Summary:
CS/SB 164 makes numerous changes to the law relating to normalcy for children in foster care including:
*Providing legislative findings and intent that recognize the importance of normalizing the lives of children in foster care;
*Establishing a reasonable and prudent parent standard of care and providing for application of the standard;
*Protecting caregivers who apply the reasonable and prudent parent standard from liability; and
*Eliminating the current requirement for the development of a normalcy plan and quarterly updates and replacing it with an assessment of normalcy goals and objectives at each judicial review.
The bill also changes the standard for the return of children to an abusive or neglectful parent after that parent has completed his or her case plan and the child has been living with the other parent.
Present Situation:
Normalcy for Children
Background
Each year, approximately 30,000 children in foster care age out of the foster care system nationwide, typically at 18 years of age, and this number has risen steadily over the past decade. In Florida, 1,181 children aged out of care in 2011-2012 and those numbers have declined over the past three years. These are young adults who experienced significant psychological trauma during their formative years, including being neglected and/or abused, being separated from their homes, friends, families and most things familiar to them, and often experiencing multiple placements in homes and group home settings.
The foster care system, which has historically been focused on safety and concerned about liability, often creates huge barriers to the normalcy of a child’s experiences growing-up, causing children in care to miss out on many rites of passage common to their peers. While their friends are getting their driver’s licenses, most children in care are not since they generally have no one to teach them to drive or the money for insurance or driver’s education, let alone access to a car. Other rites of passage are anything but typical for children in care, as each one requires some additional layers of bureaucracy. Getting a first job, participating in sports, going camping with friends, and even going to the prom are all examples of activities that, while may be a normal part of growing up for most children and teenagers, are not always readily available to many foster youth.
These problems are compounded for children in care who live their teen years in group homes. They often do not benefit from normal growing-up experiences that most children take for granted, but which prepare them for adult life, such as seeing an adult pay bills each month, do the laundry, buy groceries, pay taxes, arrange for car insurance, or undertake the dozens of other mundane tasks required to run a household. In Florida, 60 percent of children 13-17 years of age live in group homes.
Florida
The Department of Children and Families (DCF or department) and community-based care lead agencies (CBCs) are responsible for dependency proceedings and managing and providing child protection, foster care, and adoption services. Foster care services include a range of independent living services. Section 409.1451, F.S., requires the department to adopt by rule procedures to administer the independent living transition services program, including balancing the goals of normalcy and safety for children and providing caregivers with as much flexibility as possible to enable a child to participate in normal life experiences. Current rule, relating to licensed out of home caregiver roles provides that:
Children in licensed out-of-home care shall be afforded every opportunity for social development, recreation, and normalization of their lives. Children in licensed out of home care may attend overnight or planned outings if such activities are determined to be safe and appropriate by the licensed out-of-home caregiver. The services worker … must be notified of the activity.
The licensed out of home caregiver may allow foster children to experience circumstances without adult supervision depending on the child’s age, maturity, and ability to make appropriate decisions … the licensed out of home caregiver shall be prudent and conscientious about circumstances where the child is granted independence, including trips to the movies, mall, athletic events and work.Overnight trips exceeding one night must be approved by the child’s services worker and must not interfere with visitation schedules.
Background checks for dating and outings, such as school field trips, Cub Scout campouts, and activities with friends, families, school and church groups, are not necessary for participation in normal school or community activities.
The department has proposed changes to the rule relating to licensed out of home caregiver roles, however these changes do not appear to substantively change provisions relating to normalcy. In addition, former secretaries and the current secretary of the department have issued memoranda requiring community-based care lead agencies and their providers to implement policies related to normalcy.8 In general foster teens continue to report that the effort to establish a more normal living environment within the foster care system is still lagging.
Standard for Reunification
Currently, the provisions in Chapter 39 relating to a change of custody after disposition have resulted in varying interpretations and inconsistent trial court rulings. In addition, appellate courts have ruled that an endangerment standard must be applied, which requires that the parent causing the dependency be granted reunification unless doing so would endanger the child. Trial courts are not to determine which parent is best suited to provide permanency. The child’s best interest is not the controlling standard. This creates a conflict with the overriding principle of Chapter 39 which is the best interest of the child.
When the issue is placement with which parent, Chapter 39 is not clear what standard, endangerment or best interest, should be used to determine a child’s permanency. Section 39.521, F.S., says at every review hearing the judge shall decide which parent, if either, shall have custody. It further says that when changing custody from one parent to another the standard shall be the best interest of the child. In contrast, section 39.522, F.S., provides that when deciding whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home. Although the situation is the same whether there is one offending parent or two, the most frequent situation occurs when a child is placed with a non-offending parent at disposition and services are provided to the offending parent. Several Florida District Courts of Appeal (DCA) have repeatedly pointed to section 39.522(2), F.S., as the controlling statute and have held that the plain language requires the offending parent be granted reunification if they substantially comply with the terms of the case plan and the court finds no endangerment to the child as a result of reunification. Many of these opinions specifically prohibit an independent review of the child’s best interest.
Effect of Proposed Changes:
The bill makes numerous changes to the law relating to normalcy for children in foster care.
Section 2. of the bill:
Provides legislative findings and intent that recognize the importance of normalizing the lives of children in foster care;
Provides definitions for the terms “age-appropriate,” “caregiver,” and “reasonable and prudent parent standard;”
Requires verification by the department and the community-based care lead agencies that private providers have policies in place promoting and protecting the concept of normalcy;
Establishes a reasonable and prudent parent standard of care and provides for application of the standard; and Protects caregivers who apply reasonable and prudent parent standard from liability.
Section 3. of the bill:
Amends s. 39.522, F.S., which requires the trial court to consider a child’s best interest in a decision to reunify a child from placement with one parent back to the parent who abused or neglected them. This clarifies the statutory provisions on custody between parents post a dependency adjudication by making clear that the standard is not to simply place a child back with the parent who harmed the child once the risk of present or future harm is removed, but requires that such a move also be in the child’s best interest when the child is living in the home of the stable, non-abusive parent.
Section 4. of the bill:
Eliminates the current requirement for the development of a normalcy plan and quarterly updates for children in foster care and replaces it with an assessment of normalcy goals and objectives at each judicial review.
Administrative rule and memoranda from the office of the department secretary have been insufficient to ensure that the CBCs and their providers set policies allowing children to engage in normal, age-appropriate activities. Children in care are still being denied opportunities to participate like their peers. Empowering the caregiver in statute to approve or disapprove participation in activities by using the reasonable and prudent parent standard and providing them with protection from liability when doing so may improve the chances that all children in foster care have a better chance at normalcy.
Owner/Editor - Chris Chmielewski