Law and Policy
Developments in Child
Protection Reform
Howard Davidson
Director, ABA Center on Children and the Law
howard.davidson@americanbar.org
www.americanbar.org/child
April 16, 2012
A few words about collaboration among
those involved in system oversight…
SLO, CJA & CRP chairs, and Court Improvement
Program director should periodically meet about:
-- New or pending state legislation affecting abused
and neglected children
-- New child protection-related programs initiated by
the child welfare agency or by the courts
-- Recent reports, or data analysis, of interest to all
-- Issues in implementation of federal legislation
affecting children in foster care
-- Funding collaboration for specific projects/research
IDEALLY, JOINT FULL GROUP MEETINGS AS WELL
The Child and Family Services
Improvement and Innovation Act
Public Law 112-34, signed into law on 9/30/11
HIGHLIGHTS
 IV-E: State health care plans on health screenings
for foster children now should address emotional
trauma associated with abuse/neglect and
removal, and states must have protocols for use
& monitoring of psychotropic medications

IV-B: States must describe what they are doing to
reduce time in foster care for children under
5, and what they are doing to address the
developmental needs of agency-involved
children (not just limited to those in foster care)
Recent CAPTA Provisions Related to
Infants and Toddlers
2010: 34% of substantiated victims were under 3
(188,000) & 20% of those in foster care (84,000)
 CAPTA 2003: States must have “provisions and
procedures for referral of a child under the age of
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 Education Act”
 CAPTA 2010: States must collect data on “the
number of children determined to be eligible for
referral, and the number of children referred” under
Part C of the IDEA (also data on FASD Referrals
and Youth who Crossover to JJ System)
U.S. Dept. of Education Issues New Part C
IDEA Regulations (9/28/2011)
76 Federal Register 60244 (34 CFR 303)
 The Part C program must be coordinated with “CPS
and child welfare programs, including programs
administered by, and services provided through, the
foster care agency and the State agency responsible
for administering CAPTA”
 Referral procedures must also address specific at-risk
infants & toddlers, including those referred from
“public agencies and staff in the child welfare system,
including CPS and foster care”
 Foster parents can be considered “parents” in this
IDEA process, or court can appoint another person as
“surrogate parent” but not agency or its employee

Infant/Toddler Resources from our Center
www.americanbar.org/groups/child_law/
projects_initiatives/child_and_adolescent_health/
child_health/child_health_publications.html
Also…
The Judges’ Page -- March 2012 (National CASA)
Young Children Involved in Dependency Court
http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/
b.5301323/k.8E21/Judges_Page.htm
www.npr.org/
programs/atc/
features/2003/
mar/juvenile_
court/questions_
every_judge_
should_ask.pdf
Model Court-Based Programs
Babies Can't Wait -- New York State
NY Permanent Judicial Commission on Justice for
Children-- Identifies, documents, and tracks infants
in family court; provides for their special health and
developmental needs; and promotes permanency
Provides training on infant health and development to
those working in the court and child welfare
systems
Created a judge's bench card for infants that
addresses the special developmental and medical
needs of infants
Works with the child welfare agency to improve how
cases involving infants are handled
Best for Babies -- Yavapai County, Arizona
Developed checklist of essential services, delineating
responsibilities of the CPS caseworker, foster
parents, provider of mental health services for
children and adults, and “systems of support,” a
team process developed to help parents in recovery
accomplish their case plans for reunification.
Project works to convert the checklist from a
snapshot in time to a guide for ongoing services,
develop a cadre of CASA volunteers to oversee case
coordination and collaboration, and enhance case
coordination and collaboration among all service
providers working with babies and their families.
Zero to Three’s “Safe Babies Court Teams”
Teams require leadership of a local judge who is a
catalyst for change, each team community requires
a local community coordinator to provide child
development expertise to judge and the team, and
coordinate services and resources, and each
community has a team of key community
stakeholders devoted to restructuring community
response to needs of maltreated infants and
toddlers, meeting monthly to learn about available
resources, identify service gaps, and discuss issues
raised by the cases that the team is monitoring
Teams focus on foster care cases involving children
younger than 36 months, actively uses concurrent
planning when recruiting caretakers, reviews cases
monthly, facilitates visitation, develops continuum
of mental health services, and evaluates impact
Current Zero to Three Court Team Sites
(based on pilot work in Miami Juvenile Court)
Cherokee, North Carolina
Des Moines, Iowa
Douglasville, Georgia
Hattiesburg, Mississippi
Honolulu, Hawaii
Little Rock, Arkansas
New Haven, Connecticut
New Orleans, Louisiana
Omaha, Nebraska
San Francisco, California
Continuing with the 2011 Federal Law…
States must describe sources used to gauge number
of child maltreatment deaths and how data sources
will be broadened (for more accurate counts)
 Encourages states to have no less than 90% of
foster children visited monthly and, if goal not
met, imposes federal financial penalties, and
sets a further goal (with penalties for not meeting it)
that at least 50% of visits occur in the child’s
residence (special state grant program continued)
 Extends regional substance abuse grant program
 Lists new specific family reunification services:

peer-to-peer mentoring; support groups for
parents/primary caregivers; facilitating child
access to/visitation by parents and siblings
Court Improvement Program Reauthorization
 Adds language suggesting CIPs (and therefore
courts) should address concurrent planning
issues
Note: IV-E concurrent planning provisions
currently include: a) Allowing reasonable efforts to
place children for adoption to be made
concurrently with reasonable efforts toward family
reunification efforts; and b) Allowing TPR petitions
to be filed concurrently with agency work to
identify, recruit, and approve an adoptive family
 Adds to CIP grant purpose: increase and
improve engagement of the entire family in
court processes, and adds new training element
for improvement of such family engagement
•
•
ABA Resources on Parent Engagement
Articles from the ABA Child Law Practice
Related to Parent Partner Programs:
– From the Courthouse to the Statehouse: Parents

as Partners in Child Welfare
– Working with Parent Partners to Achieve Better
Outcomes for Families
– From Parent to Crisis to Parent Partner
www.americanbar.org/groups/child_law/projects_
initiatives/parentrepresentation/written_materials. html

Also see Parent Handbooks at:
www.americanbar.org/groups/child_law/projects_
initiatives/parentrepresentation/parents_handbook. html

Fathers Guides (and other related material):
www.americanhumane.org/children/programs/
fatherhood-initiative/qic-fatherhood-toolkit/fathers-and-thecourts.html
Continuing with the 2011 Federal Law…
States are required to get every foster child
who is 16, and then annually thereafter until
discharged from care, consumer credit
reports, and states must provide the child
assistance in interpreting and resolving
inaccuracies in those reports, including when
feasible getting assistance for the child from
the child’s court-appointed advocates
 States must now document how state savings,
from revisions of law that expand federal
funding for adoption/guardianship assistance,
are being re-invested in IV-B services,
and specifically on reinvestment in postadoption services

Up to 10 new state waivers of IV-E requirements
(called Demonstration Projects) are authorized
All waiver applications from states must indicate
how they will address At Least 2 of These 10
Policy-Related Areas of Improvement (called Child
Welfare Program Improvement Policies):
1. Bill of rights for foster children and youth
2. Better meeting health/mental health needs of
foster children and youth
3. Kinship guardianship assistance
4. Extension of IV-E for those youth under age 21
5. Plan for reducing use of congregate care
placements (AFCARS 9/30/10-- 25, 000 in group
care; 36,000 in institutions)

6. Substantial increases of siblings placed together in
foster care, kinship guardianships, or adoptive
placements
7. Improving recruitment and retention of high
quality foster care providers trained to help children
and youth secure permanent families, such as
increasing their monthly payments and
expanding training, respite care, or other
foster parent support services
8. Better preparation of youth for transition from
care, such as extracurricular activity
involvement, cell phone and computer
access, opportunities to obtain drivers
licenses, promotion of sibling connections,
and provision of counseling and financial
support for post-secondary education
9. Better engagement of youth in
transition planning that explores
reconnection with their
biological family and promotes
successful and safe
reconnection
10. Prevention of foster care entry,
including intensive family finding,
kinship navigator services, family
counseling/peer support, familybased substance abuse treatment,
better domestic violence
identification and services, or
mentoring
Recent State Differential Response Laws
CT 2011 Act, SB 1199, P.A. 11-240
Commissioner may establish DR program whereby
report may be referred to appropriate community
providers for family assessment and services
without investigation or during investigation,
provided there has been initial safety assessment
and criminal background checks on all adults
involved in report. Report classified as lower risk
may be referred for family assessment/services and
later referred for standard CPS if child safety
concerns become evident. Report referred for
standard CPS may be referred for family
assessment/services if lower risk to child found
NY 2011 Laws, AB 6823, Chap. 45 and
AB 8018, Chap. 377
Makes permanent the DR programs for child
protection assessments and investigations.
Authorizes the subject of the Family Assessment
Response (FAR) report access to those records;
authorizes court access to FAR records during
duration of services; provides for re-disclosure of
FAR records; allows records access to a CPS unit if
records are relevant to a child abuse investigation
or Family Court action; requires CPS to include
such information in the investigation records;
requires certain data regarding race or ethnicity
for FAR cases.
Differential Response in Child Protective
Services: A Literature Review – Nov. 2011
“Both families and program staff were more satisfied
with the non-investigation pathway than with the
investigation pathway. Families were more easily and
fully engaged, usually earlier in the service delivery
process.” “Regardless of which (evaluation) method
was used, family participation in the non-investigation
pathway was demonstrated to reduce the numbers of
post-program reports for alleged child abuse and
neglect, (though the differences were often modest),
so that as several evaluators put it, child safety was
not compromised as a result of families being served
through the non-investigation pathway.”
Child Welfare Agencies Aiding
Child Victims of Trafficking

ABA Resolution 103A on Child Trafficking -- 8/8/11
– Screen for these victims in all runaway, juvenile &
child welfare settings and assure appropriate
assistance from child protective service agencies
– Establish safe housing and other services for them
– Require immediate reporting when children are
missing from foster care or other placement (given
their vulnerability to trafficking)
– Train police, CPS & courts on identifying these
victims, and where to get help for them
– Give courts protective order authority & provide a
basis for civil actions on behalf of child victims
– Report data on the number of victims served and
what services they actually received
– Meet the unique needs of girls, boys, gay &
transgendered youth who are trafficking victims
– Give special attention to non-citizen children,
including their proper identification as trafficking
victims, mandating their referral to state/local
CPS for support & immigration relief, and
providing for their immediate protective custody
as dependent children in suitable state/county
placements
– Don’t criminally charge prostituted minors, but
rather permit their protective custody, as victim
dependent children, in suitable settings (keep
them out of delinquency/juvenile justice system)
“Building Child Welfare Response to Child
Trafficking” Project
Purpose of this project is to build
capacity of child welfare agencies
and professionals to identify and
respond to this often invisible and
underserved population
For more information and a
copy, see
www.luc.edu/chrc/
Monograph.shtml
Primary goals are to ensure
children are correctly identified as
trafficked persons and that they
receive appropriate protections
and referrals to specialized
services to which they’re entitled
under federal and state laws
Will CPS “Screen In” Child Trafficking Reports?
Models for Legislative Authority of CPS
define:
 “Dependent child” as child who for “any” cause is
in need of the care and protection of the state
(e.g., Alabama 12-15-102) or is homeless or
destitute or without adequate parental care
(through no parental fault) or whose condition or
environment warrants the state, in the child’s
interests, to assume care (e.g., Ohio 2151.04)
 “Child in Need of Services” includes a sexually
exploited child (e.g., Massachusetts 119/21) or
child who has exhibited behaviors that create a
serious risk of harm to them (e.g., Washington
13.32A.030)
Mandatory Reporting:
What May be Changing?
Issues Being Addressed: 1) Expanding mandatory
reporters – “adding to list” (e.g., coaches) or making
“everyone mandated reporter”; 2) addressing
process of reporting sexual abuse (e.g., universal
mandated reporting to police; or for anyone who
witnesses it); 3) increasing penalties for failing to
report; 4) improving training of reporters and
enhancing public awareness of child maltreatment;
and 5) special provisions affecting colleges and
those employed/volunteering there
 There are 98 bills in 30 states (9 in CA alone), plus
as of late December at least 8 Congressional bills, to
mandate amendment of state child abuse reporting
laws

Center on Children and the Law Resources
Legal and Judicial Issues Resource Center:
Jennifer.Renne@americanbar.org
 Parent Representation/“Reunification Day”/LGBTQ Issues
Mimi.Laver@americanbar.org
 Older Youth in Foster Care/Transitioning Youth
Andrea.Khoury@americanbar.org
 Kinship (Grandfamilies State Law & Policy Resource Center)
Heidi.Epstein@americanbar.org
 Child/Adolescent Health
Eva.Klain@americanbar.org
 State Permanency Barriers Removal/Trial Skills
AnneMarie.Lancour@americanbar.org
 Legal Center for Foster Care and Education
Kathleen.McNaught@americanbar.org

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