Preventing Sex Trafficking & Strengthening Families Act Implementation in Nebraska Sarah Helvey, J.D., M.S. Child Welfare Program Director Nebraska Appleseed

About Nebraska Appleseed Nebraska Appleseed is a non-profit organization that fights for justice and opportunity for all Nebraskans. We take a complex approach to systemic issues: Child welfare Health care access Immigration policy Poverty We take our work wherever it does the most good – at the courthouse, at the statehouse, or in our community.

Roadmap Overview of the Preventing Sex Trafficking and Strengthening Families Act (SFA) Implementation in Nebraska Trafficking provisions Nebraska law and what attorneys can do Normalcy provisions Considerations Discussion and Questions

Preventing Sex Trafficking and Strengthening Families Act P.L. 113-183

SFA Overview Passed unanimously by Congress on September 18, 2014, signed by President Obama on September 29, 2014 Some provisions were effective upon enactment, many went into effect on September 29, 2015, and others are phased in up to 7 years after enactment (2021)  

Preventing Sex Trafficking & Strengthening Families Act Title I – Protecting Children and Youth at Risk of Sex Trafficking Subtitle A – Identifying and Protecting Children at Risk of Sex Trafficking Subtitle B – Improving Opportunities for Children in Foster Care and Supporting Permanency Subtitle C – National Advisory Committee (on sex trafficking of children and youth in the U.S.) Title II – Improving Adoption Incentives and Extending Family Connection Grants Subtitle A – Improving Adoption Incentive Payments Subtitle B – Extending the Family Connection Grant Program Title III – Improving International Child Support Recovery P.L. 113-183

Nebraska Implementation Trafficking: Trafficking Task Force and Attorney General’s plan LR 186 (Sen. Morfeld) - interim study to examine state services available to victims of human trafficking in Nebraska Normalcy Normalcy Task Force LR 248 (Sen. Campbell) – interim study to examine the federal Preventing Sex Trafficking and Strengthening Families Act and its implementation in Nebraska NDHHS implementation LB 296 (Sen. Kolterman)

SFA Subtitle A – Identifying and Protecting Children at Risk of Sex Trafficking Requires states to: Identify, document, and determine services for children who are or are at risk of sex trafficking Identify and report data on trafficking Locate and respond to children who run away from foster care

Nebraska Law - trafficking Neb. Rev. Stat. § 28-830(14) Sex trafficking of a minor means knowingly recruiting, enticing, harboring, transporting, providing, or obtaining by any means or knowingly attempting to recruit, entice, harbor, transport, provide, or obtain by any means a minor for the purpose of having such minor engage in commercial sexual activity, sexually explicit performance, or the production of pornography or to cause or attempt to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of pornography

Nebraska Law - trafficking LB 255 (Sen. McGill, 2013) Added sex and labor trafficking of a minor to the list of activities that constitutes criminal child abuse Provided an affirmative defense to criminal charges of prostitution for victims of trafficking Provided immunity from prosecution for a prostitution offense for children under 18 Required law enforcement to place a victim of trafficking person under 18 into temporary custody under 43-285 and immediately report to DHHS which shall commence an investigation within 24 hours, and Increased the existing criminal penalties for those found guilty of sex or labor trafficking LB 294 (Sen. Scheer, 2015) - enhanced civil protections and created a fund for victims of trafficking

What attorneys can do First step: awareness Your role is different if you are a GAL vs. child’s counsel Considerations: Safety and health Placement Trauma-informed services Immigration status Prevention Resources

SFA Subtitle B: Improving Opportunities for Children in Foster Care and Supporting Permanency Requires states to develop reasonable and prudent parent standard Limits and places additional requirements when youth receive Another Planned Permanent Living Arrangement as a court-ordered permanency goal Gives youth age 14+ certain rights and requires that the case plan be developed in consultation with youth age 14+ Requires case reviews to assure youth age 18+ are not discharged without a copy of certain records and information

SFA: Reasonable and Prudent Parent Standard States must implement the reasonable and prudent parent standard for caregivers of children in out of home care. The term ‘reasonable and prudent parent standard’ means “the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interest of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the State to participate in extracurricular, enrichment, cultural, and social activities.” The term ‘age or developmentally-appropriate’ means “activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally-appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group…” SFA §§ 111(a)(1)-(2)

SFA: Reasonable and Prudent Parent Standard This standard applies to “foster family homes” and “child care institutions” Contracts with child care institutions must contain the requirement that each facility always has on-site an individual who can act as a “reasonable and prudent parent” to make decisions. States must certify that caregivers have the skills and knowledge to use the standard. SFA §§ 111(b), 111(a)(2)(C)

SFA: Liability Protections for Caregivers States must implement policies to provide caregivers appropriate liability protection when exercising the reasonable and prudent parent standard. SFA § 111(b)

Nebraska: Reasonable and Prudent Parent Standard Existing DHHS regulations (390 NAC 11): When a child is in out-of-home placement, the worker will involve at least the parent, foster parent and child in decision-making. The foster parent or residential staff is able to make decisions regarding the child’s family routine, discipline and hygiene (in accordance with DHHS policy, guidelines and licensing requirements) 390 NAC 11 also outlines decision-making around: purchase of a vehicle, obtaining driver’s license, employment, hunting, leisure, military service, photographs, religion, travel, attending non-public school, name change, and medical treatment

Nebraska: Reasonable and Prudent Parent Standard Nebraska will need to amend these regulations and statute to permit caretakers to use RPPS and to include liability protections. Changes should also be made to require specific training and designation of a decision-maker at child care institutions. DHHS issued proposed regulations regarding the RPPS, which had a public hearing on October 29, 2015. Effective September 29, 2015, DHHS issued a policy memo on the RPPS, which includes an application guide for use of the RPPS and examples of areas where the RPPS may be applicable (such as sleepovers, youth employment, driver’s licenses, and youth participation in social media).  

Considerations: Reasonable and Prudent Parent Standard Policy and Practice Considerations Questions to Ask from the Bench What extracurricular activities is the youth involved in? What opportunities has the youth had to socialize with his or her peers? Has the child traveled at all? Does the young person have a job? What activities does the child wish to participate in? What barriers has the caregiver experienced in connecting the youth to extracurricular and social activities? Is the youth participating in all of the activities he/she would like to participate in? If not, why not? What training will be provided to caregivers and others? How will this be implemented in group home settings? How will payment be handled for costs associated with normalcy activities, such as extracurricular activities, sports, etc.? What is the balance of rights and authority between foster parents, biological parents, DHHS, the court and the child/youth? How can Nebraska law and policy best balance and respect these rights?

SFA: APPLA States must eliminate the use of APPLA for youth under age 16. At each permanency review, for youth 16+ w/ a plan of APPLA: The state agency must: Document the intensive and ongoing efforts to find a family placement Document the steps the agency is taking to ensure that the child’s caregiver is following the reasonable and prudent parent standard. Document the steps the agency is taking to ensure that the child has regular, ongoing opportunities to engage in “age and developmentally appropriate activities (including by consulting with the child in an age- appropriate manner about the opportunities of the child to participate in the activities).” The court must: Ask the child about their desired permanency plan Make a finding explaining why, as of the date of the hearing, APPLA is the best permanency plan for the child and provide compelling reasons why it is not in the child’s best interest to be placed with a parent, relative, or in a guardianship or adoption. SFA §§ 112(a)(1), 112(b)(1)

Nebraska: APPLA We refer to APPLA as independent living in Nebraska Effective September 29, 2015, DHHS issued a policy memo on the Transitional Living Planning, which outlines documentation that must occur at each age Existing Nebraska statute: Allows APPLA as a permanency objective of last resort, but there is no age requirement (Neb. Rev. Stat. § 43-1312) Requires transition planning at age 16+, but does not specify documentation re: efforts for family placement, RPPS, age appropriate activities (Neb. Rev. Stat. § 43-1311.03) Court findings are not in existing state statute

Considerations: APPLA Policy and Practice Considerations Questions to Ask from the Bench The court is required to ask the child about their desired permanency plan. How can we strengthen efforts to have children attend court and encourage their participation? How can the required consultation with the child about opportunities to engage in age appropriate activities be done in a youth-friendly and meaningful way? The state agency must document steps to ensure the foster parent is following the RPPS, should they also document communication with bio parent around RPPS decision-making? What is the youth’s desired permanency outcome? What efforts has the child welfare agency made for family placement? Has the caseworker contacted family members? Which ones? [If APPLA is listed as the permanency goal]: Is the permanency goal of APPLA in the best interest of the child? If so, why? Why is it not in the child’s best interest to be returned home, adopted, placed with a legal guardian or with a fit and willing relative? What steps is the child welfare agency taking to ensure that RPPS is being followed? What opportunities does the youth have to engage in age- or developmentally-appropriate activities?

SFA: Youth Participation in Case Planning For youth ages 14+: The case plan shall be developed: In consultation with the child, and At the option of the child, with up to 2 members of the case planning team who are chosen by the child and who are not a foster parent of, or a caseworker for, the child. One of these individuals may be designated as the child’s advisor and, as necessary, advocate, with respect to the application of the RPPS and for the child on normalcy activities. The state may reject an individual selected by the child to be a member of the team if the state has good cause to believe the individual would not act in the best interests of the child. The case plan must describe the services needed for the youth to transition to “a successful adulthood” (previously “independent living”). SFA §§ 113(a)-(c)

Nebraska: Youth Participation in Case Planning Effective September 29, 2015, DHHS issued a policy memo on the Transitional Living Planning, which outlines documentation that must occur at each age. Existing Nebraska statute: Requires DHHS to develop a transition plan “at the direction and involvement of the child to prepare for the transition from FC to adulthood” for youth age 16+ (Neb. Rev. Stat. § 43-1311.03, see also 43-285) But does not require that this be specifically documented by DHHS and begins at age 16 instead of 14 Does not include “successful” adulthood to track federal language Requires the transition plan to be “developed and frequently reviewed by the department in collaboration with the child's transition team. The transition team shall be comprised of the child, the child's caseworker, the child's guardian ad litem, individuals selected by the child, and individuals who have knowledge of services available to the child” (Neb. Rev. Stat. § 43-1311.03) But is not specific that the state agency documents that the child has been given an opportunity to involve 2 individuals who are not the foster parent or case worker staff.

Considerations: Youth Participation in Case Planning Policy and Practice Considerations Questions to Ask from the Bench What are best practices for authentically engaging young people in case planning? How can case planning in Nebraska be more youth-led? How can we support young people in identifying supportive individuals on their team? How can we incorporate the option to have a “child’s advisor” on normalcy? Who might play this role and how can it be helpful to young people? How does this advisor interact with other individuals and professionals in the case? What does it mean that the goal was to help youth transition to “independent living” and it is now to “a successful adulthood”? Is the youth involved in the development of his/her case plan? Which individuals did the youth choose to be part of his/her case planning team? If the state rejected an individual selected by the youth, what were the reasons for rejecting that individual?

SFA: Rights Notification Beginning at age 14, the state must document in the case plan, along with the youth’s signature, that they have been provided a copy of their rights and explained them in an age-appropriate way. The list of rights must at least include the rights of the child with respect to: Education Health Visitation Court participation The right to be provided with their credit report and assistance in repairing any problems, and to be provided with a copy of their birth certificate, social security card, health insurance information, medical records and State ID or driver’s license. The right to stay safe and avoid exploitation SFA § 113(d)

Nebraska: Rights Notification DHHS policy now requires youth to be provided with a list of rights, but there is nothing in statute or regulations Existing Nebraska statute requires youth to get a copy of their credit report, but at age 16+, not 14 as required by the SFA (Neb. Rev. Stat. § 43- 1311.03(1)(d))

Considerations: Rights Notification Policy and Practice Considerations Questions to Ask from the Bench What rights exist? What enforcement mechanisms should be put into place? When should the list of rights be provided to youth and their signature obtained? How can we intersect the trafficking work with the requirement to notify youth of the right to be safe and avoid exploitation? Has the youth received a copy of his/her rights? Does the youth have any questions about these rights? Has the agency conducted a credit report for the youth? Were there any inaccuracies in the report? If so, were they resolved? How?

SFA: Pre-Discharge Documents As part of the case review system, agencies must provide youth leaving care at age 18 or older (who have been in FC for at least 6 months) the following (if eligible to receive such document): Birth certificate Social security card Health insurance information Medical records State ID or driver’s license SFA § 114(a)(2)

Nebraska: Pre-Discharge Documents DHHS policy now requires caseworkers to provide youth with these documents as required by the SFA. Existing Nebraska statute requires DHHS to provide youth with a copy of their birth certificate and facilitate securing a social security card when eligible and all documentation required for enrollment in Medicaid under the ACA category (Neb. Rev. Stat. § 43-1311.03(7)) Does not specify other health insurance information, medical records, state ID or driver’s license, and does not include B2I

Considerations: Pre-Discharge Documents Policy and Practice Considerations Questions to Ask from the Bench Are there other documents that would be helpful for young people? What is the best process for providing these documents, and how should this be implemented into the transition planning process? How can this be youth-directed? What does health insurance information entail? What additional help is needed to assist undocumented youth who are aging out of care? Has the youth been provided with his/her: birth certificate? Social Security card? Health insurance information? Medical records? State- issued ID? If the youth has not been provided with one or more of these key documents, what steps is the agency taking to secure the documents and provide them to the youth?

Questions Have these issues come up in your practice? What challenges and opportunities do you see with this new law?

Child Welfare Program Director Sarah Helvey, J.D., M.S. Child Welfare Program Director Nebraska Appleseed 941 “O” Street, Ste. 920 Lincoln, NE 68508 (402) 438-8853, ext. 106 shelvey@neappleseed.org