Aging Out of Foster Care The Legal Perspective

1. Aging Out of Foster CareThe Legal Perspective Mary Christine Reed Texas Foster Youth Justice Project mcreed@trla.org 512-374-2729 Richard LaVallo Legal Director rlavallo@advocacyinc.org 512-454-4816

2. Texas Foster Youth Justice Project • Mary Christine Reed – Attorney/Project Director • Assists current and former foster youth statewide with legal problems • Need help? Call 1-877-313-3688 or email info@texasfosteryouth.org • Or visit www.texasfosteryouth.org • A Guide for Those “Aging Out” of Foster Care in Texas

4. Examples of Cases Obtaining CPS records Attending court hearings Communicating with court about placement, school, and other care services Health care issues, including having a say in medication and handling transitional Medicaid Accessing programs and training to move from foster care to independent living Staying in contact with siblings Education issues including college/vocational school, high school completion, and financial aid Juvenile matters and sealing records Changing/fixing name Obtaining identification documents Obtaining foster youth benefits Immigration

5. Long Term Process • Preparations for “aging out” should start well before age 18 • Consider whether or not in permanent or temporary managing conservatorship (regardless of stage of dependency proceeding)

6. Criminal Records • Resolved? • Sentence Completed? • Tracking down details • Warrants after age 18 • Records Sealed? • Long term consequences

7. The Texas Experience • Laws strong; policies and procedures weak • Overworked caseworkers, inexperienced with transitional youth • The services of Department of Family and Protective Services are difficult to access • Attorney Ad Litem representation varied • Court oversight spotty

8. Identification Documents • Need • Birth Certificate (An original, certified copy—nota photocopy, small, plastic-covered card, or hospital “certificate.”) • State Identification Card or Driver’s License • Original Social Security Card • Original immigration documents • Required by Texas law at age 16 • Name Consistency • Failed adoptions • Biological father’s/mother’s last name • Attorney Ad Litem – Inspect Originals • Caseworkers are not legal experts

9. Immigration/Citizenship • Caseworkers are not immigration experts • Lawyer with immigration experience or accredited representative • Special Immigrant Juvenile Status (SIJS) • Complete before 18 (cannot be obtained after leaving foster care and passing age 18) • Takes a long time • Criminal record complication • U-Visa, T-Visa, establish citizenship • Attorney monitoring and advocacy for progress

10. Education • Tuition Waiver and Education and Training Voucher (Education Code Chapter 54) • Financial Aid

11. Education (cont.) Necessary foundational skills • Credit recovery • State Virtual School • Special Education Service • Staying in the same school • McKinney-Vento • Fostering Connections • State law • High School can stay in same school, even if placed outside • Transportation

12. Staying in Foster Care • Must attend high school, higher education, vocational education, or training program, or be employed 80 hours per month, or have a documented disability (Texas Family Code § 264.101) • Lack of appropriate placements • Can leave and then return but no guarantee of spot • Criminal record barriers

13. Extended Court Jurisdiction • Court can extend on own motion so guardianship can be sought • Aging-out and aged-out adults can request court to extend jurisdiction up until 21st birthday • Seek oversight, access, and enforcement of services • Continue or renew ad litem appointment • Court appointed guardian can request extension • Useful when Preparation for Adult Living Program and other department resources don’t/won’t respond • Barriers • No attorney to initiate extension • Judge not proactive

14. Transitional Services • Preparation for Adult Living classes • Experiential Skills beginning at age 14 • Meaningful transition planning with follow-up • Services including housing, education, job training, and college preparation.

15. Attorney Ad Litem Representation • Mandatory only in Temporary Managing Conservatorship Stage • Responsibilities Tex. Fam. Code § 107.003 • Meet with youth before each court hearing • Interview people involved in the case or with significant knowledge of history of case • Participate in court hearings • Follow the directions of the client, the youth; seek to find out the child's objectives (goals) of representation • Obtain and review records related to the youth

16. Attending Court Hearings • Youth shall attend hearings unless court specifically excuses them • The court shall consult with the child in a developmentally appropriate manner • Tex. Fam. Code • § 263.501—placement review • § 263.302—permanency • Transition planning, medical consent, training • Resources for advocacy with courts: • www.texasfosteryouth.org/resources.html • Where are All The Children? Increasing Youth Participation in Dependency Proceedings http://ssrn.com/abstract=1092668

17. Judicial Review ofMedical Care • At each permanency or placement review hearing or more often if ordered by the court, the court shall review the medical care provided to a foster child. • Court report prepared by the Department • At each hearing, the foster child shall be provided with an opportunity to talk to the judge about his or her views on the medical care being provided to him or her. • Attorney ad litem should advocate to the court on behalf of the child’s expressed preferences regarding medical care.

18. Consent to Medical Care by Foster Youth • Before a foster child turns 16, the Department or the private agency providing substitute care or case management services must advise the foster child of the right to a hearing to determine whether the foster child may consent to medical care. • The foster child must be provided training on informed consent and the provision of medical care as part of the Preparation for Adult Living Program. Tex. Fam. Code § 266.010(l)

19. Hearing to Determine Foster Child’s Capacity to Consent to Medical Care • A foster youth who is 16 may consent to medical care with the court determination that that youth has capacity to consent. • Determination made at a permanency or placement review hearing or on its own motion. • Youth or the child’s attorney ad litem may file a petition for a hearing to determine capacity to consent. Tex. Fam. Code § 266.010(a)-(c)

20. Hearing to Determine Foster Child’s Capacity to Consent (cont.) • The court may issue order authorizing youth to consent to some or all medical care. • If the court determines that a youth lacks the capacity to consent, the court can consider the youth’s capacity to consent at subsequent hearings. • If a youth lacks the capacity to consent, the person previously authorized to consent to medical care shall continue to make medical decisions. Tex. Fam. Code § 266.010(a)-(c)

21. Motion to Override a Foster Child’s Refusal to Consent to Medical Care • If a foster youth over 16 has been determined to have the capacity to consent and refuses to consent to medical care, the Department or the private agency providing substitute care or case management services may file motion requesting order authorizing the medical care. • Motion must include the youth’s reasons for refusing medical care and a statement signed by the physician stating why the medical care is necessary. • The court shall appoint an attorney ad litem for the child if one has not already been appointed. Tex. Fam. Code § 266.010(d)&(e)

22. Transitional Benefits • Transitional Living Allowance: $1,000 maximum benefits, $500 per month max • Aftercare Room and Board: $3,000 maximum benefits, $500 per month max, paid directly to landlord, utility company, grocery store voucher—for emergencies, in theory • Transitional Medicaid—up to age 21 • Health Care Benefits for Former Foster Care Youth (Ages 21 to 22) in higher education • After Care Case Management (up until age 21)

23. Preparation for Adult Living Program • Preparing youth in care • Classes • Transition Planning • Conferences, training events • Aged out youth services including benefits • Regional PAL Staff • Contracts with private agencies for services • http://www.dfps.state.tx.us/child_protection/preparation_for_adult_living/

24. National Resource 2008 report: University of Chicago Law School Foster Care Project’s Protocol for Reform • http://webcast-law.uchicago.edu/pdfs/fostercareprotocol.pdf

25. Advocacy, Inc. • Richard LaVallo – Legal Director • Represent foster youth with disabilities including Legal Advocacy for Dually Managed Children Project (LADMCP) • Need help? Call (800) 252-9108 • www.advocacyinc.org

26. Texas Foster Children’s Bill of Rightshttp://www.dfps.state.tx.us/Child_Protection/Foster_Care/rights.asp • When I am age 16 and older in foster care, I also have the right: • To attend Preparation for Adult Living (PAL) classes and activities as appropriate to my case plan. • To a comprehensive transition plan that includes planning for my career and help to enroll in an educational or vocational job training program. • To be told about educational opportunities when I leave care. • 4 To get help in obtaining an independent residence when aging out.

27. Texas Foster Children’s Bill of Rights (cont.) • To one or more Circle of Support Conferences or Transition Planning Meetings. • To take part in youth leadership development opportunities. • To consent to all or some of my medical care as authorized by the court and based on my maturity level. For example, if the court authorizes, I may give consent: • to diagnose and treat an infectious, contagious, or communicable disease • to examine and treat drug addiction • for counseling related to preventing suicide, drug addiction, or sexual, physical, or emotional abuse • for hospital, medical, or surgical treatment (other than abortion) related to the pregnancy if I am unmarried and pregnant • If I consent to any medical care on my own, without the court or DFPS involved , then I am legally responsible for paying for my own medical care. • To request a hearing from a court to determine if I have the capacity to consent to medical care (§266.010).

28. Texas Foster Children’s Bill of Right (cont.) • To help with getting my driver’s license, social security number, birth certificate, and state ID card. • To seek proper employment, keep my own money, and have my own bank account in my own name, depending on my case plan and age or level of maturity. • To get necessary personal information within 30 days of leaving care, including my birth certificate, immunization records, and information contained in my education portfolio and health passport. Plus the 35 other rights given to all children and youth in foster care.

29. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care Foster Children with Mental Retardation • Have Department refer child to local MHMR Center for placement on HCS waiting list. • Annually, caseworker should check status on HCS waiting list. • If a child’s placement is changed, make sure the child is still on HCS waiting list. • If child does not get an HCS slot at 18 from Texas Department of Aging & Disability Services, seek one of the HCS slots the Department gets from the legislature.

30. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care Can’t wait until youth with disabilities is 17 to start looking for permanent placement • Children who are medically fragile or with significant disabilities are placed in nursing homes or state schools. • Contact EveryChild, Inc. at (877) 742-8844 www.everychildtexas.org

31. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care Youth with mental illness/severe emotional disturbances • These youth often bounce between RTCs, placed in shelters and caseworker’s offices. • Child placement agencies often do not want these youth. • Compel Department to go through child’s case records and look for relatives . • Get these relatives licensed as foster parents.

32. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care School districts have a duty to develop transition plans for youth with disabilities • Beginning when a youth with disabilities is 16, and updated annually thereafter, the ARD committee must develop: • Appropriate, measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent-living shelters; • The transition services (including courses of study) needed to assist the child in reaching those goals; and • Beginning one year before a youth turns 18, a statement that the youth has been informed of his rights under IDEA, if any, that will transfer to the youth at the age of 18. • 20 U.S.C. § 1414(d)(1)(A)(i)(VII)

33. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care Apply for SSI well before youth age out Many youth who are eligible for SSI are not on SSI because of structure of federal funding for foster care. Can now apply for SSI 90 days before youth leaving foster care. (POMS Section SI 00601.011 – Jan. 2010) Necessary to begin application process and gather necessary medical records and other documentation that support disability, even if standards for disability are different for children. SSI application process can take years and requires extensive documentation and navigation; vulnerable youth will have barriers to accessing it when out of care.

34. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care Guardianship • APS/DADS will only seek guardianships for youth with mental retardation. • Court-Initiated Guardianships. Tex. Prob. Code §§ 683 and 683(A) • Have Department send letter to probate court. • Seek extended court jurisdiction if necessary.

35. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care Since PAL is often not appropriate for youth with disabilities and transitional living services must provide reasonable accommodations for youth with disabilities.

36. Practical Tips in Representing Youth with Disabilities Who Are Aging Out of Foster Care Refer youth, before turning 18, to the Texas Department of Assistive & Rehabilitative Services (every state has a similar program) • Vocational Rehabilitative Programs • Transition Planning • Supported Employment • Independent Living Services If a youth is denied DARS services, contact Advocacy, Inc. at (800) 252-9108 for assistance through the Client Assistance Program (CAP). If a youth resides in another state, there is a link called “Get Help in Your State” at the National Disability Rights Network home page at www.ndrn.org where you can obtain information about the CAP program in your state.

37. Opportunities to Raise Aging Out Issues Within Context of CPS Case Initial Permanency Hearing Within 180 days after the appointment of TDFPS as temporary managing conservator, the court must: • Evaluate the parties’ compliance with the service plan and whether TDFPS has made reasonable efforts; • Evaluate whether the child’s placement in substitute care meets the child’s needs and recommends other plans or services to meet the child’s special needs or circumstances; and • For foster child 16 or older, identify the services needed to assist the child in transition to adult life.

38. Opportunities to Raise Aging Out Issues (cont.) Placement Review Hearings Under Tex. Fam. Code § 263.503, at least once every six months until the foster child is adopted or becomes an adult, the court must determine whether: • The child’s current placement is necessary, safe and appropriate for meeting the child’s needs and in the best interest of the child; • Efforts have been made to ensure that the child’s placement is in the least restrictive environment consistent with the best interest and special needs of the child if the child is placed in institutional care; • The services that are needed to assist a child who is at least 16 in making the transition from foster care to independent living are available in the community; • Other plans or services are needed to meet the child’s special needs or circumstances; • The Department has exercised due diligence in attempting to place the child for adoption if parental rights have been terminated; and • The Department has made reasonable efforts to finalize the permanency plan for the child.

39. Opportunities to Raise Aging Out Issues (cont.) Motion for Further Temporary Orders At any time prior to the entry of a final order, the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child under Tex. Fam. Code § 105.001(a).

40. Opportunities to Raise Aging Out Issues (cont.) Fair Hearings Under 42 U.S.C. § 671(a)(12) and 40 Tex. Admin. Code § 700.310, a foster child has the right to a fair hearing to appeal the denial, reduction, or termination of a service that he or she requested.

41. Aging Out of Foster CareWhile Committed to theTexas Youth Commission

42. Aging Out While in the TYC HB 1629 was enacted to afford protection to foster youth who were committed to TYC. This new legislation requires the following: • The consent to medical care provisions for foster youth apply to foster youth committed to the TYC. (Tex. Fam. Code § 32.001(b)) • The juvenile court handling the delinquency case may communicate with the court having jurisdiction over the foster child. The parties in the foster-care case may participate. (Tex. Fam. Code § 54.04) • The court may appoint an attorney ad litem or a guardian ad litem for the youth if he or she does not already have one. (Tex. Fam. Code § 107.0161)

43. Aging Out While in the TYC (cont.) • The court having jurisdiction over the foster child shall conduct a review of the youth’s commitment to TYC or release under TYC supervision. (Tex. Fam. Code § 263.002(2)) • A youth may attend a permanency review or placement review hearing in person, by telephone or video conference. (Tex. Fam. Code §§ 263.302, 263.501(f), 264.0091)

44. Aging Out While in the TYC (cont.) • The Department shall be required to prepare a permanency-progress or placement-review report or a placement-review report that addresses whether the youth’s needs for treatment, rehabilitation and education are being met, and then the court determines if the youth’s needs are being met. (Tex. Fam. Code §§ 263.303(b), 263.306(a), 263.502(c)(7), 263.503(7)) • The court having jurisdiction over the youth shall not dismiss the suit affecting the parent-child relationship if the youth is committed to TYC. (Tex. Fam. Code § 263.501(g))

45. Aging Out While in the TYC (cont.) • The Department and TYC shall share records and information regarding the youth. (Tex. Hum. Res. Code § 61.0731(d)) • The Department has the same rights of parents under TYC’s Parent’s Bill of Rights. (Tex. Hum. Res. Code § 61.0763(e)) • TYC caseworker shall submit written report to the court and parties in the CPS case that provides results of assessments, information regarding the youth’s placement in TYC treatment programs and a description of the youth’s progress. (Tex. Hum. Res. Code § 61.0766)

46. Aging Out While in the TYC (cont.) • Joint rules shall be adopted to ensure that the Department and TYC cooperate in providing services and transition planning to the youth. This includes the Department’s caseworker visiting the child in person at least once per month in TYC, and TYC providing timely notice to the Department’s caseworker and child’s attorney ad litem or guardian ad litem of treatment team meeting, medical appointments, ARD meetings, grievance disciplinary hearings, reports of abuse or neglect and any significant medical conditions of the child. (Tex. Hum. Res. Code § 61.0767)

47. How the Legal Advocacy for Dually Managed Children Project (LADMCP) Addresses Aging Out

48. How was this project developed? The Supreme Court of Texas Permanent Judicial Commission for Children, Youth and Families formed a workgroup in 2008 to look at outcomes for youth in the long-term conservatorship of DFPS but placed in TYC or SSLC facilities, formerly known as state schools. One key issue is that youth often lacked legal representation while caught in and between two systems. To address this problem, the Children’s Commission is partnering with Advocacy, Inc., the Rees Jones Foundation, Texas Access to Justice Foundation, and the Meadows Foundation to provide this population legal representation.

49. How do courts participate in this project? Judges can appoint Advocacy, Inc. as attorney ad litem or co-attorney ad litem for foster children who are placed in TYC or SSLC facilities. These attorneys have experience working with children with disabilities and the multiple agencies these youth encounter once they are in state care. The attorneys will provide ad litem representation aimed at better ensuring the safety, well-being, health, mental health, and educational needs of youth are met. They will also ensure that the youth receive wrap-around transition planning so that when discharged, their placements are more likely to be successful and stable.

50. Will courts that appoint project attorneys to cases be expected to pay for their representation or costs? No. All costs related to the legal representation provided by Advocacy, Inc. are covered by grant funding for this project. Advocacy, Inc. will not seek fees from courts that appoint them as attorney ad litem.