Re-examining and Re-defining Permanency from a Youth's Perspective

• Author: Randi Mandelbaum
• Position: Clinical Professor of Law, Annamay Sheppard Clinical Scholar, and Director, Child Advocacy Clinic, Rutgers-Newark School of Law. This Article is dedicated to the many foster youth who have touched me in so many ways and who have framed my perspective on what family means and should mean. Your resilience and perspective is both awe-inspiring and...
• Pages: 259-305

RE-EXAMINING AND RE-DEFINING PERMANENCY FROM A YOUTH’S PERSPECTIVE R ANDI M ANDELBAUM * Why do you guys keep asking me if I want to be adopted? You know it’s not going to happen . . . . And I already have a Mama . . . . Why don’t you guys ever talk about her? 1 I. I NTRODUCTION Child welfare and judicial systems, while well-intentioned, are failing our older foster children—defined as children twelve years of age and older. 2 Federal and state laws mandate that efforts be made to find Copyright © 2015, Randi Mandelbaum. * Clinical Professor of Law, Annamay Sheppard Clinical Scholar, and Director, Child Advocacy Clinic, Rutgers-Newark School of Law. This Article is dedicated to the many foster youth who have touched me in so many ways and who have framed my perspective on what family means and should mean. Your resilience and perspective is both awe-inspiring and, at times, heart-wrenching. I am also eternally grateful to Rutgers-Newark law student, Sarah Fletcher, for her phenomenal and invaluable research assistance. This Article would not have been possible without her assistance. And finally, a special thank you to the organizers of the 10th Annual Wells Conference on Adoption Law for permitting me to present my ideas for this Article and to the attendees for providing me with such insightful feedback. 1 This is a quote from a former client. In her case, “Mama” was a former staff person from a congregate care facility, where she had once resided, with whom she maintained a relationship even after my former client and “Mama” were no longer involved with the facility. In many other situations, however, “Mama” is actually the youth’s biological mother, regardless of whether parental rights have been terminated. 2 While this Article defines “older” children or youth as children aged twelve and above, it is important to acknowledge three points. First, all children develop at their own unique pace and, consequently, have different needs at varying times. See Laura Cohen & Randi Mandelbaum, Kids Will Be Kids: Creating a Framework for Interviewing and Counseling Adolescent Clients , 79 TEMP. L. REV. 357, 361–68 (2006). Second, some policies and legislative mandates may define “older” children or youth differently. See id. Where this is the case, it will be noted. And finally, it is important to acknowledge the comprehensive body of literature from the fields of social work, psychology, and medicine (neuroscience) indicating youth develop their emotional functioning, ability to reason, and maturity of judgment well into their twenties. See id. Thus, while most child welfare systems end their assistance somewhere between the ages of eighteen and twenty-one, most youth continue to need additional support both financially and emotionally. Some have termed this lengthened process of transitioning to adulthood as “emerging adulthood.” See JEFFREY JENSEN ARNETT, 260 CAPITAL UNIVERSITY LAW REVIEW [43:259 permanent families for all children placed in foster care, first, by reunifying them with their birth families or, when this is not possible, by securing alternate families through adoption or guardianship. 3 Yet, for children older than age twelve in the foster care systems, there is less than a 50% chance this goal will be accomplished. 4 While calls to better recruit and secure lasting and legally binding families for these youth must be heeded, a realistic approach that recognizes the systems are broken and the need for a drastic re-focusing is necessary. The current unrealistic expectations cause youth to feel rejected. Worse yet, ADOLESCENCE AND EMERGING ADULTHOOD: A CULTURAL APPROACH xii (5th ed. 2012). See also JEANNE HOWARD & STEPHANIE BERZIN, NEVER TOO OLD: ACHIEVING PERMANENCY AND SUSTAINING CONNECTIONS FOR OLDER YOUTH IN FOSTER CARE 1, 15–16 (Susan Smith & Adam Pertman eds., 2011); Rosemary J. Avery, An Examination of Theory and Promising Practice for Achieving Permanency for Teens Before They Age Out of Foster Care , 32 CHILD. & YOUTH SERVICES REV. 399, 400 (2010); EMILY BUSS ET AL., FROM FOSTER CARE TO ADULTHOOD: UNIVERSITY OF CHICAGO LAW SCHOOL FOSTER CARE PROJECT’S PROTOCOL FOR REFORM 11 (2008). 3 See Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No. 113–183, § 475A, 128 Stat. 1919 (2014). 4 See Christine Diedrick Mochel, Redefining “Child” and Redefining Lives: The Possible Beneficial Impact The Fostering Connections to Success Act and Court Involvement Could Have on Older Foster Care Youth , 40 CAP. U. L. REV. 517, 518 (2012) (“About 50% of youth in foster care are between the ages of nine and twenty, but over 70% of the children adopted are under the age of nine.”). In response to the low number of older youth being adopted, numerous specialized and creative programs have been developed around the country to identify, recruit, and make concerted and special efforts to match youth with caring and committed adults. Enhancing Permanency for Youth in Out-of-Home Care , CHILD WELFARE INFO. GATEWAY 10 (May 2013), https://www.childwelfare.gov/pubs/ focus/enhancing/enhancing.pdf [hereinafter Enhancing Permanency ]. One such program is “You Gotta Believe” (YGB) in New York City, which has been touted as being highly successful, but which still only has a success rate of approximately 50%. Id. (“In one 4-year federally funded study, 98 of the 199 youth referred to YGB achieved permanency.”). “You Gotta Believe is one of a precious few organizations in the U.S[.] and the only organization in the New York City Metro area that limits its practice to finding permanent parents and families for young adults, teens, and pre-teens in the foster care system.” Mission & Philosophy , YOU GOTTA BELIEVE, http://yougottabelieve.org/about-us/mission-philosophy/ (last visited July 4, 2014). Likewise, permanency roundtables, initiated by Casey Family Programs in Georgia, had a success rate of 34% for teens at the 24-month follow-up mark. Enhancing Permanency , supra , at 13. “Permanency Roundtable [is a] process designed to help youth who had been in foster care the longest achieve permanency and to help staff learn new ways of addressing permanency barriers.” Id. 2015] RE-EXAMINING AND RE-DEFINING PERMANENCY 261 the lack of focus on stability and committed adult connections causes too many youth and young adults to leave foster care homeless, without having graduated from high school, and without the necessary emotional and financial foundations to make it on their own. 5 These negative outcomes will continue unless a serious re-evaluation of the overall objectives for older foster youth is undertaken and different, creative suggestions are made for this population. This Article takes a critical look at the mandate of “permanency.” In Part I, the “numbers” are examined to clarify from the outset how many youth are waiting to be adopted; how many youth actually achieve “permanency” through adoption or guardianship; and how many have alternate “permanency” goals. 6 Then, in Part II, several studies and surveys are reviewed; these studies and surveys document how youth who “age out” of foster care are faring. 7 With these outcomes in mind, Parts III and IV take a closer look at the term “permanency”: how it is defined in law and policy; how youth view the term; what youth are stating they need; and the often destructive effects on youth when permanency is not achieved. 8 In doing so, a broader and more contextualized understanding of permanency is explored. Part V then concludes with some specific recommendations. It calls for a re-framing of objectives for older foster youth with less emphasis on the goal of legally binding ties and an increased focus on stability, particularly with regard to a youth’s living situation, emotional support, and need to remain connected with biological family members. In fact, it is proposed that for older foster youth the term “achieving permanency” should be replaced with the term “achieving stability and connections.” Part V highlights the need for statutory reform and offers guidance to courts to help make these goals a reality and improve the long term prospects for older foster youth. 9 5 GINA MIRANDA SAMUELS, A REASON, A SEASON, OR A LIFETIME: RELATIONAL PERMANENCE AMONG YOUNG ADULTS WITH FOSTER CARE BACKGROUNDS 2 (2008), available at http://www.chapinhall.org/sites/default/files/old_reports/415.pdf. 6 See discussion infra Part II. 7 See discussion infra Part III. 8 See discussion infra Parts IV & V. 9 See discussion infra Part VI. 262 CAPITAL UNIVERSITY LAW REVIEW [43:259 II. T HE N UMBERS Roughly 25,000 youth “age out” of foster care in the United States each year. 10 Stated differently, since 2009, approximately 10% of children in foster care emancipate from this system each year. 11 This is up from 7% in 2002. 12 Depending on the state, youth must leave care at eighteen years of age, twenty-one years of age, or somewhere in-between. 13 Even in states where youth can remain in foster care until the age of twenty-one, many do not take advantage of this opportunity. 14 Instead, they choose to emancipate from care—often because they are fed up and frustrated. 15 Other data reveals additional information about older youth in foster care. First, children eleven years of age or older account for nearly half 10 See U.S. DEP’T OF HEALTH AND HUMAN SERVS., ADMIN. FOR CHILDREN AND FAMILIES, CHILDREN’S BUREAU, THE AFCARS REPORT 3 (2013) [hereinafter AFCARS], available at http://www.acf.hhs.gov/sites/default/files/cb/afcarsreport20.pdf (reporting 23,396 children emancipated from foster care in FY 2012). See also MARK E. COURTNEY ET AL., MIDWEST EVALUATION OF THE ADULT FUNCTIONING OF FORMER FOSTER YOUTH: OUTCOMES AT AGE 26 2 (2011), available at http://www.chapinhall.org/sites/default/files/Midwest%20 Evaluation_Report_4_10_12.pdf (reporting that approximately 28,000 children age out of foster care annually). This Article will use the terms “age out” and “emancipate” synonymously...