SB0023JUS

SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 23

54th legislature - STATE OF NEW MEXICO - first session, 2019

AN ACT

RELATING TO YOUTH; ENACTING THE FOSTERING CONNECTIONS ACT AND AMENDING SECTIONS OF THE CHILDREN'S CODE AND THE ABUSE AND NEGLECT ACT TO PROVIDE FOR SERVICES FOR ELIGIBLE ADULTS IN TRANSITION FROM FOSTER CARE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 10 of this act may be cited as the "Fostering Connections Act"."

SECTION 2. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] DEFINITIONS.--As used in the Fostering Connections Act:

A. "eligible adult" means an individual who meets the eligibility criteria for participation in the fostering connections program;

B. "foster care maintenance payment" means a payment for the care and support of an eligible adult, which payment rate is established through legislative appropriation and is based on the age and needs of the eligible adult;

C. "host home" means a setting in an eligible adult's former foster home or in another residence in which an eligible adult:

(1) shares a residence with another adult or adults; and

(2) agrees to meet the basic expectations established by the:

(a) eligible adult;

(b) other adult or adults sharing the residence; and

D. "supervised independent living setting" means an age-appropriate setting that the department approves for placement of an eligible adult, which setting:

(1) conforms to federal requirements for supervised independent living settings; and

(2) may be a single or shared residence, including:

(a) a host home;

(b) a college dormitory or other post-secondary education or training housing; or

E. "transition plan" means a written, individualized plan developed collaboratively between the department and the eligible adult that identifies the:

(1) eligible adult's needs, strengths and goals in the areas of safety, housing, education, employment or income, health and mental health, local opportunities for mentors and continuing support services; and

(2) activities, responsibilities and time frames for addressing the goals specified in the transition plan;

F. "voluntary services and support agreement" means a written agreement, binding on the parties to the agreement, between the department and an eligible adult, which agreement specifies, at a minimum, the legal status of the eligible adult and the rights and obligations of the eligible adult and the department while the eligible adult is participating in the fostering connections program; and

G. "young adult" means an individual who is at least eighteen years of age and who is under twenty-one years of age."

SECTION 3. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] FOSTERING CONNECTIONS PROGRAM-- ELIGIBILITY.--

A. The "fostering connections program" is established in the department. The department shall make the fostering connections program available, on a voluntary basis, to an eligible adult who:

(1) has attained at least eighteen years of age and who is younger than:

(a) as of July 1, 2020, nineteen years of age;

(b) as of July 1, 2021, twenty years of age; and

(2) was adjudicated as an abused or neglected child pursuant to the Abuse and Neglect Act or its equivalent under tribal law and:

(a) upon attaining eighteen years of age, was under an out-of-home placement order; or

(b) had attained at least sixteen years of age when a guardianship or adoption assistance agreement was in effect;

(3) is:

(a) completing secondary education or an educational program leading to an equivalent credential;

(b) enrolled in an institution that provides post-secondary or vocational education;

(d) participating in a program or activity designed to promote employment or remove barriers to employment; or

(e) incapable of doing any of the activities described in Subparagraphs (a) through (d) of this paragraph due to a medical or behavioral condition, which incapacity is supported by regularly updated information in the case plan; and

(4) enters into a voluntary services and support agreement with the department pursuant to the Fostering Connections Act.

B. The citizenship or immigration status of a young adult shall not be a factor when determining the young adult's eligibility pursuant to this section."

SECTION 4. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] FOSTERING CONNECTIONS PROGRAM--SERVICES-- SUPPORTS.--

A. The fostering connections program shall provide at least the following services and supports to eligible adults:

(1) major medical and behavioral health care coverage;

(2) housing, in one of the following settings that the eligible adult chooses:

(a) a supervised independent living setting;

(b) a transitional living program that the department licenses or approves; or

(c) placement in a residential facility or another institution; provided that: 1) except as provided pursuant to Item 2) of this subparagraph, an eligible adult who is residing in a residential facility upon leaving foster care may choose to temporarily stay until the eligible adult is able to transition to a more age-appropriate setting; and 2) if the court finds that an eligible adult's developmental level, disability or other condition indicates placement in a residential facility or another institution due to an eligible adult's developmental level, disability or other condition, the eligible adult shall be placed in a residential facility or another institution until the court deems that the eligible adult may be appropriately placed in another setting;

(3) foster care maintenance payments; provided that these payments:

(a) may be sent by the department, all or in part, directly to: 1) the eligible adult, if the eligible adult is living in a supervised independent living setting; or 2) a transitional living program, if the eligible adult is living in a transitional living program; and

(b) shall reflect the eligible adult's status as a parent, if applicable; and

(4) case management services that include the development of a case plan, developed jointly by the department and the eligible adult, that includes a description of the identified housing situation or living arrangement, and the resources to assist the eligible adult in the transition from the fostering connections program to adulthood. The case management services shall include assisting the eligible adult in:

(a) obtaining employment or other financial support;

(b) obtaining a government-issued identification card;

(d) obtaining appropriate community resources, including health, mental health, developmental disability and other disability services and support;

(e) when appropriate, satisfying any juvenile or criminal justice system requirements and assisting with sealing the eligible adult's children's court record pursuant to Section 32A-2-26 NMSA 1978;

(f) completing secondary education;

(g) applying for admission and aid for post-secondary education or vocational courses;

(h) obtaining the necessary state court findings and then applying for special immigrant juvenile status under federal law or applying for other immigration relief for which the eligible adult may be qualified;

(i) obtaining a copy of health and education records of the eligible adult;

(j) applying for any public benefits or benefits for which the eligible adult may be entitled or that may be due through the eligible adult's parents or relatives, including state or federal cash assistance, nutritional assistance or low-income home energy assistance;

(k) maintaining relationships with individuals who are important to the eligible adult, including searching for individuals with whom the eligible adult has lost contact;

(l) accessing information about maternal and paternal relatives, including any siblings;

(m) accessing youth empowerment opportunities and peer support groups; and

(n) accessing pregnancy and parenting resources and services.

B. The department shall not require background checks for other residents of a supervised independent living setting as a condition of approving an eligible adult's supervised independent living setting.

C. The department shall develop procedures to provide extended subsidies to families for adoption and guardianship until the eligible adult turns twenty-one years of age if:

(1) an adoption assistance or guardianship assistance agreement was in effect for the eligible adult when the eligible adult was sixteen years of age or older; and

(2) between the ages of eighteen and twenty-one years, the eligible adult meets at least one of the following participation criteria:

(a) completion of a secondary education or a program leading to an equivalent credential;

(b) enrollment in an institution that provides post-secondary or vocational education;

(d) employment for at least eighty hours per month; or

(e) is incapable of doing any of the activities described in Subparagraphs (a) through (d) of this paragraph due to a medical or behavioral condition."

SECTION 5. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] FOSTERING CONNECTIONS PROGRAM--PARTICIPATION--VOLUNTARY SERVICES AND SUPPORT AGREEMENT--PERIODIC CASE REVIEWS.--

A. An eligible adult may participate in the fostering connections program for any duration of time while the eligible adult is between eighteen and twenty-one years of age, by entering into a voluntary services and support agreement immediately upon turning eighteen years of age or any time thereafter.

B. When an eligible adult elects to participate in the fostering connections program, the department and the eligible adult shall execute, and the eligible adult shall be provided with a signed copy of, a voluntary services and support agreement that sets forth, at a minimum, the following:

(1) a requirement that the eligible adult continue to be eligible in accordance with the Fostering Connections Act for the duration of the voluntary services and support agreement;

(2) the services and support that the eligible adult will receive through the fostering connections program;

(3) the voluntary nature of the eligible adult's participation and the eligible adult's right to terminate the voluntary services and support agreement at any time; and

(4) conditions that may result in the termination of the voluntary services and support agreement and the eligible adult's early discharge from the fostering connections program pursuant to Section 6 of the Fostering Connections Act.

C. As soon as possible and no later than forty-five days after the eligible adult and the department execute the voluntary services and support agreement, the department shall conduct a determination of income eligibility for purposes of compliance with federal foster care and transitional care assistance; provided that within fifteen days after execution of the voluntary services and support agreement, the department shall provide those services and supports set forth in that agreement.

D. The department shall assign an eligible adult a case manager, who shall be trained in primarily providing services for transition-aged eligible adults.

E. The department shall provide reasonable efforts to assist eligible adults in achieving permanency and creating permanent connections after the age of eighteen.

F. The department and at least one person who is not responsible for case management, in collaboration with the eligible adult and additional persons identified by the eligible adult, shall conduct periodic case reviews not less than once every one hundred eighty days to evaluate progress made toward meeting the goals set forth in the case plan. The department shall use a team approach in conducting case reviews and shall facilitate the participation of the eligible adult."

SECTION 6. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] TERMINATION OF VOLUNTARY SERVICES AND SUPPORT AGREEMENT--NOTICE--APPEAL--PROCEDURE.--

A. An eligible adult may choose to terminate the voluntary services and support agreement and stop receiving services and support under the fostering connections program at any time. If an eligible adult chooses to terminate the voluntary services and support agreement, the department shall provide the eligible adult with a clear and developmentally appropriate written notice informing the eligible adult of:

(1) the potential negative effects of terminating the voluntary services and support agreement early;

(2) the option to reenter the fostering connections program at any time before attaining twenty-one years of age, so long as the eligibility requirements are met;

(3) the procedures for reentering the fostering connections program; and

(4) information about and contact information for community resources that may benefit the eligible adult.

B. As part of the case management processes, the department shall identify as soon as possible any barriers to maintaining eligibility that an eligible adult is encountering and shall make all reasonable efforts to address those barriers. The department's efforts shall be documented in the case plan.

C. Academic breaks in post-secondary education attendance, such as semester and seasonal breaks, and other transitions between status that meet eligibility requirements, including education and employment transitions of no longer than thirty days, shall not be a basis for termination.

D. If the department determines that a young adult is no longer eligible for the fostering connections program, the department shall:

(1) provide to the young adult a clear and developmentally appropriate:

(a) written notice informing the young adult of the department's intent to terminate the voluntary services and support agreement; and

(b) explanation of the basis for the termination; and

(2) make reasonable efforts to meet in person with the young adult to explain the information in the written termination notice and to assist the young adult in reestablishing eligibility if the young adult wishes to continue participating in the program.

E. The department shall not terminate services under the fostering connections program without court approval.

F. If an eligible adult remains in the fostering connections program until attaining twenty-one years of age, at least sixty days before the eligible adult's twenty-first birthday, the department shall provide the eligible adult with a clear and developmentally appropriate written notice informing the eligible adult of the termination of the voluntary services and support agreement at twenty-one years of age, the transition plan requirement and information about and contact information for community resources that may benefit the young adult, specifically including information regarding state programs established pursuant to federal law that provide transitional foster care assistance to young adults."

SECTION 7. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] FOSTERING CONNECTIONS PROGRAM--CHILDREN'S COURT PETITION--JURISDICTION--CONTENTS--PROGRAM FILE.--

A. An eligible adult participating in the fostering connections program shall remain under the jurisdiction of the children's court while participating in the program. The eligible adult is the eligible adult's own legal custodian. B. Within fifteen days after the voluntary services and support agreement is executed, the department shall file a petition initiating proceedings pursuant to the Fostering Connections Act that shall be entitled, "In the Matter of . . . . . . . . . , an eligible adult", and shall set forth with specificity:

(1) the name, birth date and residence of the eligible adult; and

(2) the facts necessary to invoke the jurisdiction of the court.

C. A petition filed pursuant to Subsection B of this section shall be accompanied by a copy of the eligible adult's voluntary services and support agreement and case plan.

D. There shall be no interruption in the foster care maintenance payment, housing, medical assistance coverage or case management for an eligible adult who is eligible and chooses to participate in the fostering connections program immediately following the termination of children's court jurisdiction at age eighteen.

E. At the inception of a fostering connections proceeding, the court shall appoint an attorney to represent the eligible adult. If the eligible adult consents to the appointment, the attorney who previously served as the eligible adult's attorney may be appointed as the eligible adult's attorney.

F. Unless excused by a court, an attorney appointed to represent an eligible adult shall represent the eligible adult in any subsequent appeals.

G. A hearing held pursuant to the Fostering Connections Act shall be commenced within ninety days of the filing of the petition, at which time the court shall review the voluntary services and support agreement and determine whether the agreement is in the best interests of the eligible adult."

SECTION 8. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] REVIEW HEARINGS.--

A. The court shall conduct a review hearing at least once per year.

B. The primary purpose of the review hearing shall be to ensure that the fostering connections program is providing the eligible adult with the needed services and support to help the eligible adult move toward permanency and a successful transition to adulthood. At the review hearing, the department shall show that it has made reasonable efforts to implement the case plan. A review hearing shall be conducted in a manner that seeks the eligible adult's meaningful participation.

C. The department shall prepare and present to the children's court a report addressing progress made in meeting the goals in the case plan, including an independent living transition proposal, and shall propose modifications as necessary to further those goals.

D. If the court finds the department has not made reasonable efforts to implement the case plan, the court may order additional services and support to achieve the goals of the case plan and the department's policies or state or federal law."

SECTION 9. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] DISCHARGE HEARING.--

A. At the last case review or review hearing held prior to the eligible adult's twentieth birthday, or prior to an eligible adult's discharge from the fostering connections program, the court shall review the eligible adult's transition plan and shall determine whether the department has made reasonable efforts to implement the requirements of Subsection B of this section.

B. The court shall determine whether:

(1) written information concerning the eligible adult's family history, the whereabouts of any sibling, if appropriate, and education and health records have been provided to the eligible adult;

(2) the following have been provided to the eligible adult:

(a) the eligible adult's social security card;

(b) the eligible adult's certified birth certificate;

(d) the death certificate of a parent of the eligible adult, if applicable;

(e) proof of the eligible adult's citizenship or residence; and

(f) proof that the eligible adult has been in foster care;

(3) assistance in obtaining medicaid has been provided to the eligible adult, unless the eligible adult is ineligible for medicaid; and

(4) referral for a guardianship or limited guardianship if the eligible adult is incapacitated has been made.

C. If the court finds that the department has not made reasonable efforts to meet all of the requirements of Subsection B of this section and that termination of jurisdiction would be harmful to the eligible adult, the court may continue to exercise its jurisdiction for a period not to exceed one year from the eligible adult's twenty-first birthday or the eligible adult's discharge from the fostering connections program; provided that the eligible adult consents to continued jurisdiction of the court. The court may dismiss the case for good cause at any time after the eligible adult's twenty-first birthday or the eligible adult's discharge from the fostering connections program."

SECTION 10. A new section of the Children's Code is enacted to read:

"[NEW MATERIAL] FOSTERING CONNECTIONS ADVISORY COMMITTEE-- MEMBERSHIP--APPOINTMENT--TERMS--DUTIES--MEETINGS--REPORT.--

A. By October 1, 2019, the secretary shall appoint a "fostering connections advisory committee" to make recommendations to the department and to the legislature regarding the fostering connections program. The committee shall meet on a biannual basis to advise the department and the legislature regarding ongoing implementation of the fostering connections program. By September 1, 2020 and each September 1 thereafter, the committee shall provide a written report to the governor, the legislature and the secretary regarding ongoing implementation of the fostering connections program, including the number of participants and the number of early discharges.

B. By October 1, 2020 and each October 1 thereafter, the committee shall develop specific recommendations for expanding the fostering connections program or improving outcomes for similar groups of at-risk young people.

C. The members of the committee shall include:

(1) the following seven voting members:

(a) the secretary, ex officio, or the secretary's designee;

(b) three members who are appointed by the secretary as follows: 1) two youth or young adults who are currently or were previously placed in foster care; and 2) one representative of a child advocacy group; and

(c) three members who are appointed by the secretary as follows: 1) one representative of a child welfare advocacy organization; 2) one representative of the department; and 3) one representative of an agency providing independent living services; and

(2) the following ex-officio nonvoting members:

(a) a legislator, appointed by the New Mexico legislative council;

(b) a children's court judge, appointed by the administrative office of the courts; and

D. Members of the committee shall be appointed for terms of two years; provided that the initial committee members' terms shall be staggered so that no more than five members' terms shall expire in any one year.

E. The secretary shall convene a first meeting of the committee by December 1, 2019. At that first meeting, the members of the committee shall choose a chair, and members' terms shall be chosen by lot.

F. The secretary shall fill vacancies on the committee as they occur.

G. A majority of the committee members constitutes a quorum for voting purposes.

H. Members of the committee shall receive per diem and mileage pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance for their service on the committee.

I. As used in this section:

(1) "committee" means the fostering connections advisory committee; and

(2) "secretary" means the secretary of children, youth and families."

SECTION 11. Section 32A-1-16 NMSA 1978 (being Laws 1993, Chapter 77, Section 25) is amended to read:

"32A-1-16. BASIC RIGHTS.--

A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code.

B. A person afforded rights under the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition under the Children's Code.

C. An eligible adult retains all of the basic rights of an adult while receiving services pursuant to the fostering connections program."

SECTION 12. Section 32A-1-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 29) is amended to read:

"32A-1-20. PURCHASE OF CARE FROM PRIVATE AGENCY BY PUBLIC AGENCY.--

A. When the legal custody of a child or the placement and care responsibility of an eligible adult is vested in a public agency, under the provisions of the Children's Code, the public agency may transfer physical custody of the child or the eligible adult to an appropriate private agency and may purchase care and treatment from the private agency if the private agency submits periodic reports to the public agency covering the care and treatment the child or eligible adult is receiving and the child's or eligible adult's responses to that care and treatment. These reports shall be made as frequently as the public agency deems necessary, but not less often than once each six months for each child or eligible adult. The private agency shall also afford an opportunity for a representative of the public agency to examine or consult with the child or eligible adult as frequently as the public agency deems necessary.

B. As used in this section, "eligible adult" means an individual who meets the eligibility criteria for participation in the fostering connections program established pursuant to the Fostering Connections Act."

SECTION 13. Section 32A-5-45 NMSA 1978 (being Laws 1993, Chapter 77, Section 172, as amended) is amended to read:

"32A-5-45. ADMINISTRATION OF SUBSIDIZED ADOPTIONS.--

A. The department shall promulgate all necessary regulations for the administration of the program of subsidized adoptions or placement with permanent guardians.

B. Subsidy payments may include payments to vendors for medical and surgical expenses and payments to the adoptive parents or permanent guardians for maintenance and other costs incidental to the adoption, care, training and education of the child. The payments in any category of assistance shall not exceed the cost of providing the assistance in foster care. Payments shall not be made under this section after the child reaches eighteen years of age, except for a child who is enrolled in the medically fragile waiver program, in which case the payments may extend until the child is twenty-one years of age. Payments shall be made pursuant to this section until a child reaches twenty-one years of age if the adoption assistance agreement was in effect when the child was at least sixteen years of age and, between the ages of eighteen and twenty-one years of age, the child:

(1) has completed secondary education or a program leading to an equivalent credential;

(2) is enrolled in an institution that provides post-secondary or vocational education;

(3) participates in a program or activity designed to promote or remove barriers to employment;

(4) is employed for at least eighty hours per month; or

(5) is incapable of doing any of the activities described in Paragraphs (1) through (4) of this subsection due to a medical or behavioral condition, and provides evidence of the child's incapability, which evidence is supported by regularly updated information.

C. A written agreement between the adoptive family or permanent guardians and the department shall precede the decree of adoption or permanent guardianship. The agreement shall incorporate the terms and conditions of the subsidy plan based on the individual needs of the child within the permanent family. In cases of subsidies that continue for more than one year, there shall be an annual redetermination of the need for a subsidy. The department shall develop an appeal procedure whereby a permanent family may contest a division determination to deny, reduce or terminate a subsidy.

D. As used in this section, "eligible adult" means an individual who meets the eligibility criteria for participation in the fostering connections program established pursuant to the Fostering Connections Act."

SECTION 14. TEMPORARY PROVISION--AMENDED STATE PLAN AMENDMENT--CHILDREN, YOUTH AND FAMILIES DEPARTMENT RULES.--

A. By October 1, 2020, the children, youth and families department shall:

(1) submit an amendment to the state plan to seek federal funding for newly eligible adults for whom an adoption subsidy or a guardianship assistance agreement was in effect if the child had attained sixteen years of age before the agreement became effective or for whom a state-funded guardianship assistance agreement was in effect if the youth had attained sixteen years of age before the agreement became effective;

(2) implement the fostering connections program pursuant to the provisions of the Fostering Connections Act and maximize the children, youth and families department's access to federal funds for extended guardianship assistance and extended adoption assistance for the benefit of eligible adults participating in the fostering connections program; and

(3) adopt and promulgate rules as needed to carry out the provisions of the Fostering Connections Act.

B. As used in this section, "eligible adult" means an individual who meets the eligibility criteria for participating in the fostering connections program.

SECTION 15. TEMPORARY PROVISION--WORK GROUP--YOUTH ADJUDICATED UNDER THE DELINQUENCY ACT--PARTICIPATION IN FOSTERING CONNECTIONS PROGRAM--DUTIES--REPORTING.--The secretary of children, youth and families shall convene a work group composed of experts in children's services and juvenile justice to collect information and make recommendations on including in the fostering connections program youth who have been adjudicated under the Delinquency Act. The work group shall examine and report to the secretary of children, youth and families and the legislature by November 1, 2019:

A. the potential number of young adults who could be included in the fostering connections program;

B. the processes by which young adults eligible to participate in the fostering connections program could be identified;

C. procedures for assisting young adults to become eligible for the fostering connections program; and

D. the potential placement and service array that would be required for including young adults who have been adjudicated under the Delinquency Act in the fostering connections program.

- 26 -