Legal Permanency for Legal Permanency for Adolescents Entering and Adolescents Entering and Remaining in Foster Care: Remaining in Foster Care: State Legislative, Policy, State Legislative, Policy, and Judicial Reforms and Judicial Reforms to Avoid APPLAsto Avoid APPLAs

Howard Davidson, JDHoward Davidson, JD

Director, ABA Center on Director, ABA Center on Children and the LawChildren and the Law

howard.davidson@ howard.davidson@ americanbar.orgamericanbar.org

Pathways ConferencePathways Conference

New OrleansNew Orleans

June 27, 2012June 27, 2012

As As the percentage of older youth entering and the percentage of older youth entering and remaining in care increasesremaining in care increases, it is necessary , it is necessary to to understand how legislation, agency understand how legislation, agency policies, and court practice reforms policies, and court practice reforms could better facilitate rapid could better facilitate rapid permanency alternatives to APPLA, or permanency alternatives to APPLA, or structure APPLAs more appropriatelystructure APPLAs more appropriately

I believe our goal I believe our goal with every youthwith every youth who has who has an APPLA should be, through reforms in law, an APPLA should be, through reforms in law, policy and practice:policy and practice:

““That they leave the system better off, That they leave the system better off, in a measurable way, than when they in a measurable way, than when they entered the system”entered the system”

What Does APPLA Mean?What Does APPLA Mean? ““Another”: Another”: NotNot reunification, permanent placement reunification, permanent placement

with fit and willing relative, guardianship, or with fit and willing relative, guardianship, or adoptionadoption

““Planned”: Suggests a caseworker has Planned”: Suggests a caseworker has considered considered multiple permanency optionsmultiple permanency options and carefully and carefully considered and selected a placement in the child’s considered and selected a placement in the child’s best interestsbest interests

““Permanent”: Suggests the placement Permanent”: Suggests the placement can not be can not be disrupteddisrupted by parental, relative, or agency action (it by parental, relative, or agency action (it is intended to be stable), and it will extend at least is intended to be stable), and it will extend at least to the youth’s 18to the youth’s 18thth birthday, if not beyond birthday, if not beyond

““Living”: A child will in fact be Living”: A child will in fact be livingliving (residing) there (residing) there ““Arrangement”: Like “planned”, the Arrangement”: Like “planned”, the caseworker caseworker

and the care providerand the care provider have have agreedagreed on the on the permanency of this placement (& it should have permanency of this placement (& it should have supervisor approval)supervisor approval)

What APPLA Is -- or Is NotWhat APPLA Is -- or Is Not AFCARS data does not include an APPLA AFCARS data does not include an APPLA

category!category! I think more federal CFSR and IV-E oversight is I think more federal CFSR and IV-E oversight is

needed to monitor over-use and inappropriate needed to monitor over-use and inappropriate use of APPLAsuse of APPLAs

Long-Term Foster CareLong-Term Foster Care was not thought to be was not thought to be permanent, was over-used, and was seen as an permanent, was over-used, and was seen as an excuse for not pursuing other permanency excuse for not pursuing other permanency options-- thus its options-- thus its replacementreplacement by Congress by Congress (ASFA) with APPLA(ASFA) with APPLA

Nether Nether Independent Living Independent Living nornor Emancipation Emancipation is considered to be a legitimate permanency is considered to be a legitimate permanency goal, goal, yet Emancipation is one of the permissible yet Emancipation is one of the permissible AFCARS case outcomesAFCARS case outcomes

APPLA: What the Federal Law Says42 U.S.C. 675(1)(E)(1)(E)

“In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship.”

42 U.S.C. 675 (5)(C) (5)(C) The Permanency Hearing “shall determine the

permanency plan for the child that includes whether, and if applicable when, the child will be returned to the parent, placed for adoption and the State will file a petition for termination of parental rights, or referred for legal guardianship, or (in cases where the State agency has documented to the State court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, or be placed for adoption, with a fit and willing relative, or with a legal guardian) placed in another planned permanent living arrangement…”

From U.S. House of Representatives Report From U.S. House of Representatives Report Accompanying the House ASFA bill Accompanying the House ASFA bill (H.R.867), H.Rpt.105-77 (April 28, 1997):(H.R.867), H.Rpt.105-77 (April 28, 1997):““The Committee intentionally deleted The Committee intentionally deleted non-non-relative long term foster carerelative long term foster care from this list from this list (of possible permanency outcomes for (of possible permanency outcomes for children in foster care) to emphasize that children in foster care) to emphasize that such an arrangement should be rarely such an arrangement should be rarely used and should not be considered a used and should not be considered a permanent placement.” – Yet, many states permanent placement.” – Yet, many states still have the term LTFC in their laws and still have the term LTFC in their laws and policiespolicies

Congress made it clear: An APPLA must be Congress made it clear: An APPLA must be permanentpermanent, and it is supposed to be a , and it is supposed to be a LAST RESORTLAST RESORT permanency option permanency option

The ASFA Regulations: 45 CFR 1355.20The ASFA Regulations: 45 CFR 1355.20Permanency Hearing means: The hearing required by section 475(5)(C) of the Act to determine the permanency plan for a child in foster care. Within this context, the court (including a Tribal Court) or administrative body determines whether and, if applicable, when the child will be: (returned home, placed for adoption along with TPR petition, in legal guardianship, or in permanent relative placement) or “placed in another planned permanent living arrangement, but only in cases where the State agency has documented to the State court a compelling reason for determining that it would not be in the best interests of the child to follow one of the four specified options above.”

The Regulations are accompanied by three The Regulations are accompanied by three examples of “compelling reasons” for an examples of “compelling reasons” for an APPLA:APPLA:

1)1) An older teen specifically requests An older teen specifically requests emancipation as their permanency planemancipation as their permanency plan

2)2) Parent and youth have a significant bond Parent and youth have a significant bond but parent can’t care for youth because of but parent can’t care for youth because of an emotional or physical disability and an emotional or physical disability and specific foster parents have committed to specific foster parents have committed to raising the youth to the age of majority and raising the youth to the age of majority and to facilitate visits with the disabled parentto facilitate visits with the disabled parent

3)3) An Indian tribe has identified APPLA as the An Indian tribe has identified APPLA as the appropriate planappropriate plan

From the Children’s Bureau From the Children’s Bureau Child Welfare Policy ManualChild Welfare Policy Manual

Question:Question: May a State include placement in a May a State include placement in a permanent foster family home and emancipation permanent foster family home and emancipation in the list of permanency goals…that are in the list of permanency goals…that are exempt exempt from the compelling reason requirementfrom the compelling reason requirement…? …?

Answer:Answer: NoNo. Section 475 (5)(C) of the Act specifies . Section 475 (5)(C) of the Act specifies that the only permanency options the State may that the only permanency options the State may set without a compelling reason to do so include set without a compelling reason to do so include reunification, adoption, legal guardianship, or reunification, adoption, legal guardianship, or placement with a fit and willing relative.placement with a fit and willing relative.

Source/Date:Source/Date: Preamble to the Final Rule (65 FR Preamble to the Final Rule (65 FR 4020) (1/25/00) 4020) (1/25/00)

Legal and Related References: Legal and Related References: Social Security Social Security Act - section 475 (5)(C); 45 CFR 1355.20Act - section 475 (5)(C); 45 CFR 1355.20

From: Renne and Mallon, From: Renne and Mallon, “Unpacking “Unpacking Permanency for Youth: Overuse/Misuse of Permanency for Youth: Overuse/Misuse of

APPLA as a Permanency Goal” APPLA as a Permanency Goal” in in Child Welfare in the 21Child Welfare in the 21stst Century Century

“…“…independent living as shrouded in the mantle independent living as shrouded in the mantle of LTFC has become for many workers the of LTFC has become for many workers the convenient default plan for adolescents in foster convenient default plan for adolescents in foster care”care”

““In many cases, the misuse of APPLA as a In many cases, the misuse of APPLA as a permanency goal has replaced what was formerly permanency goal has replaced what was formerly known as LTFC, which was clearly deleted (from known as LTFC, which was clearly deleted (from ASFA)” – “Using APPLA, without providing ASFA)” – “Using APPLA, without providing supports to establishing permanency, as a supports to establishing permanency, as a replacement for LTFC is an unsuitable replacement for LTFC is an unsuitable permanency goal” because it has seldom been permanency goal” because it has seldom been stable, may disrupt often, and may lead to stable, may disrupt often, and may lead to frequent youth movesfrequent youth moves

““Emancipation certainly has specific relevance Emancipation certainly has specific relevance for some older children who are close to for some older children who are close to transitioning out of the foster care system, but it transitioning out of the foster care system, but it is not and should not be considered a is not and should not be considered a permanency pathway for youth”permanency pathway for youth”

When “APPLA is selected as the permanency When “APPLA is selected as the permanency goal, it may sometimes turn out to be goal, it may sometimes turn out to be temporary…at one hearing the plan might be temporary…at one hearing the plan might be APPLA, but by the following hearing, a relative APPLA, but by the following hearing, a relative may come forward (willing to care for the child may come forward (willing to care for the child on a permanent basis)”on a permanent basis)”

Can Group Care be an APPLA? Yes, Can Group Care be an APPLA? Yes, ifif its to be its to be permanent during the youth’s entire minority, permanent during the youth’s entire minority, ifif it is a stable and predictably continuous it is a stable and predictably continuous arrangement, and ideally arrangement, and ideally ifif there is also an there is also an advocate or guardian committed to helping the advocate or guardian committed to helping the youth through to adulthood and their exit from youth through to adulthood and their exit from the facilitythe facility

AFCARS Case Plan Goal AFCARS Case Plan Goal Data Element DefinitionsData Element Definitions

Construed by HHS to Fall Within APPLAConstrued by HHS to Fall Within APPLA Long Term Foster Care—Because of specific Long Term Foster Care—Because of specific

factors or conditions, it is not appropriate or factors or conditions, it is not appropriate or possible to return the child home or place her possible to return the child home or place her or him for adoption, and the goal is to maintain or him for adoption, and the goal is to maintain the child in a long-term foster care placementthe child in a long-term foster care placement

Emancipation—Because of specific factors or Emancipation—Because of specific factors or conditions, it is not appropriate or possible to conditions, it is not appropriate or possible to return the child home, have a child live return the child home, have a child live permanently with a relative or have the child permanently with a relative or have the child be adopted; therefore, the goal is to maintain be adopted; therefore, the goal is to maintain the child in a foster care setting until the child the child in a foster care setting until the child reaches the age of majorityreaches the age of majority

What Does AFCARS Data Show?What Does AFCARS Data Show? Six states and D.C. report (as of 9/30/10) Six states and D.C. report (as of 9/30/10) over over

20%20% of children in foster care have “permanency of children in foster care have “permanency goals” of Long-Term Foster Care (LTFC) or goals” of Long-Term Foster Care (LTFC) or Emancipation (E) -- Connecticut, Delaware, D.C., Emancipation (E) -- Connecticut, Delaware, D.C., Illinois, Oregon, Utah, VirginiaIllinois, Oregon, Utah, Virginia

National average for combined LTFC and E goals National average for combined LTFC and E goals is 12% (6% each) – or over 48,000 foster childrenis 12% (6% each) – or over 48,000 foster children

Many states report far less than 6% with LFTC Many states report far less than 6% with LFTC goals, or less than 6% E with E goals (goals, or less than 6% E with E goals (and and combinedcombined 6% or less): AK (0.7% E; 3.7% E); HA 6% or less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

How State Legislative Language Can Affect How State Legislative Language Can Affect the the Proper UseProper Use of LTFC and E of LTFC and E

If APPLA is the plan, it must address the quality of If APPLA is the plan, it must address the quality of services, and the supervision and nurturing, the services, and the supervision and nurturing, the juvenile will receive (juvenile will receive (ArkansasArkansas))

If APPLA, the plan must address child’s If APPLA, the plan must address child’s educational plan, emotional stability, physical educational plan, emotional stability, physical placement, and socialization needs and placement, and socialization needs and promotion of continuity of relations with those promotion of continuity of relations with those who will fill a lasting and significant role in the who will fill a lasting and significant role in the child’s life (child’s life (MarylandMaryland))

If APPLA, the plan must include a significant If APPLA, the plan must include a significant connection to an adult willing to be a permanency connection to an adult willing to be a permanency resource for the child (resource for the child (New York and TexasNew York and Texas)– I )– I believe this assurance should be in every state believe this assurance should be in every state lawlaw

How State Legislative Language Can Help How State Legislative Language Can Help Limit the UseLimit the Use of APPLAs of APPLAs

Setting a Setting a high evidentiary standardhigh evidentiary standard for the court, for the court, before approving an APPLA plan as being in the before approving an APPLA plan as being in the best interests of the child (best interests of the child (MontanaMontana: : preponderance of the evidence; preponderance of the evidence; New MexicoNew Mexico: : substantial evidence that other options not substantial evidence that other options not appropriate: appropriate: OhioOhio: clear and convincing evidence): clear and convincing evidence)

Limiting situationsLimiting situations that APPLAs can be approved that APPLAs can be approved for for

MontanaMontana: mental or emotional handicap & unable : mental or emotional handicap & unable to function in family setting; at least 16 and in to function in family setting; at least 16 and in independent living, and TPR not in their best independent living, and TPR not in their best interests; parent incarcerated and TPR not in their interests; parent incarcerated and TPR not in their best interests; an identified adult committed to best interests; an identified adult committed to long-term care and to a relationship with the childlong-term care and to a relationship with the child

OhioOhio: Requires one of the following– child unable : Requires one of the following– child unable to function in a family-like setting because of to function in a family-like setting because of physical, mental, or psychological problems or physical, mental, or psychological problems or needs; parent suffers from significant physical, needs; parent suffers from significant physical, mental, or psychological problems and is unable mental, or psychological problems and is unable to care for child, adoption not in child’s best to care for child, adoption not in child’s best interests, and there is a significant bond interests, and there is a significant bond between child and parent; or child is 16 and between child and parent; or child is 16 and having been informed of permanency options is having been informed of permanency options is unwilling or unable to adapt to a permanent unwilling or unable to adapt to a permanent placement)placement)VirginiaVirginia: Child must have a documented severe : Child must have a documented severe and chronic emotional, physical or neurological and chronic emotional, physical or neurological disabling condition for which the child requires a disabling condition for which the child requires a specific long-term residential treatment specific long-term residential treatment placement, other options have been thoroughly placement, other options have been thoroughly investigated, and the length of treatment is investigated, and the length of treatment is specifiedspecified

Agency Policy/Practice Manuals Can Help Agency Policy/Practice Manuals Can Help Limit Use of APPLAs, or Make them BetterLimit Use of APPLAs, or Make them BetterArizonaArizona: if APPLA selected, agency should find : if APPLA selected, agency should find adults willing to make permanent connections with adults willing to make permanent connections with the youth and their provider of care commits to the youth and their provider of care commits to continue as a permanent supportive adult in the continue as a permanent supportive adult in the child’s lifechild’s lifeD.C.D.C.: all APPLAs must be approved by agency : all APPLAs must be approved by agency director (same in director (same in TennesseeTennessee), youth must be at ), youth must be at least 16, other options have been exhausted, youth least 16, other options have been exhausted, youth must be involved in the decision-making process, must be involved in the decision-making process, and the plan must list at least one, preferably two, and the plan must list at least one, preferably two, adult parental figuresadult parental figures

IowaIowa: Prior to APPLA, must ask why the child can’t : Prior to APPLA, must ask why the child can’t have real permanence, what barriers are to other have real permanence, what barriers are to other options, what child’s thoughts are on this; it also options, what child’s thoughts are on this; it also lists what constitutes an inappropriate use of APPLAlists what constitutes an inappropriate use of APPLA

MichiganMichigan: APPLA youth must be at least 14 and : APPLA youth must be at least 14 and have a signed contract with an adult willing to have a signed contract with an adult willing to be a permanent and committed resource for be a permanent and committed resource for the youth (the youth (North CarolinaNorth Carolina and and OklahomaOklahoma require similar commitments)require similar commitments)

New YorkNew York: Goal of “independent living” is not a : Goal of “independent living” is not a sufficient compelling reason to choose APPLA; sufficient compelling reason to choose APPLA; mere fact that child who can’t return to birth mere fact that child who can’t return to birth family says they don’t want to be adopted is family says they don’t want to be adopted is not a sufficient reason to choose an APPLA plannot a sufficient reason to choose an APPLA plan

TennesseeTennessee: Limits APPLAs for under 16s to : Limits APPLAs for under 16s to kinship placements or “extraordinary individual kinship placements or “extraordinary individual circumstances”; every child 12 or over must circumstances”; every child 12 or over must consent before an APPLA can be approvedconsent before an APPLA can be approved

TexasTexas: APPLA youth must be 16 or over, and : APPLA youth must be 16 or over, and caseworker should identify an adult who offers a caseworker should identify an adult who offers a safe, parental relationship that is supportive of safe, parental relationship that is supportive of their aging-out needs (a mentor, or faith-based their aging-out needs (a mentor, or faith-based support family, is specifically included as support family, is specifically included as examples)examples)Vermont (Juvenile Law Practice Manual)Vermont (Juvenile Law Practice Manual): APPLA : APPLA placements must meet youth’s developmental, placements must meet youth’s developmental, educational, and other needs; the adult must be educational, and other needs; the adult must be in charge of the youth, exercise certain powers in charge of the youth, exercise certain powers and responsibilities, likely live with the youth, and and responsibilities, likely live with the youth, and have a familial relationship with the child that have a familial relationship with the child that continues beyond the life of the dependency casecontinues beyond the life of the dependency caseVirginiaVirginia: APPLA appropriate only if child has : APPLA appropriate only if child has severe chronic emotional, physical, or severe chronic emotional, physical, or neurological disabling condition requiring neurological disabling condition requiring residential treatment of 6 months or longer (but residential treatment of 6 months or longer (but state has a high rate of APPLAs)state has a high rate of APPLAs)

Florida Dependency Case Benchbook Florida Dependency Case Benchbook Section on APPLASection on APPLA

Calls for judges, in APPLA cases, to Calls for judges, in APPLA cases, to ensure caseworkers ensure caseworkers and guardians ad and guardians ad litemlitem have listed the services needed have listed the services needed by both the youth and their caregiver, by both the youth and their caregiver, and to continue to review the case and to continue to review the case at at least every six monthsleast every six months

Includes an Includes an ABA Center on Children ABA Center on Children and the Law APPLA Considerations and the Law APPLA Considerations ChecklistChecklist for use in permanency for use in permanency hearings where APPLAs are to be hearings where APPLAs are to be considered by the judgeconsidered by the judge