Promoting "normalcy" for foster children: the Preventing Sex Trafficking and Strengthening Families Act.

• Author: Jacobson, Paul
• Position: LAW SUMMARY

1. INTRODUCTION

   Establishing "normalcy" means that [foster youth] get to do what their friends do, that they have a chance to pursue their interests and build dreams for their future and, most importantly, that they have a family who cares about them, just like their friends.

   And young people know that it is not normal:

   * To be denied opportunities to play sports, participate in extracurricular activities, or go on a school field trip,

   * To live in congregate (or group home) care, with restrictions on everything from brushing your teeth to visiting your sister or brother,

   * To have judges, caseworkers, attorneys, and others making major decisions about your life without talking with you or really knowing who you are,

   * To languish in foster care year after year, moving from placement to placement, school to school, or

   * To suddenly be on your own at age 18, 19, or 20 and expected to live independently. (1)

   As the quote above describes, foster youth lead lives that are in many ways abnormal. A recently enacted law, the Preventing Sex Trafficking and Strengthening Families Act ("Act"), contains provisions designed to combat this. (2) This federal law requires states to establish a "reasonable and prudent parent" standard in order to give foster parents greater latitude to allow their foster children to participate in activities such as school extracurricular activities, field trips, sleepovers, and sporting events. (3) These sorts of activities are important for childhood and adolescent growth and have long been difficult and oftentimes impossible for foster youth to gain access to. (4)

   This Article begins by analyzing the legal backdrop from which the Act emerged. It then discusses the promulgation and provisions of the Act. Lastly, this Note comments on the Act, specifically addressing its necessity, its likely effectiveness, and whether it adequately addresses the pressing concerns of foster youth in the United States.

2. LEGAL BACKGROUND

   This background Part first addresses the general framework of the foster care system in the United States. (5) Then, this Part discusses and stresses the importance of "normalcy" in the foster care context, and it demonstrates that "normalcy" is not being adequately achieved by the foster care system. (6) Lastly, this Part notes the parental tort liability concept of the "reasonable and prudent parent," which may easily be mistaken with the reasonable and prudent parent standards discussed in Part III of this Article. (7)

   1. Foster Care in General and Foster Parent Requirements

      The Code of Federal Regulations defines foster care as "24-hour substitute care for children" outside their own homes. (8) In other words, the foster care system in the United States consists of minors who have been removed from their biological parents or their legal guardians were placed by the state in state-certified institutions, group homes, or private residences. (9) Foster children are removed from their birth parents or legal guardians when it is determined that parents or guardians cannot or will not adequately care for their children. Foster parents are compensated for some of the expenses of caring for foster children through monthly stipends. (10) Foster care is generally intended to be a temporary solution for children, with emphasis placed on eventually returning the children to their birth families or finding them some other permanent home. (11) Despite this, many foster children spend at least two years in the foster system. (12)

      Today, the foster care system in the United States is organized primarily under state law. (13) However, states must also comply with federal guidelines and statutes in order to continue receiving federal funds under Title IV-E of the Social Security Act. (14) Title IV-E funds reimburse states for expenses incurred for each state's foster population, and these funds constitute the bulk of each state's funding for foster care. In general, states have some latitude in satisfying the federal requirements imposed on them. (15) State statutes provide for the placement of abandoned, abused, or neglected children in the homes of adults approved by the state's social service agency. (16) Some children are involuntarily taken from their biological parents by the state, but most foster children today are placed in the system voluntarily by a biological parent. (17)

      There are both state and federal statutory requirements that must be met in order to become a foster parent. (18) Potential foster parents must undergo an application process and training classes. (19) The number of mandatory training hours varies from state to state, with most states requiring somewhere between ten and forty hours. (20) In the case of successful applicants, it generally takes about a year between when the applicant first contacts the relevant agency and when a foster child is placed with them. (21) Each state's Department of Child Protective Services or Department of Human Services usually oversees state eligibility requirements. (22) These requirements vary somewhat from state to state, with some of the more universal qualifications being a minimum age (most states require applicants to be at least twenty-one, but five states permit eighteen-year-olds), (23) a minimum income level, a criminal background check, a household free from diseases, a letter from the applicant's employer, and interviews with a social worker. (24)

   2. Normalcy, Its Importance, and Whether Current Foster Youth Are Experiencing It

      The abuse Manushka Gilet suffered from the age of 12 at the hands of her stepfather did not stop her from engaging in a wide range of school-sponsored activities as a teenager; it took the laws then governing the foster-care system to do that. (25) In the context of foster care, "normalcy" is a current buzzword, (26) with definitions of normalcy usually centering around participation in "normal" activities, such as visiting a friend's house, attending school field trips, having a part-time job, volunteering, participating in school clubs and teams, dating, going to the prom, attending faith-based activities, and learning to drive. (27) It is becoming increasingly clear that participation in these sorts of activities is of great importance to healthy childhood and adolescent development for all youth, not just those facing the additional challenges of the foster care system. (28)

      Adolescence and childhood are largely considered by scientists to be two of the most important developmental periods in the human lifespan. (29) "Normal" activities allow youth to become responsible and independent through the process of learning how to handle freedom (30) and by practicing decision-making skills. (31) "Normal" activities let youth take risks and make mistakes, which can ultimately lead to growth. (32) "Normal" activities allow adolescents to earn the trust of their parents or guardians. (33) They often improve a student's school attendance, motivation, and overall academic achievement. (34) They can provide an outlet for processing negative emotions. (35) They often enable youth to discover and develop their skills, talents, and interests, which may remain unnoticed without some form of outlet. (36) They allow youth to connect with other youth (37) and with "caring adults like coaches, teachers, and parents of friends" (38) who can provide mentorship and serve as role models. (39) In sum, "normal" activities have been described as "the hallmark of childhood and adolescence." (40)

      Some of these "normal" activities are especially valuable for foster youth. For example, the opportunity to meet and develop relationships with caring adults can be especially helpful for foster children because these adults can become important members of a foster youth's support team, helping out in ways such as advocating for their permanency. (41) Also, opportunities to connect with adults can help foster youth overcome the sense of distrust that sometimes results from the experiences of separation and loss faced by many foster youth. (42)

      Many foster children struggle with healthy identity development because they are teased about being in foster care. (43) This negative stereotyping does not only come from peers; some teachers "harbor misconceptions about [foster children's] development and qualities as a group." (44) Opportunities to develop relationships with peers can help overcome this negative stereotyping. (45)

      Additionally, all "normal" activities take on a degree of added importance for foster youth merely because they provide moments of normalcy in the midst of lives that are in many ways quite abnormal. (46) While participation in sports teams, drama clubs, and other relatively intensive programming is not ubiquitous, activities such as field trips are more universally attended. Considering that many foster children may already be sensitive to their living situations, the negative effects of exclusion from "normal" activities may be amplified for foster youth. (47)

      Access for foster youth to these sorts of activities has historically been very limited. (48) A large percentage of foster youth experience significant isolation from their peers once school concludes for the day because they are essentially left no option but to stay at home. In most states, foster youth hoping to participate in after-school activities normally face a variety of hurdles. (49) These impediments reflect bureaucratic red tape to a degree, but they mostly flow from the fact that child-welfare agencies are usually quite risk-averse. (50) Concerned heavily with the safety of foster children, child-welfare agencies have established practices that sacrifice access to normalcy. (51) This concern for safety and liability has even led to restrictions on such mundane activities as using kitchen knives at home (52) or getting haircuts. (53)

      Usually, participating in "normal" activities requires a foster child to navigate multiple...