CAPTA analysis and attachments
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> The following material was inadvertently left off of yesterday's
> child-court listserv posting.
>
> Below, FYI, is a review and short analysis of what I believe to be the
> most significant changes to the federal Child Abuse Prevention and
> Treatment Act (CAPTA) enacted on June 25. As an attachment, please find a
> Word version of this analysis, as well as the complete text of the Title I
> CAPTA changes in the new law (from Senate Bill 342, the final version of
> which became Public Law 108-36), as well as the text of Title I of CAPTA
> before enactment of the amendments. Title I contains the CAPTA State
> Grant Program, the Children's Justice Act Program, and CAPTA research,
> demonstration, technical assistance, and other authorized activities.
>
> The views expressed below are my own, and do not represent positions of
> the American Bar Association or other staff or programs of the ABA Center
> on Children and the Law. I would welcome your reaction to how you think
> these new CAPTA amendments can be implemented "on the ground" to best
> benefit maltreated children. Either post responses to the list or feel
> free to e-mail me personally at davidsonha@staff.abanet.org
>
> -- Howard Davidson
> Director, ABA Center on Children and the Law
> American Bar Association, 740 15th Street, NW, Washington, DC 20005
> 202/662-1740 Fax: 202/662-1755 davidsonha@staff.abanet.org
> Center's Web Address: http://www.abanet.org/child
>
>
> Significant New Changes to the Federal Child Abuse Prevention and
> Treatment Act:
> Practical Implications for Child and Family Advocates
>
> Howard Davidson, J.D., Director, ABA Center on Children and the Law
>
> In 1974 Congress enacted the Child Abuse Prevention and Treatment Act (42
> U.S.C. §5101 et seq.), a law that has since provided annual federal grants
> to states to support improvement in the work of child protective services
> (CPS) agencies, as well as enhanced interdisciplinary collaboration in the
> handling of reported child maltreatment cases. This law has been
> reauthorized and amended, on average, every 4-6 years.
>
> Although the total amount of federal "CAPTA State Grant" funding has been
> modest (e.g., for federal fiscal year 2003, slightly less than $22 million
> divided among the states), the law's state grant eligibility requirements
> have led to important statutory changes. For example, when CAPTA first
> took effect almost thirty years ago, many states did not have laws
> mandating appointment of a guardian ad litem for all children involved in
> abuse/neglect court proceedings. CAPTA's grant condition that states
> always make such appointments has resulted in almost all states imposing
> this requirement in their law.
>
> As of 2003, only two states, Indiana and Pennsylvania, do not receive
> CAPTA State Grants. Indiana is ineligible because it doesn't mandate
> appointment of a guardian ad litem or have a CAPTA-required parental
> appeals process; Pennsylvania because its child neglect law is not as
> comprehensive as CAPTA's definition.
>
> On June 25, 2003, the President signed the "Keeping Children and Families
> Safe Act," Public Law 108-36, that reauthorized CAPTA through federal
> fiscal year 2008. The reauthorization potentially doubles the amount of
> state grant funding available, if Congress ever significantly increases
> CAPTA appropriations. Contained within the reauthorization, in Section
> 114(b) of the law, are many additions to the state grant eligibility
> requirements that take effect immediately (with one exception providing
> for a two-year delay). Several of these provisions, binding on the
> states, have particular significance for advocates of abused/neglected
> children and their families.
>
> Getting Enhanced Services for Children
>
> Consistent with changes in the new CAPTA amendments that encourage federal
> support of special CPS linkages with developmental, mental health, early
> intervention, and health services related to evaluation and treatment of
> maltreated children, state grant eligibility is now tied to several state
> practices intended to access supportive help for at-risk children. These
> are:
> * Requiring policies and procedures for hospitals that assure
> CPS is notified of all children born affected by illegal substance abuse
> or withdrawal symptoms resulting from prenatal drug exposure
> * Requiring CPS to develop a "plan of safe care" for every
> such drug-exposed infant reported to it
> * Requiring CPS to implement "triage procedures" for
> appropriate referrals of children who are found by CPS not to be at risk
> of imminent harm to a "community organization or voluntary preventive
> service" (a federal move to facilitate development of a community child
> protection approach to service provision)
> * Requiring CPS to have "provisions and procedures for
> referral" of a substantiated child maltreatment victim under age three to
> "early intervention services" funded by Part C of the federal Individuals
> with Disabilities Education Act (IDEA) [see more about this below]
>
> Facilitating Improved Information Sharing and Access
>
> Prior amendments to CAPTA have facilitated a greater degree of permissible
> information exchange between CPS and other agencies working with children
> and families, as well as with the public (e.g., requiring CPS to disclose
> its findings or information in child fatality and near-fatality cases).
> Those earlier changes reversed direction from what, in the original law,
> were very tight confidentiality requirements with strictly limited
> permissible exceptions. Now, CAPTA goes further in promoting information
> access by:
> * Requiring states to have CPS provisions that will now compel
> disclosures of otherwise confidential CPS information to other government
> entities, or their agents (e.g., contractors), that have "a need for such
> information" in order to carry out their own "responsibilities under law
> to protect children from abuse and neglect"
> * Clarifying that CAPTA's state grant-related confidentiality
> requirements do not apply to policies giving public access to child
> protective court proceedings, so long as such access does not risk the
> "safety and well-being of the child, parents, and families"
> * Mandating, no later than June 2005, that states have
> "provisions and procedures for requiring criminal background record
> checks" for not only prospective foster and adoptive parents, but also for
> "other adult relatives and non-relatives" residing in these households.
> This differs from Section 106 of the 1997 Adoption and Safe Families Act
> in that ASFA's criminal record provision does not address checking anyone
> beyond prospective foster and adoptive parents themselves, makes certain
> felony convictions mandatory disqualifiers for approving a foster or
> adoptive home, and most significantly, contains an "opt out" provision
> (used by several states) that permits exemptions to those provisions.
> States receiving CAPTA state grant funds will not be able to opt out of
> making CAPTA's federally required criminal record checks.
> * Permitting CAPTA state grant funding to be used for updating
> CPS agency technology for tracking cases and to allow interstate and
> intrastate information exchange. Although not a state grant eligibility
> requirement, this is an addition to Section 114(a) of CAPTA.
>
> Providing a Greater Focus on Protection of Parental Rights
>
> Congress has continued - as it did with its 1996 CAPTA amendments
> requiring state procedures for parents to appeal CPS abuse/neglect
> substantiations and compelling expungement of CPS information available to
> others when reports are unsubstantiated - to address the rights of parents
> subject to CPS investigations. Two added conditions for state grant
> eligibility should lead to states focusing on caseworker training and
> practice guidelines related to how parents are treated in the
> investigative process. These new mandates include:
> * Having CPS "provisions and procedures" in place that require
> CPS caseworkers to tell parents of the "allegations made against" them at
> the "initial time of contact" with any parent against whom a child
> abuse/neglect report has been made, but in a way consistent with any state
> laws protecting anonymity and other rights of the person making the report
>
> * Addressing CPS caseworker training, with a special focus on
> their "legal duties" and on ways to inform parents of their legal duties
> while protecting parents' "legal rights" and protecting the "safety of
> children and families" from initial time of contact during investigations,
> through the provision of treatment
>
> Improving Training of Guardians Ad Litem and Attorneys for Children
>
> Eight words were added to CAPTA's provision that mandates representation
> for children in child protective court proceedings. Those words exhibit a
> concern for the need to elevate the quality of such advocacy. Now, states
> receiving CAPTA state grant funds must certify that each court-appointed
> children's lawyer or GAL is a person "who has received training
> appropriate to the role."
>
> Identifying Children in Child Welfare Agency Custody Transferred to
> Juvenile Justice Agencies
>
> Added to the listing of permissible state uses of CAPTA funds, in Section
> 114(a) of the CAPTA reauthorization, is support of enhanced collaboration
> between a state's CPS and juvenile justice systems to improve services,
> treatment, and continuity as children transition from one system to
> another. CAPTA's requirement of state data reports to the U.S. Department
> of Health and Human Services has been amended to mandate that states, to
> the maximum extent practicable, annually report on the "number of children
> under the care of the State child protection system who are transferred
> into the custody of the State juvenile justice system."
>
> In a related earlier federal law change, the 2002 reauthorization of the
> federal Juvenile Justice and Delinquency Prevention Act (Public Law
> 107-273, Division C, Title II, Subtitle B, Section 12202 et seq.) requires
> that states work on assuring that a juvenile offender's prior child
> welfare agency history and records are made available to the juvenile
> court. Those records are also supposed to be incorporated into juvenile
> justice agency records for treatment planning purposes.
>
> Addressing the Needs of Child Maltreatment Victims with Disabilities
>
> In the new CAPTA amendments, authority is provided to the U.S. Department
> of Health and Human Services to fund (through discretionary grants)
> projects that provide linkages between CPS and public health, mental
> health, and developmental disability agencies to help assure child victims
> of abuse and neglect have their "needs appropriately diagnosed and
> treated." Consistent with that expression of concern for child
> maltreatment victims with unmet health, mental health, and developmental
> needs, the Children's Justice Act (CJA) part of CAPTA (42 U.S.C. §5106c)
> has been amended to add a new area of focus for state children's justice
> task force activities: "the handling of cases involving children with
> disabilities or serious health-related problems who are victims of abuse
> or neglect."
> The $17 million in CJA grants eligible states annually share can now be
> used to address these special groups of children, along with the earlier
> priorities of reducing child trauma in the investigative process,
> improving handing of child maltreatment fatality cases, and generally
> enhancing investigation and prosecution of cases. These amendments will
> hopefully lead to new statewide collaborations between CPS, child
> advocacy, and disability support groups.
>
> Promoting Evaluation and Services for Maltreated Infants and Toddlers--
> Part C, IDEA Referrals Must Now be Made by CPS
>
> Part C of the federal Individuals with Disabilities Education Act
> (originally titled Part H), was enacted in 1986 in reauthorization of the
> IDEA (then the Education for All Handicapped Children Act). It entitles
> eligible young children (from birth through their third birthday) - who
> have a developmental delay or condition with a high probability of such
> delay - to a wide array of federally supported child services and case
> management assistance, as well as optional provision of help to parents to
> enhance their child's development. For children deemed eligible after an
> evaluation, "early intervention services" are provided under what IDEA
> refers to as an Individualized Family Service Plan. Some of the most
> common IDEA-supported Part C services are speech, language, and physical
> therapy, family counseling and home visits, medical care, and nursing and
> nutrition services. For federal fiscal year 2002, state grant awards
> under Part C totaled over $408 million.
>
> A large proportion of abused/neglected and foster children under age three
> were born premature and/or with low birth weight, have serious and chronic
> medical and dental problems, and developmental delays such as severe
> speech, language, and hearing disorders. According to the latest data
> from the U.S. Department of Health and Human Services, infants and
> toddlers account for over 27.7% of substantiated child maltreatment
> victims (or almost 250,000 children annually).
>
> One of the recognized problems with Part C is that it only serves a small
> percentage of potentially eligible children. Far greater early
> identification efforts have been advocated, and in response Congress added
> the new provision of CAPTA mandating CPS to make a Part C referral in all
> cases involving substantiated victims of child maltreatment under the age
> of three. A similar proviso is included in the pending U.S. Senate bill
> (S. 1248, Section 637) to reauthorize the IDEA, and this would mandate
> state policies and procedures requiring such referrals as a new condition
> of state eligibility for Part C funding.
>
> Possibly no other new change to CAPTA can have a greater impact than this
> mandatory Part C referral provision, if it is effectively implemented for
> maltreated children with the help of attorneys, judges, and other
> advocates. For this to have the most meaningful effect on accessing the
> $400 million-plus federal program to help these children, CPS personnel,
> foster parents, family services providers, and legal/judicial system
> personnel will need to be trained on this new requirement, the Part C law
> and its regulations, and strategies for accessing applicable evaluation
> and treatment services.
>
> <<CAPTA2003Article.doc>> <<CAPTAchanges2003.doc>> <<CAPTA.doc>>
>
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CAPTA2003Article.doc
CAPTAchanges2003.doc
CAPTA.doc
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