CROSSOVER YOUTH: FOSTER YOUTH INCARCERATED IN THE TEXAS YOUTH COMMISSION

1. CROSSOVER YOUTH: FOSTER YOUTH INCARCERATED IN THE TEXAS YOUTH COMMISSION Dustin Rynders, Special Project Attorney and Ian Spechler, Special Project Attorney

2. How was this project developed? • The Supreme Court of Texas Permanent Judicial Commission for Children, Youth and Families formed a workgroup in 2008 to look at outcomes for youth in the long-term conservatorship of DFPS but placed in TYC or SSLC facilities, formerly known as state schools. One key issue is that youth often lacked legal representation while caught in and between two systems. • To address this problem, the Children’s Commission is partnering with Advocacy, Inc., the Rees Jones Foundation, Texas Access to Justice Foundation, and the Meadows Foundation to provide this population legal representation. • This project is unique nationwide and attorneys attempt to provide key support to the youth we serve.

3. WHAT ARE SOME PROBLEMS IN INTERSYSTEM COORDINATION? • Lack of communication between the two agencies. • Lack of coordination of transition planning. • Lack of understanding of the history of a youth. • Case example: RS came into TYC and was not identified as a student who needed special education services. While we ensured he received those services, he lost a full school year.

4. WHAT ARE SOME PROBLEMS IN INTERSYSTEM COORDINATION? • Lack of reporting to the court about problems and issues that take place under the other system. • Lack of understanding of who is responsible for therapeutic services and supports.

5. HB 1629: Coordination of Care between CPS and TYC • The consent to medical care provisions for foster youth apply to foster youth committed to TYC. Tex. Fam. Code § 32.001(b) • The juvenile court handling the delinquency case may communication with the court having jurisdiction over the foster child. The parties in the foster care case may participate in this communication. Tex. Fam. Code § 54.04(y) • The court may appoint attorney ad litem or guardian ad litem for the youth if he or she does not have one. Tex. Fam. Code § 107.0161 • The court having jurisdiction over the foster child shall conduct a review of the youth’s commitment to TYC or release under supervision by TYC. Tex. Fam. Code § 263.002(2)

6. A youth may attend a permanency review or placement review hearing in person, by telephone or video conference. Tex. Fam. Code §§ 263.302, 263.501(f), 264.0091 • The Department shall be required to prepare a permanency progress or placement review report or a placement review report that addresses whether the youth’s needs for treatment, rehabilitation and education are being met, and then the court determines if the youth’s needs are being met. Tex. Fam. Code §§ 263.303(b), 263.306(a), 263.502(c)(7), 263.503(7)

7. The court having jurisdiction over the youth shall not dismiss the suit affecting the parent-child relationship if the youth is committed to TYC. Tex. Fam. Code § 263.501(g) • Example: AM was 16 when he was committed to TYC. CPS came to visit him once and then closed his case. Thus, no one had parental rights. The facility consented to medical care, planned his education and treatment, and took sole possession over all functions that could be considered parental in nature. AM responded poorly and was set to be transferred to adult prison before our involvement.

8. The Department and TYC shall share records and information regarding the youth. Tex. Hum. Res. Code § 61.0731(d) • The Department has the same rights of parents under TYC’s parent’s bill of rights. Tex. Hum. Res. Code § 61.0763(e) • TYC caseworker shall submit a written report to the court and parties in the CPS case that provides results of assessments, information regarding the youth’s placement in TYC treatment programs and a description of the youth’s progress. Tex. Hum. Res. Code § 61.0766 • Joint rules shall be adopted to ensure that the Department and TYC cooperate in providing services and transition planning to the youth. This includes the Department’s caseworker visiting the child in person at least once per month in TYC, and TYC providing timely notice to the Department’s caseworker and child’s attorney ad litem or guardian ad litem of treatment team meeting, medical appointments, ARD meetings, grievance disciplinary hearings, reports of abuse or neglect and any significant medical conditions of the child. Tex. Hum. Res. Code § 61.0767

9. When Jurisdiction is Extended: Texas has a new law that states that youth can opt to stay in care until their 21st birthday or until they withdraw consent to remain in care. Texas Family Code 263.602. When that happens: • Appointments May Continue • The court may extend appointment of the attorney ad litem or guardian ad litem. Texas Family Code 263.605. • Hearings May be Held • The court may continue to hold periodic review hearings or may schedule a hearing on request of the child, the child’s attorney, or the child’s guardian ad litem or volunteer advocate to review the young adult’s plan of service, voluntary agreement to stay in foster care, and transition plan. • The court may order appropriate action for additional services the youth is entitled to under the department's rules or policies or contract with a service provider. Texas Family Code 263.609.

10. TYC Facilities in Texas

11. SOME STATISTICS on YOUTH in TYC • 91% of youth committed to TYC are males. • 85% have IQ scores below 100. • Median math level is four years behind average peers. • Median reading level is five years behind average peers. • 37% of youth have “serious” mental health disabilities. • Statistics available at http://www.tyc.state.tx.us/research/youth_stats.html

12. ROLES OF ATTORNEYS • WHAT CAN ATTORNEYS DO FOR YOUTH? • WHERE DO ATTORNEYS FIT IN? • HOW DO ATTORNEYS HELP COORDINATE THE TWO SYSTEMS?

13. MDT MEETINGS • Before a youth can advance a stage in TYC, the youth needs to participate in an MDT meeting. It is also where treatment is planned and progress reported on. • Youth have meetings with their team once per month; caseworkers and attorneys should try to participate when they will be attempting to go for a new stage or need other treatment. This is an important element of interagency communication.

14. DISCIPLINARY HEARINGS • TYC conducts several types of due process hearings at which TYC attorneys serve as ALJs. These include parole revocation (Level I), movement to more restrictive or secure placements (Level II, Level III), or detention hearings. • Youth are assigned advocates (employees of their choosing) for such hearings. They may and should also request their own advocates (CASA, attorney, or another advocate). • Hearing officers must consider extenuating circumstances such as disability, making an attorney or caseworker’s role more important.

15. RELEASE/REVIEW PANELS • Must meet at least 30 days prior to the minimum length of stay (“MLOS”) to determine whether youth meets release criteria. Must complete review within 30 days after MLOS is over. • Panel may only extend if a majority feels that the youth “by clear and convincing evidence” needs further TYC rehab and needs a residential placement. • Case workers, family members, and potential placements can submit information to the panel for consideration about plans that have been made for success of the youth in the community, etc. • Children should receive TCOOMMI mental health services in their new placements and should probably visit the new placement. • Need an IEP meeting in new school within 30 days of transfer. • Once a decision to release a youth has been made, notices must go out to courts and victims, providing a 10-15 day period before youth is transitioned to community.

16. RELEASE/REVIEW INTERAGENCY COORDINATION EXAMPLES • MS was a 17 year old who was terrified of the uncertainty of leaving her facility and sabotaged her chances to leave intentionally. • When we were appointed, nobody had a plan for where MS would go once she got out. When MS asked, CPS said “we’ll figure that out” and TYC said “that’s CPS’ decision.” • We had judge order a circle of support and identified a grandmother who was eager to have MS. MS lives there now and is thriving.

17. RELEASE REVIEW PANEL EXAMPLES OF INTERAGENCY COORDINATION • Youth’s CPS case worker had reported that there was no need to plan for release because client would most likely get in trouble and stay in confinement. Client informed us, he was scared to leave because he didn’t know where he would go next. • Strategy • Identify placement. • Obtain client’s buy-in on placement. • Obtain order for placement pending release and provide to facility in time for client to participate actively in discharge planning in TYC. • Have client, attorney, volunteer advocates and placement write the Release Review Panel to encourage release and inform panel of plans that were made to promote success in community placement.

18. Free Appropriate Public Education • Available to all students with disabilities age 3-21 at public expense • Student must meet the definition of one or more of several enumerated disabilities and “by reason thereof” need special education and related services • Services must be based on student’s unique individual needs and be designed to confer educational benefit

19. Individualized Education Program • A written plan setting forth the agreement between the parents and the school on how the student will be educated • Measurable Annual Goals • Placement in the Least Restrictive Environment • Functional Behavioral Assessment (FBA) and Positive Behavioral Supports and Interventions including Behavior Intervention Plan (BIP), if appropriate • Related Services • Transition Services (age 16 and older) • Supplementary Aids and Services • Assistive Technology

20. The ARD Committee • Meets at least once a year to develop, review, and revise the student’s Individualized Education Plan (IEP) • Parent or school may request additional or more frequent meetings • ARD Committee members (minimum): • parent and student, if appropriate • school district representative • at least one special education teacher • at least one general education teacher • someone who can interpret evaluations • others invited by parent, student or school

21. Surrogate Parents • District must make “reasonable efforts” to ensure assignment of a surrogate parent not more than 30 days after the need arises. • Criteria for selection: • NOT a school district employee • No personal or professional interest that conflicts with the interests of the child (not CPS, not a TYC or SSLC employee) • Has knowledge and skills to ensure adequate representation of the child • Represents the child in all matters relating to: • Identification, evaluation, and placement • Provision of FAPE to the child

22. Surrogate Parent Procedures • The Texas Education Agency must develop procedures to ensure that surrogate parents: • complete a training program (within 90 days of appointment) • visit the child and the child’s school • consult with persons involved in the child’s education, including teachers, caseworkers, court-appointed volunteers, guardian ad litem, attorney ad litem, foster parents, and caretakers • review the child’s educational records • attend the child’s ARD committee meetings • exercise judgment in pursuing the child’s interests • exercise the child’s due process rights

23. Court’s Authority to Appoint Surrogate Parent • The court having jurisdiction over a foster child may appoint a surrogate parent for a foster child. 20 U.S.C. § 1415(a)(2)(A)(i)

24. Transition Plans School districts have a duty to develop transition plans for youth with disabilities • Beginning when a youth with disabilities is 16, and updated annually thereafter, the ARD committee must develop: • Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and where appropriate independent living shelters; • The transition services (including courses of study) needed to assist the child in reaching those goals; and • Beginning one year before a youth turns 18, a statement that the youth has been informed of his rights under IDEA, if any, that will transfer to the youth at the age of 18. 20 U.S.C. § 1414(d)(1)(A)(i)(VII).

25. Under Section 264.121 of the Texas Family Code, the Department shall address the unique challenges facing foster youth who are transitioning to independent living by: • Beginning transition planning at 14 (used to be 16). • Enrolling youth in Preparation for Adult Living (PAL) by 16. • For youth with disabilities that make PAL inappropriate, the Department can provide PAL credit by looking at progress on transition goals in their school plans (IEPS). • Extends medical coverage for foster youth and former foster youth up to 21 with a single application at the time youth leaves foster care. • Requires foster care providers to provide an experimental life skills training to youth who are 14 that helps the transition to independent living by teaching them grocery shopping, meal preparation and cooking, using public transportation, performing basic household tasks and balancing a checkbook.

26. Transitional living services are available to youth over 18 who are no longer in care if the person whom they are staying with was previously designated as a perpetrator of abuse or neglect and does not pose a threat to the youth’s welfare. • Department shall ensure foster youth receive a copy of birth certificate, Social Security card and personal ID on or before they turn 16. A PAL staff person shall assist youth who has not timely received these documents. All youth over 16 shall be provide the name of their PAL staff person. • All youth enter PAL shall be provided a booklet about PAL program and benefits including extended medical coverage until 21, and exemption from payment of tuition and fess in institutions of higher education. • For more information on transition, visit www.texasfosteryouth.org.

27. How do courts obtain free attorneys ad litem for dually managed youth? • Judges statewide can appoint Advocacy, Inc. as attorney ad litem or co-attorney ad litem for foster children who are placed in TYC or SSLC facilities. • Advocacy, Inc. will not charge for representation provided for eligible youth, because grant funding is covering staff and travel cost.

28. How can I get more information? • Contact either of the two project attorneys: • Dustin Rynders @ 713.974.7691 or drynders@advocacyinc.org • Ian Spechler @ 512.454.4816 or ispechler@advocacyinc.org