Responding to the Lament of Invisible Children: Achieving Meaningful Permanency for Foster Children

JurisdictionKansas,United States
CitationVol. 72 No. 6 Pg. 46-56
Publication year2003
Kansas Bar Journals
Volume 72.

72 J. Kan. Bar Assn. 6, 46-56 (2003). Responding to the Lament of Invisible Children: Achieving Meaningful Permanency for Foster Children

Kansas Bar Journal
72 J. Kan. Bar Assn. 6, 46-56 (2003)

Responding to the Lament of Invisible Children Achieving Meaningful Permanency for Foster Children

By Thomas Wade Young and Jae M. Lee

Understand the things I say.

Don't turn away from me.

'Cause I've spent half my life out there.

You wouldn't disagree.

Do you see me? Do you see?Do you like me? Do you like me standing there?Do you notice? Do you know?Do you see me? Do you see me?Does anyone care?[1]

I. Introduction

Statistics paint a stark reminder of the grim reality: Roughly 550,000 children populate American foster care systems.[2] Behavioral, mental, and developmental problems are battled by as many as 80 percent of foster children.[3] Only about half of foster teens finish high school,[4] and many are homeless[5] and unemployed[6] within months of leaving foster care. Yet, societal indifference persists[7] and ineffective service provision continues.[8] Perhaps most disturbing, however, is that we, as the legal experts charged with protecting the "best interests" of abused and neglected children underutilize existing laws, regulations, policies, and contractual obligations available for children.

This article addresses some of the most beneficial - and overlooked - tools currently existing in the framework of child welfare that, if applied properly, can dramatically impact a child's experience and tenure in the Kansas foster care system. In broad terms, the article provides an overview of issues relating to the prompt achievement of permanency and stability for foster children. The article also discusses governing law and actual practices (best, worst, and sometimes illegal) affecting permanency hearings, adoption, kinship care, and independent living.[9]

II. The Adoption and Safe Families Act

The passage of the Adoption and Safe Families Act (ASFA)[10] marked a significant step forward in the recognition of the freestanding rights of children. Most notably, ASFA focuses on the needs of children for safety and permanency[11] and, at a minimum, places the rights of children on equal footing with the constitutional rights of their parents.[12] By requiring that courts hold periodic reviews no later than every six months[13] and that permanency hearings be held within 12 months of a child's entry into foster care[14] and no later than every 12 months thereafter,[15] Congress expressed its clear and unequivocal intent to eliminate the state of legal limbo[16] that characterized the status of many children in foster care. Absent documented and approved "compelling reasons,"[17] a lack of services deemed necessary for the safe return of the child to the home,[18] or placement of a child with a relative,[19] ASFA mandates that a petition for termination of parental rights be filed by the end of the child's fifteenth month in foster care.[20]

Unlike prior enactments in the child welfare arena, ASFA has not been viewed as a hollow statement of idealistic goals. Noncompliance verified through federal audits triggers concomitant loss of federal funds.[21] More importantly for children, however, ASFA created civil rights for children that may be enforced through private actions.[22] The clearly defined civil rights that children may sue to enforce include (1) the right to have termination of parental rights proceedings initiated when a child has been in foster care custody for 15 of the most recent 22 months; (2) the right to have, concurrent with the initiation of termination proceedings, the initiation of the process of identifying, recruiting, processing, and approving a qualified family for adoption; and (3) the right to have documented any lawful exception to the requirement that termination proceedings be initiated.[23]

A. Permanency

Because of these substantive changes wrought by ASFA, permanency planning and hearings are perhaps the most useful and critical tools for assuring a good outcome for the child. Yet, in practice, they are too often the most underutilized, if not outright disregarded, tools for achieving the best outcome for a child. Case managers and social workers statewide attest to the fact that the rule rather than the exception is nonattendance at case planning conferences by guardians ad litem and even parents' attorneys.[24] Without such attendance, the ability of a child to have any meaningful participation in the development of a realistic and enforceable permanency plan is virtually obliterated. Similarly, in many courtrooms across the state, a common practice is to treat permanency hearings as no more than a short review hearing to rubber stamp the plan proposed by SRS and the contracting foster care agency. Here again, advocates and courts undermine the children's ability to hold the various adults administering their lives accountable to the realistic and timely permanency plan mandated by ASFA.

1. Permanency planning

Permanency planning under Kansas law begins at the initial stage of a child in need of care (CINC) case.[25] Specifically, when a child is placed outside the child's home and no permanency plan is made part of the record at the dispositional hearing,[26] "a written permanency plan[27] shall be prepared which provides for reintegration of the child into the child's family or, if reintegration is not a viable alternative, for other permanent placement of the child."[28] The permanency plan must include "measurable objectives and time schedules"[29] and must be submitted to the court within 30 days of entry of the dispositional order.[30]

Given the predominant role of the permanency plan at the early stages of a CINC case and the short time frame allowed by ASFA for reintegration of the family, little imagination is required to understand the critical nature of the case planning conference. Advocates who assume that they have no role in the administrative, planning part of the case abdicate their professional and ethical obligations, not to mention the child's best interests. In those cases, the services recommended for and provided to the child are determined exclusively by SRS and the contracting foster care agency. While those agencies may have good intentions, financial constraints, internal policies and politics, and other forces at work in "the system" may have as much influence on the array of services offered as do the child's best interests. When the advocate is present, prepared, networking, negotiating, and/or advocating, however, the child's right to a meaningful permanency plan supported by meaningful services is more likely to be satisfied. A stated permanency goal of independent living provides a good backdrop against which to view advocacy at the planning stage.

ASFA created a mandatory prioritization of permanency goals for foster children. When reintegration with the child's parent(s) is not a viable alternative, SRS and contracting agencies must explore, in the following order, case plan goals of (1) adoption, (2) legal guardianship, and (3) permanent placement with a fit and willing relative.[31] Only when a compelling reason is documented for another "planned permanent living arrangement"[32] may the state depart from ASFA's permanency hierarchy. In practice, independent living is one of the other "planned permanent living arrangements" most frequently stated.[33] The compelling reasons usually documented include the age of the child and the fact the child either does not want to be adopted or is considered unadoptable after services to overcome these obstacles have been provided.

In these situations, common sense tells most people that independent living services should be geared toward enabling the children to lead productive lives as adults. Obtaining a high school diploma or, at a minimum, its equivalent, obtaining job training or on the job experience, obtaining a driver's license, learning to cook, clean, and care for a household, and gaining practical experience with a budget are some of the more obvious skills one would expect to see imparted to teenagers with a permanency goal of independent living. [34] Yet, experience has shown that services beyond those relating to completion of a GED are infrequently initiated without some push from the court or an attorney.

Misinformation often explains the lack of services. For example, social workers for SRS and contracting foster care agencies have been known to make statements in court to the effect that independent living services are not available in a particular geographical area, that independent living services are not available for children under 16 years of age, or that cash subsidy payments are available only if the child attends college. These statements are simply not true.

Independent living services may be provided to children as young as 14 and to young adults as old as 21. Children age 14 or older and identified as being at risk of remaining in foster care are eligible to attend life skills training and to participate in independent living services.[35] Children between the ages of 15 and 17 and young adults between the ages of 18 and 21 are eligible for independent living services if they are in state custody and placed in out of home care.[36] All children age 15 and older and in out of home care must have an individualized independent living plan[37] and receive services that assist in the development of their independent living skills.[38]

Children who remain in state custody on or after their 16th birthday may also qualify for independent living subsidy payments[39] if they age out of the foster care system without reaching a more traditional permanency goal, such as reintegration or adoption.[40] The common misconception about independent living subsidy payments is that...

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