Barton Child Law and Policy Center
June 16, 2011
2. Foster Care
5. Law and policy
6. The right to parent and removal
7. Group work
1. Existing law and policy
2. Policy change and legislative advocacy
3. Partnering and building bridges
Early parenting compounds the challenges faced by court
involved children and increases the likelihood of poor
Limited educational opportunities
Poor health outcomes
Higher rates of incarceration
Babies born to teen mothers face poor outcomes
Cycle: Removal Foster Care Poor Outcomes
Teen pregnancies are often high risk for mother and baby
Preventing pregnancy is a matter of child welfare
Child health, bodily integrity, human development
Child well-being (emotional and physical)
Positive outcomes, success, opportunity
Principles apply to all court involved children
Juvenile Justice/Child Welfare
Developmentally disabled youth
Children, defined as persons under the age of 18 (S.C. St. § 63-7-20(3)).
24-hour substitute care for children placed away from their parents or
guardians and for whom the State agency has placement and care
responsibility (45 CFR § 1355.20).
When and Why?
Child abuse or neglect occurs. (S.C. St. § 63-7-20(4)).
Reasonable efforts were made by the department to prevent removal of
the child and continuing the child’s presence in the home is contrary to
the welfare of the child (S.C. § 63-7-720).
Children may be placed in relative placement, foster family care,
residential group care, therapeutic foster care, residential treatment, or
independent living depending on the needs of the child. (DSS Policies §
Court order finding that due to abuse or neglect, retention of the child in
or return of the child to the home would place the child at unreasonable
risk of harm affecting the child's life, physical health or safety, or mental
well-being and the child cannot reasonably be protected from this harm
without being removed (S.C. § 63-7-1660).
By 19, nearly 50% of female youth in foster care have been
Female youth in foster care are 2.5 times more likely than
those not in foster care to have been pregnant by age 19.
46% of teen girls in foster care who have been pregnant have
had a subsequent pregnancy, compared to 29% of their
peers outside the system.
50% of 21-year-old men aging out of foster care reported
they had gotten someone pregnant, compared to 19% of
their peers who were not in foster care.
1. Victims of abuse
2. Few positive alternatives to motherhood
3. Parenthood confers meaning upon one’s life
4. Lack of positive family influence
5. Lack of family planning/sex education
Foster care: A State Institution
Federal Law: Fostering Connections
The Right to Parent
Foster status constitutionally entitles a child to certain
protections that the state must insure. (Andrea L. v. Children
& Youth Servs. of Lawrence Cnty., 987 F.Supp 418, 421 (D. Pa.
Involuntary placement in a foster home is similar to a
prisoner being involuntarily placed in an institution, such that
similar rules of law should be applied. (Taylor v. Ledbetter,
818 F.2d 791, 796 (11th Cir. 1987)).
Numerous courts have imposed a constitutional duty to
protect foster children by analogy to involuntarily
institutionalized individuals. (Jordan v. City of Philadelphia,
66 F.Supp.2d 638 (D. Pa. 1999)).
Purpose of the Child Protection Laws:
“Establish an effective system of services. . . to
safeguard the well-being and development of
endangered children. . . .”
“Establish an effective system of protection of
children from injury and harm while living in. .
. the agencies and institutions meant to serve
them.” (S.C. St. § 63-7-10 (B)).
“Means the right to physical custody, care,
and control of a child. . . the right and duty to
provide. . . ordinary medical care.”
“Parent or guardian retains the right to make
decisions of substantial legal significance. . .
Including major non-emergency medical and
surgical treatment.” (S.C. St. § 63-7-20(13)).
DSS has the authority to make decisions concerning ordinary medical care.
The severity and degree of the medical procedure determine who at DSS
makes the decision.
Exceptions: (1) parents should be given the opportunity to consent where
possible; (2) parental consent for medical procedures that are necessary;
(3) youth 16+. (DSS Policies § 835).
Medical Assessments and Follow-up
A comprehensive medical assessment must be completed within 5
working days of entry into foster care. (DSS Policies § 810, 16a)
The case worker arranges for ongoing medical assessments according to
EPSDT guidelines. (DSS Policies § 818.05.01; Medicaid Paper Based Manual
Programs and services that begin at age 13, regardless of
permanent plan. Information includes:
Human sexuality, puberty, bodily functions
STDs, birth control, family planning
Health care systems, doctors, clinics. (DSS Policies § 832).
Independent Living Plans
90 days before 18th birthday (DSS Policies § 819.01.02).
“Any minor who has reached. . . 16. . . may consent to any
health services. . . .” (S.C. St. § 63-5-340).
“Health services of any kind may be rendered to minors of
any age without the consent of a parent or legal guardian
when, in the judgment of a person authorized by law to
render a particular health service, such services are deemed
necessary. . . .” (S.C. St. § 63-5-350).
Operations shall be performed only if essential to the health
or life of the child. (S.C. St. § 63-5-340; § 63-5-350).
Emergency Contraception (Plan B)
The state does not have a general, comprehensive
statute prohibiting the disclosure of confidential
medical information. Privacy protection is addressed in
statutes governing specific medical conditions.
Sexually Transmitted Disease: Name of the minor and
their medical information must be reported if required
by the mandatory reporting statute. ( S.C. St. § 44-29-
135; see also S.C. St. § 63-7-310).
HIPAA: Parents may generally access medical records of their children, unless:
Minor can consent to care under state law
Minor obtains care at the direction of the court
Parent agrees minor and provider have a confidential relationship
State law prohibits access (if silent, provider’s decision)
Child has been abused or informing parent could endanger child.
Title X: Services funded in full or in part by Title X must be made available to
all youth, regardless of age. Services cannot be conditioned on parental
consent or notification.
Exceptions: Abortion – not authorized under Title X funding.; Child abuse.
SCHIP and Medicaid: Eligible youth may receive confidential family planning
17+: Plan B, Plan B One-Step, and their
generic versions are approved by the FDA for
OTC distribution to youth 17+.
16 and under: Plan B, Plan B One-Step, and
their generic versions are available by
prescription only for youth 16 and under, per
CONSENT: JUDICIAL BYPASS:
S.C. ST. § 44-41-31 S.C. ST. § 44-41-33
Informed, written consent Court must make a finding:
is required from: 1. That the minor is mature
Legal guardian; or and well informed
enough to make the
decision on her own; or
Any person who has
2. That termination would
been standing in “loco be in the minor’s best
parentis” for at least 60 interest.
DSS Policies § 833
The agency cannot consent to an abortion.
If the youth is under age 17 and cannot obtain
the requisite consent, refer to area adoption
Consult with Medicaid staff regarding any
abortion procedure coverage.
Federal law intended to help children and
youth achieve better outcomes (permanency).
Requires development of a transition plan for youth
aging out of care.
Permits expanded use of federal funds for training
Mandates increased health care coordination.
202: •Health education and services in the transition plan.
Transition Plan for Children Aging •Encourage case workers to distribute resources on health
Out of Care care, healthy relationships, and the consequences of early
203: •Training for staff and guardians to increase their ability to
Short Term Training discuss health education and locate community resources.
205: •Regularly scheduled, age appropriate physical exams with
Health Oversight and Coordination an appropriate doctor.
DSS Policies § 833
Documented efforts must be made to identify a
placement for the foster care youth and her child.
Should the placement disrupt and the baby can no
longer be placed with the foster care youth, the agency
must assess risk, safety, and permanency for the baby.
Use of voluntary placement agreement or court petition
for custody will be necessary (to continue to draw down
federal financial assistance to fund the baby’s ongoing
placement in the foster care system). The baby then
becomes a foster child.
1. Get into groups: The number on your chair designates your
2. Depending on your group and using knowledge from your
Group 1: How can current law and policy be utilized to
prevent pregnancy in foster care?
Group 2: What gaps are in the current law and policy? How
can they be changed? Consider: ILPs, training, etc.
Group 3: Who do we need to build bridges with? How can
we do so? Consider: Juvenile courts, case managers, foster
parents, attorneys, community resources/schools, youth,
Existing law and policy
Gaps in law and policy