Pressing Issues

McKenna’s Law

In February 2016, McKenna Ahrenholz, a 12 year old, spoke up about Minnesota’s foster children’s right to an attorney being ignored.  She didn’t know she had a right to an attorney.  She didn’t know she had a say when she and her siblings were forced to spend time with their abusive father… malnourished, abused and neglected.  She didn’t get an attorney after asking for one three times.  But when she did get a lawyer, her life drastically improved and she is now in a loving home of her grandfather and his fiancé, along with all her siblings.

Watch her story here.

During the 2017 Minnesota’s legislative session, CLC introduced a Bill that will require county social workers to inform children who are subject of a child protection petition and who are ten years or older, that they have a right to an attorney.  Minnesota’s lawmakers welcomed this change in the law.  The Bill unanimously passed Minnesota House with a 130/0 vote on April 27, 2017.   Watch the stories here: WCCO, KSTP.

The Bill is currently awaiting Minnesota Senate vote.

To read the House version of McKenna’s Law, click here.

MINNESOTA EXPUNGEMENT LAW IS CHANGING!

5/16/2014

Governor Dayton signed new juvenile and criminal records expungement legislation into law on  May 14, 2014. The new law will go into effect Jan. 1, 2015. Designed to help individuals rebuild their lives after contact with the criminal justice system, the legislation will provide expungement relief for Minnesotans pursuing a second chance, often long after they have been held accountable for their actions.

The legislation provides specific remedies, including clarifying juvenile delinquency expungement, extending sealing powers to the executive branch, requiring private screening services to delete expunged records, and protecting employers and landlords from liability based upon an expungement.

The most important aspects for those seeking an expungement are:

1.  The following executive branch (as well as judicial branch) records may be sealed if the petitioner shows by clear and convincing evidence that their need for an expungement outweighs any public safety concerns: 1) diversion and stay of adjudication records 1 year after completion of sentence if crime free; 2) petty misdemeanor and misdemeanor records 2 years after completion of sentence if crime free; 3) gross misdemeanors 4 years after completion of sentence if crime free (domestic abuse related offenses not eligible until July 2015); and 4) most nonviolent felonies that are level 1 or 2 on the sentencing guidelines 5 years after completion of sentence if crime free. Click here for a list of eligible felonies.

2.  All records related to juvenile delinquency can be expunged.

3.  Requires private business screening services to delete expunged records.

 

 

 

 

 

Exciting NEW legislation! The Family Reunification Act of 2013

On May 1, 2013, Governor Dayton signed into law the Family Reunification Act of 2013.  This new law permits the reestablishment of the parent and child legal relationship for certain children who are under the guardianship of the Commissioner of Human Services.   The law is exciting for those children who have remained in foster care for significant periods of time without being adopted and wish to return to the care of their biological parents as well as for those parents who have been able to correct the problems that led to their initial termination of parental rights.

The new law has several qualifiers.  Specifically, it provides that only the county attorney may file a petition for reunification.  Minn. Stat. §260C.329, subd. 3 (anticipated 2013).  Thus, terminated parents, children and guardian ad litems are unable to request reunification under the new law.

A petition to reunify and legally restore the parent child relationship may not be filed if the previous termination of parental rights was based on a finding of either sexual abuse or conduct that resulted in the death of a minor.  Id. subd. 4.  Additionally, a petition may not be filed if the previous parent has been convicted of any crime listed under Minn. Stat. § 260C.007, subd. 14 (2012). Id.    Such crimes include, murder, manslaughter, criminal vehicular homicide, substantial bodily harm to a child, felony assault,  felony malicious punishment of a child, felony unreasonable restraint of a child, felony neglect or endangerment of a child, solicitation inducement or promotion of prostitution, criminal sexual conduct toward a child, and federal murder or voluntary manslaughter.

Finally, a petition may not be filed unless the following factors exist:

  1. both the responsible social services agency  and county attorney agree that reestablishment of the legal parent and child relationship is in the child’s best interest;
  2. the parent has corrected the conditions that led to an order terminating parental rights;
  3. the parent is willing and has the capability to provide day-to-day care and maintain the health, safety, and welfare of the child;
  4. the child has been in foster care for at least 36 months after the court issued the order terminating parental rights;
  5. the child is 15 years of age or older at the time the petition for reestablishment of the legal parent and child relationship is filed;
  6. the child has not been adopted; and
  7. the child is not the subject of a written adoption placement agreement[.]

Id.  subd. 3.

Once the petition has been served on the child, the child’s Guardian ad Litem, the proposed parent, and tribe if the child is subject to the Indian Child Welfare Act (ICWA), a hearing must be held before the court that issued the termination order and conducts the child’s adoption reviews.  Id. subds. 7-8.  The standard for the court is whether the evidence is clear and convincing.  Id. subd. 8.

The court may grant the petition if it finds:

  1. reestablishment of the legal parent and child relationship is in the child’s best interests;
  2. the child is 15 years of age or older;
  3. the child has not been adopted;
  4. the child is not subject to a written adoption placement agreement . . . ;
  5. at least 36 months have elapsed following a final order terminating parental rights and the child remains in care;
  6. the child desires to reside with the parent;
  7. the parent has corrected the corrections that led to an order terminating parental rights; and
  8. the parent is willing and has the capability to provide day-to-day care and maintain the health, safety, and welfare of the child.

Id.

If a petition is granted by the court, the child is no longer a state ward and all rights and legal responsibilities of the parent child relationship are restored.   Id. subd.11.   The child will be returned to the legal and physical custody of his or her parent.  Id.

In certain circumstances, this new law will allow terminated parents and their children with the opportunity to reunify.     This new law acknowledges that even after lengthy periods of time, there are parents who are able to change and provide for their children.  The Family Reunification Act now provides a legal remedy that did not previously exist for children who have remained in care for significant periods of time to return home.   No one wants children to languish in care.   When parents have changed and are able to parent, the children’s needs should be assessed to be determined if reunification is appropriate.   Thankfully, Minnesota has now created a legal avenue to effect such an option.

CLC will continue to inform its clients and volunteer attorneys of any further legal developments concerning this new law.

Congress Passes Key Foster Care Education Bill

1.7.2013

The recently enacted Uninterrupted Scholars Act (USA) successfully amended the Family Educational Rights and Privacy Act of 1974 (FERPA), that acted as a barrier to child protection agencies receiving foster children’s educational records without parental consent.  To protect the control a parent has over their child’s school records, FERPA prohibited distribution of Department of Education funds to educational agencies that released a student’s education records without parental consent. The law failed to recognize situations when government agencies have temporary custody of foster children and caseworkers need to obtain school records to make decisions about foster children’s educational needs.

Minnesota law currently requires a county to ensure a foster child’s educational stability while in foster care which includes obtaining a foster child’s school records.  Prior to passage of USA, federal law prohibited case workers from getting school records in child protection cases when parents refused to sign a release of school records. Under USA, case workers, state and local child welfare representatives and tribal organizations are authorized to receive a student’s educational records under a court order issued in the context of the child protection proceeding without consent or notification to a parent involved in such proceeding.

This is a victory for foster youth who are oftentimes forced to repeatedly change schools. We are hopeful that this new law will help foster children transition more smoothly to new schools, because efficient transfer of school records will prevent delays in enrollment which in turn result in lost credits, stalled academic progress and grade repetition.

Tips for Helping Children and Teens Before and After Visitation

If the Courts deem it physically and emotionally safe, many children and teens in the foster care system will have Court-ordered, regularly scheduled visits with birth parents, siblings, and other family members. Visits are intended to help children and birth family members maintain and strengthen their relationships during a time of separation.  However, without the proper preparation before a visit, or appropriate support following a visit, this can be a challenging experience for all involved. Click here for tips on how you can support your clients with birth family visits.

The Effects of Traumatic Stress on the Developing Brain

By CLC Staff Social Workers Weida Allen and Rachel Ayoub

9.13.2012- In recent years, many in the helping professions have begun to recognize the significant impact that trauma has on the lives of people, especially young people.  Trauma comes in many forms, but is defined as events occurring outside of the normal human experience.  Trauma occurs when a child experiences an intense event that threatens or causes harm to his or her emotional or physical well-being. When children live through a traumatic experience, they react in both physiological and psychological ways.

A growing body of research has uncovered the pervasive and detrimental effects of traumatic stress on the developing brain. The majority of brain development is completed during the first five years of life, with the most critical development occurring within the first two years. Brain structures responsible for regulating emotion, memory and behavior develop rapidly during the formative years and are very sensitive to damage from the effects of emotional or physical stress, including stress from abuse or neglect. Children who have been exposed to one or more traumatic events over the course of their lives may develop reactions that can affect their daily functioning long after the traumatic events have ended. Be aware of the ways in which traumatic events have impacted the young people in your life, and seek trauma-informed therapy to address issues that persist and continue to impact their daily functioning.

CLC clients have almost certainly experienced trauma in their lives.  CLC volunteer attorneys have a responsibility to attempt to understand the hurdles their clients have faced in the past, are currently facing and will face in the future.  Child clients who have experienced traumatic events and function in a persistent state of fear and may exhibit behavioral challenges such as impulsivity, hyper-vigilance, hyperactivity, withdrawal from reality, depression, sleep difficulties and anxiety.  These behavioral challenges can often be misdiagnosed as various conduct disorders.  Misdiagnosis leads to improper treatment. Because of this, the child client may never get treated for the real problem, which is the trauma.  To become a more effective advocate, volunteer attorneys need to be aware of the trauma their clients have experienced, and how that has shaped who their client is. With that knowledge, CLC volunteer attorneys can help ensure that their clients are receiving the necessary mental health treatments to remedy their true problems.

Additional Resources: http://www.justicepolicy.org/images/upload/10-07_REP_HealingInvisibleWounds_JJ-PS.pdf

Foster Youth & Identity Theft

Youth in foster care are a vulnerable class when it comes to identity theft.  They may become victims at the hands of their care providers or family members who have access to their personal information.  Often these youth have no knowledge that they are victims of identity theft until after they are adults. Providing foster youth with access to their credit information, guidance in interpreting that information, and ensuring appropriate changes and corrections are made can help guarantee that identity theft does not hinder their success once they begin living independently.

New Legislation

Recently new legislation has been adopted to aide in protecting foster youth from identity theft.  The “Child and Family Services Improvement and Innovation Act” added an entirely new section to 42 U.S.C. 675(5) concerning foster youth ID theft.  The language provides that:

“[E]ach child in foster care under the responsibility of the State who has attained 16 years of age receives without cost a copy of any consumer report (as defined in section 603(d) of the Fair Credit Reporting Act) pertaining to the child each year until the child is discharged from care, and receives assistance (including, when feasible, from any court-appointed advocated for the child) in interpreting and resolving any inaccuracies in the report.”  http://thomas.loc.gov/cgi-bin/query/F?c112:1:./temp/~c1126BZROi:e26985:#

The Act’s effective date is October 1, 2011.  As a result CLC attorneys will need to pay special attention to their older clients’ credit history. The law provides that attorneys are responsible for going through reports with their client’s and seeing to it that any and all inaccuracies contained in those reports are corrected.  Any relevant court action will be in the hands of attorneys appointed by the court.

As mentioned in our April 2011 practice point, “Identity Theft and Your Client,” CLC feels it is important that you counsel your client on how to prevent, detect and recover from identity theft. Identity theft issues can be complex, expensive and time consuming.  As a result, CLC envisions that its volunteer attorneys will be particularly proactive and persistent when working with the court and social service agencies on this issue. Please note the following link to CLC’s practice point on this issue:  April 2011 Practice Point

Please contact CLC with any questions on addressing the issue of identity theft with your clients.

Higher Education for Foster Youth

7.19.2011

“Foster children are one of the most educationally vulnerable populations in our schools”(1).

Barton Allen and James Vacca, in their recent study about the negative academic effects of frequent moves on foster children assert this claim, citing that foster youth are not given equal opportunities for academic achievement and that many are not encouraged to pursue higher education.

During their time in care, foster children, on average, are moved through three different placements (2). These moves can happen with little or no warning and often force a child to change school districts, leaving their friends, teachers, and coaches behind. A 2000 study of foster children in New York found that 65% had transferred schools mid-year (3).

Transferring schools presents roadblocks to any child, but especially to those children who transfer frequently or in the middle of an academic calendar. Missing school records can cause delays in school registration and force children to remain out of school for days or weeks. Transfers also require children to adapt to new teachers and schoolmates, and a curriculum that may differ considerably from their previous school.

These obstacles have a harmful effect on educational outcomes. According to the U.S. Government Accountability Office, students who change schools frequently are more likely to have poor test scores, repeat a grade, or drop out than those who have consistent and stable education.  Moreover, studies have shown that compared to non-foster youth, foster children have higher rates of grade repetition, absenteeism, truancy, and tardiness, and lower standardized test scores (4). Seventy-five percent of foster youth are behind grade level (5).

The statistics are just as grim for those foster care youth hoping to pursue higher education. Frequent transfers and frustration with school result in disengagement and dropping out. Only 46% of foster youth complete high school, compared to 84% of the general population(6). Furthermore, 70% of foster youth report that they want to attend college, but fewer than 10% of those who graduate from high school enroll in college and of those, less than 1% graduate from college (7).

_ _ _ _ _ _ _

  1. Allen, B. & Vacca, J. (2009). Frequent moving has a negative affect on the school achievement of foster children. Children and Youth Services Review, 32, 829-932.
  2. US Dept. of Health and Human Services AFCARS report, 2003
  3. Advocates for Children of New York, Inc., 2000, p. 5
  4. Martin, J. (2003). Foster youth desire college, study shows, but face roadblocks to learning, Washington University in St. Louis Newsroom
  5. Barriers Facing Foster Youth Statistics, Honoring Emancipated Youth
  6. Ibid.
  7. Ibid.

EXPANDED MIRANDA RIGHTS FOR JUVENILES

In Miranda v. Arizona, the U.S. Supreme Court ruled that the Constitution’s guarantee against self-incrimination required police to warn criminal suspects who are in custody and subject to interrogation about their rights to remain silent and to consult with an attorney. In subsequent opinions, the U.S. Supreme Court clarified that whether a suspect was “in custody” for Miranda purposes depended on the objective circumstances of the interrogation, and whether a reasonable person would have felt free to leave.

On June 16, 2011, in J. D. B. v. North Carolina the U.S. Supreme Court held that juveniles are entitled to expanded Miranda protection. In this 5-4 ruling, the U.S. Supreme Court explains that a reasonable child may feel pressured to submit to police questioning where a reasonable adult feels free to end an interrogation. Therefore, although it may not be determinative, a juvenile suspect’s age is a factor police must consider when deciding whether to give a Miranda warning.

Did You Know?

Many Minnesota foster youth don’t know what it’s like to live in a family home.

  • According to the US Department of Health and Human Services state by state data on child welfare for 2009, Minnesota has the second highest percent in the country of residential treatment and group home placements. Also of Minnesota children 12 or younger who entered foster care, 17 % were placed in a group home or residential treatment center.
  • A recent report by First Star and Children’s Advocacy Institute aptly reminds us how difficult it can be for children who grow up in group homes or institutions to lead normal adult lives. The report states that “An estimated 40% of foster children fourteen and older live in group homes or other institutionalized settings where their caretakers are often poorly paid shift workers. Such a setting leaves these young people — who have been dropped into a world full of unknowns — without the connections, familiarity and supports that other children take for granted. Furthermore, and particularly for children who live their teen years in group homes, these youth do not benefit from normal growing-up experiences. As one report notes, “[m]any youth in group care never see an adult pay bills, fill out income tax forms, arrange for car insurance, or undertake the dozens of other mundane tasks required to run a household.” The Fleecing of Foster Children: How We Confiscate Their Assets and Undermine Their Financial Security, 2011.