Are Foster Parents More Important than the Kids?
Since Minority Floor Leader Crystal Quade kicked me off committees, I cannot go into the committees that I was on previously to ask important questions about the bills. Instead, I am now preparing briefings for members of those committees on important bills.
HB 1950 is scheduled to be heard in the Children and Families committee on January 16. My initial questions of the bill were:
Why does it remove “best interest of the child” from the consideration of foster care placement?
Why does it remove the value of familial stability from the law?
Since it seems to be making some substantial changes, I did a deeper dive into the bill, like I would as a committee member. Probably more so, even, since I won’t be able to ask the questions in committee. I prepared a brief for a member of the committee; see my briefing below. I am sharing this briefing with you because the text of the bill raises some significant questions about how we care for our most vulnerable children, and whether we intend to protect them from fates worse than they would have without state involvement.
Dear reader, I wrote this memo without the assistance of legislative staff. I have no interns assisting me this year. I utilized prior research and access to federal and state statutes and regulations.
To: Rep. Marlene Terry
From: Rep. Sarah Unsicker
Date: January 15, 2024
RE: HB 1950: Foster Youth Bill of Rights
*** Distribution Authorized
Rep. Terry:
I am writing today with regard to HB 1950, from Rep. Gragg, which is scheduled to be heard in the House Children and Families committee on January 16, 2023. There is no corresponding senate bill that was filed before 1/15/2024.
Statutes Modified: 210.564, 210.566
General Questions:
What is the problem that this bill is trying to solve?
Does the bill solve that problem?
Does the bill create additional consequences, loopholes, or issues?
Have we sought technical assistance from HHS or the Department of Education in drafting this bill?
Questions for Sponsor:
210.564
What is the reason for changing the statute to no longer prioritize the best interests of the child or the importance of familial stability? (these were in 210.564.3 that is removed)
This changes language that emphasizes restoration of care and custody to the parents of the child. The sponsor needs to explain why we would take this out.
New section 5 references “educational stability”. Would this change the process for making a determination that the current placement is not in the child’s best interest?
What does “age or developmentally appropriate” mean? Should we set guidelines? Who decides? (This section/question applies to subsections 6-8 of the new language)
Sections 12-15 of the new foster youth bill of rights puts responsibility for the child’s well-being on the child. The right to access information, to contact the case manager or supervisor, or to report a violation? Are we trusting 16 year olds to be responsible for this stuff themselves?
This gives foster children a right to equitable relief. What if the child doesn’t realize they were wronged until much later and years of therapy in adulthood? That’s not contemporaneous and there is no equitable relief at that point
210.566
There are mentions of “equitable relief” for foster parents. Can you describe what that means? Give examples of why that would be needed. (210.566)
This section is about the rights of foster parents/kinship parents. Is there a corresponding bill of rights for the parents of a child? (I don’t think so but I could be wrong.)
This adds “kinship foster parents” to the language. It does not specify whether a “kinship foster care” must be there by placement from Children’s Division or if it can include an informal arrangement. Can you clarify? Point to statute?
Technical Questions for DSS:
Will this bill require a change to our state plan for child welfare under Section IV-B of the Social Security Act?
Can you provide a copy of the current state plan, or a link to it?
How will you currently provide information to foster children and parents about the foster child bill of rights in 210.564.2? Is this language lined out in regulation? Will this change at all?
Should we expect any loss of federal education or social security funding as a result of passing this bill? (Fiscal Note)
Background: On September 28, 2023, ACF modified a rule related to kinship foster care placement homes, allowing standards for foster placement in family homes to be different from standards for foster care licensing for traditional foster homes. It also requires protection of LGBTQ+ kids to keep them safe (e.g. protect them from conversion therapy placements)
Narrative thoughts
210.564
Change from “foster care” to “foster youth”. What is the specific reason for this change?
Paragraph 2 - How is the Children’s Division supposed to provide this information to foster children and parents? Do they have language that is written in regulations?
Departments often write language into regulations to make distribution uniform. Here are the Children's Division Regulations.
If it is up to the Children’s Division worker to explain without further guidance, then these things could be done very differently depending on the worker, the time available, their training, what part of the state.
If you want this to change, Drafting can help you with language to say that Children’s Division shall put language about this in their regulations. This should have a deadline written into statute. (for example, On or Before December 31, 2024, DSS shall …)
Line 9 - what would “equitable relief” be? Relief for whom, from what?
Old language removed (old section 3)
(1): “In all circumstances, the best interests of the child shall be the first priority of the children's division” - why take this out?
Note: “Best Interest of the Child” is defined in statute in Chapter 452.375.2 for divorce/custody cases. If it’s a problem that best interests are not defined, we can point to this section of statute or define it in statute.
(2): “Recognizing the importance of familial stability in foster care and adoption placement,it shall be the practice of the children's division, when appropriate, to support a child's return to the custody and care of the parents or guardians with whom the child resided immediately prior to state custody;” - why take this out?
Note: takes out recognition that familial stability is important
Note: takes out support of a child to return to care and custody of parents or guardians == takes out support of family stability
(3) When restoration of care and custody is not appropriate or possible, the children's division shall attempt to place the child with suitable relatives in accordance with section 210.565; - why take this out?
Only when restoration of care and custody is not appropriate or possible (in current law) – the change takes out mention that the Children’s Division needs to place the child in the care of a relative where possible. I view this as extremely dangerous unless it is otherwise addressed (such as in a separate section of statute).
(4) The children's division shall further support familial stability by ensuring continuity of foster placement, except in instances where cause for a change in a child's placement is reasonably found;
Continuity of placement
Only when there is cause for change should a child’s placement be changed
(5) The children's division shall work with each child in state custody to develop both a permanency plan and a case plan. These plans shall be developed within twelve months of a child's entrance into state custody. The permanency plan shall include the child's immediate and long-term placement goals, while the case plan shall address a child's specific medical and emotional needs; (this is crossed out because it is added in other language)
(6) Recognizing the value of familial relationships in foster care and adoption settings, it shall be the practice of the children's division to place siblings in the same foster care, kinship, guardianship, or adoptive placement, unless doing so would be contrary to the safety or well-being of any of the siblings. If siblings are not placed together, it shall be the practice of the children's division to support regular visitation and communication between siblings in state custody, and between children in state custody and their parents and relatives, where not otherwise prohibited or against a child's best interests; and
Sibling relationships: placement, visitation, communication
(7) The children's division shall support all children twelve years of age or older in state custody to attend any hearings pertaining to the child's placement, custody, or care, provided that the child is willing and able to attend such hearings, and that attending such hearings is in the best interests of the child.
Kids attend hearings
3. New language: “In order to ensure proper care and protection of a child in the child welfare system, the following rights shall be afforded to the child”
“Ensure proper care and protection of a child” - what does “proper” mean?
(1) The right to live in a safe, comfortable place:
(a) With the least restrictive environment;
(b) Where the child is treated with respect, has a place to store the child's belongings, and receives healthy food, adequate clothing, and appropriate personal hygiene products; and
(c) With siblings, if practicable;
(2) The right to communicate and visit with family, including siblings who are not placed with the child or are in state custody;
(3) The Right to as few disruptions and placements as practicable;
(4) The Right To Have And Maintain Belongings …
(5) The Right To Educational Stability …
Why doesn’t this mirror or cite federal language (20 USC 6311 (g)(1)(E)(i): “any such child enrolls or remains in such child’s school of origin, unless a determination is made that it is not in such child’s best interest to attend the school of origin, which decision shall be based on all factors relating to the child’s best interest, including consideration of the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement;”)
Would this change the process for making a determination that the current placement is not in the child’s best interest?
(6) The right to be notified of all hearings held, if age or developmentally appropriate;
What does “age or developmentally appropriate” mean? Should we set guidelines? Who decides? (This section/question applies to subsections 6-8)
(7) The right to attend all court hearings …
(8) The right to address the court regarding any proposed placement or placement change …
(9) The Right To Have a Client-directed attorney who contacts the child regularly and, if a conflict of interest exists, the right have a new attorney who will represent the position of the child;
Current: Children in the foster care system have a Guardian ad Litem.
The right to have an attorney representing their views is good. Who would pay for that, and how would it be funded? What does “client-directed attorney” mean?
(10)The Right to privacy, including the ability to send and receive unopened mail and make and receive phone calls;
This is good. How will it be enforced?
(11) The right to regular and private contact with and access to case managers, attorneys,and advocates;
This is a good provision
(12)The right to access Information that is accurate and necessary for the child's well being …
This is a child. What would a 3-year-old do with this information? Or a 17-year-old? Are we asking the child to take responsibility for their own care and safety?
(13) The Right To Have As Few Case Managers as Practicable …
Again, for a child, are we asking them to be responsible here?
(14) The Right to contact a case manager’s supervisor …
Same question. If a 14-year-old isn’t happy with the case manager decision, are they supposed to know to call the manager?
(15) The right to report a violation of this section without fear of punishment, …
What if they don’t report a violation until they’re 25 and capable of understanding what happened to them?
5. The rights under this section and section 167.018, and provisions section 167.019, may be enforced through equitable relief as part of the corresponding case under this chapter. Failure to file a grievance with the children's division, their contractors, or the school district shall not preempt or prevent the child from contemporaneously pursuing equitable relief as part of the corresponding case under this chapter.
What if the child doesn’t realize they were wronged until much later and years of therapy in adulthood? That’s not contemporaneous and there is no equitable relief at that point.
210.566 (p. 4)
This section is about the rights of foster parents/kinship parents. Is there a corresponding bill of rights for the parents of a child? (I don’t think so but I could be wrong.)
This adds “kinship foster parents” to the language. It does not specify whether a “kinship foster care” must be there by placement from Children’s Division or if it can include an informal arrangement.
(3) The children's division and its contractors shall not discriminate against foster parents or kinship foster parents and shall be in accordance with the laws under chapter 213 and federal law.
What about discrimination against natural parents of the child? This seems to create a preference for foster/kinship placements.
Section 6 is about the foster/kinship parents’ right to sue for equitable relief.
Whose rights are dominant? The child’s? The child’s parent? The foster parent?