Significant Federal Child Welfare Law Will Affect State Practice
by Howard Davidson, JD, Director, ABA Center on Children and the Law

The Fostering Connections to Success and Increasing Adoptions Act (H.R. 6893) has, at the time of this article, passed both Houses of Congress and is awaiting the expected signature of President Bush. Some have referred to this as the most significant new piece of federal child welfare legislation in over 10 years. Many advocates across the country may know little or nothing about it because of the speed in which it passed both the House and Senate in September 2008.

Here, for legal advocates, are highlights of H.R. 6893 with some suggestions for applying them in the legal arena. Future CLP issues will explore how this law will affect your legal practice (e.g., the expected impact of the law’s making Indian Tribes IV-E eligible for the first time, new IV-E funded training opportunities for lawyers, judges, and other advocates, new co-sibling placement requirements, and new provisions to help assure school stability and appropriate health care for all children in care).

Working With Older Youth in Foster Care

There is a new financial incentive for older youth who remain in care. States will have the option to continue to receive federal Title IV-E financial assistance to support foster care and related services for youth who are ages 18, 19, and 20. That will permit continued transitional support services beyond the age of majority. It also suggests a challenge for advocates: to assure that these youth continue to have good legal advocacy, to encourage states to use the option, and then to work towards having state juvenile dependency continue jurisdiction to help implement post-18 services. Note that the federal program of Adoption Incentive Payments to states has been extended, and awards to states who find adoptive homes for older foster youth have doubled.

If you are involved in a case where a youth, after turning 16, exited from foster care to an adoptive placement or a permanent guardianship, the law also extends eligibility to these youth, although they are no longer in child welfare agency care, to independent living services and education and training vouchers. If the state accepts IV-E payments for children age 18 or older, those children also are now eligible for federally-supported adoption subsidies and the new federally subsidized permanent guardianship subsidies provided to relatives.

Finally, but of no lesser importance, states must now, within 90 days of the expected “emancipation from foster care” date of every IV-E eligible youth (whether at 18 or later), complete a Transition Plan that is “personalized at the direction of the child.” That plan must be “as detailed as the child may direct” and must include specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services. This provides a new roadmap for having far more meaningful plans for foster youth who are leaving the child welfare system as independent adults.

Working With Relatives

As referred to earlier, this law creates a new federal program of guardianship assistance payments for relatives who agree to become permanent caretakers of foster children. States that have developed, with solely their own funding, similar programs of aid will now have significant federal financial support for them. Child welfare agencies (hopefully supported by the courts) have new obligations to promptly (within 30 days) notify a child’s relatives (noncustodial fathers, grandparents, etc.), subject to “exceptions due to family or domestic violence,” as soon as a child is taken into foster care. Relatives must be informed of the child’s removal and their rights to participate in the child’s case and provide foster care, and of their potential eligibility for the new federally subsidized permanent guardianship program. Whether advocating in court for the child, parent, or agency, all lawyers should help assure that these notification requirements are fulfilled.

The Children’s Bureau is also authorized to support new “kinship navigator” and “family finding” programs to help connect children living with relatives, both in and out of care (and the Federal Parent Locator Service, so useful in child support enforcement collections, is now to be available for use by child welfare agencies). Once identified, the next challenge for advocates will be to get qualified relative caregivers the supportive services and other assistance they require as contemplated by this new law. Finally, to promote more widespread use of relative placements, states are now explicitly permitted to waive nonsafety related licensing standards for relatives taking in children, on a case-by-case basis.

To view the full text of this act, visit www.govtrack.us/congress/bill.xpd?bill=h110-6893