a FAPE ends when a student graduates with a regular high school diploma. 34 C.F.R. § 300.102(a)(3)(i). This does not include students who have received a certificate of attendance or a certificate of graduation that is not a regular high school diploma. Id. § 300.102(a)(3)(ii).

School districts deliver FAPE by providing “special education services” and “related services.”

IEP Meeting

When- Meets at least once a year to develop student’s Individual Educational Program (IEP)- Parent must receive notice 5+ school days before meeting and school must attempt to work with parent’s schedule

Who attends - Members of Committee:

Parents and Student Representative of school district knowledgeable about

special ed. services 1+ special ed. teacher 1+ regular ed. teacher (if student is or may be in regular

ed. classes) Someone who can interpret evaluations.

- Member does not have to be present if school and parents agree in writing. 20 U.S.C. § 1414(d)(1)(c)(i) and (iii). But, if member’s area of curriculum or related services is being discussed, member must provide written input to committee before meeting. 20 U.S.C. § 1414(d)(1)(c)(i) and (iii)

IEPs

IEPs must include:

Present levels of academic achievement and functional performance; and

A statement of measurable annual goals including both academic and functional goals. 20 U.S.C. § 1414(d)(1)(A)(i)(I)(II).

In simple terms, IEPs must address: goals, placement, FBAs and BIPs where appropriate, related services, transition services and supplements.

Who is Considered a “Parent” Under IDEA?

• Biological or adoptive parent• Foster parent unless prohibited by state law• Guardian generally authorized to act as the

child’s parent or to make educational decisions for the child

• Person acting in place of a parent and who the child lives with (can be non-relative)

• Person legally responsible for the child• Surrogate parent34 C.F.R. § 300.30(a)

Surrogate Parent

A surrogate must be appointed for a child if:- The child is a ward of the state under state law;- No parent can be identified;- No parent can be located after reasonable efforts; or- The child is an unaccompanied homeless youth under McKinney-Vento. 34 C.F.R. § 300.519(a)

Surrogate Parent

Must not be an employee of the school district, state education agency, or any other agency involved in the care or education of the child.

No personal or professional interest that conflicts with the interest of the child.

Knowledge and skills that ensure adequate representation of the child.

34 C.F.R. § 300.519(d)(2).

Court’s Authority to Appoint Surrogate Parent

The court having jurisdiction over a foster child may appoint a surrogate parent for a foster child.

20 U.S.C. § 1415(b)(2)(A)(i); 34 C.F.R. § 300.519(c)

CASA as Surrogate Parent

Under Texas law, a CASA volunteer may serve as surrogate parent if:

1) The child is under the conservatorship of the Department;

2) CASA volunteer is the child’s guardian ad litem; and

3) The foster parent is not acting as the child’s parent under Section 29.015 of the Texas Education Code.

Tex. Fam. Code § 107.031

Why CASA?

Opportunity for continuity.A volunteer who knows the child.Must report to the court. Already has a professional relationship with

child welfare agency and the attorneys and professionals appointed to the case.

Practice Tips

Ask courts to appoint an educational surrogate if appropriate.

Work closely with whichever parent is making educational decisions (also ask questions to ensure they are qualified, and applicable law).

Attend IEP Meetings regularly (by phone or video if necessary).

Ensure that whoever is doing evaluations is getting a full picture. If not, request an IEE.

Texas Children’s CommissionEducation Committee

Check out the Texas Blueprint: http://www.texaschildrenscommission.gov/PDF/TheTex

asBlueprint.pdf A great example of a collaborative process with

concrete recommendations for foster care agencies and school districts working together.

Transitioning Youth

Transitioning Youth

LawPractical Issues

Living Working Education People Past

Advocacy

Law

Adoption and Safe Families Act (ASFA)Foster Care Independence Act (Chafee Act)Fostering Connections to Success and

Increasing Adoptions Act (Fostering Connections)

State law and benefits

Review Legal Options

Return to ParentAdoption – as a child or adultCustody/Guardianship by Relative Court Ordered Placement with RelativeAPPLA – Another Planned Permanency Living

Arrangement

What Agency Can Do: Past and Future

Provide copy of case fileProvide original documentsProvide historyPlan for future: Circle of Support

College and Work Options

Explore Benefits

Preparation for Adult LivingEducation and Training VouchersFinancial assistance to familiesMedicaidTransitional Living ServicesExtended Foster CareNeed: Transition Plan

Legal Issues

US citizen? SIJS or U Visa or DACA Naturalized parent

Legal Documents Birth certificate Social security card Legal Permanent Resident Card Certified court orders Passport

Juvenile involvement

Practical Considerations

Medical Records Immunizations

Required Recommended

Identity/location of medical providers Medical History

Educational Records Psychological evaluations

Access to the Outside World

PhoneSet up email account

Contact phone numbers and email: dependency professionals and family

Web addresses for help State’s child protection website Casey Family Programs (Casey.org) Foster Care Alumni of America (fostercarealumni.org)

Linked InFacebook and Twitter accountsYoutube

Electronic Information

PasswordsInternet SafetyPersonal InformationPurchasesPicturesAppropriate postsAppropriate sites

Transportation

Driver’s licenseThen, car, insurance and gasPublic transportation schedules & websites

Identity Protection

Guard informationLeases/ utilities/ credit cardsCheck credit recordsBank Account

Money

Job skillsJob bankResumeVolunteerExplore benefits

College Readiness ACT/SAT Credits to graduate AP classes and tests Immunizations Applications

Advocacy

Teen has to assume responsibilityBut, prefrontal cortex is not fully formedThus, attorney as guide and counselorMemorize phone number and email

Normalization and Sibling Contact

Normalcy

What is it? What does it look like?

When you remember childhood/teen years, who do you remember?

ParentsSiblingsTeachersCoachesChurch Members

Friends School Clubs Neighborhood Camp Church

When you remember childhood/teen years, what events and activities do you remember?

School activitiesSports ExtracurricularDancesSleepoversBirthday partiesJobGoing to the mall

Vacations (with friends or family)

Playing in the neighborhood

Going to amusement parks

Prom/HomecomingGoing to sports

events

What are some things you do in your adult life to remember/reconnect to your past and/or your family?

Telephone callsEmailSocial Media

(Facebook, Twitter, Instagram)

Looking at old photographs

Telling storiesAttending:

Family Reunions Weddings Funerals Showers

Looking at yearbooksLooking at/building

scrapbooks

As a parent, what type of information do you need to know to be an effective parent?

Family medical historyGenetic historyRace/EthnicityMental health historyLearning disabilities

Family Privilege

Siblings

Why they are so important

Importance of the Sibling Bond – The Sibling Relationship is Unique

The sibling relationship is unique. It is longer lasting and more influential than any other, including those with parents, spouse or children

Siblings can be comforters, caretakers, role models, motivators, faithful allies and best friends

Children acquire social skills from their relationships with siblings; for example, through games andconversations with each other, young children learn such skills as helping, sharing and cooperatingThe sibling relationships evolves and changes across developmental stages

Sibling Experience for Children in Foster Care

For children whose parents are

unable to meet their needs siblings must mutually depend

on each other to get their needs met Separating siblings in foster care or

through adoption adds to their emotional burden Studies have shown that even babies experience

depression when they re-separated from their

brothers and sisters. Brothers and sisters separated in foster care experience trauma,

anger and an extreme sense of loss. Research suggests that

separating siblings may make it difficult for them to begin a

healing process, form attachments and develop a healthy

self-image

Tips and Tools for Social Workers: Don’t Believe the Myths

The “parentified child” should be separated from younger siblings in order to give him/her a chance to be a child.

Brothers and sisters should be separated to prevent sibling rivalry.

A child with special needs should be placed separately from siblings in order to receive more focused attention.

Why is Normalcy Important?

Creates experiences that can be applied later in lifeAllows for child/youth to experience conflict

resolutionPrepares children/youth to navigate social,

emotional, professional experiences in adulthoodCan aid in college admissionFosters relationships that could develop into

lifelong permanency resources

How to Advocate for Normalcy

Ensure “normalizing” activities are written into the child plan of service

Read the child welfare policy regarding placement with siblings, sibling contact, and “normalization” activities

Read the residential contract for your providersAdvocate that fees/pre-reqs for activities are

waived or ask the child welfare system to pay for the activities

Ensure activities, visitation, etc., and Ask your client what he/she wants to do

In Closing…

Foster care is to protect a life, it should not be a way of life.

- Casey Family Programs

Questions?