Extended State Foster Care Is A Necessity During COVID-19

By Alexandra Dufresne
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Law360 (June 14, 2020, 8:02 PM EDT) --
Alexandra Dufresne
Alexandra Dufresne
Commencement season, normally a time of celebration and anticipation, is now full of uncertainty and anxiety. As a parent, how does one encourage children to become financially and socially independent during an economic, political and public health crisis?

Luckily, many young adults have loving and supportive families to help them make the transition to adulthood during this difficult time. But what about children and young adults in the foster care system, whose legal parent is the state? When those children turn 18 in the midst of a pandemic, what happens to them?

In recent years, states, supported by federal legislation and funding, have made tremendous progress in expanding services to youth ages 18-21 (and in many cases, to 23). Though the details of state laws vary, most states allow youth to remain in child welfare care if they meet certain work and education requirements. Some youth are able to meet these requirements, going on to college and successful careers. Extended foster care is associated with significantly better outcomes for young adults.[1]

However, even in ordinary times, approximately three-fourths of children leave the child welfare system between their 18th and 19th birthdays.[2] It is tempting for state child welfare agencies to maintain that youth "chose" to leave the system at age 18 when in fact, many children are forced out or unable to meet the substantial work or education requirements necessary to stay.

Once they leave, many college-aged youth become homeless.[3] Some are able to sleep on the couch of friends or stay with former foster families, but these solutions are often temporary and unstable. Some return to the biological families from which they were originally removed, but many whose family ties were severed by the state literally have no home or family to go home to. These young people often find themselves in very precarious situations, and many are sexually exploited.[4]  

But that is in ordinary times. What happens in a pandemic?

In April, the unemployment rates jumped to 14.7%, the highest since the Great Depression.[5] Universities, where many students were living, have closed, though some have made provisions to allow students in the system to remain in dorms. Travel is difficult, homeless shelters are overcrowded, and friends are less likely to offer their couch, leading some young adults to be forced to turn to abusive and exploitative people in exchange for housing.[6]

Many courts, government offices and libraries are physically closed meaning that youth without their own computer, phone and internet connection have an unusually hard time navigating the paperwork needed to access the complicated array of COVID-19 government assistance programs.

Not surprisingly, the results have been bleak. According to an early May FosterClub poll of 613 young people ages 18 to 24 in 44 states, nearly 65% of youth currently or formerly in the foster care system were laid off, had their hours cut, or lost gig work during the pandemic, and half of those who applied for unemployment benefits did not receive them. Nearly 19% reported that they had run out of food. Twenty-three percent reported that they were forced to move or feared being forced to move.[7] It should be noted that these are the results from the young people who filled out the survey, meaning they had access to a computer and the internet and the time and ability to participate.

As a result, young people in foster care, foster care alumni, and coalitions of lawyers and advocates have called upon child welfare departments to issue a moratorium on aging out.[8] Many of these efforts have been successful — states like Alaska, California, Connecticut, Georgia, Illinois, Michigan, Ohio and Rhode Island, and governments of the District of Columbia (and the province of Ontario, Canada) have issued moratoriums on discharging children and young adults from care, whether through executive order or child welfare department policy change.

For example, according to Stacy Schleif, senior staff attorney at the Center for Children's Advocacy in Connecticut, the state's child welfare agency was proactive in issuing a new policy on April 21, thereby relieving a huge burden from young people in the system.[9]

However, not all states have yet done so. The Massachusetts Child Welfare/COVID-19 Coalition has called upon Gov. Charlie Baker to "place a moratorium on discharging any young adult from extended foster care during this crisis, retroactive to March 10, 2020 when you declared a State of Emergency and continuing until at least six months beyond the end of the crisis."[10] The need to prevent homelessness of former Department of Children and Families youth in a high cost-of-living state like Massachusetts is urgent, given that half of Massachusetts' homeless youth population is "a direct result of the child welfare cliff, as youth age out of the system without support."[11]

Similarly, advocates in New York have asked Gov. Andrew Cuomo to suspend terminations from foster care for 180 days.[12] Although Cuomo has taken a number of recent executive actions to protect vulnerable populations during the pandemic (including a halt to evictions), and although the New York Senate recently passed several bills designed to protect vulnerable populations (including a moratorium on termination of utilities), there has been no indication of a moratorium on closing child welfare cases. On June 6, a bill establishing a six-month moratorium on youth aging out of the foster care system was introduced in the New York Senate; however, this bill is still in the Senate Rules Committee.[13]

Even where such policies have been enacted, the quality of implementation matters. States have developed procedures to try to ensure that decisions to leave care are knowing and voluntary and that youth do not exit without a plan and essential resources, such as identification documents. During the pandemic, these due process protections should be honored, not relaxed.

In recognition of this fact, reentry procedures should be seamless. Young adults should feel free to change their minds and should be welcomed back with open arms, just as a parent would welcome back an older teen who needs to come back home for a bit after a job loss, health care or relationship crisis.

Work and education requirements normally imposed in order for individuals to remain in state care must be relaxed, forgiven or tolled during the COVID-19 crisis and its intermediate aftermath, as many states have already done.

In addition, states need to be disciplined about collecting and reporting outcome data regarding youth currently and recently in care, especially during the crisis. The only way for policymakers and advocates to hold state agencies accountable is if there is complete, reliable and timely data about how young adults are faring.

Finally, lawyers, including those in the private sectors, should volunteer their legal services to young adults or donate to nonprofit legal services organizations that represent these young adults and advocate for public policies that protect them.[14]

Depending on the state, this type of legal work often involves a mix of administrative advocacy and juvenile court work. It is an area of law that a competent pro bono attorney can master in a reasonable amount of time, with the type of training often offered by legal services nonprofits. Child welfare agencies are known to be much more responsive to the calls from adult lawyers than from 18-year-olds who just aged out of the foster care system, trying to advocate for themselves on their own.

Additionally, lawyers in private practice can donate services or funds to advocacy, training and leadership organizations of foster youth and foster care alumni, as alumni of foster care are often the most compelling advocates and the most promising child welfare leaders.  

States governments are facing a monumental crisis. Many states have responded proactively, with moratoriums on evictions and foreclosures and other provisions designed to "stop the clock," at least until the immediate crisis passes and institutions and businesses have the chance to adjust to the new normal. Several states have extended these protections to youth who have grown up in their care, showing that these measures are not only prudent but practicable. Other states need to follow their lead, before it is too late.

A young adult can recover from a lost semester of on-campus classes, a lost internship, being laid off from an early career position, and even missing out on important rites of passage, like graduation. Young adults, like children, are unusually resilient, especially when supported by families, friends and communities.

But recovering from a period of homelessness, of being sexually exploited, of being hungry, of foregoing medical treatment due to fear of its cost, of losing one's hard-earned spot at a university is much, much harder, especially for young people who have already endured traumatic experiences, most often on their own.

As detailed by the New York Times in the case of college student Destiny Moura, who escaped sexual exploitation, these youth can feel like the wind is getting knocked out of them, just as they were starting a new life.[15] I will never forget the words of a fellow child protection attorney, long before COVID-19, when discussing  a client for whom things were going so well, until all of a sudden, everything fell apart: "Our clients just can't seem to catch a break."  

Some burdens are too heavy for young people to carry on their own, even if they are legally adults. Parents know that it is important to leave the door open for our children, especially in times of crisis. Having taken children from their families and assumed the role of parent, states have an obligation to do the same.



Alexandra Dufresne is a lecturer at the School of Management and Law at the Zurich University of Applied Sciences. Earlier in her career, she was a child protection attorney at the Connecticut Center for Children's Advocacy and taught child law and policy at Yale University.

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://www.childtrends.org/publications/supporting-older-youth-beyond-age-18-examining-data-and-trends-in-extended-foster-care

[2] https://www.aecf.org/resources/promising-program-models-for-extended-foster-care-and-transition-services/#findings-and-stats

[3] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3969135/

[4] https://www.socialworktoday.com/news/enews_1118_1.shtml

[5] https://www.washingtonpost.com/business/2020/05/08/april-2020-jobs-report/

[6] https://www.thenation.com/article/society/what-happens-when-you-age-out-of-foster-care-during-a-global-pandemic/

[7] https://www.fosterclub.com/sites/default/files/docs/blogs/COVID%20Poll%20Results%20May%2010%202020.pdf

[8] http://www.glad.org/wp-content/uploads/2020/05/Letter-to-Governor-Baker-May-11-2020.pdf

[9] https://portal.ct.gov/-/media/DCF/Agency/COVID-Emails/DCF-Youth-and-Termination-of-Services.pdf?la=en

[10] http://www.glad.org/wp-content/uploads/2020/05/Letter-to-Governor-Baker-May-11-2020.pdf

[11] http://www.glad.org/wp-content/uploads/2020/05/Letter-to-Governor-Baker-May-11-2020.pdf

[12] https://scaany.org/covid-19/champs-ny-calling-for-a-moratorium-on-aging-out-of-foster-care-in-the-midst-of-a-pandemic/

[13] https://www.nysenate.gov/legislation/bills/2019/s8503

[14] https://cca-ct.org/

[15] https://www.nytimes.com/2020/05/15/nyregion/coronavirus-sex-work-college.html

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