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					  How can Juvenile Courts
 Better Address the Needs of
 Child Maltreatment Victims
 with Disabilities who are in
         Foster Care?
          Howard Davidson
 ABA Center on Children and the Law
      American Bar Association
740 15th Street, NW, Wash., DC 20005
       Data Presented at 2001
       Congressional Hearing
• Children with disabilities, on average, 3.4
  times more likely to be maltreated
  3.88 times more likely > emotional abuse
  3.79 times more likely > physical abuse
  3.76 times more likely > child neglect
 3.14 times more likely > sexual abuse
• 22% of A&N children > learning disabilities
• Near-fatal child maltreatment leaves 18,000
  kids permanently disabled each year (lost
  productivity: up to $1.3 billion if future
  earnings are only impaired 5-10%)
Evidence that we’re doing poorly
 addressing child maltreatment
        victim needs…
• Federal Child & Family Services Reviews of
  all states show real scarcity in availability
  and delivery of mental health services for
  abused/neglected children in foster care,
  questionable quality of services delivered,
  and lack of routine mental health
  assessments even when clearly needed
• All state “Program Improvement Plans”
  must address these shortcomings, with
  courts playing a helpful & important role
 Federal Child Abuse Prevention
  and Treatment Act (CAPTA)
• 42 U.S. Code Section 5101, last amended
  by the “Keeping Children and Families Safe
  Act of 2003”, Public Law 108-36
• Mandates every child have a GAL, attorney,
  CASA, or combination of these – all must
  now have “appropriate training” -- or
  should not be appointed by the judge (ABA
  suggests training address “special needs” of
  maltreated children with disabilities)
  (Judges should help assure such training)
• Just being implemented: In all cases of
  substantiated maltreatment victims under
  age 3, CPS must have process for referring
  these children to the Part C, IDEA “Early
  Intervention Program” ($408 million in
  FY02) (Judges should assure that happens)
• CAPTA’s Title II $43. million “Community-
  Based Prevention” funds are supposed to
  support local “disability services” & the
  “additional needs of families with disabilities
  through respite care/other services”
  (Judges should inquire how this $ can help
  families, including foster & kinship families,
  who are caring for children with disabilities)
    2003 CAPTA Change to the
   Federal Children’s Justice Act
• State Children’s Justice Task Forces have a
  newly-designated area of focus: “the
  handling of cases involving children with
  disabilities or serious health-related
  problems who are victims of child abuse or
  neglect” (ABA doing survey of its impact)
• CJA task forces can now use this federal $
  ($17 million) for relevant activities,
  including judicial and legal education on
  better serving children with disabilities
    Special Education Needs of
      Children in Foster Care
• CDF estimate: 30-40% of foster children are
  receiving special education services
• Infants and toddlers are the fastest growing
  part of the foster care system
• IDEA 2004 reauthorization addresses needs
  of children in foster care (P.L. 108-446)
• Addresses Part C (early intervention services)
  needs of infants/toddlers in care, defines
  “parent” to include foster parent, authorizes
  judges to appoint “surrogate parents”
      More About IDEA 2004
     “Special Ed” Amendments
• Congress said judges, CASA’s, GAL, etc.
  should be involved in the evaluation (IEP)
  process for children in foster care
• Addresses need for expedited assessments
  & continuity of special education when
  foster children change homes and schools
• Judges have authority to remove a parent’s
  educational decision-making rights” and
  substitute another to represent child in that
• States must now describe to the DOE their
  “Part C” policies/procedures that require
  referrals to early intervention services for
  abused/neglected children under 3 (tracks
  CAPTA change) (Judges should encourage
  child advocates to be familiar with these)
• Since foster parents can now serve in the
  parental role under IDEA, judges should
  identify long-term placements where they
  should perform this role
• Question: When/how should judges
  “subrogate” or “extinguish” parental IDEA
  education rights (prior to a TPR)?
• Question: How should judges exercise
  their new explicit authority under the IDEA
  to appoint surrogate parents for children in
  foster care?
   – “Reasonable efforts” are supposed to be
     made to have a surrogate parent
     assigned within 30 days of a school’s
     determination that a child needs one
   – A child welfare agency employee is not
     eligible for such an appointment
   – Appointee must have knowledge and
     skills to ensure adequate representation
     of the child
• Question: What should judges do to help
  assure that those caring for maltreated
  children become familiar with child’s special
  education and early intervention needs?
   – Foster parents, relative caregivers,
     guardians, or other adults responsible for
     the child should be informed by the court
     of the special education and (for infants &
     toddlers) the early intervention process
   – IDEA amendments require an early
     intervention public awareness program
     (court & child welfare agency should be
     participating in such activities)
 Several examples of innovative
       state legislation…
• NH– SB354 (2002): Authorizes foster
  parents to act as educational advocates for
  foster children with educational disabilities
• CA– AB458, Chap. 331 (2003): Adds to
  foster child rights “fair and equal access” to
  services, and no discrimination/harassment
  on basis of disability, and that caseworkers
  be trained about these rights
• CA– AB490, Chap. 862 (2003): Authorizes
  area DD boards to do life quality
  assessments for juvenile court dependents
   9 other things judges can do
              (tertiary prevention)
1) Have court include child’s disability status
   in their data/tracking systems, and
   encourage child welfare agency to do so
2) Address needs of parents related to the
   anger, stress, and depression resulting
   from the care of a severely disabled child
3) Meet with education, mental health,
   developmental disabilities, early
   childhood, and medical authorities to
   identify ways of better serving child
   maltreatment victims with disabilities
   (including better coordination of services)
4) For older foster youth with disabilities,
   inquire regularly about independent living
   services (federal Foster Care Independence
   Act $ must provide for developmentally
   appropriate independent living services)
5) For foster youth with mental retardation,
   make sure both child welfare agency and
   state office for mental retardation services
   are providing (and coordinating) services
   (and that the MR designation is made prior
   to age 18 so there’s continuing eligibility
   for adult services – such as specialized
   housing, treatment, educational/vocational,
   & employment services)
6) Look into the foster youth’s eligibility for
   SSI, and assure help in identifying and
   establishing eligibility if youth is soon to
   age out of care. For SSI-eligible youth,
   look into who serves (and could serve) as
   “representative payee” and how money is
   used/preserved to meet child’s special
   needs (e.g., medical and rehabilitative
   care not covered by Medicaid). Eligibility
   establishment while in foster care can
   help facilitate transitional discharge (such
   as to supportive living arrangements or
   independent living program).
7) Monitor steps taken to keep child with serious
   disabilities safe from bullying, abuse, & sexual
   exploitation, and have attorneys address this
8) If youth with disabilities is approaching age
   18, consider (if authorized) maintaining, with
   youth’s consent, court jurisdiction post-age 18
   while that youth remains in agency custody
   (so judge & attorney can monitor services)
9) Determine services parents, relatives, or
   others need to adequately help disabled child,
   including access to & use of adoption &
   guardianship subsidies and respite care
 Some legislative reform ideas…
• Create statewide child welfare ombudsman
  (child advocate) offices, including a special
  mandate to look into maltreatment of
  children with disabilities in state-licensed
• Give government family preservation and
  support programs (e.g., federal “Safe and
  Stable Families law) targeted funding for
  families caring for maltreated children with
• Require that child fatality review team,
  foster care review board, and citizen review
  panel members be trained in issues related
  to maltreatment of children with disabilities
  (and, like with the children’s justice task
  forces, mandate that there be a member of
  each group with disability expertise)
• Empower child fatality review teams to
  conduct “serious injury reviews” in cases
  where children have been severely disabled
  as a consequence of maltreatment
• Amend termination of parental rights law
  to specifically address grounds for TPR
  based upon a parent having inflicted a
  severe disability upon the child
• Clarify definition of child medical neglect
  to include neglect of disabled child’s
  medical, educational, & emotional needs
• Mandate joint law enforcement-CPS
  investigative protocols specifically address
  situations involving children with severe
  disabilities, including the provision of
  accessible facilities & trained interviewers,
  facilitators, interpreters (good CJA project)
• Specify that foster care and kinship care
  programs assure alternative caretakers be
  trained and supported in caring for
  seriously disabled children, including respite
  care access and financial subsidies to cover
  the needs of the children they care for
• Enact state laws to track federal IDEA
  changes on judicial authority to appoint
  surrogate parents, foster/kinship parent
  roles in evaluations, and responsibilities of
  lawyers and CASA to participate in the
  process (lack of parental involvement must
  not inhibit evaluations & services to child)