Lawyers Journal

When children are not able to live safely at home, the Department of Children and Families, pursuant to an order from the Juvenile Court (or, in some instances, the Family and Probate Court), will place them in foster care. Foster care is meant to be temporary, but many stay in DCF custody for years, sometimes for the duration of their childhood. Each year, approximately 800 youth in Massachusetts turn 18 and "age out" of DCF.

The struggles that these young people face in the adult world are well documented. Various national studies¹ indicate that they are more likely to be homeless and less likely to have completed high school (let alone be enrolled in college) than their peers. They are more likely to be victims of crime and to struggle with health and mental health issues. Recent research in Massachusetts²suggests similar heartbreaking outcomes locally.

In order to mitigate these harms, for many years DCF has worked with young adults after their 18th birthday on a mutually voluntary basis, providing them continued shelter, support and other services, sometimes until they turn 22.

However, these services have been paid for exclusively with state dollars; since the inception of a national foster care program in the 1970s, the federal government has only provided funds to states to care for children under the age of 18. During the difficult budget cycles of the last few years, DCF has been cutting back its commitment to this population, since there is no mandate in state law for them to provide assistance past 18.³

Fortunately, additional help for this vulnerable group is now available. In 2008, Congress passed the Fostering Connections to Success and Increasing Adoptions Act ("Fostering Connections"), with wide bipartisan support, and President George W. Bush signed it into law.⁴

Among other things, Fostering Connections gives states the option of taking federal matching funds to support foster youth who remain in the child welfare department's care past their 18th birthday.⁵ In exchange for this unprecedented federal support, states must ensure that the same policies and procedural protections that are in place for all foster children under 18 also apply locally to young adults over 18.

Because Massachusetts has already been investing state dollars to support this vulnerable population, it was an easy choice to accept the federal funds. However, certain key revisions to the General Laws were required in order to bring Juvenile Court and DCF practices into compliance with federal law.⁶ Last fall, Gov. Deval Patrick signed these changes into law, which became effective Jan. 3.⁷

There are some key aspects of the new law that advocates should know about:⁸

"Young adults" defined

For the first time, the statute formally defines this population, adding the term "young adult" as a person between the ages of 18 and 22.⁹ This label reflects the goals of placement for this age group - providing stable living, learning and working environments as these young people transition into adulthood.

DCF "shall offer" ongoing services to young adults

The old regulations instructed that DCF "may elect, on a case-by-case basis"¹⁰ to continue to serve this population after they reach age 18. Now, DCF "shall offer" ongoing services to these young adults.

Right to a copy of service plan

Under the new law, every young adult is entitled to a copy of his or her service plan or case plan. In the case of young adults and foster youth close to their 18th birthday, this plan is often referred to as a "permanency plan," indicating that the DCF's goal is not necessarily to return the young adult to their birth family, but to provide a plan for a permanent, stable living situation.

Continued jurisdiction of court and right to counsel

Previously, young adults in this population lost the right to both court oversight and legal representation at their 18th birthday, even if they maintained a relationship with DCF for four more years. Now, a young adult who remains in the care of DCF has the right to annual permanency hearings and a right to counsel. This change allows young adults to have more equal footing in negotiations with DCF.

Court-approved transition plans required 90 days before case termination

Either DCF or the young adult may elect to terminate services prior to the young adult's 22nd birthday. Whenever services end, DCF must work with the young adult to create a transition plan 90 days prior to the termination date. The same court overseeing the annual reviews must review and approve the transition plan prior to the termination.¹¹

Foster care reviews for all young adults

For the first time, this population will also benefit from the work of the independent foster care review unit within DCF. At least once every six months, a panel of three persons with no direct involvement with the case will perform a review of the status of each young adult in the care of the department.

Since this legislation was enacted, DCF, the Committee for Public Counsel Services and the Juvenile Court have been busy on implementation.¹² CPCS has developed a training module for bar advocates in its Child and Family Law program, so that they can provide the best advocacy possible to this new client population. The court has issued a new policy guiding the scheduling and internal record keeping for these cases.¹³ Everyone involved in this effort hopes that the promise of the bill will be realized - that our young adults who have experienced lengthy stays in foster care will be better prepared for education, work and life.

¹See, e.g., Mark E. Courtney et al., Midwest Evaluation of the Adult Functioning of Former Foster Youth: Outcomes at Ages 23 and 24 (2010), available at www.chapinhall.org/sites/default/files/Midwest_Study_Age_23_24.pdf; Wilhelmina A. Leigh and Danielle Huff, Aging Out of the Foster Care System to Adulthood: Findings, Challenges, and Recommendations (2007), available at http://jointcenter.org/publications_recent_publications/health/aging_ out_of_the_foster_care_system_to_adulthood_findings_challenges_and_recommendations__1.

²Della M. Hughes, et al., Preparing Our Kids for Education, Work, and Life: A Report of the Task Force on Youth Aging Out of DSS Care (2008), available at www.tbf.org/uploadedFiles/tbforg/Utility_Navigation/Multimedia _Library/Reports/DSS_Report_0522.pdf.

³Prior to the enactment of legislative changes described in this article, the General Laws permitted, but did not require, DCF to offer voluntary services to young adults who turned 18 while in the department's custody.

⁴Fostering Connections to Success and Increasing Adoptions Act, Pub. L. No. 110-351, §§ 201-202, 122 Stat. 3949 (2008).

⁵Id., § 201 (codified as amended at 42 U.S.C. § 675(8)).

⁶In some instances, changes were made to the General Laws that go beyond the requirements of federal law, to strengthen the rights of young adults and conform with best practices.

⁷Chapter 359 of the Acts of 2010, §§ 9-10, 18-22, 133. 135.

⁸Chapter 359 has been codified in various sections of the General Laws: Mass. Gen. Laws Ch. 119 §§ 21, 23, 29, 29B, 29C (2010) and Mass. Gen. Laws Ch. 18B §6A.

⁹This population is distinct from young adults ages 18-22 who are under the care of the department pursuant a guardianship proceeding under Mass. Gen. Laws Ch. 190B §5-305.

¹⁰110 C.M.R. § 8.02. This regulation will have to be amended in order to comply with the new language of Mass. Gen. Laws ch. 119 § 23(f).

¹¹The court will follow the criteria set out in 42 USC § 674(8)(B)(iv) in deciding the sufficiency of such plans.

¹²As of Jan. 3, 2011, every youth who turns 18 while in DCF care is eligible for the new law's protections. However, only some of those young adults who were already receiving voluntary DCF services on that date will receive the benefit of the law. Specifically, the law's retroactivity is limited to those young adults whose cases were eligible for federal reimbursement at the time they entered foster care. Only about one-third of youth in DCF care meet this requirement, due to complicated factors beyond the scope of this article. For more information about this issue, see Child Welfare League of America, Ten Years of Leaving Foster Children Behind: The Long Decline in Federal Support for Abused and Neglected Children (2006), available at www.cwla.org/advocacy/childreninfostercarereport.pdf.

¹³Juvenile Court Uniform Practice and Procedure 01-2011, Scheduling Permanency Hearings for Young Adults and Children.