Courtroom Advocacy for Young Children
in Foster Care
Sheryl Dicker, J.D.
Assistant Professor of Pediatrics
Albert Einstein College of
Medicine
Former Executive Director
NY Permanent Judicial
Commission on Justice for
Children
Health Profile of Young Children in Foster Care
•Over 1/2 have chronic medical conditions
•Over 1/2 have significant developmental delays
•Over 1/2 over age 3 require clinical intervention for
behavioral/emotional problems
Health Status of Children
Entering Foster Care: Infants
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Drug Exposure 50%
HIV Exposure 30-50 times community
Growth Failure 20-40%
Immunization Delay in 75% at 7 months
Developmental Delay-50%
Developmental/emotional neglect
Abuse
Young Children in Foster Care
 More likely to enter, remain in care, re-enter
child welfare system
 Largest cohort of victims of substantiated
abuse & neglect
 Half of all substantiated medical neglect
Connections to Permanency
 Parenting a child with health problems or
disability can drain emotional, financial and
physical resources of families
 Children with disabilities are maltreated
twice as often as children without
disabilities
 Emotionally neglected 3x as often
 Physically abused and neglected 2x as
often (National Center on Child Abuse and
Neglect)
Adoption & Safe Families
Act of 1997
 Emphasized child welfare system’s goals of
– Safety
– Permanency
– Child & family well-being
 Clarifies circumstances under which states do
or do not remove or reunify
 Child’s health and safety is the paramount
concern
 Time frame for Termination Parental Rights
– 15/22 months
http://www.gao.gov/new.items/he00001.pdf
ASFA Regulations
 Federal ASFA regulations specifically hold States
accountable for providing services to address the
"safety, permanency and well-being of children and
families." (45 C.F.R. Part 1357 §1355.33 b (2))
 States must ensure that:
 "families have enhanced capacity to provide for
their children's needs;
 children receive appropriate services to meet their
educational needs; and
 children receive adequate services to meet their
physical and mental health needs." (45 C.F.R. Part
1357 §1355.34 b(1)(iii))
CFSR
 HHS monitors every State’s compliance with ASFA
through the Child and Families Services Review
 No State passed
 Most States failed the well-being requirements:
– Physical Health
– Mental Health
– Education
Medicaid/EPSDT
 All foster children eligible for Medicaid
 All children under age 21 enrolled in Medicaid are
entitled under federal law to receive Early
Periodic Screening Diagnosis and Treatment
(EPSDT) services
 Includes immunizations, hearing, dental,vision,
lead exposure screening and physical and mental
health care to correct or ameliorate diagnosed
conditions
Fostering Connections to Success
and Increasing Adoption Act of 2008
 Kinship guardianship assistance(live 6mos
w. relative in foster care; same rate as fc)
 Oversight and coordination of health care(
state plans)
 Improves state adoption assistance
 Promotes educational stability for schoolaged children
Part C- Early Intervention
Program
 Children from birth to 3rd birthday
 Based on research finding that if intervene
early can address or ameliorate
developmental delays and disabilities
 Based on research finding that infants and
toddlers require an array of health,
education, social and therapeutic services in
the context of families
Part C
 Part C is a part of IDEA while procedural
provisions apply, it is not special education
 2- generation program- parents( bio,
foster,adoptive, relatives) and eligible children can
receive services on IFSP
 Eligible child: functional definition of delay in 1 of
5 domains( physical development,cognitive,
communication, social-emotional, adaptive)or
having a condition with a high probability of
resulting in delay( ie Downs syndrome, fetal
alcohol syndrome)
•Child and family support services-
•Assistive technology devices and services
•Audiology
•Family training, counseling,
home visits and parent support groups
•Medical services only for diagnostic
•Physical therapy
•Psychological services
•Service Coordination
•Social Work services
•Special instruction
or evaluation purposes
•Speech-language pathology
•Nursing services
•Vision services
•Nutrition services
•Health services
•Occupational therapy
•Transportation and related costs
Part C
 Administered by lead state agency not local
school districts
 Surrogate parents may be needed to
consent to evaluation, IFSP, services
 Major issue- transition– in 2nd circuit no ‘stay
put’ provision—
Why It is Important to Connect
Maltreated Children to Early Intervention
National Indicators for Early Intervention to Young Children in Foster Care
 American Academy of Pediatrics and the Child Welfare League of America recommend
that children in foster care receive a developmental evaluation
as early as possible. (AAP,2000; CWLA, 1988)
 National Institute of Medicine recommendation that all children under age three
in the protective services system should be referred to EIP. (Shonkoff & Phillips, 2000)
 Research showing that children with disabilites are two to three times more likely to be
maltreated than children without disabilities (Jaudes & Shapiro, 1999)
 Recent trends in child welfare law and practice to focus on children’s well-being and
permanency, including ASFA 1997, which makes children’s health and safety paramount in
child protective proceedings and its regulations require states to address the medical,
eductional, and mental health needs of children in foster care. (Pub. L. 105-89)
The Keeping the Children and
Families Safe Act of 2003
Amended the Child Abuse and Prevention
Treatment Act (CAPTA) (P.L. 108-36) and
requires that each state develop “provisions and
procedures for referral of a child under age 3 who
is involved in a substantiated case of child abuse
or neglect to early intervention services funded
under Part C of the Individuals with Disabilities
Act (IDEA).”
Individuals with Disabilities Act Part C of 2004
States receiving Part C funds must
describe “State policies and procedures
that require the referral for Early
Intervention services of a child under
the age of three who is involved in a
substantiated case of abuse or neglect”
American Bar Association
Standards of Practice
For Lawyers Representing a Child in Abuse and Neglect Cases
Primary duty to protect legal rights of child
Same duties of loyalty, confidentiality and competent
representation as is due to adult clients
Must advocate a child’s articulated position
 Not mere fact-finder, but zealous advocate
American Bar Association
Standards of Practice
General Authority and Duties
The child’s attorney should:
 Obtain copies of all pleadings and relevant notices
 Participate in depositions, negotiations, discovery, pretrial conferences
and hearings
 Inform other parties of representation and expectation of reasonable
notification of hearings, changes in placement and permanency plans
 Reduce case delays and ensure court recognizes need to promote
timely permanency
 Counsel child on proceedings, rights and lawyer’s role
 Identify appropriate family and professional resources for the child
(including counseling, educational and health services, substance
abuse programs for child and other family members, housing and
entitlements)
American Bar Association
Standards of Practice
Actions to be Taken
 Meet with the child
 Investigate
 File Pleadings
 Request Services
American Bar Association
Standards of Practice
Meeting Child and Investigations
 Meet with child prior to all court appearances and when apprised of
significant events
 Conduct thorough, ongoing and independent investigations and
discovery which may include files concerning child protective services,
developmental disabilities, health, mental health and education
 Contact lawyers for other parties, GALs and CASAs
 Obtain authorizations for release of information
 Attend treatment, placement, administrative and other proceedings
involving legal issues and school case conferences
American Bar Association
Standards of Practice
File Pleadings
Relief requested may include, but not limited to:
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Mental or physical examination of party or child
Parenting, custody or visitation evaluation
Visitation changes
Restraining or enjoining change in placement
Contempt for non-compliance with court order
TPR
Request services for child or family
Dismissal of petitions or motions
American Bar Association
Standards of Practice
Request Services
Consistent with child’s wishes and by court order if
necessary:
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Family preservation or reunification services
Sibling and family visitation
Child support
Domestic violence services
Medical and mental health care
Substance abuse treatment
Parenting education
Independent living services
Education
Recreation and social services
Housing
American Bar Association
Standards of Practice
Children with Special Needs
 Attorney should assure child receives services to
address physical, mental or developmental disabilities
including:
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Early Intervention
Special education and related services
SSI
Therapeutic foster or group home care
Residential and outpatient psychiatric treatment
American Bar Association
Standards of Practice
Implementation of Court Orders
 Attorneys should monitor implementation of court orders
 Ensure services are provided and that court orders are
implemented in a complete and timely manner
 Lawyer should consider filing any necessary motions to
compel implementation
Checklist for the Healthy
Development of Foster Children
We would move closer to achieving the goal
of healthy development and permanency for
every foster child if at least one person
involved in a child welfare case asks
questions to highlight that child’s health
needs and identify gaps in services
--Ensuring the Healthy Development of Foster
Children: A Guide for Judges, Advocates and Child
Welfare Professionals (1999)
Permanent Judicial Commission
on Justice for Children
Checklist for the Development of Foster Children
 Has the child received a comprehensive health assessment
since entering foster care?
 Are the child’s immunizations complete and up-to-date for his or
her age?
 Has the child received hearing and vision screening?
 Has the child received screening for lead exposure?
 Has the child received regular dental services?
 Has the child received screening for communicable diseases?
Permanent Judicial Commission
on Justice for Children
Checklist for the Development of Foster Children
 Has the child received a developmental screening by a
provider with experience in child development?
 Has the child received mental health screening?
 Is the child enrolled in an early childhood program?
 Has the adolescent child received information about
healthy development?
Ensuring the Healthy Development of
Infants in Foster Care:
A Guide for Judges, Advocates
and Child Welfare
Professionals
What are the medical needs of this
infant?
 What health problems and risks are identified
in the infant’s birth and medical records (e.g.
low birth weight, premature birth, prenatal exposure to toxic
substances)?
 Does the infant have a medical home?
 Are the infant’s immunizations complete and
up-to-date?
Common Medical Diagnoses Seen in
Infants in Foster Care
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Fetal Alcohol Syndrome
Congenital infections-HIV, hepatitis and syphilis
Growth failure, failure to thrive
Shaken Baby Syndrome
Lead poisoning
Respiratory illness
Hearing and vision problems
What are the developmental
needs
of this infant?
 What are the infant’s risks for developmental
delay or disability?
 Has the infant had a developmental
screening/assessment?
 Has the infant been referred to the Early
Intervention Program?
Developmental Red Flags
 Premature birth
 Low-birth weight
 Abuse or neglect
 Prenatal exposure to substance abuse
What are the attachment and
emotional needs of this infant?
 Has the infant had a mental health
assessment?
 Does the infant exhibit any red flags for
emotional health problems?
 Has the infant demonstrated attachment to a
caregiver?
 Has concurrent planning been initiated?
Emotional Health Red Flags
 Chronic sleeping or feeding disturbances
 Excessive fussiness
 Incessant crying with little ability to be consoled
 Multiple foster care placements
 Failure to thrive
What challenges does this caregiver face
that impact his or her capacity to parent this
infant?
 What are the specific challenges faced by the caregiver
in caring for this infant (e.g. addiction to drugs and/or alcohol,
mental illness, cognitive limitations)?
 What are the learning requirements for caregivers to
meet the infant’s needs?
 What are specific illustrations of this caregiver’s ability
to meet the infant’s needs?
Caregiver Capacity Red Flags
 Noncompliance with the infant’s scheduled health
appointments, medication or therapeutic regimens
 Caregiver substance abuse and noncompliance with
psychiatric treatment and medications
 Confirmed instances of child abuse or neglect
 Incomplete immunizations and a child’s poor growth or
arrested development
 Inability to learn about child’s medical needs and treatment