Nicholas Wurth, JD, Assistant Douglas County Public Defender
INTRODUCTION
In the relentlessly changing world of Nebraska juvenile court practice it is difficult to keep up with the evolving case law, yearly statutory changes, seemingly frequent audits/studies of the “system,” HHS policy amendments, and the effects of Federal laws on all of the above. A reminder all practitioners should find unnecessary is that the Juvenile Court is a civil court, and as a result, accountability and enforcement of the varying laws and policies are, in the end, achieved through the deprivation or limitation of the money received from the federal government to fund all of the programs and services necessary to families in need of state assistance. In other words, if a juvenile court judge enters an order indicating that certain federally mandated steps or procedures were not followed for a particular family, Nebraska’s state child welfare agency – the Nebraska Department of Health and Human Services (HHS) – is not likely to receive federal funding to reimburse the expense of providing certain services to that family. The end result is that HHS has a strong incentive to implement any new federal law affecting child welfare service funding immediately into existing policies and procedures. For attorneys, knowledge of what the federal government requires of states wishing to receive funding for child welfare services is a useful tool for those that believe that a client or family is not receiving appropriate attention or services through the life of a juvenile court case. While HHS and its case managers routinely do a remarkable job in ensuring necessary services are timely implemented and delivered to families in need, there are instances where families do not receive necessary, and many times, federally mandated assistance, and it is the duty of attorneys to bring those instances to the attention of the juvenile court judge immediately.
This article will address Nebraska’s response to certain provisions of the Fostering Connections to Success and Increasing Adoptions Act of 2008 as they relate to defending parents and children that have been adjudicated under Neb. Rev. Stat 43-247(3)(a). Furthermore, by breaking down each requirement into three broad categories, the article will not only outline the relevant black-letter laws and codes, but identify those areas lacking in oversight and attention. Through the diligent and informed defense of families, Nebraska juvenile and family law attorneys can play a role in shaping policy to conform to federally mandated standards while assisting on individual cases in the successful reunification of children with their parents. By and large, HHS and its employees are remarkable assets for ensuring children and families receive the services necessary to become successfully reunified. However, there are instances where, despite best intentions, case managers either fail to abide by existing policy, or the policy in and of itself simply does not go far enough in providing necessary assistance for families. By holding HHS individual caseworkers accountable for abiding by existing policies and procedures, attorneys can help highlight those areas where individual case management may not be conforming with the established procedures and those areas where established procedures may not ultimately be serving the best interests of the child.
BACKGROUND
The Act
The Fostering Connections to Success and Increasing Adoptions Act of 20081 (”the Act”) was signed into law by President George W. Bush on October 7, 2008 after receiving overwhelming support from the House of Representatives and unanimous support from the Senate. The Act revised and extended the Adoption Incentives program under the Social Security Act, established a myriad of financing changes, and added new requirements for states wishing to receive federal child welfare reimbursement. The Act’s requirements, set out in more detail in the December 2009 Spotlight Issue article by Natalie Nielsen2, mandate that state child welfare agencies comply with seven key directives, briefly restated and summarized:
- Provide assurance that each school-age child receiving federal foster care, adoption, or guardianship assistance is enrolled in school;
- Work with other appropriate public agencies to reduce unnecessary school moves for all children in foster care and, to coordinate and ensure access to health care – including mental health and dental care;
- Make reasonable efforts to place siblings together
- Notify adult relatives of children entering foster care of their options to participate in the care and placement of the child;
- Develop a specific plan for a youth’s transition to independent living no more than 90 days before a youth’s “aging-out” of foster care;
- Negotiate in good faith with Indian Tribes requesting to receive federal funds for Indian children for whom the tribe provides foster-care, adoption, or guardianship assistance ;
Inform prospective adoptive parents of foster children of their eligibility for federal adoption tax credit.
While the requirements of the Act are set out plainly in the federal law, without its codification into the Nebraska Juvenile Code, it is unclear how the requirements have been or will be implemented in Nebraska. The last three provisions: negotiating in good faith with Indian Tribes, informing prospective adoptive parents of potential tax credits, and developing a transition plan for youths about to age-out of foster care, while equally important, are not routine to daily practice in juvenile court. However, the remaining requirements are likely relevant to every case adjudicated under Neb. Rev. Statute 43-247(3(a)). Summarized in the categories of (1) School, (2) Placement and (3) Family notification, this article will address common problems, questions, and potential solutions for parent and child attorney’s attempting to hold HHS and its representatives accountable to providing the services the federal government has deemed necessary to successfully addressing the needs of children and families in the child welfare/juvenile court system.
HHS Guidelines and Codes
Prior to discussing the three main aspects of the Act in detail, it is worth briefly looking at the existing HHS policies that govern how Federal Acts are immediately implemented into existing procedures. HHS employees and their actions are internally governed by the Nebraska Administrative Code (NAC). Title 3903 of the NAC specifically relates to Child Welfare and Juvenile Services, and sets out the rules and regulations that case managers and other HHS employees must follow. In addition to Title 390, HHS publishes Guidebooks specific to certain case management aspects of child welfare cases that are to be utilized as tools and training guides for the HHS case managers in relation to the specific circumstances of a case. Specifically, the Out-Of-Home Placement and Payment Guidebook4 lists a series of considerations that are taken into account prior to placing children in non-treatment level placements. Finally, HHS issues Administrative Memorandums to its staff whenever a policy or procedure is amended. The HHS Policy and Section Administrator, Ed Matney, issued Administrative Memo #8-20095 (”Memo 8-09″) to specifically address changes in HHS policy as a result of the Act. Memo 8-09, discussed in more detail below, was the first step taken by HHS to implement the requirements of the Act into HHS policies and regulations.
Many of these considerations as well as many of the policies outlined in Title 390 of the NAC are based off of federal requirements contained in the Social Security Act that predate the Fostering Connections to Success Act.6 The provisions of the Fostering Connections to Success Act are sure to overlap with some existing HHS policies and procedures. With the assistance of explanations provided by Administrator Ed Matney, this article will outline what may or may not be lacking in current HHS policies in relation to the three main aspects of the Act.
School
ISSUE: The first major area addressed in the Act relates to educational placement for children removed from their parents’ home. The Act contains two key provisions regarding school and education for children placed in the temporary custody of HHS pursuant to a juvenile court filing. The first provision is that all school aged children are enrolled in and attending school if those children are receiving federal funds to subsidize the cost of their care while temporary wards of the state. The second relevant provision requires that when children are removed from the parental home, that HHS work with the appropriate agencies to reduce unnecessary school moves for all children. The question is what steps must HHS take to ensure that children remain in their same school, and what, if any, circumstances would support a determination that changing schools would be in the best interests of the child.
CURRENT HHS POLICY: Prior to the Act’s implementation, 390 NAC Chapter 7, the chapter dealing with out of home placement of state wards, governed how school would tie into placement decisions. 390 NAC 7-000 and 7-001.02A, dictated that upon removal from the parental home, children should be placed in the least intrusive environment possible that is in the best interests of the child. This included provisions to provide school “continuity” whenever possible and to facilitate any changes with school officials. The passage of the Act necessitates the added requirement of keeping school continuity unless it was documented that to have the child remain in the same school would be contrary to his or her best interests. Memo 8-09 adopts the language dictating a child must remain in the same school unless it is contrary to his or her best interests. Interestingly, the Service Coordination Contract only states that the coordinator ensure that the child’s school district remain the same, rather than actual school. According to Ed Matney, 390 NAC is being revised to include both the language from Memo 8-09 and the Act ensuring that a child remain in the same school rather than just the same school district. Whether or not the revision takes place is largely a question of whether HHS brings its policies in line with Nebraska law. In the instance of school placement, the juvenile code already directly addresses and adopts the standards set out in the Act. Neb. Rev. Statute 43-1311(4) dictates that children remain in the same school unless it is determined that it is contrary to their best interests to do so. The existence of the mandate for children to remain in the same school they were enrolled prior to entering foster care supersedes existing HHS policy.
ANALYSIS: While HHS policy may not yet be explicitly in line with existing Nebraska law, the presence of the “best interests” language still indicates the need for clarification on what circumstances would actually dictate that changing schools is in the best interests of a child. Rare is the occasion that a child is removed from the parental home, placed in the same community, and there is a determination that it is in the best interests of the child to be removed from his or her previous school. School can and should be one of the constant, unchanging factors when a child is uprooted from his family home pursuant to a juvenile court filing. It is possible that competing interests dictate a move out of the school’s area to be in the child’s best interests, making a change in school an unfortunate necessity required to meet the other needs of the child. Transportation, however, should never be an issue in determining whether a change of school is necessary, as HHS and its contracted Service Providers contract with numerous transportation agencies that are capable of providing the service. If a situation arises where a child’s placement may disrupt due to a foster parent who cannot or will not facilitate transportation to school, the situation should be brought to the attention of HHS to instruct its service coordinator to set up transportation immediately before the situation causes disruption in placement or school. Just because a child is no longer in the neighborhood of his or her school does not mean it is reasonable to change schools. There are currently no concrete guidelines or examples contained in HHS guidebooks that illustrate what types of concerns may indicate that changing schools would be in the best interests of a child. Per Mr. Matney, upcoming revisions to HHS policy may contain some examples and guidelines while maintaining the flexibility for case managers to take individual situations into account. Ideally, those guidelines would indicate situations that should not be used to base a school change on, such as transportation. Finally, the guidelines and service contracts should expressly indicate that Nebraska law already requires children to be placed in the same school they attended prior to entering foster care unless it is contrary to their best interests.
Placement
ISSUE: The Act requires that reasonable efforts be made to place all sibling children together when they are removed from the parental home. HHS is already required to make reasonable efforts to prevent the children’s removal altogether pursuant to the Nebraska Juvenile Code and Federal Law. This new provision takes the issue of reasonable efforts one step further. After a determination that remaining in the home would be unsafe to the children, HHS must make additional reasonable efforts to place all of the siblings together. An issue will likely arise between the competing interests of finding safe, immediate placement and finding a placement that can accept all of the children. Another issue arises in situations where placing siblings together competes with placing children with non-custodial parents or other relatives.
CURRENT HHS POLICY: As mentioned above, 390 NAC Chapter 7 contains the Nebraska Administrative Code’s requirement regarding out of home placement of state wards. 390 NAC 7-000 provides that HHS consider the circumstances and “place the child in the least restrictive, family like setting; closest to the family to meet the child’s best interests and special needs; and in a setting that provides continuity for the child in school, church and other community relationships whenever possible while also considering the safety of the community.” Furthermore, the HHS Out-Of-Home Placement and Payment Guidebook specifically addresses the issue of sibling placement in a list of “other considerations” by stating that siblings should be placed together “whenever possible and appropriate.” Concerning expectations for placing siblings together in the same out of home placement, Policy Coordinator Mr. Matney indicated that the contracted service providers “are expected to have 92% of [the children placed out of home] placed with their siblings.”
ANALYSIS: Certainly, existing HHS policy places a great deal of importance on placing siblings together following a determination that the family home is unsafe. According to the latest data provided by HHS in its April 2010 Children and Family Services Review, 83% of the children placed out of home were placed with their siblings, down from 93% in January 2010.7 While the benchmarks are nearly being met, there seems be a lapse in policy directing the use of specific reasonable efforts to place children together. Admittedly, current HHS policy across the board is deliberately designed to afford its employees with the flexibility necessary to meet each case’s unique challenges. In addition, “reasonable efforts” can likely be inferred from the language contained in the NAC and Guidebooks, however, the inclusion of the affirmative duty to make reasonable efforts to place siblings together would emphasize the need for service providers to take extra efforts to ensure siblings are placed together without limiting the flexibility necessary to manage individual cases. For instance, if a situation arises where a foster home in the community is not immediately available to accept a family of four siblings, necessitating the siblings being placed in two different homes, there is no policy directing that continuing efforts be made to locate a home suitable for all four children. The implementation of a statewide database of licensed foster homes and their availability would also be a reasonable effort to ensure that placement availability is transparent and accessible to those families who entered care without a home available for all siblings. Current procedures may be reasonable, but they certainly do not exhaust available remedies and steps that should be pursued to effectuate the outcome of placing all out of home children with their siblings. Additional language outlining the affirmative duty to take proactive steps in situations where a suitable home is not immediately available for all siblings would satisfy the Act’s requirements for reasonable efforts without substantially hampering other case management efforts and goals.
Family Notification
ISSUE: The third major provision of the Act requires that adult relatives of children who are removed from their parental home be notified not only of the removal of the children, but of the opportunity to provide placement for the minor children as well. Pursuant to the Act, such notice must be provided within 30 days of the child’s removal from the family home. In addition, the Act requires diligent efforts must be made to identify possible relatives. Perhaps the most important addition in relation to this provision is the inclusion of the requirement to provide information to the relative that informs them that they have the opportunity to accept placement of the child, if appropriate. Issues regarding implementation of this provision include, what type of information should be included in the notice, what diligent efforts must be taken to identify and notify adult relatives, and what procedure are in place to help fast track adult relatives for placement approval when children are removed from the parental home.
CURRENT HHS POLICY: Pursuant to Chapter 7 of 390 NAC, HHS will consider “the least restrictive, family-like setting.” According to the Out-of-Home Placement Guidebook this includes considering the “availability of an adult relative who can provide care for the child.” Regarding notice to relatives, HHS policy prior to the Act emphasized placing children with relatives over “strangers” when appropriate, as well as communicating with parents for information regarding adult relatives of the children. Memo 8-09 speaks much more directly to the issue of steps taken to locate and identify relatives as well as what information must be communicated. The memo adopts the Act’s language regarding diligent efforts by defining minimum diligent efforts as: asking parents for information, following up on “leads” provided by other family members, and utilizing the Federal Parent Locator Service when necessary. As to what “adult relatives” means, Memo 8-09 directs that maternal and paternal grandparents, adult siblings, aunts, uncles, and adult cousins all must be provided notice within 30 days of the child’s removal. Regarding what is contained in the notice, the Memo directs that the notice must include “information about the possibility of placement with a relative, when appropriate.” According to Mr. Matney, there is no requirement for HHS to send notice to relatives of children that were removed prior to the implementation of the Act, however, existing policies in place prior to the Act should have indicated whether an adult relative was available for placement. In determining whether a child is placed with a relative, HHS will continue to assess it as one factor in determining what is in the best interests of the children.
ANALYSIS: Again, the family notification provision of the Act seems to address already existing HHS policy, with a few important amendments and additions. First, it is clear that locating and utilizing adult relative placement has been an emphasis in determining where a child is placed when removed from the home prior to the Act. The Act, however, seems to strengthen the importance of relative placement by adding a time-limit within which HHS must not only locate but also send notice to adult relatives. Most importantly, that notice now must contain language that indicates the possibility of the relative becoming a foster parent for the child removed from care. HHS policy should emphasize this point by drafting and adopting a form notification letter that contains all relevant information regarding placement. This would assure a transparent and reliable process that attorneys can expect to be followed for all cases. The inclusion of such letters in initial assessments and court reports would also assure that the individual case manager and service coordinator are abiding by HHS policies and allow for an open inquiry should their be a dispute as to whether or not an adult relative was provided adequate notice in the prescribed time frame. Finally, for children placed initially in a non-relative foster home, there should be ongoing efforts to locate and utilize a relative placement when appropriate. The significance of relative placement, especially when reunification may not be possible, cannot be understated. As a result, HHS policy should clearly adopt the requirements of the Act while formulating specific procedures for the type of notice and the steps taken to ensure that such notice is followed up on to secure relative placement for children as soon as reasonably possible.
Proposed Bill 9718
A helpful piece of legislation was recently proposed in the Nebraska Legislature. LB 971 proposed to revise Neb Rev. Statute §43-285. The bill would effectively codify many of the Fostering Connections to Success Act’s requirements discussed above into Nebraska Law. Among other changes, the bill would require the following:
- HHS to provide written notification within 15 days to non-custodial relatives suggested by the child or the child’s parents. Furthermore, the notification must include information regarding the child’s removal, options available for care and/or placement on a temporary or permanent basis, requirements necessary to provide foster care, and services and assistance that would be made available to the relative should they choose to provide care;
- HHS to use due diligence in locating prospective relative placements, and reporting to the court within 30 days, the names and relationship to the child of all relatives contacted, the method of contact, and the response received from the relatives;
- HHS to make reasonable efforts to place siblings together, even if the children are removed at different times. If siblings are not placed together, HHS must provide reasons to the siblings and the court as to why placement together would be contrary to the safety or well-being of any of the siblings.
- HHS must make reasonable efforts to providing sibling visitation when the siblings are not placed together, even after parental rights are terminated. The sibling visitation time is to be periodically reviewed, and separate petition for sibling time may be filed by the child, parent, HHS, or legal guardian of the child.
If passed, LB 971 would have a strong effect on enforcing the requirements set out in the Fostering Connections Act. While silent as to the issue of schooling, the bill directly addresses the two larger areas of sibling placement and relative notification. It provides a timeline that HHS must abide by when providing notice to families, and purports to hold HHS accountable by requiring caseworkers to document not only their efforts, but the responses received by relatives and then provide that documentation to the court for review. Not only is there a requirement to provide notice to the relative and file proof of the notice with any response with the court, but HHS must also use due diligence in locating the relative. Taken together, all three requirements potentially provide a strong deterrent for caseworkers to not just follow the letter of the law, but also the spirit, i.e. doing whatever it takes to keep children placed together and with family when their custodial home becomes unsafe.
Furthermore, the bill’s language arguably places a very significant burden on HHS. Specifically, the Bill seems to presume that placement of siblings together is always in their best interests, and the burden is on HHS to prove, in those situations where siblings are not placed together, why placement together would be contrary to the safety and welfare of the children. The “contrary to safety and well-being” language indicates that the only viable reason children should not be placed together is for substantive, articulable reasons not systemic ones.
CLOSING
The Act, regardless of its codification in the Nebraska Juvenile Code, is already addressed in large part, by existing HHS regulations and policies. Certainly the addition of Memo 8-09 specifically addresses or defines where existing HHS policies are lacking and what remaining steps are necessary for HHS case managers to take as a result of the Act. It is up to advocates for both parents and children to ensure that HHS case managers are not only undergoing the perfunctory steps to comply with the Act and Memo 8-09, but that those steps are being followed up on and analyzed in a manner consistent with the intentions of the Act and the best interests of the children. No step in a case manager’s duties is without direction found in the litany of material outlining HHS policies and procedures. Be it 390 NAC, the Guidebooks, or Administrative Memos, the information on what is supposed to happen is purposely available online for review and analysis. That information should be utilized by attorneys to make sure their clients are getting the services they require to become a reunified family. When Congress passed the Fostering Connections to Success and Increasing Adoptions Act of 2008 and implemented it into the Social Security Act, it endorsed the importance of the provisions contained therein. The significance of those provisions should not be allowed to be overlooked or glossed over on the individual case level. Families have no bearing on how or how often policies and procedures change in juvenile court practice. One of the best steps an advocate for the family can take is to make it appear as though the process is as simple possible. By advocating upfront for the successful implementation of the Act’s requirements the hope is that soon those requirements will appear to have been in place all along.
1 Pub. L. No. 110-351, 122 Stat. 3949 (2008), available online at http://www.house.gov/cardoza/originals/PL%20110.351.pdf (last visited May 27, 2010).
2 Available online at http://www.throughtheeyes.org/articles/2009/12/21/fostering-connections-to-success-and-increasing-adoptions-act-of-2008/ (last visited May 27, 2010)
3 Available online at: http://www.sos.state.ne.us/rules-and-regs/regsearch/Rules/Health_and_Human_Services_System/Title-390/Chapter1-12.pdf (last visited May 27, 2010)
4 See Section VII of the Guidebook, available online at http://www.dhhs.ne.gov/Children_Family_Services/OHReform/GuideBookDocs/OH&Pmt.pdf (last visited May 27, 2010)
5 Available online at http://www.dhhs.ne.gov/jus/Memos/AM-8-2009.pdf (last visited May 27, 2010)
6 For more information on relevant federal requirements related to child welfare services contained in the Social Security Act see Sections 471 and 475 [42 U.SC. 675]
7 See, CFSR Permanency Outcome 2 Performance Items Strength Comparison in the April 2010 CFSR available online at:
http://www.dhhs.ne.gov/Children_Family_Services/CQI/CQI_docs/State_Mini_CFSR_Item_Outcome_Comparison_Charts_4-10.pdf (last visited May 27, 2010)
8 Available online at http://nebraskalegislature.gov/FloorDocs/Current/PDF/Intro/LB971.pdf (last visited on May 27, 2010) On April 14, 2010 the Bill was classified as “indefinitely postponed,” effectively eliminating it from being passed during the 2010 legislative session. It may be reintroduced in the 2011 session, and supporters of the bill should contact the bill’s sponsor, Senator Kathy Campbell (kcampbell@leg.ne.gov) to voice their support.
