By Leslie Odom
Assistant County & District Attorney in Ellis County
In our practice of child welfare law, and particularly as prosecutors representing the Department of Family and Protective Services (DFPS), our focus is the best interest of the children. While we are litigating cases and determining whether reunification is a viable option or gathering evidence to seek termination of parental rights, we are focusing on the kids’ needs and questioning whether their parents can meet those needs. The children’s outcomes at this stage of a DFPS case are uncertain and still dependent on the choices and actions (and inactions) of their biological parents.
Our focus should not change in those cases that result in DFPS taking permanent managing conservatorship (PMC) of the children. That is when DFPS takes on the role of a parent to the child or youth once parental rights have been terminated or further restricted. DFPS is the decision-maker over the child or youth’s placement, healthcare, and education. At this stage, it remains of the utmost importance to continue our advocacy for the children in seeking secure and stable outcomes so they can have that bright future they so very much deserve.
With that in mind, my goal with this article is to provide an introductory guide to not just the statutory requirements we must remember (and expect our caseworkers to testify to) but also to the plethora of resources and programs available to our PMC children. While we as prosecutors are not the decision-makers in their placement, healthcare, education, and such (as that role belongs to our client, CPS), I do find it beneficial to have some working knowledge of the programs and resources available.
As with most DFPS-related conversations, let’s start with some terminology. Our PMC children and youth are in the “substitute care” of DFPS. As defined in DFPS policy, substitute care references the services and placements provided from the time a child or youth is removed from his or her home and placed into DFPS conservatorship, whether temporary or permanent. It is an all-encompassing term that refers to all the placement types a child might be in, including foster homes, kinship homes, residential treatment centers, and group homes. The goals of substitute care, while striving to achieve permanency for these children and youth, are to provide for their safety and protection but also for feelings of well-being and belonging, as reflected in DFPS policy.[1] As we continue, you will notice that foster care and substitute care are rather interchangeable. For example, we will visit the “Rights of Children and Youth in Foster Care,” the title of which is not intended to imply the rights are for those in foster care to the exclusion of any other sort of placement. The defined rights belong to all in DFPS substitute care.
Permanency hearings after final order
Once it is determined to be in the best interest of a child or youth to be placed in PMC with DFPS, review hearings are statutorily required.[2] The purpose of these hearings is to determine if the child’s needs are being met and that continued efforts are being made to find permanency for the child or youth. If the child or youth is in DFPS conservatorship with parental rights terminated, the initial permanency review hearing after final order shall occur no later than 90 days after the court rendered the final order. Subsequently, permanency review hearings after final order shall occur at least once every six months so long as the child remains in the managing conservatorship of DFPS. If the child is in DFPS conservatorship with a parent or legal guardian appointed by the court as a possessory conservator, permanency reviews must occur at least once every six months until the child is no longer in DFPS managing conservatorship.
At the moment, I have 15 PMC children on my caseload. And although Ellis County is experiencing rapid growth, it is still dwarfed in size compared to larger Texas counties such as Harris or Dallas, so my numbers might not at all be similar to your county’s. Even so, as I look back over the years, it seems the number of PMC cases has regularly been 30–50 percent the size of my TMC (temporary managing conservatorship) caseload at any given time. I add this sidenote to emphasize the importance of having some general working knowledge of CPS responsibilities and services for these children and youth.
I should also note there might be special cases requiring more court involvement than every six months to ensure appropriate care for a particular child. I think it is a safe assessment to say that PMC cases require less regular attention, but I’ve had children on my caseload who needed frequent institutionalization and medication reviews. One child in particular rotates in and out of psychiatric hospitalization every few months. If you find yourself with a child who needs a particular medication that CPS cannot approve independently, for instance, staff the case with the child’s team (the caseworker, guardian ad litem, and attorney ad litem) and include the child’s treating psychiatrist. If the psychiatrist is recommending the child receive the medication and can articulate that without it, the child’s condition will deteriorate, perhaps it’s an occasion to seek court intervention. In my experience, CPS can benefit, so to speak, from the intervention and orders of the court in such a scenario, and the child then receives the necessary medication. This practice, of course, requires a case-by-case analysis and knowing the temperament of your court.
In Ellis County, our local rules direct County Court at Law No. 1 to handle all our CPS cases (with exceptions for conflicts), so my practice is spent nearly entirely with one judge, and my caseload is spread throughout the court’s calendar (rather than, say, on a single day of the week). I’ve found that this schedule provides some flexibility that wouldn’t exist if all CPS cases fell on a single day, in that our scheduling is wholly based on the statutory timelines and parties’ availability. Previously, I practiced in a jurisdiction where a court would have an associate judge hear portions of the cases or even all the PMC cases and would have CPS docket days. Either arrangement can be managed once you know which setting you are navigating and you grow accustomed to it.
In the permanency hearing setting, how does the court determine if DFPS is continuing all efforts to achieve permanency for a child or youth? At each permanency hearing, the court shall review the following (and much more):
• Have all persons entitled to notice of the review hearings been given notice? These would include the child’s guardian and attorney ad litems and foster parent or potentially adoptive foster parent. Notice to these people must occur no less than 10 days prior to the scheduled hearing.
• Is the placement still appropriate and necessary? If a child has been placed in substitute care out of Texas, is it in the child’s best interest to continue there?
• If the youth is in some form of institutional care, is this the least restrictive placement option available that is consistent with the child’s particular needs and interests? You might experience struggles ensuring a child or youth has been assigned the appropriate level of care. I don’t mean those with Basic or Moderate service levels youth, but instead children with Specialized, Intense, and Intense Plus Levels; the differences in those assignments provide access to expansive arrays of services for those youth in the most need.[3] When children on your caseload engage in sexually aggressive behaviors or recurring self-injurious actions, it’s imperative that their level assignments are closely managed. Do not fear requesting additional case staffings with caseworkers and supervisors if those conversations need to occur. It’s much better that you address these issues (really, any issues, right?) with your client in those attorney-client conversations rather than the issues being poured over in open court.
• What are DFPS’s permanency goals for the youth? Is he on a path toward adoption? If not, what are the long-term goals set out for him?
• For a youth aged 14 or older, is DFPS putting services into place to help him transition from substitute care to independent living?
• Is any medical care necessary and meeting the child’s needs? As developmentally appropriate, has the youth been given an opportunity to share his opinion about the care being provided?
• If the child receives psychotropic medications, are there alternative nonpharmacological interventions, therapies, or strategies that might also be appropriate to meet the child’s needs? Is the child being seen at least once every 90 days by prescribing physicians?
• In cases where the court has not terminated parental rights, has DFPS continued to provide services to the parent(s), are the parents participating, and how does best interest align for this child considering continued substitute care or return of the child to the parent?
• Has DFPS continued efforts to identify a family member or other adult willing to make a permanent commitment to the child?
• If the child is not a United States citizen, the court will inquire as to DFPS’ efforts to give notice to appropriate consulates[4] or otherwise determine if Special Immigrant Juvenile Status is appropriate, such that the DFPS should initiate that particular process. (For further information regarding DFPS policy and procedure in this regard, see the footnote.[5])
• Has DFPS timely filed its required documents, including but not limited to its permanency progress report (at least 10 days prior to the hearing date) and summary of medical care?[6]
I encourage review of the relevant Family Code sections regarding these review hearings. Yes, they are dense, but they provide a distinct outline of expectations useful for guiding your caseworker preparation.
Keeping in mind the items the court will review at each permanency hearing, think of yourself as complementary to the CPS caseworkers. Meaning, the caseworkers are the leaders in accomplishing all the tasks for the children and youth. They are responsible for timely PAL referrals (more on PAL to follow). They track the educational and medical needs of the children and youth. They are responsible for monitoring the placements and requesting placement stability meetings as necessary. We prosecutors provide counsel and support to ensure their permanency reports and our proposed orders correctly reflect all of those CPS efforts.
Rights, supports, and services
A good starting place in understanding DFPS’s attempts to care and provide for PMC children is the agency’s “Rights of Children and Youth in Foster Care” document that establishes a set of basic rights for all DFPS children.[7] These rights were created to ensure the safety and stability of each child and youth.
Children and youth always have a right to access appropriate education and extracurricular activities if they choose. They have a right to basic quality of life services such as medical, dental, and behavioral healthcare but also normalcy in their lives. Yes, these children and youth may be in the substitute care of a government agency, but they are entitled to being normal kiddos. Youth may seek employment, keep their earnings, and secure their own bank accounts when appropriate and based on their age and maturity.
One significant right is to attend court. This right is also reflected in Texas Family Code §263.302, which provides that a “child shall attend each permanency hearing unless the court excuses the child’s attendance.” The child has a right to speak with the judge and ask about his case. He has the right to question his placement and the plans in place for him. I know that practically speaking, a child or youth’s attendance cannot always happen. Placements are often counties away. DFPS will tell you that they do not have transporters available, or the child would really rather be in school (yes, this actually occurs). But direct your caseworkers to have those conversations timely and ahead of each court setting with the child or youth. PMC children and youth especially should be encouraged to use their voices whenever they can, but if they do not wish to attend, make sure the caseworker is having those personal conversations with the child or youth so the information can be correctly reported to the court.
I think in giving it a read-through, you will find that the “Rights of Children and Youth in Foster Care” list reflects DFPS’s commitment to encouraging our children’s growth in life skills as well—as the children age into youth, the rights grow with them. At age 14, youth begin participating in more young adulthood-focused activities, such as college and career planning. They are provided access to information regarding and assistance in enrolling in college or vocational job training programs. They also have the right to run their credit reports on an annual basis, and—perhaps even better in this regard—they are educated on how to interpret the credit report information and contest the reports if necessary.
Their foster parents or other care providers are required by DFPS policy to engage and encourage the children in experiential life skills, tasks, and activities. DFPS youth are to be provided with the skills to care for themselves, and the training is to be tailored to the youth’s maturity and ability. Tasks such as grocery shopping, maintaining personal hygiene, performing basic household tasks, and using public transportation are considered minimum basic skills PMC youth should acquire. The intention of this type of training is that it’s hands-on and experiential. In other words, let’s not talk at them about grocery shopping but rather assist them in the actual activity! The expectation of the training is that it advances as the youth’s age and maturity do. At some point, PMC youth should have access to education and training on financing a motor vehicle, for instance, and registering to vote.[8]
Also at age 14, youth are engaged in a process of meetings called Circles of Support (COS). COS include the youth in the process of creating his or her own transition plan. These meetings are scheduled between the youth and her caseworker at a time convenient and comfortable for the youth, and she can invite individuals from her own support group to the meetings—youth tend to invite teachers, church members, family, or birth parents if they are still involved in the youth’s life. The goals of COS are to review the youth’s plan, identify her strengths and goals, and then ensure the appropriate services are in place to meet those identified areas. It is best practice for a caseworker to begin planning for the youth’s COS early, but it must occur 60 days prior to the child’s 14th birthday.[9]
As PMC youth continue hitting age milestones, they will begin receiving education on DFPS services, programs, and benefits available to them; when and how they become eligible; and how to engage those services, programs, and benefits. Let’s take a look at some of them.
Preparation for Adult Living (PAL)
Created in 1986 for older youth with the intention of preparing them to leave substitute care and enter independent adulthood, PAL classes begin for youth at age 16. DFPS identifies the target population for the PAL program as children 16 or older in substitute care who are likely to remain in care. PAL skills and training opportunities can extend until the youth turns 21.
At age 16, DFPS will engage the youth in an assessment process to determine his ability to function as an adult, and in turn, determine what plans and training are best to prepare him for adulthood. Potential services include GED classes, vocational training, preparation for college entrance exams, and driver’s education. If the youth meets certain additional requirements, he might qualify for a transitional living allowance. The requirements are intended to promote responsible, adult-like behaviors and decision-making, such as acquiring full-time employment, continuing with PAL life skills courses, and choosing appropriate living arrangements. Once the youth reaches age 18, and if he is continuing education and employment actively, he may qualify for additional benefits, such as aftercare room and board assistance.[10]
Education and Training Vouchers (ETV) program
This program is federally funded and is intended to assist youth currently in or who have already exited the conservatorship of DFPS. Eligible youth range in from 16 to 23 years old and may qualify to receive up to $5,000 per year, for up to five years, to attend college or vocational training. Youth in foster or extended foster care, who have already aged out of care, or who have been adopted out of DFPS care are some of the segments of the DFPS youth population who may qualify.[11]
College tuition and fee waivers
Texas Education Code §54.367 establishes exemptions and waivers for tuition and fees payments for youth currently or formerly in DFPS conservatorship in a number of circumstances, including those in conservatorship before their 18th birthdays; those who were adopted from DFPS care on or before September 1, 2009; and those who might have even left care at 16 years of age or older on or after June 1, 2016, to return to a parent. If a youth qualifies for this program, he has until his 27th birthday to enroll in an eligible state-supported college or university.[12]
Comprehensive medical care
Comprehensive medical, dental, and behavioral services are available to children under age 18 in DFPS conservatorship, as well as youth in extended foster care up to age 21 (or 22 if completing high school or GED programs) and children formerly in foster care.
And there are incentives incorporated into some of these benefits. A program entitled “Adolescent 2 Adult,” as an example, has a rewards program to encourage youth up to age 21 to take control of their own health and to complete annual wellness visits and dental screenings. If youth engage in those visits and other health screenings, they can receive up to $160 annually loaded onto a prepaid card for use however they choose! It might go without saying that many of the children and youth in DFPS care have particularized and increased healthcare needs given the trauma most of them have endured in their young lives, so it is certainly a benefit that such extensive coverage is available to them.[13] And a rewards program surely provides additional incentive for these good health habits and routines.
Extended Foster Care (EFC)
As our PMC youth reach age 18, the reality of adulthood looms. However, through their COS and PAL meetings, they will be educated in advance of this birthday regarding their option to voluntarily continue in their foster care placements by enrolling in Extended Foster Care (EFC). EFC requires continued education and/or employment, among other things, and it allows the youth to remain in his established home and life patterns, which can be so positive. A subset within EFC is the option of Supervised Independent Living (SIL), which means the youth can transition into a more self-sufficient lifestyle (in their own apartment or college dorm room, for instance). If a youth decides to participate in EFC, alert the court pursuant to the guidance of Texas Family Code §§263.601–603.
As an aside, it should not really come as a surprise just given the simple nature of anyone aged 18 to 21 that they begin to think they can just do anything or everything they want to without need of a “parent’s” oversight (and in this instance they think of DFPS, the court, or their ad litems as the “parent”). If a youth does not enter EFC or exits EFC prior to age 21, the young adult enters what is termed Trial Independence. As defined by Texas Family Code §263.6015, Trial Independence requires an initial six months after the youth’s exit from care during which court jurisdiction is continued and review hearings may occur. DFPS at this point may have only limited involvement with the case, with the exception being provision of transitional living services or providing updates at a review hearing. The Family Code allows—and I’ve been before some courts who nearly always prefer—to extend the initial six months of Trial Independence to a full year. This period allows the youth to leave EFC without losing foster care eligibility, meaning that if something in his or her life independent of EFC goes awry, s/he can come back into care.
Youth during their trial independence period are ideally working to meet their own needs with family and/or community support. Anecdotally, however, consider a 19-year-old who confidently declines the option of EFC because he has located employment and has plans to move in with friends. Months later, a failed roommate arrangement or job loss throws the young man’s plans off. Returning to EFC could save him from homelessness or worse. It serves as his safety net. The benefit of the trial independence period is that the youth can decide if it’s best to re-enter foster care. All he needs to do is reach out to his PAL worker and start the process.[14]
Youth housing program
Many older youth transitioning out of foster care or who have recently exited foster care struggle with securing safe living conditions, and they risk homelessness. To provide housing assistance, DFPS partnered last year with the Texas Department of Housing and Community Affairs (TDHCA) to expand youths’ access to housing resources through the U.S. Department of Housing and Urban Development (HUD) with the creation of the Texas Foster Youth to Independence (FYI) program. The program provides access to housing vouchers throughout the state. Youth who qualify for the program may receive rental assistance and access to other services. Youth must be 18–24 years old to qualify. Regional liaisons have been set up throughout the state, and reaching out to your region’s liaison is the first step in the process to determine if a particular youth is eligible.[15]
Activities with other DFPS youth
In my research for this article, I discovered opportunities for engagement and growth, including camps and conferences throughout the state, that I wasn’t aware of but feel I should mention for your reference and benefit. These include:
PEAKS Camps. Texas Network for Youth Services provides activities intended to promote self-esteem, improve communication and problem-solving skills, and simply have fun. Up to 40 youth at a time can participate in a four-day experiential learning camp, which includes activities ranging from expressive arts and rope courses to hiking and swimming.[16]
Statewide Teen Conference. This is a three-day conference coordinated through the efforts of Texas Woman’s University. It is focused on youth ages 14 to 23, and about 150 foster youth attend every year.
College Weekend. This event is hosted annually by Texas A&M University at Commerce. Youth with goals of attending college may attend. The agenda generally includes motivational speakers and workshops to provide guidance in college planning and financial aid.
In conclusion
Many of the trainings, programs, and educational opportunities that DFPS provides mirror what we naturally strive to provide for our own children—and rightly so. For our PMC children and youth, DFPS stands in the role of parent, and the responsibilities it carries must reflect the same thoughtful, intentional decision-making inherent in good parenting, at least as well as any government agency can. By preparing our case- workers to meet the requirements of the relevant statutes and actively engaging with the guardian and attorney ad litems during permanency conferences, placement stability meetings, and court settings, we can ensure these children and youth fully benefit from the resources available to them.
Effective advocacy for PMC children requires not only an understanding of the court’s ongoing role and the expectations set forth in the Family Code, but also some working knowledge of the supports and services provided by and through DFPS designed to promote positive outcomes for children in care. Above all, we need to be encouraging our caseworkers to keep the lines of communication open and active with those PMC children and youth. We need to strive to see to it that those children and youth are seen, heard, and included in decisions affecting their lives are essential. These kiddos on your caseload are growing up. And don’t we all hope that they are growing up into successful, independent, and happy adults? It is my hope that this article provides some guidance to you and ultimately contributes to the improved outcomes for our PMC children.
[1] The statutory guidance for these policies includes the Texas Family Code, Human Resources Code, and applicable federal laws. www.dfps.texas.gov/ handbooks/DFPS/files/DFPS_pg_6000.asp.
[2] Texas Family Code §263.5031 (Permanency Hearings Following Final Order).
[3] DFPS provides a useful explanation of not only the various service levels but also the various anticipated characteristics of the child that would be so categorized at this website: www.dfps.texas.gov/Child_Protection/ Foster_Care/Service_Levels.asp
[4] 8 C.F.R. §204.11.
[5] For DFPS policy regarding non-citizen PMC children, please see www.dfps.texas.gov/handbooks/ DFPS/files/DFPS_pg_6700.asp.
[6] Texas Family Code §263.502(a) (Permanency Progress Report After Final Order) and §266.007 (Judicial Review of Medical Care).
[7] www.dfps.texas.gov/Child_Protection/Foster_Care/ Childrens_Rights.asp.
[8] www.dfps.texas.gov/Doing_Business/Purchased_Client_Services/Residential_Child_Care_Contracts/ documents/24_Hour_RCC_Requirements_Addendum.pdf, See section 4500 Basic Life Skills and Social Skills.
[9] www.dfps.texas.gov/handbooks/DFPS/Files?DFPS_pg_1120.asp#DFPS_1121_23.
[10] www.dfps.texas.gov/child_protection/Youth_and_ Young_Adults/Preparation_For_Adult_Living.
[11] Please visit the ETV website at https://texasetv.com, but DFPS also provides a helpful FAQ section at www.dfps.texas.gov/Child_Protection/Youth_and_ Young_Adults/Education/ETV_FAQ.asp.
[12] www.dfps.texas.gov/Child_Protection/Youth_and_Young_Adults/Education/state_college_tuition_waiver.asp.
[13] www.dfps.texas.gov/child_protection/Medical _Services/default.asp#what.
[14] For more information (and more significantly for a flowchart [who doesn’t love a flowchart?!] providing a visual explanation of the details entitled “Extended Court Jurisdiction Flow Chart”), please visit http://dfps.texas.gov/Child_Protection/Youth_and_ Young_Adults/Transitional_Living/Extended_Foster_ Care.
[15] A list of DFPS regional liaisons for the Youth Housing Program is at https://dfps.texas.gov/Child_Protection/ Youth_and_Young_Adults/Transitional_Living/Housing/regional_housing_liaisons.asp.
[16] https://tnoys.org/peaks-camp.