Child Welfare Ideas from the Experts #7: A Federal Foster Care Bill of Rights

The Chronicle of Social Change is highlighting each of the policy recommendations made this summer by the participants of the Foster Youth Internship Program (FYI), a group of 12 former foster youths who have completed congressional internships.

The program is overseen each summer by the Congressional Coalition on Adoption Institute. Each of the FYI participants crafted a policy recommendation during their time in Washington, D.C. Today we highlight the recommendation of Jameelah Love, a student at the University of Wisconsin-Milwaukee.

The Proposal

Love proposes ushering in a federal bill of rights for youth who are placed into foster care. She proposes the following two-step process:

The Department of Health and Human Services develops a working group that includes current and former foster youth, foster and birth parents, caseworkers and other agency staff, judges and youth advocates. This group will be tasked with drafting an initial Federal Foster Care Bill of Rights.

Next, Congress should pass legislation that amends the Preventing Sex Trafficking and Strengthening Families Act, which currently requires that the “case plan for all children ages 14 and older must also include a list of rights that describes their rights with respect to education, health, visitation, court participation, staying safe and avoiding exploitation.”

The law would be updated to include a requirement that all youth receive the newly established Federal Foster Care Bill of Rights. Further, it would require someone at each state agency be appointed as a contact to “ensure workers are complying to these requirements.”

The Argument

Love argues that child welfare professionals “are concerned that youth voices are not being correctly engaged and implemented into their case plans and court proceedings.” Underrepresentation can lead to “insupportable services being provided,” she says.

There are 18 states that have established bills of rights, Love states. This leaves dozens without an established list, and she notes that they “vary in what rights are covered.”

In Her Own Words

“No information was given to me about my right to have my personal documents, attend court hearings, receive an allowance, or to visit my siblings. Without knowing my rights, I wasn’t able to advocate for myself the way I could if I had known about my rights.”

The Chronicle‘s Take

Is there a federal bill of rights other than the actual Bill of Rights? The notion of one for patients came close to passing in 2001 before dying on the vine, a victim of intense lobbying by the insurance industry.

State-run child welfare systems are hardly the lobbying entity that insurance is, but you might see some significant pushback if a foster care bill of rights had real teeth. And by teeth, we mean youth could sue for violation of those rights, states could be fiscally penalized by the feds for violating them, or both.

If a Federal Foster Care Bill of Rights lacked such teeth, it would not be worth having. The only thing worse than nothing being done about a problem is giving the impression that something has been done when it hasn’t. Establishing a bill of rights no state was really living up to might serve as cover for failed promises.

So in our opinion, the enforcement would have to go past Love’s suggestion of an agency-established monitor. It is too easy for that to become a rubber stamp situation without real monitoring of state fidelity. There would have to be real and articulated consequences for a state who was found by HHS or by a court to have violated the child’s federally established rights.

Assuming this Bill of Rights had the aforementioned teeth, what would it look like? Love is correct that this should first be informed by a group of stakeholders. Ultimately, the list would probably have to be a concise list of rights that reflect guarantees to youth that are written into the federal IV-E entitlement, the preponderant federal expenditure on foster care.

One way to craft it might be to mandate that each state establishes its own Foster Care Bill of Rights, and further mandate a list of the bare minimum rights that must appear on it (again, those should be tied to requirements in IV-E).

This is the way that the Adam Walsh Act envisioned the construction of the national sex offender registry: It set a basic national standard of inclusion and allowed states to go beyond that if they were so inclined. It is worth noting that with very little enforcement teeth behind it, more states than not have passed on complying with the national registry.

Without a real course for youth to pursue legal justice if their rights were violated, or without a practical list pegged to federal law, we would worry about the establishment of a bill of rights being a feel-good moment that states failed to take seriously. But if those boxes are checked, this would be the most significant advance ever made in the empowerment of foster youth to defend themselves when aggrieved by the system charged with their care.