Legal Permanency for Adolescents Entering and Remaining in Foster Care: State Legislative, Policy, and Judicial Reforms to Avoid APPLAs Howard Davidson, JD Director, ABA Center on Children and the Law americanbar.org Pathways Conference New Orleans June 27, 2012

As the percentage of older youth entering and remaining in care increases, it is necessary to understand how legislation, agency policies, and court practice reforms could better facilitate rapid permanency alternatives to APPLA, or structure APPLAs more appropriately I believe our goal with every youth who has an APPLA should be, through reforms in law, policy and practice: “That they leave the system better off, in a measurable way, than when they entered the system”

What Does APPLA Mean? “Another”: Not reunification, permanent placement with fit and willing relative, guardianship, or adoption “Another”: Not reunification, permanent placement with fit and willing relative, guardianship, or adoption “Planned”: Suggests a caseworker has considered multiple permanency options and carefully considered and selected a placement in the child’s best interests “Planned”: Suggests a caseworker has considered multiple permanency options and carefully considered and selected a placement in the child’s best interests “Permanent”: Suggests the placement can not be disrupted by parental, relative, or agency action (it is intended to be stable), and it will extend at least to the youth’s 18 th birthday, if not beyond “Permanent”: Suggests the placement can not be disrupted by parental, relative, or agency action (it is intended to be stable), and it will extend at least to the youth’s 18 th birthday, if not beyond “Living”: A child will in fact be living (residing) there “Living”: A child will in fact be living (residing) there “Arrangement”: Like “planned”, the caseworker and the care provider have agreed on the permanency of this placement (& it should have supervisor approval) “Arrangement”: Like “planned”, the caseworker and the care provider have agreed on the permanency of this placement (& it should have supervisor approval)

What APPLA Is -- or Is Not AFCARS data does not include an APPLA category! AFCARS data does not include an APPLA category! I think more federal CFSR and IV-E oversight is needed to monitor over-use and inappropriate use of APPLAs I think more federal CFSR and IV-E oversight is needed to monitor over-use and inappropriate use of APPLAs Long-Term Foster Care was not thought to be permanent, was over-used, and was seen as an excuse for not pursuing other permanency options-- thus its replacement by Congress (ASFA) with APPLA Long-Term Foster Care was not thought to be permanent, was over-used, and was seen as an excuse for not pursuing other permanency options-- thus its replacement by Congress (ASFA) with APPLA Nether Independent Living nor Emancipation is considered to be a legitimate permanency goal, yet Emancipation is one of the permissible AFCARS case outcomes Nether Independent Living nor Emancipation is considered to be a legitimate permanency goal, yet Emancipation is one of the permissible AFCARS case outcomes

(1)(E) APPLA: What the Federal Law Says 42 U.S.C. 675(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.”

(5)(C) 42 U.S.C. 675 (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 Accompanying the House ASFA bill (H.R.867), H.Rpt (April 28, 1997): From U.S. House of Representatives Report Accompanying the House ASFA bill (H.R.867), H.Rpt (April 28, 1997): “The Committee intentionally deleted non- relative long term foster care from this list (of possible permanency outcomes for children in foster care) to emphasize that such an arrangement should be rarely used and should not be considered a permanent placement.” – Yet, many states still have the term LTFC in their laws and policies Congress made it clear: An APPLA must be permanent, and it is supposed to be a LAST RESORT permanency option

The ASFA Regulations: 45 CFR Permanency 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 examples of “compelling reasons” for an APPLA: 1)An older teen specifically requests emancipation as their permanency plan 2)Parent and youth have a significant bond but parent can’t care for youth because of an emotional or physical disability and specific foster parents have committed to raising the youth to the age of majority and to facilitate visits with the disabled parent 3)An Indian tribe has identified APPLA as the appropriate plan

From the Children’s Bureau Child Welfare Policy Manual Question: May a State include placement in a permanent foster family home and emancipation in the list of permanency goals…that are exempt from the compelling reason requirement…? Answer: No. Section 475 (5)(C) of the Act specifies that the only permanency options the State may set without a compelling reason to do so include reunification, adoption, legal guardianship, or placement with a fit and willing relative. Source/Date: Preamble to the Final Rule (65 FR 4020) (1/25/00) Legal and Related References: Social Security Act - section 475 (5)(C); 45 CFR

From: Renne and Mallon, “Unpacking Permanency for Youth: Overuse/Misuse of APPLA as a Permanency Goal” in Child Welfare in the 21 st Century “…independent living as shrouded in the mantle of LTFC has become for many workers the convenient default plan for adolescents in foster care” “…independent living as shrouded in the mantle of LTFC has become for many workers the convenient default plan for adolescents in foster care” “In many cases, the misuse of APPLA as a permanency goal has replaced what was formerly known as LTFC, which was clearly deleted (from ASFA)” – “Using APPLA, without providing supports to establishing permanency, as a replacement for LTFC is an unsuitable permanency goal” because it has seldom been stable, may disrupt often, and may lead to frequent youth moves “In many cases, the misuse of APPLA as a permanency goal has replaced what was formerly known as LTFC, which was clearly deleted (from ASFA)” – “Using APPLA, without providing supports to establishing permanency, as a replacement for LTFC is an unsuitable permanency goal” because it has seldom been stable, may disrupt often, and may lead to frequent youth moves

“Emancipation certainly has specific relevance for some older children who are close to transitioning out of the foster care system, but it is not and should not be considered a permanency pathway for youth” “Emancipation certainly has specific relevance for some older children who are close to transitioning out of the foster care system, but it is not and should not be considered a permanency pathway for youth” When “APPLA is selected as the permanency goal, it may sometimes turn out to be temporary…at one hearing the plan might be APPLA, but by the following hearing, a relative may come forward (willing to care for the child on a permanent basis)” When “APPLA is selected as the permanency goal, it may sometimes turn out to be temporary…at one hearing the plan might be APPLA, but by the following hearing, a relative may come forward (willing to care for the child on a permanent basis)” Can Group Care be an APPLA? Yes, if its to be permanent during the youth’s entire minority, if it is a stable and predictably continuous arrangement, and ideally if there is also an advocate or guardian committed to helping the youth through to adulthood and their exit from the facility Can Group Care be an APPLA? Yes, if its to be permanent during the youth’s entire minority, if it is a stable and predictably continuous arrangement, and ideally if there is also an advocate or guardian committed to helping the youth through to adulthood and their exit from the facility

AFCARS Case Plan Goal Data Element Definitions Construed by HHS to Fall Within APPLA Long Term Foster Care—Because of specific factors or conditions, it is not appropriate or possible to return the child home or place her or him for adoption, and the goal is to maintain the child in a long-term foster care placement Long Term Foster Care—Because of specific factors or conditions, it is not appropriate or possible to return the child home or place her or him for adoption, and the goal is to maintain the child in a long-term foster care placement Emancipation—Because of specific factors or conditions, it is not appropriate or possible to return the child home, have a child live permanently with a relative or have the child be adopted; therefore, the goal is to maintain the child in a foster care setting until the child reaches the age of majority Emancipation—Because of specific factors or conditions, it is not appropriate or possible to return the child home, have a child live permanently with a relative or have the child be adopted; therefore, the goal is to maintain the child in a foster care setting until the child reaches the age of majority

What Does AFCARS Data Show? Six states and D.C. report (as of 9/30/10) over 20% of children in foster care have “permanency goals” of Long-Term Foster Care (LTFC) or Emancipation (E) -- Connecticut, Delaware, D.C., Illinois, Oregon, Utah, Virginia Six states and D.C. report (as of 9/30/10) over 20% of children in foster care have “permanency goals” of Long-Term Foster Care (LTFC) or Emancipation (E) -- Connecticut, Delaware, D.C., Illinois, Oregon, Utah, Virginia National average for combined LTFC and E goals is 12% (6% each) – or over 48,000 foster children National average for combined LTFC and E goals is 12% (6% each) – or over 48,000 foster children Many states report far less than 6% with LFTC goals, or less than 6% E with E goals (and combined 6% or less): AK (0.7% E; 3.7% E); HA (0.1% E; 5.2% LTFC); IN (0% E; 5.6% LTFC); MT (0% E; 6% LTFC); NE (0% LTFC; 5.7% E); NM (1.3% LTFC; 4.4% E); NC (0% LTFC; 2.6% E); OK (1.5% LTFC; 3.9% E); TN (0.4% LTFC; 0% E); WA (0.1% E; 5.2% LTFC); WVA (0% LTFC; 3.1% E); WY (1.9% E; 2.3% LTFC) Many states report far less than 6% with LFTC goals, or less than 6% E with E goals (and combined 6% or less): AK (0.7% E; 3.7% E); HA (0.1% E; 5.2% LTFC); IN (0% E; 5.6% LTFC); MT (0% E; 6% LTFC); NE (0% LTFC; 5.7% E); NM (1.3% LTFC; 4.4% E); NC (0% LTFC; 2.6% E); OK (1.5% LTFC; 3.9% E); TN (0.4% LTFC; 0% E); WA (0.1% E; 5.2% LTFC); WVA (0% LTFC; 3.1% E); WY (1.9% E; 2.3% LTFC)

How State Legislative Language Can Affect the Proper Use of LTFC and E If APPLA is the plan, it must address the quality of services, and the supervision and nurturing, the juvenile will receive (Arkansas) If APPLA is the plan, it must address the quality of services, and the supervision and nurturing, the juvenile will receive (Arkansas) If APPLA, the plan must address child’s educational plan, emotional stability, physical placement, and socialization needs and promotion of continuity of relations with those who will fill a lasting and significant role in the child’s life (Maryland) If APPLA, the plan must address child’s educational plan, emotional stability, physical placement, and socialization needs and promotion of continuity of relations with those who will fill a lasting and significant role in the child’s life (Maryland) If APPLA, the plan must include a significant connection to an adult willing to be a permanency resource for the child (New York and Texas)– I believe this assurance should be in every state law If APPLA, the plan must include a significant connection to an adult willing to be a permanency resource for the child (New York and Texas)– I believe this assurance should be in every state law

How State Legislative Language Can Help Limit the Use of APPLAs Setting a high evidentiary standard for the court, before approving an APPLA plan as being in the best interests of the child (Montana: preponderance of the evidence; New Mexico: substantial evidence that other options not appropriate: Ohio: clear and convincing evidence) Setting a high evidentiary standard for the court, before approving an APPLA plan as being in the best interests of the child (Montana: preponderance of the evidence; New Mexico: substantial evidence that other options not appropriate: Ohio: clear and convincing evidence) Limiting situations that APPLAs can be approved for Limiting situations that APPLAs can be approved for Montana: mental or emotional handicap & unable to function in family setting; at least 16 and in independent living, and TPR not in their best interests; parent incarcerated and TPR not in their best interests; an identified adult committed to long-term care and to a relationship with the child

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

Agency Policy/Practice Manuals Can Help Limit Use of APPLAs, or Make them Better Arizona: if APPLA selected, agency should find adults willing to make permanent connections with the youth and their provider of care commits to continue as a permanent supportive adult in the child’s life D.C.: all APPLAs must be approved by agency director (same in Tennessee), youth must be at least 16, other options have been exhausted, youth must be involved in the decision-making process, and the plan must list at least one, preferably two, adult parental figures Iowa: Prior to APPLA, must ask why the child can’t have real permanence, what barriers are to other options, what child’s thoughts are on this; it also lists what constitutes an inappropriate use of APPLA Iowa: Prior to APPLA, must ask why the child can’t have real permanence, what barriers are to other options, what child’s thoughts are on this; it also lists what constitutes an inappropriate use of APPLA

Michigan: APPLA youth must be at least 14 and have a signed contract with an adult willing to be a permanent and committed resource for the youth (North Carolina and Oklahoma require similar commitments) New York: Goal of “independent living” is not a sufficient compelling reason to choose APPLA; mere fact that child who can’t return to birth family says they don’t want to be adopted is not a sufficient reason to choose an APPLA plan Tennessee: Limits APPLAs for under 16s to kinship placements or “extraordinary individual circumstances”; every child 12 or over must consent before an APPLA can be approved

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

Florida Dependency Case Benchbook Section on APPLA Calls for judges, in APPLA cases, to ensure caseworkers and guardians ad litem have listed the services needed by both the youth and their caregiver, and to continue to review the case at least every six months Calls for judges, in APPLA cases, to ensure caseworkers and guardians ad litem have listed the services needed by both the youth and their caregiver, and to continue to review the case at least every six months Includes an ABA Center on Children and the Law APPLA Considerations Checklist for use in permanency hearings where APPLAs are to be considered by the judge Includes an ABA Center on Children and the Law APPLA Considerations Checklist for use in permanency hearings where APPLAs are to be considered by the judge