How can Juvenile Courts Better Address the Needs of Child Maltreatment Victims with Disabilities who are in Foster Care?

1. How can Juvenile Courts Better Address the Needs of Child Maltreatment Victims with Disabilities who are in Foster Care? Howard Davidson ABA Center on Children and the Law American Bar Association 740 15th Street, NW, Wash., DC 20005 202/662-1740 ctrchildlaw@abanet.org www.abanet.org/child

2. Data Presented at 2001 Congressional Hearing • Children with disabilities, on average, 3.4 times more likely to be maltreated 3.88 times more likely > emotional abuse 3.79 times more likely > physical abuse 3.76 times more likely > child neglect 3.14 times more likely > sexual abuse • 22% of A&N children > learning disabilities • Near-fatal child maltreatment leaves 18,000 kids permanently disabled each year (lost productivity: up to $1.3 billion if future earnings are only impaired 5-10%)

3. Evidence that we’re doing poorly addressing child maltreatment victim needs… • Federal Child & Family Services Reviews of all states show real scarcity in availability and delivery of mental health services for abused/neglected children in foster care, questionable quality of services delivered, and lack of routine mental health assessments even when clearly needed • All state “Program Improvement Plans” must address these shortcomings, with courts playing a helpful & important role

4. Federal Child Abuse Prevention and Treatment Act (CAPTA) • 42 U.S. Code Section 5101, last amended by the “Keeping Children and Families Safe Act of 2003”, Public Law 108-36 • Mandates every child have a GAL, attorney, CASA, or combination of these – all must now have “appropriate training” -- or should not be appointed by the judge (ABA suggests training address “special needs” of maltreated children with disabilities) (Judges should help assure such training)

5. Just being implemented: In all cases of substantiated maltreatment victims under age 3, CPS must have process for referring these children to the Part C, IDEA “Early Intervention Program” ($408 million in FY02) (Judges should assure that happens) • CAPTA’s Title II $43. million “Community-Based Prevention” funds are supposed to support local “disability services” & the “additional needs of families with disabilities through respite care/other services” (Judges should inquire how this $ can help families, including foster & kinship families, who are caring for children with disabilities)

6. 2003 CAPTA Change to the Federal Children’s Justice Act • State Children’s Justice Task Forces have a newly-designated area of focus: “the handling of cases involving children with disabilities or serious health-related problems who are victims of child abuse or neglect” (ABA doing survey of its impact) • CJA task forces can now use this federal $ ($17 million) for relevant activities, including judicial and legal education on better serving children with disabilities

7. Special Education Needs of Children in Foster Care • CDF estimate: 30-40% of foster children are receiving special education services • Infants and toddlers are the fastest growing part of the foster care system • IDEA 2004 reauthorization addresses needs of children in foster care (P.L. 108-446) • Addresses Part C (early intervention services) needs of infants/toddlers in care, defines “parent” to include foster parent, authorizes judges to appoint “surrogate parents”

8. More About IDEA 2004 “Special Ed” Amendments • Congress said judges, CASA’s, GAL, etc. should be involved in the evaluation (IEP) process for children in foster care • Addresses need for expedited assessments & continuity of special education when foster children change homes and schools • Judges have authority to remove a parent’s educational decision-making rights” and substitute another to represent child in that process

9. States must now describe to the DOE their “Part C” policies/procedures that require referrals to early intervention services for abused/neglected children under 3 (tracks CAPTA change) (Judges should encourage child advocates to be familiar with these) • Since foster parents can now serve in the parental role under IDEA, judges should identify long-term placements where they should perform this role • Question: When/how should judges “subrogate” or “extinguish” parental IDEA education rights (prior to a TPR)?

10. Question: How should judges exercise their new explicit authority under the IDEA to appoint surrogate parents for children in foster care? • “Reasonable efforts” are supposed to be made to have a surrogate parent assigned within 30 days of a school’s determination that a child needs one • A child welfare agency employee is not eligible for such an appointment • Appointee must have knowledge and skills to ensure adequate representation of the child

11. Question: What should judges do to help assure that those caring for maltreated children become familiar with child’s special education and early intervention needs? • Foster parents, relative caregivers, guardians, or other adults responsible for the child should be informed by the court of the special education and (for infants & toddlers) the early intervention process • IDEA amendments require an early intervention public awareness program (court & child welfare agency should be participating in such activities)

12. Several examples of innovative state legislation… • NH– SB354 (2002): Authorizes foster parents to act as educational advocates for foster children with educational disabilities • CA– AB458, Chap. 331 (2003): Adds to foster child rights “fair and equal access” to services, and no discrimination/harassment on basis of disability, and that caseworkers be trained about these rights • CA– AB490, Chap. 862 (2003): Authorizes area DD boards to do life quality assessments for juvenile court dependents

13. 9 other things judges can do(tertiary prevention) • Have court include child’s disability status in their data/tracking systems, and encourage child welfare agency to do so • Address needs of parents related to the anger, stress, and depression resulting from the care of a severely disabled child • Meet with education, mental health, developmental disabilities, early childhood, and medical authorities to identify ways of better serving child maltreatment victims with disabilities (including better coordination of services)

14. For older foster youth with disabilities, inquire regularly about independent living services (federal Foster Care Independence Act $ must provide for developmentally appropriate independent living services) • For foster youth with mental retardation, make sure both child welfare agency and state office for mental retardation services are providing (and coordinating) services (and that the MR designation is made prior to age 18 so there’s continuing eligibility for adult services – such as specialized housing, treatment, educational/vocational, & employment services)

15. Look into the foster youth’s eligibility for SSI, and assure help in identifying and establishing eligibility if youth is soon to age out of care. For SSI-eligible youth, look into who serves (and could serve) as “representative payee” and how money is used/preserved to meet child’s special needs (e.g., medical and rehabilitative care not covered by Medicaid). Eligibility establishment while in foster care can help facilitate transitional discharge (such as to supportive living arrangements or independent living program).

16. Monitor steps taken to keep child with serious disabilities safe from bullying, abuse, & sexual exploitation, and have attorneys address this • If youth with disabilities is approaching age 18, consider (if authorized) maintaining, with youth’s consent, court jurisdiction post-age 18 while that youth remains in agency custody (so judge & attorney can monitor services) • Determine services parents, relatives, or others need to adequately help disabled child, including access to & use of adoption & guardianship subsidies and respite care

17. Some legislative reform ideas… • Create statewide child welfare ombudsman (child advocate) offices, including a special mandate to look into maltreatment of children with disabilities in state-licensed facilities • Give government family preservation and support programs (e.g., federal “Safe and Stable Families law) targeted funding for families caring for maltreated children with disabilities

18. Require that child fatality review team, foster care review board, and citizen review panel members be trained in issues related to maltreatment of children with disabilities (and, like with the children’s justice task forces, mandate that there be a member of each group with disability expertise) • Empower child fatality review teams to conduct “serious injury reviews” in cases where children have been severely disabled as a consequence of maltreatment

19. Amend termination of parental rights law to specifically address grounds for TPR based upon a parent having inflicted a severe disability upon the child • Clarify definition of child medical neglect to include neglect of disabled child’s medical, educational, & emotional needs • Mandate joint law enforcement-CPS investigative protocols specifically address situations involving children with severe disabilities, including the provision of accessible facilities & trained interviewers, facilitators, interpreters (good CJA project)

20. Specify that foster care and kinship care programs assure alternative caretakers be trained and supported in caring for seriously disabled children, including respite care access and financial subsidies to cover the needs of the children they care for • Enact state laws to track federal IDEA changes on judicial authority to appoint surrogate parents, foster/kinship parent roles in evaluations, and responsibilities of lawyers and CASA to participate in the process (lack of parental involvement must not inhibit evaluations & services to child)