Text of MA S 2803 (2024)

SENATE . . . . . . . . . . . . . . No. 2803 The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Third General Court (2023-2024) _______________ SENATE, June 6, 2024. The committee on Children, Families and Persons with Disabilities, to whom was referred the petitions (accompanied by bill, Senate, No. 68) of Joanne M. Comerford, Sean Garballey and Vanna Howard for legislation to establish a bill of rights for children in foster care; and (accompanied by bill, House, No. 164) of Michael J. Finn and others relative to establishing a bill of rights for children in foster care, report the accompanying bill (Senate, No. 2803). For the committee, Robyn K. Kennedy 1 of 13 FILED ON: 5/31/2024 SENATE . . . . . . . . . . . . . . No. 2803 The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Third General Court (2023-2024) _______________ An Act establishing a bill of rights for children in foster care. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 SECTION 1. Chapter 119 of the General Laws, as appearing in the 2022 Official Edition, 2 is hereby amended by inserting after section 23C the following section:- 3 Section 23D. (a) As used in this section, the following words shall, unless the context 4 clearly requires otherwise, have the following meanings:- 5 “Child” means any child, youth or young adult who is under the custody, care or 6 responsibility of the department. 7 “Child-specific family” means a family that includes a non-kinship individual who is 8 significant in a particular child’s life, or (2) fictive kin to whom the child and/or parent(s) ascribe 9 the role of family based on cultural and affectional ties or individual family values. 10 “Department” means the Department of Children and Families. 11 “Kin” means an individual(s) who is either (1) related by blood, marriage or adoption. 2 of 13 12 (b) The department shall present a document listing the rights enumerated in subsection 13 (d) to the foster parent of each child in its care when the child enters care and annually thereafter. 14 The department shall explain these rights to the child in an age-appropriate way when the child 15 enters the department’s care. The department shall ensure the document is translated into the 16 language spoken by the child. The document shall be posted in all congregate care facilities in a 17 public space where all residents have access, prominently on its website, and in all area offices. 18 The department shall present the document for continual use to the child’s attorney and parent(s) 19 and display the document prominently on its website and in all area offices. 20 (c) The department shall amend any regulations or policies that may conflict with this 21 section in a timely fashion. 22 (d) Each child has the following rights: 23 (1) Safety and Security: 24 (i) Each child shall be treated with dignity, respect, privacy and consideration. 25 (ii) Each child shall not be discriminated against, physically hurt or harassed by 26 department staff, foster parents, the child’s attorney, or service providers on the basis of religion, 27 race, color, creed, gender, gender identity, gender expression, sexual orientation, national origin, 28 age, disability, culture, language, or ethnicity. 29 (iii) Each child has the right to a placement that is gender-affirming and free from 30 physical, psychological, sexual, emotional or other abuse, neglect or exploitation. 31 (iv) Each child shall have the right to access personal possessions, personal space and 32 privacy with allowance for safety. 3 of 13 33 (v) Each child shall have autonomy of all pictures of themselves as appropriate. 34 (vi) Each child shall have access to healthy food, clothing, personal care products and 35 items that preserve and promote the child's family's religion and culture and the child’s gender- 36 identity as well as the child’s specific hair and body needs. 37 (vii) Each child shall be placed in a safe and nurturing environment and receive 38 appropriate care and treatment in the least restrictive setting available that shall consider the 39 child’s needs and addresses their trauma history. The environment shall include the child’s 40 culture, religion and identity as nearly as possible to the home of origin. No child shall be placed, 41 housed or detained in a secure department of youth services placement based on the department 42 of children and families’ inability to provide an available and appropriate foster placement. The 43 department shall not advocate for bail of any amount for children in its care or custody. 44 (viii) Each child has the right to age-appropriate information about a foster family or 45 program prior to being placed whenever possible and, whenever possible and appropriate, shall 46 have an opportunity to meet the foster parent or program staff before placement occurs. If the 47 foster placement is only able to accommodate the child for a limited time, the child shall be 48 notified of the anticipated duration of the child’s stay with that foster placement. The child shall 49 be informed of a placement change and the reason(s) for the change at least 5 days in advance 50 whenever possible. When a change is made in an emergency circumstance, the child shall be 51 given as much notice as possible. The child’s belongings shall be packed with care and the child 52 shall be allowed to bring their essential belongings and comfort items with them. 53 (ix) Each child has the right to safe access to personal possessions, personal space and 54 privacy. 4 of 13 55 (2) Connections to Family, Community and Identity: 56 (i) Each child has the right to know, understand, learn about and develop the child’s 57 racial, cultural, linguistic, gender, religious and ethnic identity, including but not limited to 58 clothing, hair, other cultural expressions of identity, body care and to a placement that will 59 provide or maintain the connections necessary to preserve and promote the child’s identities. The 60 department should make a best effort to ensure that the placement will preserve and maintain the 61 child’s language of their home. 62 (ii) Each child has the right to be placed according to the child’s gender identity and 63 referred to by the name and gender pronouns preferred by the child. A child’s sexual orientation 64 and gender identity and expression shall remain private unless the child permits the information 65 to be disclosed, the disclosure is required to protect the child’s health and safety, or disclosure is 66 compelled by law or a court order. 67 (iii) Each child has the right for the department to exercise due diligence in identifying 68 and locating kin if a placement is required and to give full and fair consideration to all potential 69 kin, and then a child-specific family unless harmful for the safety and well-being of the child. 70 (iv) Each child has the right to be placed with the child’s siblings or half-siblings unless 71 the joint placement is contrary to the safety, well-being, or path to permanency for any of the 72 siblings provided the foster parent is willing to accept the child. The department shall work to 73 address barriers to placing siblings together. The department shall ensure that the child be placed 74 in as close proximity as possible to siblings if unable to be placed in the same setting and shall 75 facilitate frequent and meaningful contact regardless of geographic barriers if not harmful to the 76 safety and well-being of the child. 5 of 13 77 (v) Each child shall have involvement as appropriate with family members and siblings 78 and should participate in the development of visitation plans. Each child shall have the right to 79 family time of a duration and frequency and in a setting that is consistent with the developmental 80 needs of the child. 81 Each child shall have the right to other forms of parental contact, including but not 82 limited to mail, phone calls, videoconferences, email and texts if they have their own phone and 83 if not harmful to the safety or well-being of the child. All placements including congregate care 84 programs shall facilitate access to virtual forms of contact. 85 (vi) Each child has the right for assistance to maintain positive contact with other family 86 members and significant other positive relationships in the child’s life, including but not limited 87 to teachers, friends and community individuals. 88 (vii) Each child has the right to be treated as a family member in a foster family and, 89 whenever possible, be included in a foster family’s activities, holidays and traditions taking into 90 consideration factors that include but are not limited to the child’s age and trauma history. Each 91 child shall have the opportunity to be included in the daily activities of the family to maintain the 92 most normal daily routine and environment as possible. 93 (3) Health Care and Accessibility: 94 (i) Each child has the right to access appropriate, timely gender-affirming medical, 95 reproductive, dental, vision, mental and behavioral health services regularly and more often as 96 needed. 6 of 13 97 (ii) Each child has the right to discuss any questions or concerns the child has relating to 98 medication or other physical, mental or behavioral health treatment with the department or a 99 healthcare provider and to understand the medications and/or treatment provided, its purposes 100 and side effects in a developmentally appropriate way. 101 (iii) Each child has the right to out-of-home placements that are accessible for any 102 disabilities the child may have and to reasonable accommodations. Any appropriate reasonable 103 accommodation(s) will be provided in a timely manner and in such a way as to protect the 104 privacy of the child. Each child also has a right to discuss any disabilities with the department 105 and request adaptive equipment, auxiliary aids or services. 106 (4) Education, Employment and Social Connections: 107 (i) Each child has the right to attend school regularly, educational stability, educational 108 supports and to an education that fits their needs under federal and state law. 109 (ii) Each child has the right for the department to prioritize school stability by (a) placing 110 children as close to home as possible and, (b) maintaining the child at their school of origin 111 unless it is found through a Best Interest Determination, not to be in their best interest to do so. 112 (iii) Each child has the right to participate in age-appropriate school, extracurricular, 113 enrichment, religious, cultural, linguistic, ethnic and social activities and to have any placement 114 provider use the reasonable and prudent parenting standard when making decisions regarding 115 participation in such activities. 7 of 13 116 (iv) Each child has the right to achieve developmentally appropriate, age-related 117 milestones, including but not limited to obtaining a driver’s license, opening bank accounts, 118 birthday celebrations, religious ceremonies or graduations. 119 (v) Each child shall be informed of and supported in accessing all available services 120 through the department, including but not limited to assistance in acquiring life skills, 121 educational assistance including but not limited to tuition and fee waivers for post-secondary 122 education, financial support, housing support, assistance with credit reports and resolving 123 inaccuracies, training and career guidance to accomplish personal goals and prepare for the 124 future, employment supports available to children in care, and adaptive equipment or auxiliary 125 aids and supports. 126 (vii) The department shall provide each child age-appropriate education on financial 127 preparedness, job readiness, appropriate use of social media, education options, healthy 128 relationships, physical, mental, sexual and reproductive health. 129 (5) Resources and Supports: 130 (i) Each child has the right to reasonable access to a caseworker who can make case plan 131 decisions and shall include the opportunity for the child to have private conversations regarding 132 any questions, grievances, or concerns. Reasonable access shall include the department’s social 133 worker and supervisor’s office telephone numbers and email addresses as well as, at a minimum, 134 monthly visits by the department. The department shall also provide the child an emergency 135 contact number for a department staff member who can make decisions and take action with 136 respect to the child during non-business hours. 8 of 13 137 (ii) Each child shall have the right to participate as developmentally appropriate in the 138 development and review of the action and visitation plans, their Individualized Education 139 Program and best interest determination and shall be consulted as the department formulates or 140 updates said items. Children aged 12 and older shall also be presented with the action or service 141 plan for their review, written feedback and signature. A child has the right to request that their 142 foster parent(s) participate at foster care reviews and to object to their participation if a child 143 does not want them attend. 144 (iii) Each child has the right be informed in a developmentally appropriate way of all 145 documents that they are asked to sign by the department and/or its agents/contractors/providers 146 including adoption consent if over the age of 12, the Voluntary Agreement for Placement if at 147 least 18 years of age and documents of similar importance. A child shall have their attorney 148 present whenever asked to sign any documents by the department or its 149 agents/contractors/providers, or the document shall be provided in a timely fashion to the child’s 150 attorney to give an opportunity for review it in advance of presenting it for signature. 151 (iv) Each child has the right to be informed in a developmentally appropriate way of the 152 reason(s) the department became involved with the child’s family, why the child came into care 153 and why the child is still in care. The department shall offer support through the review process 154 to address any possible trauma caused by a child’s access to their case files. Upon turning 18, the 155 youth will have the right to access their case files, barring any confidential or legally privileged 156 information. 157 (v) Each child aged 12 or older has the right to be included in foster care review 158 meetings, permanency hearings and lead agency team meetings except for those parts that 9 of 13 159 involve information that is confidential regarding a previous or future adoptive, kinship or foster 160 parent under federal or state law, unless documented by court order that participation would be 161 detrimental to the child. The department shall provide that child the ability to offer input to the 162 department before a final decision is made. If the child is unable to attend in person, by phone or 163 video, the child shall have the right to submit a written statement to be considered at the meeting 164 or hearing. 165 (vi) Each child shall be provided adequate notice by the child’s attorney of all court 166 hearings. To the extent possible, the notice shall include the date, time and location of the 167 hearing. The department shall ensure the child understands the child’s right to attend court 168 hearings and speak to the judge regarding any decision that may have an impact on the child’s 169 life. 170 (vii) Each child has the right to access their medical, dental and educational records held 171 by the department as well as their personal documents, including but not limited to social 172 security card, birth certificate, health insurance information, state identification card, driver’s 173 license, passport, and documentation related to their immigration status, including work 174 authorization in a developmentally appropriate way. When a child leaves the care of the 175 department, they shall be given copies of medical, dental and educational records held by the 176 department and original copies of all personal documents. If the child’s name and/or gender 177 marker has changed, the department must ensure that all relevant legal documents, including 178 birth certificate, state identification card, driver’s license, and immigration documentation are 179 updated and corrected before the child departs care. The department must further provide contact 180 information for providers who are currently providing care for the child. The department shall 181 begin planning to return the documents to the child at least 30 days before the child leaves care 10 of 13 182 to be able to give the documents to the child on the day of the child’s departure. As soon as a 183 child in the department’s care is eligible the department must assist the child in obtaining a state 184 identification card if the child does not have one and wants one. 185 (viii) Each child has the right to an attorney when the department seeks custody of the 186 child and to meaningful contact with said attorney including at foster care reviews. Each child 187 shall be informed, when appropriate, by the department of the name and phone numbers of the 188 assigned attorney. Each child and foster parent shall be informed, when appropriate, by the 189 department that the child can contact the attorney and that there are processes to file a complaint 190 as well as to request a change of attorney. The department shall notify the child’s attorney of 191 each child’s placement address and phone number no later than 24 hours after the time of 192 placement or placement change. 193 (ix) Each child shall be informed by the department of the clothing, birthday, holiday and 194 emergency payments to foster parents and placement providers for children in placement and 195 that the child has the right to have those payments used to meet the child’s needs. A child over 196 the age of 14 who has a bank account may receive direct payment from the department through 197 their attorney or the department upon request. 198 (x) Each child’s attorney shall be informed if the department applies for any benefits on 199 behalf of the child, including but not limited to benefits under Title XVI of the Social Security 200 Act, also referred to as “Supplemental Security Income;" benefits under Title II of the Social 201 Security Act, also referred to as “Retirement, Survivors or Disability Benefits,” and if the 202 department applies to be the representative payee for such benefits. The department shall 203 preserve all of such funds received in an interest bearing account belonging to the child so the 11 of 13 204 funds are available for the child’s benefit and use when they turn 18 and shall not use such funds 205 for the customary costs of foster care. If necessary, the department shall preserve said funds in an 206 ABLE (Achieving a Better Life Experience) account authorized by Section 529A of the Internal 207 Revenue Code of 1986, or another trust account for the child determined not to interfere with SSI 208 or asset limitations for any other benefit program. The notice provisions of this subsection (x) 209 shall go into effect 18 months after the passage of this legislation. Until the effective 210 implementation date, the department will make best efforts to ensure compliance with the notice 211 requirements set forth in this subsection (x). 212 (6) Transition Age Youth 213 (i) At the age of 14, the department shall begin collaborating with the child to plan their 214 transition from foster care to adulthood. Transition planning should cover all areas needed for a 215 youth to be stable and successful as an adult, including but not limited to, planning for visits 216 and/or contact with parents and siblings; building relationships with other caring adults, 217 particularly with life-long connections; making an education plan including post-secondary 218 education; finding vocational, employment and career counseling and placement; securing stable 219 housing; developing expertise in daily living skills; maintaining physical, reproductive and 220 mental health care and health insurance; learning how to access community resources and public 221 benefits and services; connecting with other state agencies; developing financial skills including 222 but not limited to, understanding budgeting and money management as well as checking and 223 savings accounts; and receiving, understanding and correcting, if applicable, his/her consumer 224 credit report. The department shall provide all associated services and supports necessary for 225 such planning. 12 of 13 226 Every child shall have the right to a transition plan at least one year prior to turning 18 227 years old crafted by the department at the direction of the transition age youth, regardless 228 whether they will continue under the responsibility of the department upon turning 18, that 229 includes personalized, detailed, tangible, available and clear options for resources for meeting 230 their basic needs including, but not limited to, housing, education and vocational supports which 231 fulfill the requirements of 42 U.S.C. s.675 (5)(H), as amended. 232 (ii) Every child who turns 18 while in custody of the department has the right to continue 233 under the responsibility of the department and receive young adult services until turning 23, 234 pursuant to federal requirements. Each child shall be offered a Voluntary Placement Agreement 235 by the department in the month prior to their turning 18 years old. The Voluntary Placement 236 Agreement shall be developed together with the child during permanency and transition 237 planning. Every child shall be made aware of this right and any federal requirements governing 238 services for transition age youth throughout the transition planning process. 239 (iii) Every child above age 18 who has chosen to remain under the responsibility of the 240 department has the right to leave and re-enter custody at any time for any reason. 241 (iv) The department shall have the responsibility of identifying all appropriate housing 242 opportunities available to a youth turning 18, a young adult leaving the care of the department 243 after the age of 18, and a youth who re-enters the department. 244 (7) Remedies 245 (i) Each child shall have the right to have these rights enforced. 13 of 13 246 (ii) If the child, the child’s attorney or the child’s foster parent or placement provider 247 believes any of the above rights have been violated, the child shall have the right to discuss the 248 alleged violation with the department, file a complaint with the department’s ombudsman, file a 249 complaint with the office of the child advocate, request a fair hearing or petition the Juvenile or 250 Probate and Family Court for a determination and enforcement of these rights. The department 251 shall not retaliate against or punish a child, an attorney, a foster parent or placement provider for 252 asserting this right. If the department, ombudsman, the office of the child advocate or the court 253 determines the child's rights have been violated, the department shall resolve the violation as 254 soon as practicable. The department must provide the child with contact information for the 255 ombudsman, the office of the child advocate and the court. 256 (e) The commissioner of the department of children and families or designee, shall 257 submit a report to the office of the child advocate, house and senate committees on ways and 258 means, the joint committee on children, families and persons with disabilities, and the house and 259 senate clerks’ offices on the number and types of complaints or alleged violation received 260 pursuant to this act.