clp
ABA Child Law Practice
Vol. 35 No. 10
October 2016
CLP Online: www.childlawpractice.org
LAW & PRACTICE
The Reasonable and Prudent Parent Standard
by Heidi Redlich Epstein and Anne Marie Lancour
A
new children’s attorney is asked by an older client if he can
learn to drive. The client says his foster mother is teaching her
son to drive and will teach him if it is allowed. It seemed a reasonable request so the attorney asked the child’s agency caseworker.
“No, he is a foster child,” explained the caseworker. Not satisfied,
the attorney pursued it up the chain of command, learning that foster
children are not allowed to drive due to liability concerns. This made
no sense. Foster children are told to do what they can to fit in and
have a “normal” life, but many challenges impede that feeling of
normalcy. A normal life would not include preventing a child from
undertaking an age appropriate activity just because they are in
foster care. ”
Federal Law Overview
The Sex Trafficking and Strengthening Families Act of 2014, Supporting
Normalcy for Children in Foster Care
provision,1 attempts to legislate normalcy for foster children. It requires
caregivers use a “reasonable and prudent parent standard” when determining whether to allow a child in foster
care to participate in extracurricular,
enrichment, cultural, and social activities. Additionally, a “caregiver” must
be appointed to apply the reasonable
and prudent standard for children who
reside in congregate or institutional
care.
Normalcy findings. At permanency
hearings, the child welfare agency
must provide the court with information that the reasonable and prudent
parent standard is being followed.
Although the law requires such findings only for children with a permanency goal of Another Planned Permanent Living Arrangement (APPLA),
best practice is to make a finding for
all children to uphold the intent of this
law. The agency must verify for the
court that the child is being given a
chance to participate in age and developmentally appropriate activities.
Foster parent training. The move toward autonomous decision making by
caregivers diverges from past practice,
standards, and foster parent training. Recognizing this change, the law
requires foster parents to be trained on
this standard. Additionally, the Department of Health and Human Services
must assist states with best practices to
help foster parents apply a reasonable
and prudent parent standard in a way
that considers any concerns of the biological parents. However, trepidation
by biological parents alone should not
be the determining factor in decision
making.2
Liability protection. Liability policies must also be set by each state to
protect caregivers who appropriately
apply this standard when making daily
decisions about approved activities for
foster children.
Older youth. This section also provides an additional $3 million (beginning in FY 2020) be made available
each year under the Title IV-E Independent Living program. The goal is
to promote age-appropriate activities
for youth who are likely to remain in
foster care until age 18.
(Cont’d on p. 150)
What’s Inside:
146 CASE LAW UPDATE
157 RESEARCH IN BRIEF
158 ATTORNEY DEVELOPMENT
Training Model Teaches Best Practices and Improves Child
Attorney Behaviors
159 ON THE HILL
Congressional Briefing
Highlights Children’s Right
to Counsel
160 CHILD DEVELOPMENT 101
Children’s Hearing Milestones
CASE LAW UPDATE
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improve the decisions they make on
behalf of children and families. Topics
include: abuse and neglect, adoption,
foster care, termination of parental
rights, juvenile justice, and tort actions involving children and families.
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146
New Jersey Supreme Court Grants Indigent Parents Right to
Counsel in Private Adoptions
In re Adoption of J.E.V., 2016 WL 3981240 (N.J.).
An indigent parent in a contested
private adoption proceeding has
a due process right to appointed
counsel. Termination of parental
rights carries the same risks and
consequences no matter if it is initiated by the state or a private party.
The right to appointed counsel is
triggered when a parent formally
objects to the decision to proceed
with an adoption.
Contemplating adoption, the
mother placed her two-and–one-half
year old daughter with a state-licensed
adoption agency. After pre-adoption
counseling the mother changed her
mind and did not surrender rights.
The child remained with the adoption
agency and moved from short-term
foster care to a foster family and then
to a second foster family. The mother
continued periodic visits and agreed
to a service plan with a goal to resume
parenting her daughter.
After the mother’s inconsistent
visitation and lack of follow through
with her service plan, the adoption
agency informed the mother they were
proceeding with the child’s adoption.
The adoption agency mailed the mother several forms for her consent which
she did not sign. A letter advised the
mother that she could file a written objection. Additionally, the letter stated
she had a right to counsel and may
or may not have the right to have one
appointed for her. The mother wrote
three objection letters.
The daughter’s second foster family filed for adoption and the court
set a hearing date. In the mother’s
notice of this filing and hearing, she
was again notified of her right to have
counsel possibly appointed. At an initial case-management conference the
judge asked her if she planned to get
an attorney and she responded she was
working on it. She was not told that
if she could not afford an attorney the
court would appoint one for her. The
mother represented herself during a
two-day trial. During trial, eight witnesses presented testimony, all put on
by the foster parents and none crossexamined by the mother. The mother
also did not present a closing argument. The court terminated the mother’s parental rights and she appealed.
The New Jersey Supreme Court
reviewed state and national precedent.
New Jersey’s Adoption Act set the
judicial standard if a parent has not
placed the child for adoption as the
“best interest of the child.” If contested, the court must find the parent has
either failed to perform or is unable
to perform parental functions of care
and support. The U.S. Supreme Court
in Lassiter v. Dep’t of Soc. Servs., 452
U.S. 18 (1981), established the parent’s right to counsel in termination
of parental rights cases brought by the
state on a case-by-case basis. New Jersey law and judicial standards provide
for counsel when someone is indigent
and faces a consequence of magnitude,
which includes incarceration for any
time, loss of driving privileges, or substantial monetary sanctions.
The New Jersey Supreme Court
found an indigent parent facing termination of parental rights in a contested
private adoption proceeding has a
right to appointed counsel. The impact
of parental termination is the same
whether or not the state is the party
filing for termination. Additionally,
participating in such a complicated
proceeding without counsel carries
a high risk of an erroneous outcome,
as demonstrated by the mother’s obstacles cross-examining and calling
witnesses in this case. Finally, the
state has an interest in protecting the
welfare of children and an interest in
accurate and just decisions.
The right to counsel is triggered in
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
private adoption cases when the parent
formally objects to the decision to proceed toward adoption. The New Jersey
Supreme Court urges the Administrative Office of the Courts to review objection letters and develop a form. The
New Jersey Supreme Court also urged
the legislature to determine which ex-
perienced attorneys will be funded to
represent such parents. In the interim,
the court asked for private counsel.
In this case, the mother did not
waive her right to counsel. A waiver
is “the voluntary and intentional relinquishment of a known right.” No one
acted to ensure the mother understood
her right to appointed counsel and
knew how to receive that counsel. In
future cases, judges should inform the
parent of this right at the first court
proceeding and if the parent declines
counsel, the judge should talk to the
parent to ensure his or her decision is
intentional and voluntary.
New York Court of Appeals Allows Standing for a Nonbiological, Nonadoptive Partner to Seek
Visitation and Custody
Brooke S.B. v. Elizabeth A. C.C., 2016 WL 4507780 (N.Y.).
The New York Supreme Court
Jennifer would bear the child, but the
consolidated two cases in which
donor would have Esterllita’s ethnicity.
nonbiological, nonadoptive partners For three years Esterllita and Jennifer
lived, planned to conceive a child,
raised the child and shared parental
and shared parental responsibilities responsibilities. When Esterllita and
raising that child with the biological Jennifer ended their relationship, Jenparent. The court granted nonnifer and the child moved out and Esbiological, nonadoptive partners
terllita continued to have contact. The
standing to seek custody and visitafamily court granted Jennifer’s request
tion if they prove they agreed with
for child support finding Esterllita was
the biological parent to conceive and “a parent.” Esterllita used this child
raise the child as co-parents.
support decision to support her case
for visitation. During the visitation
In 1991, New York Court of Aphearing, the court acknowledged Espeals defined “parent” to require a
terllita’s lack of standing under Alison
biological or adoptive relation to the
D., but used the doctrine of judicial
child. Alison D. v. Virginia M., 572
estoppel to grant standing and allow
N.E.2d 27 (N.Y. Ct. App. 1991). If the visitation with the child.
partner did not meet this definition
In applying the doctrine of judicial
they were denied standing to seek visi- estoppel, the family court found “a
tation or custody. The court examined
party who assumed a certain position
two cases challenging this definition.
in a prior legal proceeding and secures
In the first case, Brooke and Eliza- a favorable judgment therein is prebeth jointly decided to have a child
cluded from assuming a contrary posithat Elizabeth would carry. Brooke
tion in another action simply because
was involved during the pregnancy
his or her interests have changed.” In
and they raised the child together afthis case, Jennifer wanted Esterllita to
ter birth, sharing all major parental
be found as a parent for her child supresponsibilities. For the first year,
port payments, but did not want her to
Elizabeth worked while Brooke stayed be a parent to determine visitation.
at home with the child. Eventually,
A parent’s right to seek visitation
Brooke and Elizabeth’s relationship
or custody in New York is derived
ended. Elizabeth briefly allowed
from the state’s Domestic Relations
Brooke to visit the child, but upon ter- Law § 70. This statute provides standmination of those visits Brooke filed to ing for either parent, but does not
receive joint custody and regular visidefine parent. The law instructs the
tation. Brooke did not adopt the child
court to make its determination on
and therefore was denied standing and “solely what is best for the interests
her motion was denied.
of the child and what will best proIn the second case, Esterllita and
mote its welfare and happiness.” The
Jennifer decided after four years tocourt in Alison D. defined “parent”
gether to register as domestic partners
based on the need to preserve the
and have a child. They jointly decided rights of biological parents. Another
147
case four years later, Matter of Jacob,
660 N.E.2d 397 (N.Y. Ct. App. 1995),
found the court must stay true to the
statute’s legislative purpose, which
was the child’s best interest.
The New York Appeals Court felt
Alison D. created a definition of “parent” in this context that was founded
on ideas of heterosexual parenting that
was unsustainable and created a disproportionate hardship on the increasing number of nontraditional families
in the state. While the court felt it must
protect substantial and fundamental
rights of biological or adoptive parents to control the upbringing of their
children, it also recognized the need to
address who qualifies as a parent with
those rights. The court decided Alison
D. created a bright line, overly restrictive definition that did not consider
equitable principles and set the bar too
high to reach a child’s best interest.
The court did not create another
bright line rule for when standing may
be granted. Rather, it identified limited circumstances in which a nonbiological, nonadoptive parent may have
standing to seek visitation and custody
based on a preconception agreement
with the biological parent to conceive
and raise the child as co-parents. The
court acknowledged that a partner may
still have standing even when there is
no preconception agreement but declined to rule on that issue.
A concurring opinion stated a
preference that Alison D. not be overruled, but instead allow for an “extraordinary circumstances” determination. This approach would defer to the
legislature to define terms and expand
the definition of “parent.”
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
CASE LAW UPDATE continued
Alabama
County Dep’t of Human Res. v.
T.S., 2016 WL 4585896 (Ala. Civ.
App.).TERMINATION OF PARENTAL
RIGHTS, ABANDONMENT
Child welfare agency appealed denial
of termination of parents’ rights to child
based on abandonment. Evidence was
insufficient to show abandonment as
ground for termination. Father attempted
to maintain contact with daughter, wanted
to raise her, and could support her. Agency
prevented mother from visiting child.
Testimony from mother and caseworker
showed parents provided care for child
during first three years of her life.
California
In re A.B., 206 Cal. Rptr. 3d 531 (2016).
TERMINATION OF PARENTAL
RIGHTS, ICWA
Mother’s husband filed petition to terminate father’s parental rights based on abandonment so husband could adopt daughter.
Father appealed termination, claiming
trial court failed to provide proper notice
to tribe under Indian Child Welfare Act
(ICWA). Appellant seeking reversal for
lack of proper ICWA notice must show
reasonable probability that more favorable
result would have occurred in absence of
error. Father failed to establish reversible
error when appellate court took judicial
notice that tribe received notice of proceedings several months before termination hearing and chose not to intervene.
In re C.H., 2016 WL 4529205 (Cal. Ct.
App.). DELINQUENCY, EQUAL
PROTECTION
Juvenile’s adjudication for felony grand
theft was reclassified as misdemeanor
under state ‘Safe Neighborhoods and
Schools Act,’ which did not require
expungement of juvenile’s DNA sample
upon reclassification. Disparate treatment
of juvenile offenders based on timing of
offense reclassification did not violate
equal protection because disparity was
supported by rational basis that denying
expungement results in more comprehensive DNA database.
J.F. v. Superior Court of Orange County,
2016 WL 4529436 (Cal. Ct. App.).
DEPENDENCY, REUNIFICATION
SERVICES
Trial court suspended reunification
services and set hearing for termination
of parental rights in case of three-year-
148
Research performed on Westlaw compliments of West Group.
old dependent child, and mother filed for
review. Mother made substantive progress
in court-ordered substance abuse treatment
plan as required to extend reunification
services during last three of six months
while incarcerated. She also completed
in-custody parenting program twice, and
used techniques from classes in visitation
with son.
Colorado
In re J.W., 2016 WL 4474192 (Colo. Ct.
App.). DEPENDENCY, ADJUDICATION
Trial court lacked jurisdiction to terminate
mother’s parental rights to two children.
Although trial court held adjudicatory
hearing, it did not enter order adjudicating
children as dependent until after it held
termination hearing, terminated mother’s
parental rights, and mother had appealed.
Fair procedure at dependency adjudicatory stage is critical because termination
of parental rights is impossible without
preliminary determination that child is
dependent.
Connecticut
State v. Daniel, 142 A.3d 265 (Conn.
2016). ABUSE, TESTIMONY
Defendant was convicted of two counts
of sexual assault in first degree and one
count of risk of injury to child. Jury was
permitted to use constancy of accusation
testimony to corroborate fact and timing
of victim’s out-of-court statements and to
evaluate weight and credibility of victim’s
testimony, including reasons for her delay
in reporting abuse to police. Testimony
could not be used as proof of substance or
truthfulness of statements themselves.
Florida
J.C.O. v. Dep’t of Children & Fam.,
2016 WL 4468112 (Fla. Dist. Ct. App.).
DEPENDENCY, REPRESENTATION
Father appealed decision of trial court
adjudicating child dependent. During trial,
court stated it would enter judgment of
default if child welfare agency produced
proof of service. After multiple improper
interruptions by father’s counsel objecting
to hearsay testimony regarding service,
counsel was removed from courtroom.
Trial court continuing to hear argument
from agency on service issue after counsel
was removed violated father’s right to
counsel.
L.A.H. v. State, 2016 WL 4375437
(Fla. Dist. Ct. App.). DELINQUENCY,
EVIDENCE
In juvenile delinquency case, prosecution
failed to prove essential element of intent
to commit offense at time of entry, as
required for offense of burglary of conveyance. Prosecution presented no evidence
about how or when juvenile entered car
or his intent when he entered. Proof was
based solely on fingerprints found on
documents in glove compartment, and
prosecution presented no evidence entry
was stealthy.
Indiana
In re A.H., 2016 WL 4399875 (Ind. Ct.
App.). DEPENDENCY, SERVICES
Mother appealed adjudication of 17-yearold daughter who experienced multiple
traumas including rape and bullying as
child in need of services. Daughter’s refusal to participate in available services was
not result of action or omission by mother,
who unsuccessfully tried to get child help
she needed. Mother was willing and able
to engage with all needed services.
Louisiana
In re K.B., 2016 WL 4382566 (La. Ct.
App.). DELINQUENCY, SENTENCING
Judge’s deviation from sentencing recommendation in delinquency case was not in
error. Juvenile’s agreement was “agreed
upon plea” not “agreed upon sentence.”
Transfer of case for disposition to jurisdiction where juvenile was domiciled was
appropriate, even though court did not take
formal evidence at hearing and judge was
aware of juvenile’s previous history with
child welfare agency.
Maine
In re Alijah K., 2016 WL 4527584
(Maine). TERMINATION OF PARENTAL RIGHTS, INCARCERATION
Father who was incarcerated out of state
was found unfit to parent in termination
of parental rights proceeding. Father’s
incarceration extended beyond termination
proceeding, location of prison severely
restricted opportunity for visits, and there
was no longstanding father-child relationship. Parent unable to fulfill parental
responsibilities due to incarceration is entitled to no more protection from termination of parental rights than parent unable
to fulfill parental responsibilities as result
of mental illness, substance abuse, or other
reason.
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
Call 202/662-1724 for a copy of any case reported here.
Maryland
In re L.B., 2016 WL 4570460 (Md. Ct.
Spec. App.). TERMINATION OF
PARENTAL RIGHTS, APPEALS
Mother lacked standing to appeal order
challenging placement of her two children,
which was determined during same proceeding in which mother’s parental rights
were terminated. Termination of mother’s
parental rights was affirmed on appeal,
and therefore order was final and mother
lost standing to appeal placement decision.
Massachusetts
Commonwealth v. Mayotte, 56 N.E.3d 756
(Mass. 2016). ABUSE, TESTIMONY
Defendant was convicted of offenses
related to sexual abuse of adopted son and
husband’s sexual abuse of adopted daughter. She claimed error in exclusion of first
complaint evidence relating to defense that
she was victim, not perpetrator, of rape.
First complaint rule was neutral rule of
evidence to test credibility of allegation
of sexual abuse, and was not limited to
complaints of sexual abuse by complainant, but encompassed defendant’s purported complaint to friend that victim, her
adopted son, had sexually assaulted her.
Minnesota
State v. Olson, 2016 WL 4420665
(Minn. Ct. App.). ABUSE,
CONSTITUTIONALITY
Defendant appealed conviction on four
counts of child solicitation. Court reversed
on count based on statute criminalizing
engaging in communication that describes
sexual conduct with someone reasonably
believed to be a child. Court had previously ruled unconstitutional content-based
regulation of speech not narrowly tailored
to serve state’s compelling interest in
protecting children from sexual abuse and
exploitation via Internet.
Montana
In re A.G., 2016 WL 4440533 (Mont.).
TERMINATION OF PARENTAL
RIGHTS, REASONABLE EFFORTS
Father appealed termination of his parental
rights to son and daughter, claiming child
welfare agency failed to make reasonable efforts to prevent children’s removal.
While reasonable efforts are required to
prevent removal, efforts must be tailored
to facts of each case. Agency provided
treatment plans and services during first
removal of infant, was involved with
and received referrals since older child
149
was two months old until termination of
father’s parental rights, and no options
existed to ensure infant’s in-home safety
given parents’ repeated alcohol abuse and
domestic violence.
New Mexico
State v. Granillo, 2016 WL 4447515
(N.M. Ct. App.). ABUSE, CHILD
ENDANGERMENT
Defendant was convicted of intentional
child endangerment, which required
proof she acted with conscious objective
to endanger child. Appellate court found
evidence was insufficient to support conviction. While mother drove vehicle while
intoxicated with child in back seat, child
was strapped in car seat. Although she
drove poorly, she drove haltingly and did
not swerve to hit another car or another
object.
State v. Taylor, 2016 WL 4529599
(N.M. Ct. App.). DELINQUENCY,
PROBATION
State filed petition to revoke juvenile’s
probation, and juvenile moved to suppress
statements made to juvenile probation
officer. Miranda warning was not required
before questioning by probation officer
about potential parole violations. Mother
informed officer child had been suspended
from school for possessing drug paraphernalia, and child could have reasonably
suspected officer might ask about drug
use. Officer’s failure to provide statutory
warning before questioning did not make
incriminatory statements inadmissible.
Pennsylvania
D.P. v. G.J.P., 2016 WL 4720690 (Pa.).
CUSTODY, GRANDPARENTS
Paternal grandparents brought action
against mother and father seeking partial
physical custody of minor children. Granting grandparents standing to file action for
partial physical custody based solely on
parents’ separation for six months did not
satisfy strict scrutiny and violated parents’
due process rights. Parents’ six-month
separation did not make state’s interest
sufficient to justify disturbing right of
presumptively fit parents to decide with
whom children should associate.
In re M.R.D., 2016 WL 4541129 (Pa.).
TERMINATION OF PARENTAL
RIGHTS, ADOPTION
Mother and maternal grandparents filed
petition to terminate father’s parental
rights to his two children. Cause exception in state adoption statute did not allow
grandfather to adopt children without
mother relinquishing her rights as way to
facilitate termination of father’s rights.
Grandfather and mother were not part of
intact cohabitating family unit, relinquishment was not necessary to avoid unique
complications, and allowing adoption
would have opened door for misuse of
adoption proceedings to involuntarily
terminate rights of unwanted parents.
Vermont
In re C.R., 2016 WL 4446598 (Vt.).
TERMINATION OF PARENTAL
RIGHTS, NOTICE
Mother appealed termination of her
parental rights, claiming she was not
provided sufficient notice and opportunity
to participate in termination proceeding.
Mother left termination hearing without
explanation and claimed attorney failed to
play active role during her absence. However, mother made no request to continue
hearing and claimed no error on part of
attorney that affected result of proceeding.
Washington
In re K.M.M., 2016 WL 4703517 (Wash.).
TERMINATION OF PARENTAL
RIGHTS, SERVICES
Father appealed termination of his rights
to daughter. Child welfare agency was
statutorily required to provide necessary
services to father, but family therapy was
not appropriate because plan for reunification was never recommended or implemented due to father’s inability to improve
mental health issues and it was never
contemplated father would be daughter’s
primary caregiver. There was no reasonable probability bonding therapy would
have repaired parent-child relationship.
FEDERAL CASES
11th Circuit
United States v. Nagel, 2016 WL 4547169
(11th Cir.). ABUSE, SENTENCING
Defendant appealed 292-month sentence
imposed after he pleaded guilty to three
counts of enticement of minor to engage
in sexual activity, challenging its procedural and substantive reasonableness. Trial
court correctly not did group separate
counts because conduct underlying each
count caused separate and distinct harm to
victim and did not impose sentence greater
than necessary to comply with statutory
goals of sentencing.
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
(Cont’d from front page)
Purpose and Intent of Standard
Foster children need to develop life
skills that will guide their development later on in life. One way these
life skills are obtained is giving the
foster child the same opportunities as
children who are not in foster care.
The reasonable and prudent parent
standard calls for the foster parent to
consider factors in making decisions
on behalf of the child. Foster children
should be given the same opportunities as children not in foster care.
These could include:
■■
Having an impromptu visit at a
friend’s house
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Playing in a pickup basketball
game
■■
Afterschool clubs and activities
School or community-based sports
setting, with reasonable limits, they
may not have the skills to navigate
adulthood. Youth also need to have
permanent connections to adults; those
connections may be adults the youth
interact with in sports, the community,
or other activities.
Civic activities, such as volunteering, Girl Scouts or Boy Scouts
State Implementation
Reasonable and age-appropriate
phone and computer use
Reasonable curfews and rules for
dating and socializing
Cultural activities—theatre, dance,
or arts
Attending a community event such
as a festival or holiday celebration
Social activities with friends and
peers, including unsupervised
social activities, such as:
Going to the movies
Going on an out-of-state trip to a
camp or dance event
❏❏
Trips to the mall
❏❏
Athletic events
Other activities that non-foster
children participate in as part of
growing up.
❏❏
Dating
❏❏
Visiting friends’ houses
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The foster parent needs to use
their judgment in giving opportunities
to the foster children and should not
worry about being sued for allowing children to participate in normal
activities based on the child’s age and
developmental abilities.
The reasonable and prudent parent standard should not infringe on
parents’ rights. Parents should be included in decision making especially
around education and health care.
Need for Normalcy for
Children
Congress recognized the need for
normalcy and found the inability to
participate in age or developmentally appropriate activities affects
children’s healthy development and
decision making. It also increases the
likelihood that foster children will
be victims of sex trafficking, become
homeless, and have other negative
outcomes in foster care.3
Children in foster care need to be
able to participate in regular childhood activities and foster parents
need to make daily decisions on
issues such as:
150
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Use of cell phones, internet and
social media
State legislation. Before the normalcy
provision was enacted, some states had
already passed similar requirements
to achieve normalcy for foster children. Since its passage, 25 states have
enacted legislation codifying the federal normalcy provision by statute or
administrative code. Eight more states
have legislation pending. Most states
follow the federal law exactly. Other
state statutes list additional factors for
the caregiver to consider when using the reasonable and prudent parent
standard, including:
■■
Job opportunities
Travel, yearbook photos, driver’s
licenses and learner’s permits
Healthy development. Adolescent brain
research shows how important it is for
youth to have experiences and relationships to become successful adults.4
Adolescent brains continue to develop
and this growth is just as important as
growth during early childhood.5 An
adolescent’s brain is still developing;
that development governs reasoning,
planning, decision making, judgment,
and impulse control.6 Adolescents are
making their way into adulthood but
are still experiencing mood swings and
growing pains as they mature, try new
experiences, and seek independence.7 It
is important for foster parents to apply
a reasonable and prudent standard as
they help foster children in their care
move through adolescence.
Societal costs. The cost of not providing normalcy is high. Foster youth need
to have life skills as they move toward
adulthood. Without normal opportunities to grow and learn in a family
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The child’s age, maturity, and
developmental level while balancing the overall health and safety of
the child.
The potential risks to the child or
to others and the appropriateness
of the extracurricular, enrichment, cultural or social activity or
experience.
The best interest of the child,
based on information known by
the caregiver.
The importance of encouraging
the child’s emotional and developmental growth.
The importance of supporting the
child developing skills to successfully transition to adulthood.
The importance of providing the
child with the most family-like
living experience possible.
Any special needs or accommodations the child may need to
safely participate in the activity or
experience.
The child’s wishes, though not
determinative, may also be
considered. 8
Case documentation. Many states
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
Preparing Youth for Court
Issues to investigate and discuss with the youth:
1. In what school and community
activities is the youth
participating?
2. Is the youth getting to take part in
such experiences as:
a. Spending time with peers?
b. Spending time with mentors?
c. Afterschool employment,
internships, or work
experiences?
d. Taking on more independence and responsibility in
the home or placement, such
as chores, later curfew, budgeting, etc.?
e. Driver’s education and getting a driver’s license?
f. Cultural activities?
g. Activities or groups that support a youth’s ethnic, religious, or racial identity?
h. Activities or groups that support a youth’s gender identity
or sexual orientation?
3. If the youth is in a family foster
care setting:
a. Is he or she able to participate in activities with the
family, such as trips, celebrations, etc.?
b. Have you discussed with the
foster parents how they are
adjusting to the new reasonable and prudent parent standard? Are they experiencing
any challenges? Do they need
require documentation in the child’s
case plan about normalcy activities,
especially for older youth. For example, Georgia’s statute states:
… steps the state agency is
taking to ensure that the child’s
foster family home or child
care institution is following the
reasonable and prudent parent
standard, and documentation
that the child has regular,
ongoing opportunities to engage
151
any support to help facilitate
the youth’s access to age or
developmentally appropriate
activities (e.g., information
about activities, transportation,
and funding)?
4. If the youth is in a child care
institution, including a congregate
facility:
a. Do you and the youth know
how to ask the caregiver about
participation in activities?
appropriate—what are the
barriers?
a. Have you discussed with the
youth’s team how to address
the barriers?
b. Are you prepared to make
ecommendations or propose
orders to the court to address
the barriers?
7. Is the youth prepared to respond
to the court about normalcy?
a. Have you helped the youth
practice his or her response
verbally or in writing?
b. Have you explained to the
youth what will happen in
court and who will be
present?
c. Do you need to make any
special request or arrangements to ensure the youth is
comfortable responding to
questions about normalcy?
i. Would the youth like
to submit something in
writing?
ii. Would the youth like
to speak to the judge in
chambers if allowed?
iii. Would the youth like a
support person, like a
therapist?
b. Is the youth facing any challenges to making requests and
getting permission that need
to be addressed, such as
timeliness?
c. Have you discussed with staff
at the child care institution
whether they need any support
to help facilitate the youth’s
access to age or developmentally appropriate activities?
Assistance could include
things such as: information
about activities, transportation,
and funding.
4. Is normalcy discussed in case
planning and included in the case
plan goals? How is the youth being included? Are the biological
parents being included?
5. If the youth is not participating in
age or developmentally appropriate activities— or not participating
to the extent you believe is
in age or developmentally
appropriate activities, including
by consulting with the child in
an age-appropriate manner about
the opportunities of the child to
participate in the activities.9
Caregiver support. Training and supporting caregivers is critical. “Recognizing the greatest opportunity for normalcy lies in the day-to-day decisions
affecting the child’s activities, the
Reprinted from Pokempner, Jennifer. The
Role of the Court in Implementing the Older
Youth Provisions of the Strengthening Families Act, February 2016, ABA Center on Children and the Law Youth Engagement Project.
child’s caretaker should be supported
in making those decisions through
the use of the reasonable and prudent
parent standard.”10 Many states have
legislated that training on this standard
be mandatory for foster parents and
have also created checklists and helpful guides.
Limitations on activities. As discussed
earlier, the federal law provides
examples of activities to include when
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
Questions to Ask at Hearings: Normalcy
If the youth is in family foster care, is he or she being
provided regular and ongoing opportunities to participate in age or developmentally appropriate activities
and experiences?
If opportunities are not being provided or taken advantage of, what are the barriers?
■■
Does the child face barriers to participation because of
a disability; special need; lesbian, gay, bisexual, transgender, or queer status (LGBTQ); parenting; or any
other identified issue?
■■
■■
❏❏
❏❏
❏❏
Can the youth describe these activities?
considering what is reasonable and
prudent parenting. Some states give
examples of activities that should be
encouraged while others place limits
on those considered potentially harmful, such as hunting and riding an allterrain vehicle. For example:
California’s normalcy provision
states: “Nothing in this section
shall be construed to permit a
child’s caregiver to permit the
child to engage in day-to-day
activities that carry an unreasonable risk of harm, or subject the
child to abuse or neglect.” Safety
is paramount and requires the
caregiver to make decisions with
care.11
Mississippi’s law specifies it is the
caregivers’ responsibly to make
sure the child has “…the safety
equipment and any necessary permissions and training necessary to
safely engage in each activity the
child may participate in.” (Miss.
Admin. Code 18-6:1.D-I)
152
❏❏
Does the child or caregiver need support or help addressing these barriers? Are there any orders the court
can issue to address the barriers?
❏❏
■■
Does the child understand how to request permission to participate in activities from the designated caregiver?
If opportunities are not being provided or taken
advantage of, what are the barriers?
Does the child face barriers to participation because of
a disability, special need, LGBTQ status, parenting, or
other identified issues?
Are barriers related to cost of an activity or transportation?
If the youth is placed in a child care institution, is he
or she receiving regular and ongoing opportunities
to participate in age or developmentally appropriate
activities and experiences?
■■
■■
❏❏
Can the youth describe these activities?
■■
■■
❏❏
Does the child or caregiver need support or assistance in addressing these barriers?
Are there orders the court can issue to address
barriers to participation?
Is the reasonable and prudent parent standard
being exercised? Has the caregiver received the
required trainings?
How are the child’s parents being involved in the
child’s experience of normalcy?
Reprinted from Pokempner, Jennifer. The Role of the Court in Implementing the Older Youth Provisions of the Strengthening Families Act,
February 2016, ABA Center on Children and the Law Youth Engagement Project.
Idaho Department of Health and
Welfare forbids participating in
high risk activities as outlined in
Idaho’s Foster Care Recreation
Standard. High-risk activities are
never allowed, whereas moderaterisk activities may be allowed
if certain safety precautions are
met and mild-risk activities are
presumptively allowed. High-risk
activities include: White-water
boating or rafting in waters with
rapids rated at 3 or higher; rugged mountain or cliff climbing or
climbing requiring ropes; hunting
or target practicing with anyone
other than the child’s parent or
guardian; driving off-road motorized vehicles; kayaking; bungee
jumping, base jumping, parachuting or sky diving. 12
Role of courts. One bill attempts to
clarify and set limits on the role of the
court by addressing the procedure for
any questionable decision making by
the caregiver. In Missouri, Senate Bill
979 proposes “No court shall order the
division to provide funding for activities chosen by the caregiver. A caregiver’s decisions with regard to the
child may be overturned by the court
only if, upon notice and a hearing, the
court finds by clear and convincing
evidence the reasonable and prudent
parent standard has been violated.
The caregiver shall have the right to
receive notice, to attend the hearing,
and to present evidence at the hearing.
…”
Agency policies. Some states have
drafted internal agency policy, guidelines and tools, either in addition to or
in lieu of statutes. Policies drafted to
augment laws and guide child welfare
agency staff can be helpful as this is a
culture shift for many. Some policies
are specific and establish clear guidelines on activities, including limiting
the number of hours the foster child
may be out of the foster home to no
more than 24 - 48 hours and requiring
notification, not preapproval, to the
agency for out-of-state travel. New
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
Case Example: Deciding if a Child in Foster Care Should Play Football
by Richard Pittman
G
eorge is 13 years old, in the 7th
grade, and has been in foster
care for six months. George lives
with the Johnson family. The Johnsons love football. Their oldest son
is going to be a senior and is one of
the star players on the varsity team,
getting attention from colleges. The
Johnsons’ 14-year-old son is a 9th
grader who is trying out for football for the high school JV football
team. The Johnsons go to all of the
high school games, and say they will
travel to the other side of the state to
see their sons play.
George is a big, athletic kid who
has never played organized football,
but generally knows the rules of the
game and has watched it on TV. In
part because George has been living
with the Johnsons for the past six
months, he has gotten much more
interested in football and wants to
try out for his middle school football
team. He is certain he will make the
team because he is one of the strongest kids in his class. The Johnsons
have said they will give George permission to play, sign the forms he
needs, and pay any expenses.
George’s mother, Linda, has visitation rights and continues to work
toward reunification. George is her
only child. She is battling a cocaine
addiction and recently relapsed. She
just got out of a two-week inpatient
drug treatment facility and is in outpatient treatment with random drug
screens. During a visit, George told
Linda he wants to play football and
that tryouts are next week.
Linda is concerned. Like many
people in her community, she likes
watching football on TV, but knows
it can be dangerous. She remembers
hearing that a child in another part of
the state died last year from football
injuries, and has heard there can be
long-term brain damage from playing. She also resents that the Johnsons did not tell her about this, and
153
that George seems to be changing and
becoming more like the Johnsons.
George never showed any interest in
playing sports previously.
Linda calls her attorney to discuss
the options. The attorney files a motion to enjoin the Johnsons from signing any release to play football for the
middle school team.
What Should Happen?
Court hearing
Because tryouts for the football team
are next week, the court should schedule a hearing on the motion promptly.
Parent attorney arguments
At this hearing, the parent attorney
should present the parent’s objection
to the activity, including any evidence
regarding the risk involved in playing
football. The attorney should present evidence and argue that allowing George to play football does not
satisfy the reasonably prudent standard. In the alternative, the attorney
should argue that allowing George to
play football over her own reasonable
objection violates the mother’s right to
direct the upbringing of her child.
Child’s representatives’ arguments
The child’s attorney, after determining that George’s expressed interests
are to play football, should argue and
present evidence that playing football
is an accepted activity for 13 year olds
and that George is age- and developmentally ready to play football at
this level, showing his likelihood to
succeed as an athlete as a factor. The
attorney could also argue that it is a
valuable activity for fitting in with
peers that will, if anything, increase
his social standing, and that many
children George’s age safely participate in football all over the state and
the nation.
The CASA volunteer assigned to
George should make an independent
recommendation, or seek to find a
compromise solution. If the court
were to order George not to play
football over his and the Johnsons’
objections, it could sour their relationship with Linda and ultimately
become an obstacle to reunification
in the future, preventing permanency.
All parties should consider whether
there is a way to amicably resolve the
dispute.
Department attorney’s arguments
The department attorney should have
the caseworker speak with George to
determine his level of interest. The
caseworker should also look into the
proposed football program and see
what safety protocols are followed
by the team and coaches. While the
department may likely support the
foster parent, the department needs to
make its own determination.
Court’s decision
If there is not an amicable resolution,
the court should determine whether
Linda’s objection is sincere, or if she
simply does not want the Johnsons to
get their way. The court should also
determine whether Linda’s concerns
about safety are valid, though in this
case football has a serious and welldocumented risk of serious injury
and, in rare cases, fatal injury, plus an
unknown risk of long-term neurological damage. The court should also
consider that George expressly wants
to participate in football, and that
both he and Linda have previously
enjoyed watching football.
If the court decides Linda’s objection to George playing football is
sincere and well-grounded, the court
should support Linda and order the
Johnsons not to sign up George for
football.
Richard Pittman, Deputy Public Defender, Director of Juvenile Defender
Services, Louisiana Public Defender
Board.
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
How Can the Court Implement the Normalcy Provisions Effectively?
The court ensures the normalcy provisions are enforced
by providing oversight and setting expectations. Implementing the normalcy provisions may mean significant
culture change in many jurisdictions where permission
of the agency or court is sought for every decision that is
made with respect to a child’s activities. The court should
be a leader and enforcer of these changes to help ensure
that they are felt in the everyday lives of children.
❏❏
❏❏
Ensuring agency policies and practices are not at
odds with new federal and state policy on
normalcy.
Modeling collaborative decision making that
facilitates youth involvement in age-appropriate
activities and respects the roles of all parties,
including the biological parents.
Because of these new provisions, the court should no
longer be enmeshed in decisions about day-to-day social
The court can do this by:
and recreational activities unless there is a conflict. Par■■
Communicating the importance of normalcy to child
ties should no longer need to ask for hearings to get court
well-being and permanency.
approval to attend a camp or to take a school picture.
■■
Making findings that the reasonable and prudent par- Instead, the court can focus its time on areas of conflict
ent standard is being exercised.
regarding normalcy, and on permanency and well-being
■■
Making findings of the regular and ongoing opportu- issues in general.
nities to engage in age or developmentally appropriate activities.
The court should set the tone about the importance of
■■
Issuing orders to eliminate barriers to youth participa- normalcy and what is expected in court reviews.
tion in activities, such as:
❏❏
York published a 20-page administrative directive accompanied by three
detailed tools that assist caseworkers
gather information to support normative experiences, suggesting caregiver
considerations when applying the reasonable and prudent parent standard
and explaining what professionals and
caregivers need to know before applying the standard. The state policy also
addresses applying this requirement to
different groups, such as children with
a behavioral diagnosis and victims of
sex trafficking.13
Following policy alone is typically
not considered best practice, as agency
policy without the force of a statute is
rarely enforceable. Also, most jurisdictions have not defined the repercussions for the child welfare agency if
a child is not provided opportunities
similar to children not in foster care.
Well-crafted legislation is needed
to establish oversight and enforcement. Promoting Normalcy for Children and Youth in Foster Care, published by the Juvenile Law Center in
2015, suggests the following compo-
154
Reprinted from Pokempner, Jennifer. The Role of the Court in Imple-
Providing transportation, obtaining funding to
menting the Older Youth Provisions of the Strengthening Families Act,
February 2016, ABA Center on Children and the Law Youth Engagemake participation possible, or directing that
planning meetings occur to discuss participation. ment Project.
nents of an effective normalcy law:
■■
■■
■■
■■
■■
■■
■■
Provide a right to engage in age
or developmentally appropriate
activities with an affirmative duty
of the child welfare agency to
provide these opportunities.
Require including these activities
in each child’s case plan and judicial oversight and a youth-friendly
grievance procedure.
Give youth a document describing
their rights and grievance procedures.
Explain that normalcy for youth
in foster care does not alter legal
rights of biological parents.
Ensure normalcy activities are
provided in all group care settings.
Codify the reasonable and prudent parent standard and clarify
the scope of the decision-making
authority.
Provide liability protections for
foster parents and caregivers.14
Common Barriers to
Implementation
Culture shift. Promoting age-appropriate activities for foster children and
supporting foster parents’ ability to
make reasonable parenting decisions
requires a culture shift. Clear guidelines and effective training are needed
for foster parents and child welfare
professionals. All participants must
be informed of the specific training
provided to foster parents to build the
required trust in their decision-making
ability.
Costs. In addition changing the mindset of foster parents and child welfare
professionals, this new standard has
other potential implementation barriers. One major hurdle is who will pay
for children’s activities. It is not expected that a new funding stream will
be available in most states to make
applying the reasonable and prudent
standard practical so the solution will
lie in the creativity of the players. As
most parents quickly discover, it is
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
not cheap to raise children and finding
low-cost activities or creative ways
to pay for activities is critical. Child
Welfare agencies may want to consider
contacting local organizations to see
if they would be willing to provide
low-cost activities to children in foster
care.
The authors of Promoting Normalcy for Children and Youth in Foster
Care (p.12) suggest possible funding
strategies, including raising room and
board rates for foster parents to cover
the costs of participating in activities.
These are arguably reimbursable under
Title IV-E as a necessary expense under foster care maintenance payments.
Another possibility is to draft state
legislation requesting additional funds
to support age-appropriate activities
for foster children. For example, California recently proposed new legislation that would establish the California
Foster Youth Enrichment Grant Program. This program would provide
grants to foster youth to participate
in activities that enhance their skills,
abilities, self-esteem, or overall wellbeing. Examples of eligible activities
include:
■■
music, dance or drama lessons,
■■
school trips,
■■
college campus visits,
■■
advanced placement exam fees,
■■
test preparation courses or materials and books,
■■
summer camp attendance,
■■
sports league participation,
■■
■■
school-sponsored formal dance
attendance, and
participation in school graduation
activities.15
Safety and risks. Finally, it may help to
provide detailed guidance to caregivers on making appropriate decisions,
while not unreasonably limiting their
decision-making authority. An example is a list of activities considered inherently risky and therefore requiring
special consideration, such as Idaho’s
list of high-risk activities referenced
above.
155
Resources
Pokempner, Jennifer et al. Promoting Normalcy for Children and Youth in
Foster Care, May 2015, Juvenile Law Center.
Pokempner, Jennifer. The Role of the Court in Implementing Older Youth
Provisions of the Strengthening Families Act, February 2016, ABA Center
on Children and the Law Youth Engagement Project.
Promoting Well-Being through the Reasonable and Prudent Parent Standard, Center for the Study of Social Policy, 2014.
What Young People Need to Thrive: Leveraging the Strengthening Families
Act to Promote Normalcy, Jim Casey Youth Opportunities Initiative, The
Annie E. Casey Foundation, 2015.
Kids Central. Caregiver Guide to Normalcy, 2014. www.kidscentralinc.org/
caregiver-guide-to-normalcy/
Washington State Department of Social and Health Services. Decision Making Department of Family and Protective Services: Normalcy Activities for
Children, 2014. <www.dshs.wa.gov/sites/default/files/CA/fos/documents/
normalcy.pdf>
Practice Tips
example, if a parent objects to a
child getting a job after school, the
agency should consider the basis
for the parent’s objection.
Understand the normalcy provision
and advise clients. Judges and attorneys need to be involved in promoting
reasonable and prudent parenting, understand the provisions of the law, and
share those provisions with clients.
Judges:
■■
need training on the normalcy
provisions and tools to help implement them. A judge’s checklist
can help when reviewing courtroom findings regarding normalcy
activities. (See “Questions to Ask
at Permanency Hearings:
Normalcy”).
❏❏
❏❏
❏❏
■■
Is there a safety issue?
Will the child’s school work
suffer?
Is the work incompatible with
the family’s religious preferences?
If the agency and parent cannot
agree on a resolution, the parent
can ask for the issue to be reviewed in the next court hearing
and have the court make findings
based on the evidence presented.
Agency attorneys:
■■
Alternately, mediation may be
■■
should review provisions of the
used to resolve the issues between
law with casework staff and check
the caregiver and the parents.
to see if agency policies need to be
Children’s attorneys:
updated.
■■
should advocate for their clients
■■
should look into providing reto be able to engage in age and
duced rate liability insurance for
developmentally appropriate
foster parents for activities covactivities. Consider working with
ered under normalcy provisions.
local partners to arrange low-cost
Parent attorneys:
alternatives for foster youth want■■
should ensure their clients’ rights
ing to engage in these activities.
and concerns are considered. If
■■
should encourage their clients to
there is a dispute, ask the court
come to court and advocate for
to make rulings if necessary. For
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
their own normalcy activities.
As courts see the impact of these
activities on children, they will be
more willing to encourage them in
the future. (See sidebar, “Preparing Youth for Court”)
❏❏
❏❏
❏❏
Be familiar with state practice and
statutory guidelines. Some states
have developed practice guidelines for
legal practitioners with useful tools
and information on implementing
the normalcy provisions. Others have
passed legislation.
■■
■■
■■
The Florida Guardian ad Litem
Program Dependency Practice
Manual includes a section on
how to help achieve normalcy for
clients, a normalcy checklist, and
a worksheet for GALs. (http://
guardianadlitem.org/wp-content/
uploads/2016/05/Final-GALDependency-Practice-Manual-6-3.21.2016.pdf#page=142)
Nebraska passed legislation allowing foster parents to use their
best judgment in making decisions
about developmentally appropriate extracurricular, enrichment,
cultural, and social activities for
foster children.
Nebraska’s legislation recommends that:
❏❏
Foster parents consider
various factors, including
the child’s goals and input,
parents’ input, and the child’s
dopmental level, when making
reasonable and prudent parenting decisions
❏❏
❏❏
■■
Children in foster care have
the right to participate in
normalcy activities
The otherwise existing constitutional rights of biological
parents are not impacted by
the reasonable and prudent
parenting standard.
Nebraska also suggested questions for judges when considering
reasonable and prudent parenting
standards, including:
❏❏
156
What extracurricular activities
❏❏
❏❏
❏❏
is the youth involved in?
■■
What opportunities has the
youth had to socialize with his
or her peers?
■■
Has the child traveled at all?
Does the young person have
a job?
What activities does the child
wish to participate in?
What barriers has the caregiver experienced connecting the
youth to extracurricular and
social activities?
Is the youth participating in
all activities he/she would like
to participate in? If not, why
not?18
Prepare to handle disputes with
parents over activities. The child’s
biological parent may disagree with
an activity identified for a child. While
Louisiana statute does not specifically
address legal disputes with parents
around reasonable and prudent parenting, the Louisiana Pelican Center
recommends courts, parties, and the
legislature respect the legal rights and
authority of the legal parent when the
parent’s rights have not been terminated and the parent remains active in
the child’s life. This includes keeping
the legal parent reasonably informed
about the child’s activities and seeking
parental approval when possible and
appropriate. The court should be involved if the foster parents and parents
cannot agree. Disputes may include:
■■
■■
■■
Parent objecting to an activity due
to concern about safety
Parent objecting to activity that
might be against the family’s
religious beliefs
Parent objecting to an activity
which may interfere with other
activities that the parent believes
are more important.
When trying to resolve differences
between parents and foster parents,
Louisiana’s Pelican Center recommends courts assess:
■■
The parent’s motives for objecting
to the activity
■■
■■
The reasonableness of the parent’s
concern
The prior history of the child and
the family regarding this or other
suggested activities
The child’s expressed interests
The parent’s reasonable and sincere objections
Conclusion
Foster children need to have the same
opportunities as children who are not
in care. Those opportunities will allow
children the chance to develop bonds
with other youth and adults; those
adults may be the positive bonds that
will help the youth become successful later on in life. The child welfare
agency, foster parents, attorneys and
the court should help the foster child
participate in age and developmentally appropriate activities so the child
can have as normal a life as possible.
The reasonable and prudent parenting
standard can help the foster child have
a positive outcome in foster care and
adulthood.
Heidi Redlich Epstein, JD, MSW, is
the director of kinship policy and the
assistant director of state projects at
the ABA Center on Children and the
Law. She provides legal training and
technical assistance on kinship care,
permanency issues and concurrent
planning to judges, attorneys, and
social service professionals. Heidi comanages the Grandfamilies State Law
and Policy Resource Center at www.
grandfamilies.org. She was previously
a law guardian for Legal Aid of Maryland and a residential social worker in
upstate New York.
Anne Marie Lancour, JD, MAT is the
Center’s Associate Director and Director of State Projects. She directs the
Center’s award-winning Permanency
Barriers Project and is a national
expert on child abuse and neglect, termination of parental rights, adoption,
and foster care. She provides training
on legal ethics, system reform,
permanency planning, and serves on
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
uicide several
Risk statewide policy reform workgroups in Pennsylvania.
This article was developed in collaboration
with the Pelican Center for Children and
Families, which administers the Louisiana Court Improvement Program under a
sub-grant agreement with the Louisiana
Supreme Court.
Endnotes
1. Pub. L. No 111.
2. Sec. 111(a) (3)NOTE: 42 USC 671 note.
3. Committee Reports, 113th Congress
(2013-2014), House Report 113441, http://thomas.loc.gov/cgi-bin/
cpquery/?&sid=cp113CY1L4&r_n=hr441.113
&dbname=cp113&sel=DOC&
4. Juvenile Law Center. Promoting Normalcy
for Children and Youth in Foster Care, 2015, 5.
5. Lawrence Steinburg, Ph.D. Age of
vention efforts,
according
Opportunity,
2014, 10-11.
o examined
clusters
in a
6. Jim Casey Youth. The Adolescent Brain:
New Research and its Implications, 2015, 20.
w the homogeneous
culture
7. Jim Casey Youth,
2015, 11; “Beyond Raging
agers. Such
conditions
con-Mental Health Letter,
Hormones.” Harvard
2005.
hy they happen
howLa.
to Rev. Stat. § 46:283; Tex.
8. 11 P.S.and
§ 2644;
[Fam.]
Code
Ann.
§264.125; FL Stat. Ann.
t UChicago,
and
Seth
Abru§39.4091(3)(b),
409.145 (3)(b)(2)).
class community
that had
9. Ga. Code Ann., § 15-11-201.
should be,
namely
10. La.
Child.acaCode Ann. art. 675.
hich private
11. information
Cal. Welf. & Inst. Code §361.2.
ealth problems.
con- of Health and Welfare.
12. IdahoSuch
Department
al connections
within
theRecreation Standard, 2015,
Idaho Foster Care
available at http://healthandwelfare.idaho.
gov/Portals/0/Children/AdoptionFoster/
nnectedness,
something
FosterCareRec.pdf.
hools with
intense academic
13. Newcommunity
York State Office of Children and
d with certain
Family Services, Administrative Directive,
15-OCFS-ADM-21, 2015.
des of social isolation and
14. Juvenile Law Center, 2015, 3, 11-21
ing vulnerabilities,
and why
15. Assembly
suring suicide
risk. Bill 1984 (California, February
urkheim,2016).
published in
16. LBmuch
746 (Nebraska
of prevention,
less at-2015).
17. Ibid.
18. Nebraska
Appleseed.
uates of local
schools
had Implementing the
“Normalcy”
Provisions
ving a total of 110 people. in the Preventing Sex
Trafficking and Strengthening Families Act (PL
113-183), A Guide for Court Stakeholders,
failure
and academic
October 2015.
ceived
ial connectedness is not
field to understand and pre-
reventing suicide, particue the theoretical and empiriortant being: ‘How do
157
RESEARCH IN BRIEF
Good Relationships with Parents May Benefit Children’s
Health Decades Later
G
rowing up in a well-off home can benefit a child’s physical health even
decades later — but a lack of parent-child warmth, or the presence of
abuse, may eliminate the health advantage of a privileged background, according to a Baylor University study.
“Previous research has associated high socioeconomic status with better childhood nutrition, sleep, neighborhood quality and opportunities for
exercise and development of social skills. But good parent-child bonds may
be necessary to enforce eating, sleep and activity routines,” said researcher
Matthew A. Andersson, Ph.D., assistant professor of sociology at Baylor’s
College of Arts & Sciences.
For example, if parent-child relationships are strained or abusive, meals
may be less coordinated among the family, and children may be more likely
to eat sugary or high-fat foods as snacks or even in place of meals. Sleep
and activity routines also may become irregular, keeping children from
developing healthy lifestyles and social and emotional skills useful for successful aging, Andersson said.
On the flip side, good parent-child bonds in economically disadvantaged
homes, while they promote health, do not seem to lessen the negative impact
of low socioeconomic status as the children age, Andersson said. Previous
research has shown parents with less education and fewer financial advantages are more apt to threaten or force obedience rather than have constructive dialogue, and that may lessen warm relationships. In addition, disease
rates or inflammation among those children when they become adults have
been linked strongly to abuse, mistreatment or lower levels of parental
warmth.
The study on Midlife Health and Parent-Child Relationships is published in the Journal of Health and Social Behavior.
For the study, health at midlife was defined as being free from 28 possible conditions, among them cancer, circulatory or respiratory disease, endocrine diseases, nervous system diseases, infectious and parasitic diseases,
skin or digestive disease and musculoskeletal conditions.
“Much research continues to view socioeconomic status and parentchild bonds as highly related or even interchangeable. But in fact they may
quite independently influence a child’s well-being,” Andersson said.
“The key takeaway is that without adequate parent-child relationship
quality to match, socioeconomic advantage during childhood may not offer much protection at all against major chronic disease as children become
adults and reach middle age.”
Andersson analyzed data on disease or poor health of middle-aged
adults drawn from the National Survey of Midlife Development in the United States (MIDUS). He surveyed 2,746 respondents ages 25 to 75 in 1995
about their childhood treatment by parents. He conducted surveys again
about 10 years later, with 1,692 of the individuals taking part. The follow-up
analysis, adjusted for personal background in 1995 and for probability of
dropping out of the MIDUS study, revealed that childhood abuse continued
to undermine any protection from disease linked to childhood socioeconomic advantage.
© Newswise
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
ATTORNEY DEVELOPMENT
Training Model Teaches Best Practices
and Improves Child Attorney Behaviors
by Claire Chiamulera
T
he ChildRep Best Practice Model,
designed by the University of
Michigan Law School from 20102015, gives child welfare lawyers
skills to “raise the bar” when representing at-risk children. The model
seeks to strengthen child representation in local courts and, as a result,
improve case outcomes.
The National Quality Improvement Center on the Representation of
Children in the Child Welfare System
(QIC-ChildRep), housed at the law
school and supported by the U.S. Children’s Bureau, developed the model
after assessing child representation in
the U.S. for a year. Through that assessment, the following six basic core
skills were identified as best practices:
■■
■■
■■
■■
■■
■■
Enter the child’s world.
Assess child safety.
Actively evaluate needs.
Advance case planning.
Develop case theory.
Advocate effectively.
The model reinforced these six
core skills and took the form of a
two-day training, followed by supplemental group trainings and one-onone coaching sessions. Pilot trainings
in Georgia and Washington tested
the model’s effectiveness. Lawyers
throughout both states were trained on
the best practices then asked to apply
them in practice. A study of these lawyers’ representation after the training
by Chapin Hall at the University of
Chicago found positive results.
For the evaluation, 146 Georgia
children’s attorneys and 118 Washington children’s attorneys representing a range of skills, experience, and
motivation participated. For most attorneys, representing children entailed
20% or less of their legal work and income. Their practices were varied and
included, in addition to child welfare,
158
divorce and paternity, private adoption,
truancy, and juvenile justice.
Attorneys were randomly assigned to a treatment group (trained
on the model) or a control group (not
trained). Local court staff in each state
assigned attorneys to represent children following their usual practice and
appointed them as either treatment or
control attorneys.
Study Findings
According to Chapin Hall in its report,
Evaluation of the QIC-ChildRep Best
Practices Model Training for Attorneys
Representing Children in the Child
Welfare System, lawyers who were
trained in the model:
■■
Aligned their behaviors more with
national best practices.
■■
■■
Achieved permanency for older
children in the child welfare system sooner.
Began to seek learning opportunities from experts and other attorneys, especially independent and
isolated lawyers.
initiate nonadversarial case resolution
approaches more than untrained attorneys. Trained attorneys were also
involved in more family team meetings and motion hearings in their cases
compared to the control group.
Child outcomes. The evaluation
explored whether children assigned
attorneys trained in the model experienced differences in permanency
outcomes, kinship placements, and
rates of movement within one year of
assignment compared to control attorneys. The children studied included all
children assigned an attorney, trained
and untrained, between mid-2012 and
November 30, 2014 in both states.
■■
Likelihood of permanency. The
researchers found no difference
in the likelihood of permanency
among the children represented by
trained and untrained attorneys in
both states.
■■
Attorney behaviors. The attorneys
were evaluated on behaviors in four
domains:
1. Frequency of contact with individuals involved in the case
2. Time spent on selected activities
3. Frequency of certain events
4. Relationship and advocacy
Attorneys who received the training in Georgia were found to meet
with their clients more often, contact
more parties in the case, spend more
time on their cases, and engage in
advocacy more than the control group
attorneys.
Attorneys in Washington who
were trained in the model were found
to contact foster parents and substitute caregivers more, spend more
time developing a case theory, and
■■
Prompt permanency. Children
assigned to trained attorneys in
Washington were 40% more likely
to achieve permanency within six
months than children represented
by untrained attorneys. Differences were not found in the timeliness of permanency for children
represented in Georgia.
Placement moves and kin placements. There were no differences
in placement moves and placements with kin in either state
among children represented by
trained or untrained attorneys.
Lessons for the Field
Several themes emerged from the
study findings that may help other
jurisdictions looking to strengthen attorney representation of children:
■■
Attorneys trained in the model
who provide client-directed
representation and are appointed
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
early may achieve permanency
faster for older children. They are
better able to influence situations
if the course of action is clear and
the child’s voice is influential in
the case.
■■
■■
■■
■■
Attorney behaviors associated
with effective representation of
older youth included contacting
foster parents or substitute caregivers, spending more time developing a case theory, and increasing
nonadversarial approaches to resolving cases. Working differently,
not spending more time, is key to
effective representation.
A framework, like the intervention’s six core skills, helps to
engage attorneys initially, set
targets and goals, and serve as a
consistent structure for subsequent
training/coaching.
Attorney buy-in and the ability to
consent to participate in training
(rather than requiring it) improves
attorneys’ willingness to engage
with a training program.
Independent and isolated attorneys
welcome learning from peers and
experts and are often willing
participants in training.
The ChildRep Best Practice Model
positively affects attorney behaviors
and instills skills and best practices
that are nationally accepted in child
welfare cases. It also creates an avenue
for solo attorneys in less populated
regions with fewer networking and
learning opportunities to learn from
peers and experts and helped motivate
them. While the impact of the model
on child outcomes was small, achieving permanency sooner—especially
for older youth—was one outcome
linked to cases where attorneys were
trained in the model.
For more information on the
ChildRep Best Practice Model, visit
http://www.improvechildrep.org/
Claire Chiamulera, legal editor, ABA
Center on Children and the Law, is
CLP’s editor.
159
ON THE HILL
A
Congressional Briefing Highlights
Children’s Right to Counsel
ccess to justice for a child requires access to counsel—It seems simple,
yet many children go unrepresented in their legal proceedings. Seeking
change, a congressional briefing was held September 12, 2016 in Washington, DC.
The briefing, sponsored by Congresswoman Karen Bass (D-CA), focused on the need for children’s legal representation in court during child
welfare, juvenile justice and immigration proceedings. While children in
some of these proceedings are provided an attorney, many go unrepresented
as a judge decides the outcome.
ABA Center on Children and the Law attorney and Capacity Building
Center for Courts Director Jennifer Renne called for children’s’ “right to be
heard and access to justice,” echoing common themes from earlier panelists.
“Robbing children of their voice generates mistrust in the judicial system,”
Renne said, while “97 percent of kids with attorneys said they were glad
they came to court.” Renne was citing research on children’s involvement in
child welfare proceedings in New Jersey conducted by the ABA Center on
Children and the Law.
National Juvenile Defender Center Executive Director Kim Dvorchak
talked of “plea mills” in Colorado where children without lawyers were
pressured to take plea bargains, not understanding the ramifications of accepting the plea. Dvorchak said “state laws must change to ensure early and
automatic appointment of counsel for youth.”
Kids in Need of Defense attorney Jennifer Podkul agreed, saying “I
think counsel is imperative, especially for unaccompanied minors.” She
said “Immigrant children are coming [to the US] for safety and to reunify
with family,” but end up fighting their own immigrant court case, often without representation. Podkul noted, “A child is five times more likely to win
their case if they are represented.”
Panelist and former alumni of the Florida foster care system, Derrick
Riggins talked about his difficulties in foster care: “I did not have an attorney to represent me. A lot of my ordeal could have been avoided...if my
voice was heard. Youth in care have a right to have their voice heard through
the process.”
Other panelists included: Kendall Marlowe M.S.W., J.D., National Association of Counsel for Children, Clark Peters Ph.D., J.D., A.M., University
of Missouri, and David Kelly J.D., M.A. Administration for Children, Youth
and Families.
The briefing drew almost 100 people, many of them congressional staffers. Panelists and audience members discussed next steps, including reauthorization of the Child Abuse Prevention and Treatment Act and legislation
around a child’s right to counsel in immigration cases. The Children’s Bureau has committed to issuing new guidance articulating the administration’s
position that every child and parent should have counsel throughout a child
welfare case, due any day.
Learn more:
Watch the briefing: https://www.periscope.tv/w/1BdGYNWNWrEJX
Download the materials: https://firstfocus.org/events/childrens-right-tocounsel/
—Sally Small Inada, CLP Contributor
CLP Online —www.childlawpractice.org
Vol. 35 No. 10
CHILD DEVELOPMENT 101
Children’s Hearing Milestones
A
child’s hearing can be tested at
any age and as early as a few
hours after being born. In the U.S. it
is estimated that 12,000 children are
born each year with a hearing loss.
Children also need to be screened
regularly for hearing loss because it
can occur any time for varied reasons.
Undetected hearing loss in young
children may cause difficulties in
communication and learning.
Parents, caregivers, and child advocates can ask that a child’s hearing
be checked whenever there is a concern. If a child is not demonstrating
typical hearing milestones evaluations
done by audiologists can help identify
if there is hearing loss. Early diagnosis and intervention can help with
language, listening and speech.
The following hearing milestones
were developed by the John Tracy
Clinic, a nonprofit in Los Angeles, CA
providing parent-centered services to
young children with hearing loss.
0-3 months:
By 2 years:
Recognizes parent’s voice. Reacts to
loud sounds. Wakes slightly to nearby
conversations. Smiles when spoken to.
Responds to yes/no questions. Understands meaning of many words. Points
to pictures on request. Uses two word
phrases.
By 6 months:
Responds to changing voice tones. Reacts to noisy toys. Begins looking for
sound sources. Uses many speech-like
sounds while babbling.
By 9 months:
Responds to simple requests. Locates
the direction of sounds. Reacts to own
name. Babbles different length sounds.
By 12 months:
Understands a variety of words.
Imitates some speech sounds. Enjoys
games such as peek-a-boo. Says first
word(s).
By 18 months:
Follows simple directions. Enjoys being read to. Points to some body parts.
Uses more than six words.
By 3 years:
Understand many action words. Recognizes familiar melodies. Uses threeword sentences. Speaks clearly enough
for family to understand.
By 4 years:
Follows two-step directions. Responds
when called from another room. Uses
sentences of four or more words.
Speaks clearly enough for non-family
to understand most of the time.
By 5 years:
Responds to varied questions. Sings
full songs and includes actions. Has
a growing vocabulary. Uses detailed
sentences.
© Newswise
American Bar Association
Center on Children and the Law
1050 Connecticut Ave., NW, Suite 400
Washington, DC 20036
160
CLP Online —www.childlawpractice.org
Vol. 35 No. 10