Foster Care Reform Update – December 22, 2015

IN THIS ISSUE

  • Policy Spotlight: Recent Education Reforms Protect Foster Youth
  • Court Opinions: In re Interest of Gavin S. and Jordan S., In re Interest of Grace H.
  • Legislative Actions: 2015 Child Welfare Interim Studies
  • Announcements: Appleseed Blog

POLICY SPOTLIGHT

Recent Education Reforms Protect Foster Youth

This month, President Obama signed into law the Every Student Succeeds Act (ESSA) (S.1177), largely replacing the No Child Left Behind Act (2002) which was the reauthorization of the Elementary and Secondary Education Act (1965). The Act includes education protections for all youth, but also includes specific provisions aimed at youth in foster care and the juvenile justice systems to ensure their continued education. The foster care provisions of the ESSA include provisions that:

  • Allow youth in foster care to remain in the same school even when their foster home placements are changed.
  • Require schools to immediately enroll foster children when they move to a new school.
  • Require points of contact in every state education agency as well as many school districts.
  • Require that plans for school transportation are developed for youth in care.
  • Require the collection of achievement data for youth in care.

The ESSA also includes requirements for schools to follow for students involved in the juvenile justice system, including provisions that:

  • Provide better planning and coordination of education between facilities and local districts
  • Ensure timely re-enrollment in education placements for youth returning from juvenile justice placements and transfer of secondary credits to the home school district upon reentry
  • Create opportunities for students to participate in credit-bearing coursework in secondary, postsecondary, or career/technical programming
  • Prioritize attainment of a regular high school diploma
  • Make funds available for programs for at-risk Indian youth, including those in correctional facilities

(Summaries above are provided by our partners at the Juvenile Law Center)

In addition to the ESSA, another bill was recently introduced in the U.S. Senate and House, by Senator Patty Murray (D-WA), called the Higher Education Access and Success for Homeless and Foster Youth Act (S. 2267 / H.R. 4043). Estimates range from as low as 1% up to 11% of former foster youth that earn a college degree, compared to 30% of the general population. This Act would assist youth that are homeless, or have foster care experience, as they pursue their post-secondary education, by asking educational institutions to:

  • Eliminate unnecessary barriers to receiving needed financial aid by removing the requirement that this population must have their status recertified, clarifying that they are considered “independent students,” and explaining that foster care services and support do not count as “income” when determining financial aid.
  • Assist with housing needs by supporting young people in the creation of housing plans to access these resources as well as providing housing options between school terms.
  • Collaborate with agencies and providers to reach out and recruit young adults that are homeless or in foster care.
  • Provide support through a designated point person at colleges and universities to assist youth that are homeless or involved in foster care.

For more info on the ESSA see the press release from the Juvenile Law Center, National Center for Youth Law, Education Law Center of PA, and the American Bar Association. The Higher Education Access and Success for Homeless and Foster Youth Act was referred to the Committee on Health, Education, Labor, and Pensions. For more information, read the full text of the bill and Senator Murray’s press release.

COURT OPINIONS

In re Interest of Gavin S. and Jordan S., No. A-14-1124
Decided November 24, 2015

The Nebraska Court of Appeals affirmed an order of the juvenile court, which separately terminated the parental rights of a mother and father. In this case, the mother operated a daycare in the family home and a one-year-old child that attended the daycare died from significant trauma to his head. Two days later, the State filed a motion for emergency temporary custody of the parents’ own two children and subsequently filed a petition alleging that the parents’ children were within the meaning of Neb. Rev. Stat. § 43-247(3)(a). Two months later, the State filed an amended petition and a motion for the termination of the parents’ rights alleging that the children were within the meaning of § 43-292(9) because the parents had subjected a child to aggravated circumstances. Two years later, the State filed an amended petition alleging that the children were within the meaning of § 43-292(7) because at that point they had been in an out-of-home placement for more than 15 of the 22 most recent months. There were more than 80 exhibits presented by the parties and four separate medical professionals that provided testimony at the termination of parental rights proceeding. Three of the medical professionals testified that they believed that the parents had caused the one-year-old child’s death while he was in their care, and one of the medical professionals testified that the child died from complications from a skull fracture that was several weeks old. The juvenile court found that the testimony of the three experts was credible and the testimony of the other medical professional was “not supported by the evidence.” The juvenile court then found the parents’ children were within the meaning of § 43-247(3)(a), § 43-292(7), § 43-292(9), and that termination of the parents’ rights was in the children’s best interests. Both parents appealed alleging that the juvenile court erred in admitting a report issued by a neuropathologist that was unable to testify at the termination hearing, in finding sufficient evidence to adjudicate the children, and in finding sufficient evidence to terminate their parental rights. The Court of Appeals first determined that the juvenile court did not rely on the report in question, the juvenile court relied on the testimony of the witnesses that did testify at the hearing, and even if the report was erroneously admitted, the juvenile court’s “consideration of improper evidence does not, by itself, require reversal of a judgment  terminating parental rights under the Nebraska Juvenile Code.” The Court of Appeals did not address the parents’ second allegation of error, that the children were within the meaning of § 43-247(3)(a), because the language of § 43-292(9) is similar to the language utilized in § 43-292(1) through (5), those statutory grounds do not require a prior adjudication, and the language of § 43-292(9) focuses on the “actions or conditions of the parents” and not “any prior juvenile court involvement.”  The Court of Appeals concluded that the State had presented clear and convincing evidence that the children were within the meaning of § 43-292(9) because the one-year-old child arrived at the parents’ home for daycare alert and was playful, his undiagnosed skull fracture was not affecting the child in any way, the child died eight hours later in the parents’ care, the parents could not explain the child’s injuries, the parents left the child in a baby swing for six hours because they thought he was sleeping, and there was evidence the child sustained the prior skull fracture while at daycare. The Court of Appeals dismissed the parents’ contention that the existence of contradictory expert testimony showed that the State failed to meet its burden by clear and convincing evidence because the juvenile court is entitled to give weight to whichever testimony the court deems more credible. Finally, the Court of Appeals noted that, although the parents have a strong bond with their children and there was no evidence presented that the parents had acted inappropriately towards their own children, termination of the parents’ rights was in the children’s best interests because their role in the death of another child, the parents failed to accept responsibility for their actions, the children needed permanency, there are no rehabilitative measures that could make reunification possible, and returning the children to their parents would present an “unreasonable risk of harm.” Read the full opinion

In re Interest of Grace H., No. A-15-349 (not designated for permanent publication)
Decided December 1, 2015

The Nebraska Court of Appeals reversed the order of the juvenile court that adjudicated a mother’s youngest child because the State failed to present sufficient evidence that there was an evidentiary nexus between the adjudication of the child’s older siblings and a definite risk of future harm for the child. In this factually complex case, the State filed a petition to adjudicate the child’s two older siblings in 2012 due to issues of domestic violence between the mother and fathers of the children. The child at issue in this case was born in 2014, and she was immediately removed from her mother’s care at birth. Soon thereafter, the State filed a petition alleging that the child was within the meaning of § 43-247(3)(a) because of the existence of the other juvenile court case and the mother’s failure to correct the issues as to the older children in juvenile court. The juvenile court acknowledged that the mother had made much progress in the case involving the older children, but still found that the youngest child was at risk of harm because her older siblings were. The mother appealed the juvenile court’s order and alleged that the juvenile court erred in finding that there was sufficient evidence that the youngest child was within the meaning of § 43-247(3)(a). The Court of Appeals concluded that the State failed to present sufficient evidence that the child was at a risk for harm because no evidence was presented that the mother was still engaging in domestic violence, that her short prison term would put the youngest child at risk of harm, and that there was not a sufficient evidentiary nexus between the neglect suffered by the older children and the the risk of future harm to the youngest child. Furthermore, the Court of Appeals noted that the mother had made significant progress in the other juvenile court case, she no longer had co-dependency or anger issues, the mother’s therapist believed she had resolved the domestic violence issues in her life, and the State was unable to articulate what harm may actually occur to the child if she remained in her mother’s care. Therefore, the Court of Appeals reversed the juvenile court’s order with directions to dismiss the State’s petition. Read the full opinion

LEGISLATIVE ACTIONS

LR 52 (Sen. Campbell) Interim study to examine the Child and Maternal Death Review Act

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 186 (Sen. Morfeld) Interim study to examine state services available to victims of human trafficking in Nebraska

 

LR 222 (Sen. Crawford) Interim study to examine issues relating to family and medical leave

  • Last Action – Hearing held in Business and Labor Committee on September 25, 2015

 

LR 227 (Sen. Harr) Interim study to examine opportunities to train Nebraska’s youth for the workforce while addressing both educational and workforce needs

  • Last Action – Referred to Business and Labor Committee on May 21, 2015

 

LR 242 (Sen. Coash) Interim study to examine the interplay between developmental disability and child welfare services to ensure proper treatment and protection of the rights of state wards

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 248 (Sen. Campbell) Interim study to examine the federal Preventing Sex Trafficking and Strengthening Families Act and its implementation in Nebraska

 

LR 249 (Sen. Coash) Interim study to examine the use of seclusion in public and private schools for children with behavioral issues or special needs

  • Last Action – Referred to Education Committee on May 21, 2015

 

LR 275 (Sen. Mello) Interim study to examine issues surrounding the affordability, delivery, and taxation of child care in Nebraska

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 276 (Sen. Pansing Brooks) Interim study to examine bullying by and against students and youth

  • Last Action – Referred to Judiciary Committee on May 21, 2015

 

LR 282 (Sen. Mello) Interim study to examine the reasons for the higher cost of juvenile services under the Office of Probation Administration

  • Last Action – Referred to Appropriations Committee on May 21,2015

 

LR 292 (Sen. Campbell) Interim study to examine issues relating to public assistance programs for relative or kinship caregivers

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 295 (Sen. Bolz) Interim study to examine how to improve behavioral health and mental health services in Nebraska in order to prevent crime and reduce costs associated with the incarceration of people who have heightened behavioral and mental health needs

  • Last Action – Hearing held in Judiciary Committee on October 9, 2015

 

LR 296 (Sen. Bolz) Interim study to examine the financing of Nebraska’s child welfare system

  • Last Action – Notice of hearing in Appropriations Committee on December 1, 2015 (cancelled)

 

LR 300 (Sen. Campbell) Interim study to examine the out-of-state placements of Nebraska children

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 304 (Sen. Campbell) Interim study to examine and assess the behavioral health needs of children and youth in Nebraska and the resources available to meet those needs

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 312 (Sen. Harr) Interim study to examine ways to improve and fund child behavioral health programming in Nebraska

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 334 (Sen. Morfeld) Interim study to examine the integral link between achievement and risky health behaviors

  • Last Action – Hearing held in Education Committee on September 10, 2015

ANNOUNCEMENTS

Appleseed Blog

Appleseed maintains a blog (on our recently updated website!) where you can read daily updates about our work to positively impact low-income families, immigrants, children in foster care, and access to health care.  Stop by and check it out!  Read, comment, and share your own stories with us at: http://www.neappleseed.org/blog

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