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American Bar Association

Addressing the Health Needs of Court-Involved Youth

By Eva J. Klain — March 15, 2011

For attorneys, judges, and other legal professionals to effectively promote adolescent health, they must understand the various disciplines that may have contact with youth or otherwise affect policy or practice regarding adolescents. They need to understand the collaboration needed to comprehensively address adolescent health issues. It is with these needs in mind that the ABA Center on Children and the Law has for almost 15 years worked through the federally funded Partners in Program Planning for Adolescent Health (PIPPAH) initiative to educate lawyers about the health needs of children and youth in the court system.

The PIPPAH project provides an opportunity for those who serve youth and their families to maintain a multidisciplinary and interdisciplinary approach to planning, policy, and practice issues related to adolescent health and well-being. In addition, the project provides an opportunity for attorneys to learn about positive youth development and how they, as advocates, can positively impact the health of their clients.

Too often, legal professionals only come into contact with youth when they are involved in some type of court action, whether before a judge for delinquency or a status-offense case or as respondents in child-welfare/dependency cases. When youth come into family and juvenile courts, their health needs are not commonly viewed as central to their legal cases. When health is a dominant issue, a youth’s legal and social service team may focus on a single diagnosed problem to the exclusion of other physical and mental health needs. Judges and lawyers are trained to identify legal, rather than medical, issues.

Lawyers can therefore benefit greatly from exposure to the positive youth development perspective, which highlights children’s talents, strengths, and future potential rather than their shortcomings. As Shay Bilchik, founder and director of the Center for Juvenile Justice Reform at the Georgetown University Public Policy Institute has stressed, “We have a responsibility to make sure our families and communities are ones that can actually support adolescent development in a healthy way.” PIPPAH, Creating Healthy Opportunities: Conversations with Adolescent Health Experts at 6.

Furthermore, a focus on positive youth development within the legal community can dispel the myth that youth in state care are not capable of being successful and productive citizens. Based on research, practitioners have identified what keeps most young people on the right track: a sense of competence (the ability to do something well, such as mastering job skills); a sense of usefulness or having something to contribute (such as volunteering for community projects); a sense of belonging and being part of a community (such as identifying positively with an ethnic or a social group); and a sense of power or having control over one’s future (such as having access to education or training). Positive youth development involves a community-wide approach to ensure that young people develop knowledge and skills, belong and contribute to a community, and plan effectively for their future.

In its efforts to develop and strengthen the capacity of the legal profession to comprehensively address adolescent health, the ABA Center on Children and the Law has used its publications and training opportunities to reach out to legal professionals.

Fostering Connections Act
Although passed in 2008, provisions of the Fostering Connections to Success and Increasing Adoptions Act are still being implemented across the country, and the health-care and coordination provisions are essential to ensuring the well-being of children in state care. The act addresses several issues that promote health and well-being, including making it easier for relatives to care for children while increasing resources that help birth families stay together or reunite. P.L.110–351. Fostering Connections also requires states to develop plans to coordinate and oversee health services for children in foster care, in coordination and collaboration with health-care and child-welfare experts.

Each state’s plan must include a coordinated strategy to identify and respond to children’s health-care needs, including mental and dental health. The plan must describe how initial and follow-up health screenings will be provided, how any identified health needs will be treated and monitored, and how medical information will be updated and appropriately shared with providers.

The plan must also detail the steps that are or will be taken to ensure the continuity of health-care services, including the possibility of establishing a medical home for every child in care and what will be done to ensure the oversight of prescription medications, including psychotropic drugs. Medical homes provide a single source of coordinated health care that ensures a child is being seen frequently and allows health-care providers to develop a relationship with that child. Continuity of care in one centralized location provides better outcomes for children, including increased immunization rates, fewer emergency room visits, decreased hospitalization, and improved perceptions of the quality of care.

Attorneys for children and judges in dependency cases can take several actions to promote the use of medical homes. Judges can require a medical home whenever possible and should ensure the initial placement for a child is carefully selected with continuity of care in mind. Attorneys can advocate for such placements and work to maintain the integrity of the placement. Whenever a change in placement is needed, they should try to keep the child in the same geographic area and make sure all the professionals involved in the case understand the importance of maintaining the child’s medical home.

Health Reform
Much has been said and written about the Patient Protection and Affordable Care Act of 2010. Pub. L. No. 111–148 (2010); Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111–152 (2010). Of great importance to child advocates, however, are the specific provisions that apply to children and youth in care so that they can ensure their clients receive newly available services and benefits. Some sections focus on delivering services to parents to prevent child abuse and neglect or the potential removal of children from their home. Others provide funding to improve health-care services that benefit children and youth, and advocates should determine whether their clients can benefit from these provisions.

For example, child-welfare agencies must now ensure that transition plans for youth aging out of care include specific health-related information, including information about health insurance options and the importance of designating a health-care proxy when treatment decisions must be made but the child cannot participate. Another provision requires states to offer youth who exited foster care extended Medicaid coverage to up to their 26th birthday if the youth was in care on their 18th birthday (or older). Eligible youth receive all Medicaid benefits, including early and periodic screening, diagnosis, and treatment (EPSDT). Likewise, children who were adopted from the foster-care system may benefit from the provision that extends coverage under a parent’s private health insurance for unmarried children up to age 26. Klain, Kendall & Pilnik, “How Health Care Reform Helps Children in or at Risk of Entering the Child Welfare System,” 29(3) ABA Child Law Practice 42 (May 2010).

Pregnant and Parenting Teens in Care
A recent study of young or expectant parents in foster care in Illinois revealed that almost 25 percent of teen mothers in the study had two or more children, more than one in five pregnancies involved either no prenatal care or care that began during the third trimester, and 22 percent of mothers were investigated for child maltreatment, while 11 percent had one or more of their children placed in foster care. Dworsky, A. & J. DeCoursey. Pregnant and Parenting Foster Youth: Their Needs, Their Experiences. Chicago: Chapin Hall at the University of Chicago, 2009. These statistics point to numerous challenges facing adolescents in care that can be addressed through strengthened legal advocacy.

Common questions that legal practitioners encounter when advocating for young or expectant parents include whether the state can automatically take custody of the teen’s child simply because the parent is a ward of the state (no) and whether the care provider of a youth in care can receive funding for the youth’s child even if the child is not in care (yes). A state can only take custody of the child of a youth in care if the statutory definition of abuse or neglect is met, and the state must afford the teen parent due process. In addition, maintenance payments can be made on behalf of a child of a youth in foster care under Title IV-E of the Social Security Act without the child being taken into care.

Lawyers can better serve their pregnant or parenting clients by ensuring that they receive the supports and services they need to parent successfully. These may include advocating for a supportive placement where the teen parent and child can live together, ensuring the teen client and her baby receive prenatal and postnatal care, providing health and nutrition education, and accessing mental-health services as needed. Pilnik & Austen. “Advocacy for Young or Expectant Parents in Foster Care,” 28(7) ABA Child Law Practice 110 (2009).

New Technologies: Cyberbullying and Sexting
Along with emerging technologies popular among youth come emerging legal issues that youth often do not even contemplate. Among these are the headline-grabbing issues of “sexting” and cyberbullying. Recognizing the seriousness of bullying, including cyberbullying, and other youth-to-youth harassment, the American Bar Association unanimously passed a resolution on February 14, 2011, that urges federal, state, and local officials to prevent and address the existence and dangers of bullying, including cyberbullying. The new ABA policy calls on Internet Service Providers (ISPs) and social networking platforms to adopt terms of service that define and prohibit cyberbullying and cyberhate, urges law enforcement agencies to cooperate with the FBI’s data-collection program related to hate crimes, and urges school districts to follow the lead of the U.S. Department of Education Office of Civil Rights guidelines on bullying and harassment. At the same time, the policy states that the application of related laws and policies should not compromise students’ protected First Amendment rights.

While there is no legal definition of “sexting,” it is generally defined as the sending of sexually explicit texts or nude or partially nude images of minors by minors with a cell phone or similar device. Interdisciplinary Response to Youths Sexting, Youth Online Safety Working Group (2010). According to recent research, sexting affects approximately 1 in 6 youth (Pew Internet & American Life Project, 2009), while 19 percent of teens surveyed in another study had sent, received, or forwarded sexually suggestive nude or nearly nude photos through text message or email. Of those teens, 60 percent sent the photos to a boyfriend or girlfriend, while 11 percent sent them to someone they did not know. (Cox Communications, June 2009).

An estimated 13 million children and adolescents were victims of cyberbullying in 2006, and among high school girls, 68 percent of cyberbullies are acquaintances. Of particular concern is that in 50 percent of incidents, the victims of cyberbullying are also physically bullied. See www.schoolsecurity.org. The Cyberbullying Research Center has also determined that from a random sample of 400 12–18 year-olds from 41 schools in a large southern district, 20 percent experienced cyberbullying regularly, while 20 percent also admitted to being a cyberbully at least once. Cyberbullying Research Center, February 2010.

Often, youth do not realize the consequences that their sexting or cyberbullying behavior can have. Responses to sexting vary from jurisdiction to jurisdiction, and may include criminal justice charges or civil penalties. Teens from 13 to 18 years of age who take suggestive photos of themselves and/or others and send them via cell phone or other technology may be prosecuted as adults on child pornography charges. Criminal charges may result in lifelong consequences, such as a requirement to register as a sex offender, which often interferes with a teen or young adult’s ability to find work or live in specific areas (e.g., within a certain distance from schools). Incidents of cyberbullying that occur on campus or disrupt school processes may result in disciplinary action.

Regardless of criminal or civil liabilities, youth who are victims of sexting or cyberbullying may also experience serious health consequences, such as anxiety, depression, or other mental-health issues. To explore the extent of school counselors’ experience with cyberbullying, the ABA’s PIPPAH project is currently conducting a national survey on cyberbullying and school counselors’ roles and responses. The survey has the strong support of the 28,000-member American School Counselor Association (ASCA). This exploratory study will compile aggregate data on the frequency that school counselors face and address allegations of bullying by electronic means, how prepared school counselors believe they are to respond, their perceptions of student vulnerability in the school population, challenges to responding, and innovative interventions. This survey provides an occasion to further understand the opportunities to offer mental-health counseling through schools to address cyberbullying and develop appropriate protocols to further the well-being of youth involved in such incidents.

Clearly, the health and well-being of court-involved children and youth is dependent on well-informed and knowledgeable legal advocates. The challenges facing lawyers representing adolescents are matched by the opportunities to improve their health through collaboration with other disciplines working on behalf of youth. The ABA Center on Children and the Law’s PIPPAH project can help provide needed resources and advocacy tools.

Keywords: litigation, children's rights, health, PIPPAH, Fostering Connections Act, Patient Protection and Affordable Care Act, health reform

Eva J. Klain, J.D., is the director of Child and Adolescent Health at the ABA Center on Children and the Law.

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