Jerry Milner testifies before a House Ways and Means subcommittee about implementation of the Family First Prevention Services Act in July.
As juvenile and family courts around the country settle into emergency postures during a period of national social distancing, one of the nation’s top child welfare officials issued a reminder of the legal steps that must be taken in order for federal dollars to flow from Title IV-E, a multi-billion dollar entitlement that helps pay for family preservation, foster care and adoption.
Jerry Milner, associate commissioner of the U.S. Children’s Bureau, sent a letter to judicial leaders around the country outlining the hearings that must be held to maintain IV-E eligibility for a child or family involved in the system. His letter uses as precedence the policy guidance arrived at during the George W. Bush administration in the aftermath of Hurricane Katrina in Louisiana and Mississippi.
Prolonged delays of judicial oversight in these cases, Milner wrote, could “place children’s safety and well-being in jeopardy; may lead to unnecessarily long stays in foster care; and are inconsistent with statutory and regulatory requirements.”
Milner highlights three steps that must happen for continued federal funding. First, a judge must continue to make determinations to sanction the removal of children into foster care. “If that does not occur, the child is ineligible for Title IV-E foster care maintenance payments,” Milner said.
An additional hearing must be held within the first 60 days after removal to determine if the child welfare agency has made “reasonable efforts” to prevent the use of foster care in the case. In the best of times, this has been an area of the process that some legal scholars argue is woefully neglected.
Another “reasonable efforts” hearing must occur to finalize a permanency plan – reunification, adoption, guardianship – within 12 months of a child’s removal. Milner also references the expectation of six-month and 12-month permanency reviews, but notes that those are not tied to IV-E funding.
The letter suggests that the federal government is fine with whatever remote approach a court wants to take to get business done, as long as hearings are held.
“States and courts should adhere to their own statutory and regulatory requirements about conducting such hearings in person or through other means, including holding such proceedings via videoconference and/or telephonically.”
The Children’s Law Center of California (CLC), which legally represents about 33,000 children involved in child welfare cases, quickly picked up on the federal guidance in its comments to the State Supreme Court, which held a special meeting about the pandemic over the weekend.
“It is critically important that we do not allow this emergency situation to unnecessarily erode due process,” said CLC Executive Director Leslie Heimov, in comments submitted to the court. “The youth that our juvenile courts serve are among the most vulnerable in our population and those youth rely on the courts and juvenile system to provide protection.”
John Kelly can be reached at [email protected].
