Coordinating Protection of Children in Probate Court and

Juvenile CourtVirginia G. Weisz

Elizabeth ArmstrongRobin Stolk

Presentation at: National Association of Counsel for Children

August 22, 2009

Children in Kinship Care in US

• 2.5 million children live without either parent outside foster care

• 125,000 children live in kinship foster care

• 20 times more children live with kin without child protection agency oversight than live in kinship foster care

2007 Casey Kinship Foster Care Survey of 50 States and DC Agencies

• 50% states: State agency has no involvement with kin caring for abused and neglected children outside state custody

• 39 states allow and 29 states require caseworkers to seek kin to care for children outside foster care

• Most states do NOT open case when kin available to divert child from foster care

• States more willing than in previous years to divert children from foster care even where there is greater risk to child

• 523,000 children in foster care in 2002 reduced to 496,000 in 2007 after diversion practice increased

Massachusetts Action re Kinship Caregivers

• Office of the Child Advocate created, 2008• Department of Children and Families renamed and

major child welfare statutes amended, 2008• Protecting Children reported on guardianship of

minors in Probate and Family Court, Oct. 2008• Caregiver Affidavit implemented, 2009• Grandparents Raising Grandchildren Commission

formed, 2009• Article V, Uniform Probate Code creates higher

standards for Probate Court and Juvenile Court guardianship of minors including annual reports on each child, effective July 1, 2009

Children in Kinship Care in Massachusetts

• 30,615 children live with grandparents or other relative with no parent in the home in or out of foster care

• DCF reports 27% children in out of home foster care live with relative caregivers

• 2007 DCF reports 1,803 in kinship foster care• 17 times more children live with kin without

foster care oversight than live in kinship foster care

Kin Caregivers in Massachusetts

•67,781 children living in grandparent-headed households (4.5% of all children in the state)

•19,721 children living in households headed by other relatives (1.3% of all children in the state)

•Of the children living in households headed by grandparents or other relatives in MA, 30,615 are living without either parent

AARP GrandFacts Report, March 2008

Challenges to Caregivers

• Lack of financial resources• No information on where to get resources • No understanding of legal options and implications

when raising grandchildren• Emotional rollercoaster of protecting children from

their parents• Fear of not being around to support children into

adulthood• Many children have experienced trauma and have

special needs creating extra demands

Grandmother’s comments

• DCF opened case after birth and hospitalization for extended times

• Infant placed with grandparents

• DCF never told them what services available for child or option of being foster parents before going to probate court

• Childcare is a big expense

Program Description Funding EligibilityTransitional Aid to Families with Dependent Children (TAFDC aka Welfare)

Government program that gives cash assistance and other benefits to low-income families with dependent children

Federal Government

Probate Guardians can file on behalf of child*Guardians who adopt the child can lose this benefit

Emergency Aid to Elders, Disabled, and Children (EAEDC)

Provides cash and other benefits to low-income elders, disabled and children, who do not qualify for other cash assistance programs

Massachusetts State Funded Program

Income Based

Cash Assistance Programs

Program Description Funding Eligibility

Supplemental Security Income (SSI)

Need-based cash assistance program that gives help to elders, and adults or children who are blind or disabled

Federal Government*State funded, as well

Probate Guardian can file on behalf of child (if eligible)

Food Stamps Helps low-income households pay for food so they can have a healthy diet

Managed by the US Department of Agriculture *In MA-Department of Transitional Assistance

Income Based

School Meals Program Free/reduced price meals and milk are offered to low-income children

Run by the MA Department of Education*State and federal funded

Income Based

Foster Care v. TANF Monthly Payments in Massachusetts

Age of Child Foster Care, guardianship, adoption: daily

X 30 days

0-5 years $17.10 $513

6-12 years $17.96 $538.80

13+ years $18.59 $557.70

Age not a factor TANF BENEFITS monthly

1 child $428

2 children $531

Child Custody in Massachusetts Courts

Juvenile Court

•Care and Protection •Custody•Guardianship•Adoption

•CHINS•Delinquency

Probate and Family Court

•Paternity•Child Support, visitation, custody

•Guardianship•Adoption•Divorce

•Custody•Child Support•Visitation•Post-Divorce

0

500

1000

1500

2000

2500

3000

3500

4000

4500

5000

5500

6000

19971998

19992000

20012002

20032004

20052006

TotalGuardianships

GuardianshipPetitions inProbate andFamily Court

Care andProtectionPetitions inDistrict andJuvenile Court

GuardianshipPetitions inJuvenile Court

Guardianship of Minor and Care and Protection Petitions Filed 1997-2006

DSS Data for Matched GM Cases

Protecting Children study in Massachusetts Findings

• 36% increase in probate court filings for guardianship of minors in past 10 years

• 54% of children in probate court study had been subject to child abuse investigation prior to the filing for guardianship in probate

• 47% of children were found by DCF to have been abused or neglected prior to filing of probate court guardianship petition; 19% had supported investigations after probate filing

• 69% of 401 children in probate court study were found in DCF database

Time and Type of DSS Contact

Protecting Children: Legal Issues Raised

Legal protections in juvenile court not required in probate court• Attorney for parents (and child until July 1, 2009 when

probate court provides attorney for child if requested)• “Reasonable efforts” finding required to keep child in

home of parent or reunify in timely fashion• Time frames for hearings, reunification, permanence• Parents entitled to reunification services provided by

DCF• Child entitled to services provided through DCF

including case management, day care, permanency

Juvenile and Probate Connection

• Protecting Children: abused and neglected children directed to probate court by DCF experience potentially perilous parallel court system

• 2007 Casey Kinship Foster Care National Survey also shows DCF diversion from juvenile court

• No juvenile court oversight of DCF decision to divert to probate court

Required Juvenile Probate

Attorney for childAttorney for child

Attorney for parent(s) Attorney for parent(s) YESYES

YESYES

If If requestedrequested

NONO

Reasonable efforts Reasonable efforts findingfinding

YESYES NONO

Clear and convincing Clear and convincing evidence of unfitness evidence of unfitness removes custody from removes custody from parentsparents

YESYES YESYES

Court reviews of Court reviews of services and services and permanence permanence

YESYES NONO

Reunification/other Reunification/other services orderedservices ordered

YESYES NONO

Fostering Connections to Success & Increasing Adoptions Act of 2008

• Title I: Connect and support relative caregivers

• Title II: Improve outcomes for children in care

• Title III: Increase tribal foster care and adoption access

• Title IV: Improve incentives for adoption

New Federal Funding Requirements (Fostering Connections)

• Relative notification when child removed• Educational attendance and stability• Health oversight and coordination• Sibling placement• Transition plan for youth leaving care at 18+• State option for kinship guardianship funds• State option for 18-21 year olds in care

State Agency Required to Provide Notification to Relatives

• Agency must exercise due diligence to identify and notify all child’s relatives of the child’s removal from parent (exceptions due to family or domestic violence) within 30 days of child’s removal from parents

• Explain relative’s options to care for child

• Describe requirements to become foster family and services and supports available

• Explain availability of kinship guardianship assistance payments, if state has opted to make payments

Title I Section 103

Kinship Guardianship Payments

• States can choose federal Title IV-E option for children in foster care raised by relative caregivers

• After at least 6 consecutive months in foster care in home of relative who is committed to permanence

• Return to parents or adoption not likely• Child attached to guardian and if over 14, has been consulted • Criminal record check on guardian and other adults in home• Kinship payment may equal but not exceed foster care payment

and must include Medicaid eligibility• Child entering guardianship after age 16 is eligible for

independent living services and education vouchers• Siblings of child may also be placed and supported

Title I Section 101

Educational Attendance & Stability

• State plan for foster care and adoption assistance must assure:• Every school-age child receiving subsidy must be in school full-time or

medically excused from full-time study with regular medical updates in case plan

• Child welfare agencies must include in case plan • Assurance that state agency has coordinated with local educational

agencies to ensure child remains in school• Foster care placement considers appropriateness and proximity of

current school• Child must remain in school of origin if in best interest of child• If not in best interest of child, must be enrolled immediately in another

school with child’s school records provided• Transportation to school part of foster care payment

Title II Section 204

Health Oversight and Coordination

• State plan to ensure coordinated strategy with Medicaid agency and pediatric experts for ongoing oversight must include: – Schedule for health, mental health, and dental screening and follow-

up screenings– How health needs identified and addressed– How medical info on each child updated and appropriately shared– Steps to ensure continuity of health care which may include medical

home for each child– Prescription oversight– Consultation of State with experts on assessing and treating children

in foster care appropriately Title II Section 205

Sibling Placement

• States must make reasonable efforts to• Place siblings in same placement unless contrary

to safety or well-being of any• If not possible to place together, to provide for

frequent visitation or ongoing interaction between siblings unless State documents why contrary to safety or well-being of any of the siblings.

Title II Section 206

Possible Reasons for Diversion of Children from Foster Care by DCF

•Caseworker overload•Pressure from feds to decrease number of children taken into care•Title IV-B funds available for in-home services are limited and are for parents, not kin providing safety•Title IV-E funds for foster care are open-ended•Fostering Connections Act has many new requirements DCF may lack resources to provide •Caseworker may not be trained on new notification of relatives requirement under Fostering Connections Act

Should court review DCF decision to divert from juvenile court to probate court?

DCF decision could be motivated by issues juvenile court is familiar with and probate court is not:• Fiscal savings for agency• Reduction in caseload and paperwork• Title IV-B in-home services funding limited• Title IV-E reasonable efforts findings required• Increased Fostering Connections requirements• Juvenile court hearings numerous and parties represented by

counsel • Family wishes to avoid foster care • Family wishes to avoid involvement with DCF and/or DCF desires

to end involvement with family

A Grandparent Guardian Speaks • Mother physically abused

child• Child placed with

grandmother• DCF worker visited

grandmother and child and arranged daycare, but never offered foster care

• Grandmother got Probate guardianship

• “ I get $400 in welfare each month. I’m saving money now to afford to adopt.”

Decision maker for probate filing

• DCF social worker (current practice in MA)• Kinship caregiver (able to make informed

decision with Fostering Connections notification of relatives requirements)

• Juvenile Court Judge• Juvenile Court clerk/magistrate• Probate Court Judge• Probate Court clerk/magistrate

Probate Court Decision Basis“Best interest of the child” must consider:

• Does petitioner understand differences in services, stipend, permanence, legal process, etc. between juvenile and probate court?

• Are services available outside DCF custody to meet child’s needs?

• Can petitioner manage child’s expenses with lower monthly TANF stipend?

• Does age of child affect likelihood of long-term stability?• Does parent need reunification services?• Would child need adoption services in future?• Would child prefer not to have foster care stigma?• What are kinship caregiver’s and child’s wishes & needs?