1. What Kids Can Do: What You Need To Know About the Rights of Children & Youth Presented by Grace Spulak FosterEd: New Mexico, National Center for Youth Law

2. Children Under the Law Generally seen as in need of protection Also disempowered—cannot do many of the things adults can do Beginning mid-20 th Century understanding of children as having specific rights

3. Children Under the Law 1967 to Present – In Re Gault, 387 US 1 (1967) Juveniles accused of crimes must be afforded due process under the constitution – Child as person with variable capacity

4. Children Under the Law 1967 to Present – Gradual expansion of the rights of children & youth

5. New Mexico and Federal Law Consent to Health Care and Mental Health Care Enrolling in School Emancipation

6. NM Law Addressing Children’s Ability to Consent to Medical and Mental Health Services Reproductive Health Care Mental Health Care Medically Necessary Care for 14+ Homeless Youth and Youth Who Are Parents End of Life Decisions

7. Consent and Confidentiality Consent and confidentiality are distinct legal concepts. Multiple laws are relevant to figuring out what care children can consent to on their own and whether that care can be confidential. Who the professional works for impacts whether health or mental health service is confidential.

8. Consent Understand the medical condition and risks and benefits of proposed health care treatment. Voluntarily decide whether or not to proceed with a treatment recommendation. Communicate decision.

9. Confidentiality Right to control access to health care and mental health care information. Requirement on health care provider not to release information about the patient except as allowed by law. Complicated concept as applied to children. Services provided by school district employees to students require separate analysis.

10. Reproductive Health Care Treatment and testing for sexually transmitted diseases (NMSA 24-1-9) Pregnancy Related Treatment (NMSA 24-1- 13.1) Contraception (NMSA 24-8-5)

11. Reproductive Health Care Young person of any age can consent. Treatment is confidential EXCEPT parents may be able to access results of testing for sexually transmitted diseases upon request

12. Mental Health Care Includes therapy, psychotropic medications, treatment foster care, and residential treatment settings.

13. Mental Health Care: Children Under 14 NMSA 32A-6A-14 For children under 14, parents consent to treatment, except: – A child under fourteen years of age may consent to an initial assessment for medically necessary early intervention service limited to verbal therapy. – A clinician has two weeks to conduct this assessment.

14. Mental Health Care: Children 14 and Older A child fourteen years of age or older can consent to treatment. Parents get notice if a child is prescribed psychotropic medications but child still consents. If child 14+ lacks capacity, process for parent to act as surrogate without court order. --NMSA 32A-6A-15

15. Mental Health Care: Confidentiality Children Under 14: parents control release of information Children 14 +: Child controls release of information EXCEPT parents get notice when a child is prescribed psychotropic medication -NMSA 32A-6A-24

16. Homeless Youth and Youth Who are Parents An unemancipated minor fourteen years of age or older may give consent for medically necessary health care if they are: (1) living apart from the minor's parents or legal guardian; or (2) the parent of a child -NMSA 24-7A-6.2

17. Capacity An individual is presumed to have capacity under NMSA 1978 §24-7A-11(B). Capacity is determined by two physicians- doesn’t require court determination. NMSA 1978 §24-7A-11(C).

18. End of Life Decision Making A minor may make the decision to withhold or withdraw life-sustaining treatment for themselves if they have capacity. NMSA 1978 §24-7A-6.1(C) Procedure for determining capacity—is done by physicians and doesn’t require court determination. NMSA 1978 §24-7A-6.1(D)

19. Confidentiality Right to control access to health care and mental health care information. Requirement on health care provider not to release information about the patient except as allowed by law. Complicated concept as applied to children. Services provided by school district employees to students require separate analysis.

20. Health Insurance Portability and Accountability Act/ HIPAA Generally parents have access to child’s medical records. 45 CFR 164.502(g) Exceptions: a. Minor consents to care and consent of parent not required under state law; b. Minor obtains care at direction of a court; c. Parent agrees to confidential relationship; d. Still have to look to state law – 1. If state permits or denies access state law controls. 2. If state law is silent, provider may exercise professional judgment

21. Duty to Report Abuse and Neglect Every person, including but not limited to... a schoolteacher or a school official or social worker acting in an official capacity who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately. NMSA 32A-4-3. Must “personally” report (meant to address schools that required report to come through principal).

22. Enrolling in School Enrolling in school generally requires: – Residency requirements – Parental permission – Immunizations – Transcripts

23. Enrolling in School Unaccompanied youth – Runaways – Throwaways – Youth living on their own Can’t enroll in school Miss days weeks of school High risk for dropping out

24. Enrolling in School McKinney-Vento Act (42 U.S.C. §11431 Subtitle B Sec. 721 et seq.) Gives homeless children special rights to enroll in school No parental permission No immunization records No transcripts

25. Enrolling in School McKinney-Vento Act – Child has choice to enroll in School of origin or School where child living now – School has obligation to enroll child immediately while records are located – School obliged to provide transportation Even if transport is between school districts

26. Enrolling in School McKinney-Vento Act The child can stay in their school of origin – The entire time they are homeless or – Until the end of the academic year in which they move to permanent housing

27. Minor Parents Minor parents have rights to make decisions regarding their children even though they themselves are not eighteen

28. Emancipation – The term emancipation refers to the state of living independently from one’s parents. A minor can ask a court to declare that he or she is an emancipated minor. – Minors inquiring about emancipation must already be living and functioning as an emancipated minor before they go into court.

29. Emancipation Statutory Requirements (32A-21-2 et seq): Emancipation by Declaration of a Court: You must be - – 16 years or older – Willingly living separate and apart from parents or guardian – Managing own financial affairs – Emancipation is in their best interests

30. Effect of Emancipation of a minor: What changes: An Emancipated Minor May - – No longer subject to control by their parent or guardian – No longer entitled to support from their parent or guard. – Able to enter in enforceable contracts (e.g. lease an apt.)

31. What stays the same: An Emancipated Minor - – Still needs permission to marry – Is still treated as a juvenile by the courts – Still cannot drink or smoke – Still cannot get a driver’s license any sooner – Is covered by statutory rape laws

32. Emancipation Emancipated Minors are eligible for the same benefits as unemancipated minors.

33. Practical Tips Be straightforward with children and listen to them; they have insight into what they need and what will work for them. Understand that federal and states laws exist to protect children and to make sure they have access to services they need. Learn about the legal resources available to families.

34. Contact Information Grace Spulak Director, FosterEd New Mexico National Center for Youth Law gspulak@youthlaw.org (505) 362-9226