Transition to Adulthood Litigation Resources
Below are resources for attorneys representing older youth in child welfare matters who are interested in sharing, learning, and brainstorming legal strategies for improving service delivery, policies, and outcomes for older youth.
This page contains summaries of cases relevant case law, federal laws related to older youth, and a list of resources.
Case Law Summaries
Cases Addressing Delivery of Transition to Adulthood Services
1. In the Interest of S.J., 906 A.2d 547 (Pa. Super. Ct. 2006).
Issue: Whether the court has the authority to order that a youth in extended foster care be provided with a daily stipend while away at college and that her foster parents be paid to provide foster care while the youth is home on school breaks.
- State law providing extended jurisdiction until age 21
- State law requiring a disposition that is individualized and meets the youth’s needs.
Facts: The youth was in extended foster care. She attended college and had financial aid to cover most of her costs, but was requesting a stipend to cover some gaps. Her foster family wanted to provide her a place to live and care while she was on school breaks and during the summer. The child welfare agency denied those requests.
Holding: It was within the dispositional authority of the court to order that the agency provide a daily stipend to S.J. while she was at school and pay the standard foster care to her foster parents during breaks--orders which promoted the youth’s best interests as well as the purpose of the Juvenile Act.
Key Practice Points:
- Detailed testimony and a good record are key to strong arguments about individualized dispositions.
- Because disposition orders must be individualized, advocates should raise the age-appropriate needs of a transition aged youth. In this case, the appellate court cited the trial court opinion as support for the order:
[P]roviding S.J. with a ‘college rate’ of $14.00 per day will ensure that S.J. has been provided with an opportunity to obtain continuing education at the post-secondary level. The added financial assistance may preclude any additional hindrances that could potentially thwart S.J.'s success in pursuing higher education that she otherwise would have had to deal with had she not received the funding. With this additional assistance, S.J. will have the opportunity to evolve into a mature young adult and develop the skills to live independently. In the Interest of S.J., 906 A.2d at 550.
Note: This case was decided well before PA amended its extended foster care law to broaden and clarify eligibility to be consistent with Fostering Connections. This case also addressed the interpretation of the previous law, which is no longer in place.
2. In the Matter of Andrea D., 883 N.Y.S.2d 696 (N.Y. Fam. Ct. 2009).
Issue: Whether the court had authority to order the child welfare agency to supply a 17-year-old dependent child with a certified copy of her birth certificate and to facilitate and fund a driver's education class for her.
Facts: The youth had been in care for many years and had not achieved permanency. She was attending her permanency reviews regularly and was actively involved in the hearings. The child welfare agency agreed to help the youth obtain her driver’s permit and license as part of her independent living skills, then suddenly removed this plan without explanation. The youth then asked the child welfare agency to provide her with her birth certificate and a driver’s education course in order to obtain her driver’s license.
- State law (based on a federal requirement) that the court must consult with youth in an age appropriate way about their transition and permanency plans.
- State law authorizing the court to make orders that facilitate the protection of and further permanency of the child.
- State regulations that mandate provision of vocational and independent living services.
- Common law parens patriae role of state caring for a dependent child’s safety and well-being.
Holding: The court had the authority to issue this order. This order promoted the youth’s safety and provided her skills that would help he be more independent and successful as she approached adulthood
Key Practice Points:
- Include specific goals and tasks in the transition plan and make a record of those elements in court. This is required by federal law, but often the findings are not made, or not made with specificity.
- Youth testimony about how the services or benefit will assist in the transition process not only meets the obligation that courts consult, but can provide tangible benefits as well. This opinion shows the positive impact that active youth engagement in court has on meeting transition plan goals and on the success of an appeal.
- Support transition plan requests by appealing to the general dispositional authority of the court.
Note: The SFA requires that all youth be provided their vital documents before they leave care. In this case, which occurred before the SFA, the request was to receive these documents well before discharge so that they could be used to further the youth’s goals.
3. In re A.T., 81 A.3d 933 (Pa. Super. Ct. 2013).
Issue: Whether the court had authority to order the child welfare agency to provide a laptop computer to a dependent youth to facilitate her post-secondary studies.
- State case law on the plenary authority of the court.
- State law on the specific dispositional authority of the court.
Facts: The youth was in extended foster care, attending community college, and working. She lived in a supervised independent living placement. She was meeting the goals of her case plan, which also included attending mental health treatment and visiting her children. Difficulties accessing a computer during convenient times prevented her from completing assignments on time. Her courses, which included English and paralegal studies, consistently required access to a computer for both research and writing.
Holding: The court had the authority to order the agency to provide the youth with laptop, despite the availability of other computer resources for the student's use that would impose no cost upon the agency.
Key Practice Points:
- Detailed testimony and a good record are key to strong arguments about individualized dispositions. The attorneys for the youth made an extensive record regarding her need for a computer, how access to the computer would assist achieving her academic goals, and the current barriers to accessing a computer through other available sources. See A.T., 81 A.3d 933, 936-37 (Pa. Super. Ct. 2013).
- Because disposition orders must be individualized, advocates should raise the age-appropriate needs of a transition aged youth. The court’s dispositional authority includes entering orders that provide an older youth “the opportunity to evolve into a mature young adult and develop the skills to live independently.” Id. At 938.
- These orders likely also could have been supported by the transition planning requirement in state and federal law.
Cases Addressing Discharge Planning and Accountability
1. Palmer v. Cuomo, 121 A.D.2d 194 (N.Y. App. Div. 1986).
Issue: Action for declaratory, injunctive and monetary relief based on discharging youth, or imminently discharging youth, from foster care to homelessness.
- State law requiring preparation for discharge and supervision post-discharge.
- State constitutional provision that places an affirmative obligation on the state to provide aid to the needy.
Facts: Seven youth were discharged from care before age 21 and were not able to support themselves or find stable housing—several were homeless. Some of the youth had not been given the opportunity to challenge their discharge. The youth had not been contacted by the agency since their discharge. Three youth were about to discharge and claimed they were not prepared to live on their own.
- The agency had to prepare youth for discharge according to the regulations.
- The agency had to provide notice to youth of their discharge before it could occur.
- The agency had to supervise youth who had been discharged until they reached 21 years of age, ensuring, at a minimum, that their basic needs were met, including that they had appropriate housing outside the New York City municipal shelter system.
- The agency had to promulgate more specific regulations on the supervision requirement.
Key Practice Points:
- Document progress or lack of progress in transition planning throughout the course of the case.
- Collaborate with partners to enact detailed transition planning requirements that can be used to assure accountability.
- Consider raising procedural due process claims when youth are not present for discharge hearings.
2. In re T.R.J., 661 A. 2d 1086 (D.C. 1995).
Issue: Appeal of termination of jurisdiction, arguing that the best interest standard applies when the court terminates jurisdiction of youth at age 18 or older.
Facts: T.R.J. entered the system as a teen. He had multiple educational and behavioral health needs identified. He cycled through many placements—in and out of state—and had several runaway episodes as well as contact with the juvenile justice system. T.R.J. did want to remain in care past 21 and testified to that effect. The agency asked for his discharge, arguing that the youth could not benefit from the services that the agency had to offer based on the extensive efforts the agency had already made to support him.
- D.C. law allowing continued jurisdiction.
- D.C. case law requiring that disposition serves a child’s best interest.
Holding: The best interest of the child standard applies when the government seeks to terminate commitment of a neglected child over the age of 18, but under age 21.
Key Practice Points:
- Frame disposition requests in terms of the child’s best interest, even for youth in extended foster care
- The youth’s best interest is not determined by the agency’s actions or the public’s interest, but is a child-centered analysis determined by the youth’s individual needs.
- Good documentation and history of requesting orders and objecting to agency action as well as taking youth testimony aid in the strength of appeal.
- Do not let mootness of an individual case be a barrier to an appeal. This case articulates well that the “capable of repetition yet evading review” exception to mootness often applies in discharge cases.
3. In re: Adoption/Guardianship of Dustin R., 128 A.3d 80 (Md. 2015).
Issue: Whether the juvenile court had authority to order the Department of Health and Mental Hygiene (DHMH) to provide services to a youth who was previously adjudicated dependent, after the youth reached age 21.
Facts: The youth entered foster care soon after birth. He has significant intellectual and physical disabilities that require almost round the clock care. The youth was committed to the child welfare agency and DHMH, and he was placed in the home of a family and remained there until the time of the appeal. This family was willing to continue to provide care with the appropriate services in place. Prior to the youth turning 21, a hearing was held and medical and other testimony was taken that established the level of services that he was receiving and that this setting was the least restrictive. The court issued an order that the current level of services, which included skilled nursing and other supports for the youth and family, continue at the same level.
- State Law: FL § 5-328(a)(2)—Juvenile Court Jurisdiction lasts until age 21. FL § 5-324(b)(1)(ii)(7)(B)—The Juvenile Court has the authority to make orders that are in the child’s best interest and “shall direct the provision of any other service or taking of any other action as to the child's education, health, and welfare, including” “for a child with a disability, services to obtain ongoing care, if any, needed after the guardianship case ends…”
- Common law parens patriae role of state to act in a child’s best interest.
Holding: The juvenile court had jurisdiction and statutory authority to order DHMH to develop and approve written plan of clinically appropriate services in the least restrictive setting that ensured that child with disabilities would continue to receive services, where the child was not yet 21 years old when juvenile court issued order, where such services were required to protect child’s health and welfare, and where juvenile court’s order served to bridge a gap in services as child transitioned from juvenile guardianship care.
Key Practice Points:
- Utilize the full scope of (push the limit of) the court’s dispositional/parens patriae authority.
- Ensure that specific orders are made while the court clearly has jurisdiction, and consider whether the content of orders could include provision of service past jurisdiction.
- Consider joining other agencies as parties in the case or at least subpoena them to court.
- Advocate for a transition plan that details how benefits are going to be provided and services from other “adult” systems will be allocated before a youth discharges.
Note: Following the issuance of this opinion, advocates in MD introduced legislation to embed this holding clearly in state law. The bill was reintroduced in January and passed in February 2017. Link to Senate Bill 272: http://mgaleg.maryland.gov/2017RS/bills/sb/sb0272T.pdf.
4. The Judge Rotenberg Educational Center v. Blass, Civ. No. 16-757, 2017 WL 659115 (2nd Cir. Feb. 17, 2017).
Issue: Provider sought restitution from the child welfare agency for costs incurred while providing a youth with services after reaching age 21, on the grounds that the agency breached a duty arising out of state law, further reflected in a contract between the agency and provider, to plan adequately for the youth’s discharge from the foster care system.
Facts: A dependent youth with a disability was placed in a residential facility pursuant to foster care contract between the provider and the child welfare agency. The youth’s “transition plan” was for her to remain in that facility after age 21, funded by the state developmental disability service system. The agency denied that funding on the eve of the youth’s discharge from care and instructed the provider to drop the youth off at a homeless shelter. The provider refused and instead continued to provide services and housing until the youth was able to enter an adult program about a year later. The provider then sued county agency for restitution in the amount of the cost of care for that year.
- Contractual obligations and state law on transition planning and APPLA defined the child welfare agency’s duty of care. The district court opinion bases its holding on several duties provided by state law, the 2nd Circuit affirms and focuses on the following provision of state law: N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12(a) “[n]o child may be discharged to another planned living arrangement with a permanency resource, unless the child has a residence other than a shelter... and there is a reasonable expectation that the residence will remain available to the child for at least the first 12 months after discharge.”
- The district court opinion, which contains more analysis of state law, can be found at: 2015 WL 1412634 (E.D. NY. 2015).
- Summary judgment to the provider was affirmed on appeal.
- Child welfare agency owed a duty to prepare for plaintiff’s transition to adulthood, imposed by statute and further reflected in the foster care contract with the provider, which it breached by failing to have a transition plan in place.
- By failing to plan for discharge, the child welfare agency created an emergency situation that placed the provider in a position where it had to act immediately to prevent the youth from being harmed or harming others.
- The opinion strongly states that it is impermissible—and violates the duty of care—to discharge a youth who ages out of foster care to a homeless shelter.
- Partner with providers to open up litigation opportunities.
- Partner with advocates to enact more specific and directive state law and regulation on discharge planning.
- Consider tort claims, using state law and regulations related to services and planning to define duties.
Federal Laws Supporting Youth Transitioning to Adulthood
All of the provisions of federal child welfare law apply to youth of all ages, including transition aged youth, and can be marshalled to improve outcomes. For example, the reasonable efforts requirement to finalize the permanency plan as well as to keep sibling together can be very useful when advocating for older youth just as the requirements related to health and education can improve the services they receive. Listed below are some the provisions of federal law that are specifically targeted at older youth.
Consultation in case planning
Beginning at age 14, the child welfare agency documents that the youth is consulted in the development of the case plan. 42 U.S.C.A. § 675(5)(C)(iv). (NEW, SFA).
Involvement of individuals identified by youth in case planning
Beginning at age 14, the youth must be allowed to involve two individuals in case planning who are not a foster parent or part of the casework staff. One of these individuals may be an advocate on normalcy issues. 42 U.S.C. § 675(5)(C)(iv).
Profition of list of rights
Beginning at age 14, youth must be provided with a list of their rights as part of the case planning process. The list of rights must be part of the case plan and should address “education, health, visitation, and court participation,” the right to discharge documents, and to “stay safe and avoid exploitation.” The case plan must include a signed acknowledgement that the list of rights has been received and “explained to the child in age-appropriate way.” 42 U.S.C.A. § 675a(b)(1) & (b)(2). (NEW, SFA)
Transition to adulthood services begin at age 14
Beginning at age 14, the case plan must contain a written description of the programs and services which will help such child prepare for the transition from foster care to a successful adulthood. 42 U.S.C.A. § 675(1)(D). (NEW, SFA).
Court findings about needed transition to adulthood services
The court must make findings about the services needed to assist the child to make the transition from foster care to a successful adulthood. 42 U.S.C.A. § 675(5)(C)(i).
Credit report and assistance in resolving any credit issue
Beginning at age 14, youth must annually receive at no cost a copy of their consumer credit report and assistance in resolving any issue identified in the report. 42 U.S.C.A. § 675(5)(I).
Access to age appropriate activities
For youth with the permanency plan of APPLA, the court must document that the youth has regular and ingoing opportunities to participate in age or developmentally appropriate activities. 42 U.S.C.A. § 675a(a)(3)(B). (NEW, SFA)
Court's consultation with youth about the permanency and transition plans
The court should consult with the child in an age-appropriate manner regarding the proposed permanency and transition plans. 42 U.S.C.A. § 675(5)(C)(iii).
Transition (discharge) plan requirement
At least 90 days before a youth 18 or older discharges from care, a transition plan must be developed with the youth that at least includes “specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services, and includes information about the importance of designating another individual to make health care treatment decisions…” 42 U.S.C.A. § 675(5)(H).
When leaving care at age 18 or older, the youth “is not discharged from care without being provide[d]”the original or certified copy of the following documents: birth certificate, social security card, state identification card/driver’s license, health insurance information, including any cards needed to access care, and medical records. 42 U.S.C.A. § 675(5)(I). (NEW, SFA).
Prohibition of APPLA for youth under age 16
The law now prohibits the use of APPLA as a permanency plan for youth under age 16. 42 U.S.C.A. § 675(5)(C)(i). (NEW, SFA).
Enhanced inquiry and court findings to use an APPLA permanency plan for youth 16 and older
To select or maintain the plan of APPLA, the court must make the following findings:
- that the agency has documented the intensive, ongoing, unsuccessful efforts to achieve reunification, adoption, guardianship, or placement with a fit and willing relative; and
- that APPLA is the best permanency plan for the child and there is a compelling reason that it is not in the best interest of the youth to return home, be placed for adoption, enter a guardianship arrangement, or be placed with a fit and willing relative.
- that the youth has been asked about his or her desired permanency outcome; and
- that the agency is taking steps to ensure the reasonable and prudent parent standard is being exercised and that the child has regular and ongoing opportunities to engage in age or developmentally appropriate activities.
42 U.S.C.A. § 675a(a). (NEW, SFA).
Spotlight on Advocacy In New York City by the Juvenile Rights Practice of the Legal Aid Society
- Title: Approved Settlement, D.B. v. Richter, Supreme Court of New York (2011).
Contents: This settlement was reached between the Juvenile Rights Practice of the Legal Aid Society and the New Your City child welfare agency. Plaintiffs claimed that the child welfare agency violated its duties under state law to assist youth in identifying post-discharge housing and preventing youth from being discharged to homelessness and the duty to supervise youth until their 21st birthday.
- Title: Housing Services for APPLA Youth, Procedure # 2011, City of New York Administration for Children’s Services
Contents: Policy related to provisions of housing services, issued as required by the D.B. v. Richter Settlement.
- Title: Transition to Adulthood Services--Model Motion- NYC--Juvenile Rights Practice, Legal Aid Society
Contents: Model motion to request orders for transition to adulthood services. This motion is based on NY law and regulation, but because many of the provisions relied upon also come from federal law, this motion could be modified for use in all states.
- Title: Adolescent Checklist—NYC—Juvenile Rights Practice, Legal Aid Society
Contents: This checklist details considerations for planning and service provisions for youth as they transition to adulthood in the child welfare system. While this document focuses on New York law and specific benefits, it provides a structure that can be replicated in all states.
Spotlight on Iowa
- Title: Transition Checklist, Iowa
Contents: This is a checklist created by advocates and stakeholders in Iowa to guide the transition planning process.