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Massachusetts Senate Bill S2803

Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S2803 Compare Versions

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11 SENATE . . . . . . . . . . . . . . No. 2803
22 The Commonwealth of Massachusetts
33 _______________
44 In the One Hundred and Ninety-Third General Court
55 (2023-2024)
66 _______________
77 SENATE, June 6, 2024.
88 The committee on Children, Families and Persons with Disabilities, to whom was
99 referred the petitions (accompanied by bill, Senate, No. 68) of Joanne M. Comerford, Sean
1010 Garballey and Vanna Howard for legislation to establish a bill of rights for children in foster
1111 care; and (accompanied by bill, House, No. 164) of Michael J. Finn and others relative to
1212 establishing a bill of rights for children in foster care, report the accompanying bill (Senate, No.
1313 2803).
1414 For the committee,
1515 Robyn K. Kennedy 1 of 13
1616 FILED ON: 5/31/2024
1717 SENATE . . . . . . . . . . . . . . No. 2803
1818 The Commonwealth of Massachusetts
1919 _______________
2020 In the One Hundred and Ninety-Third General Court
2121 (2023-2024)
2222 _______________
2323 An Act establishing a bill of rights for children in foster care.
2424 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
2525 of the same, as follows:
2626 1 SECTION 1. Chapter 119 of the General Laws, as appearing in the 2022 Official Edition,
2727 2is hereby amended by inserting after section 23C the following section:-
2828 3 Section 23D. (a) As used in this section, the following words shall, unless the context
2929 4clearly requires otherwise, have the following meanings:-
3030 5 “Child” means any child, youth or young adult who is under the custody, care or
3131 6responsibility of the department.
3232 7 “Child-specific family” means a family that includes a non-kinship individual who is
3333 8significant in a particular child’s life, or (2) fictive kin to whom the child and/or parent(s) ascribe
3434 9the role of family based on cultural and affectional ties or individual family values.
3535 10 “Department” means the Department of Children and Families.
3636 11 “Kin” means an individual(s) who is either (1) related by blood, marriage or adoption. 2 of 13
3737 12 (b) The department shall present a document listing the rights enumerated in subsection
3838 13(d) to the foster parent of each child in its care when the child enters care and annually thereafter.
3939 14The department shall explain these rights to the child in an age-appropriate way when the child
4040 15enters the department’s care. The department shall ensure the document is translated into the
4141 16language spoken by the child. The document shall be posted in all congregate care facilities in a
4242 17public space where all residents have access, prominently on its website, and in all area offices.
4343 18The department shall present the document for continual use to the child’s attorney and parent(s)
4444 19and display the document prominently on its website and in all area offices.
4545 20 (c) The department shall amend any regulations or policies that may conflict with this
4646 21section in a timely fashion.
4747 22 (d) Each child has the following rights:
4848 23 (1) Safety and Security:
4949 24 (i) Each child shall be treated with dignity, respect, privacy and consideration.
5050 25 (ii) Each child shall not be discriminated against, physically hurt or harassed by
5151 26department staff, foster parents, the child’s attorney, or service providers on the basis of religion,
5252 27race, color, creed, gender, gender identity, gender expression, sexual orientation, national origin,
5353 28age, disability, culture, language, or ethnicity.
5454 29 (iii) Each child has the right to a placement that is gender-affirming and free from
5555 30physical, psychological, sexual, emotional or other abuse, neglect or exploitation.
5656 31 (iv) Each child shall have the right to access personal possessions, personal space and
5757 32privacy with allowance for safety. 3 of 13
5858 33 (v) Each child shall have autonomy of all pictures of themselves as appropriate.
5959 34 (vi) Each child shall have access to healthy food, clothing, personal care products and
6060 35items that preserve and promote the child's family's religion and culture and the child’s gender-
6161 36identity as well as the child’s specific hair and body needs.
6262 37 (vii) Each child shall be placed in a safe and nurturing environment and receive
6363 38appropriate care and treatment in the least restrictive setting available that shall consider the
6464 39child’s needs and addresses their trauma history. The environment shall include the child’s
6565 40culture, religion and identity as nearly as possible to the home of origin. No child shall be placed,
6666 41housed or detained in a secure department of youth services placement based on the department
6767 42of children and families’ inability to provide an available and appropriate foster placement. The
6868 43department shall not advocate for bail of any amount for children in its care or custody.
6969 44 (viii) Each child has the right to age-appropriate information about a foster family or
7070 45program prior to being placed whenever possible and, whenever possible and appropriate, shall
7171 46have an opportunity to meet the foster parent or program staff before placement occurs. If the
7272 47foster placement is only able to accommodate the child for a limited time, the child shall be
7373 48notified of the anticipated duration of the child’s stay with that foster placement. The child shall
7474 49be informed of a placement change and the reason(s) for the change at least 5 days in advance
7575 50whenever possible. When a change is made in an emergency circumstance, the child shall be
7676 51given as much notice as possible. The child’s belongings shall be packed with care and the child
7777 52shall be allowed to bring their essential belongings and comfort items with them.
7878 53 (ix) Each child has the right to safe access to personal possessions, personal space and
7979 54privacy. 4 of 13
8080 55 (2) Connections to Family, Community and Identity:
8181 56 (i) Each child has the right to know, understand, learn about and develop the child’s
8282 57racial, cultural, linguistic, gender, religious and ethnic identity, including but not limited to
8383 58clothing, hair, other cultural expressions of identity, body care and to a placement that will
8484 59provide or maintain the connections necessary to preserve and promote the child’s identities. The
8585 60department should make a best effort to ensure that the placement will preserve and maintain the
8686 61child’s language of their home.
8787 62 (ii) Each child has the right to be placed according to the child’s gender identity and
8888 63referred to by the name and gender pronouns preferred by the child. A child’s sexual orientation
8989 64and gender identity and expression shall remain private unless the child permits the information
9090 65to be disclosed, the disclosure is required to protect the child’s health and safety, or disclosure is
9191 66compelled by law or a court order.
9292 67 (iii) Each child has the right for the department to exercise due diligence in identifying
9393 68and locating kin if a placement is required and to give full and fair consideration to all potential
9494 69kin, and then a child-specific family unless harmful for the safety and well-being of the child.
9595 70 (iv) Each child has the right to be placed with the child’s siblings or half-siblings unless
9696 71the joint placement is contrary to the safety, well-being, or path to permanency for any of the
9797 72siblings provided the foster parent is willing to accept the child. The department shall work to
9898 73address barriers to placing siblings together. The department shall ensure that the child be placed
9999 74in as close proximity as possible to siblings if unable to be placed in the same setting and shall
100100 75facilitate frequent and meaningful contact regardless of geographic barriers if not harmful to the
101101 76safety and well-being of the child. 5 of 13
102102 77 (v) Each child shall have involvement as appropriate with family members and siblings
103103 78and should participate in the development of visitation plans. Each child shall have the right to
104104 79family time of a duration and frequency and in a setting that is consistent with the developmental
105105 80needs of the child.
106106 81 Each child shall have the right to other forms of parental contact, including but not
107107 82limited to mail, phone calls, videoconferences, email and texts if they have their own phone and
108108 83if not harmful to the safety or well-being of the child. All placements including congregate care
109109 84programs shall facilitate access to virtual forms of contact.
110110 85 (vi) Each child has the right for assistance to maintain positive contact with other family
111111 86members and significant other positive relationships in the child’s life, including but not limited
112112 87to teachers, friends and community individuals.
113113 88 (vii) Each child has the right to be treated as a family member in a foster family and,
114114 89whenever possible, be included in a foster family’s activities, holidays and traditions taking into
115115 90consideration factors that include but are not limited to the child’s age and trauma history. Each
116116 91child shall have the opportunity to be included in the daily activities of the family to maintain the
117117 92most normal daily routine and environment as possible.
118118 93 (3) Health Care and Accessibility:
119119 94 (i) Each child has the right to access appropriate, timely gender-affirming medical,
120120 95reproductive, dental, vision, mental and behavioral health services regularly and more often as
121121 96needed. 6 of 13
122122 97 (ii) Each child has the right to discuss any questions or concerns the child has relating to
123123 98medication or other physical, mental or behavioral health treatment with the department or a
124124 99healthcare provider and to understand the medications and/or treatment provided, its purposes
125125 100and side effects in a developmentally appropriate way.
126126 101 (iii) Each child has the right to out-of-home placements that are accessible for any
127127 102disabilities the child may have and to reasonable accommodations. Any appropriate reasonable
128128 103accommodation(s) will be provided in a timely manner and in such a way as to protect the
129129 104privacy of the child. Each child also has a right to discuss any disabilities with the department
130130 105and request adaptive equipment, auxiliary aids or services.
131131 106 (4) Education, Employment and Social Connections:
132132 107 (i) Each child has the right to attend school regularly, educational stability, educational
133133 108supports and to an education that fits their needs under federal and state law.
134134 109 (ii) Each child has the right for the department to prioritize school stability by (a) placing
135135 110children as close to home as possible and, (b) maintaining the child at their school of origin
136136 111unless it is found through a Best Interest Determination, not to be in their best interest to do so.
137137 112 (iii) Each child has the right to participate in age-appropriate school, extracurricular,
138138 113enrichment, religious, cultural, linguistic, ethnic and social activities and to have any placement
139139 114provider use the reasonable and prudent parenting standard when making decisions regarding
140140 115participation in such activities. 7 of 13
141141 116 (iv) Each child has the right to achieve developmentally appropriate, age-related
142142 117milestones, including but not limited to obtaining a driver’s license, opening bank accounts,
143143 118birthday celebrations, religious ceremonies or graduations.
144144 119 (v) Each child shall be informed of and supported in accessing all available services
145145 120through the department, including but not limited to assistance in acquiring life skills,
146146 121educational assistance including but not limited to tuition and fee waivers for post-secondary
147147 122education, financial support, housing support, assistance with credit reports and resolving
148148 123inaccuracies, training and career guidance to accomplish personal goals and prepare for the
149149 124future, employment supports available to children in care, and adaptive equipment or auxiliary
150150 125aids and supports.
151151 126 (vii) The department shall provide each child age-appropriate education on financial
152152 127preparedness, job readiness, appropriate use of social media, education options, healthy
153153 128relationships, physical, mental, sexual and reproductive health.
154154 129 (5) Resources and Supports:
155155 130 (i) Each child has the right to reasonable access to a caseworker who can make case plan
156156 131decisions and shall include the opportunity for the child to have private conversations regarding
157157 132any questions, grievances, or concerns. Reasonable access shall include the department’s social
158158 133worker and supervisor’s office telephone numbers and email addresses as well as, at a minimum,
159159 134monthly visits by the department. The department shall also provide the child an emergency
160160 135contact number for a department staff member who can make decisions and take action with
161161 136respect to the child during non-business hours. 8 of 13
162162 137 (ii) Each child shall have the right to participate as developmentally appropriate in the
163163 138development and review of the action and visitation plans, their Individualized Education
164164 139Program and best interest determination and shall be consulted as the department formulates or
165165 140updates said items. Children aged 12 and older shall also be presented with the action or service
166166 141plan for their review, written feedback and signature. A child has the right to request that their
167167 142foster parent(s) participate at foster care reviews and to object to their participation if a child
168168 143does not want them attend.
169169 144 (iii) Each child has the right be informed in a developmentally appropriate way of all
170170 145documents that they are asked to sign by the department and/or its agents/contractors/providers
171171 146including adoption consent if over the age of 12, the Voluntary Agreement for Placement if at
172172 147least 18 years of age and documents of similar importance. A child shall have their attorney
173173 148present whenever asked to sign any documents by the department or its
174174 149agents/contractors/providers, or the document shall be provided in a timely fashion to the child’s
175175 150attorney to give an opportunity for review it in advance of presenting it for signature.
176176 151 (iv) Each child has the right to be informed in a developmentally appropriate way of the
177177 152reason(s) the department became involved with the child’s family, why the child came into care
178178 153and why the child is still in care. The department shall offer support through the review process
179179 154to address any possible trauma caused by a child’s access to their case files. Upon turning 18, the
180180 155youth will have the right to access their case files, barring any confidential or legally privileged
181181 156information.
182182 157 (v) Each child aged 12 or older has the right to be included in foster care review
183183 158meetings, permanency hearings and lead agency team meetings except for those parts that 9 of 13
184184 159involve information that is confidential regarding a previous or future adoptive, kinship or foster
185185 160parent under federal or state law, unless documented by court order that participation would be
186186 161detrimental to the child. The department shall provide that child the ability to offer input to the
187187 162department before a final decision is made. If the child is unable to attend in person, by phone or
188188 163video, the child shall have the right to submit a written statement to be considered at the meeting
189189 164or hearing.
190190 165 (vi) Each child shall be provided adequate notice by the child’s attorney of all court
191191 166hearings. To the extent possible, the notice shall include the date, time and location of the
192192 167hearing. The department shall ensure the child understands the child’s right to attend court
193193 168hearings and speak to the judge regarding any decision that may have an impact on the child’s
194194 169life.
195195 170 (vii) Each child has the right to access their medical, dental and educational records held
196196 171by the department as well as their personal documents, including but not limited to social
197197 172security card, birth certificate, health insurance information, state identification card, driver’s
198198 173license, passport, and documentation related to their immigration status, including work
199199 174authorization in a developmentally appropriate way. When a child leaves the care of the
200200 175department, they shall be given copies of medical, dental and educational records held by the
201201 176department and original copies of all personal documents. If the child’s name and/or gender
202202 177marker has changed, the department must ensure that all relevant legal documents, including
203203 178birth certificate, state identification card, driver’s license, and immigration documentation are
204204 179updated and corrected before the child departs care. The department must further provide contact
205205 180information for providers who are currently providing care for the child. The department shall
206206 181begin planning to return the documents to the child at least 30 days before the child leaves care 10 of 13
207207 182to be able to give the documents to the child on the day of the child’s departure. As soon as a
208208 183child in the department’s care is eligible the department must assist the child in obtaining a state
209209 184identification card if the child does not have one and wants one.
210210 185 (viii) Each child has the right to an attorney when the department seeks custody of the
211211 186child and to meaningful contact with said attorney including at foster care reviews. Each child
212212 187shall be informed, when appropriate, by the department of the name and phone numbers of the
213213 188assigned attorney. Each child and foster parent shall be informed, when appropriate, by the
214214 189department that the child can contact the attorney and that there are processes to file a complaint
215215 190as well as to request a change of attorney. The department shall notify the child’s attorney of
216216 191each child’s placement address and phone number no later than 24 hours after the time of
217217 192placement or placement change.
218218 193 (ix) Each child shall be informed by the department of the clothing, birthday, holiday and
219219 194emergency payments to foster parents and placement providers for children in placement and
220220 195that the child has the right to have those payments used to meet the child’s needs. A child over
221221 196the age of 14 who has a bank account may receive direct payment from the department through
222222 197their attorney or the department upon request.
223223 198 (x) Each child’s attorney shall be informed if the department applies for any benefits on
224224 199behalf of the child, including but not limited to benefits under Title XVI of the Social Security
225225 200Act, also referred to as “Supplemental Security Income;" benefits under Title II of the Social
226226 201Security Act, also referred to as “Retirement, Survivors or Disability Benefits,” and if the
227227 202department applies to be the representative payee for such benefits. The department shall
228228 203preserve all of such funds received in an interest bearing account belonging to the child so the 11 of 13
229229 204funds are available for the child’s benefit and use when they turn 18 and shall not use such funds
230230 205for the customary costs of foster care. If necessary, the department shall preserve said funds in an
231231 206ABLE (Achieving a Better Life Experience) account authorized by Section 529A of the Internal
232232 207Revenue Code of 1986, or another trust account for the child determined not to interfere with SSI
233233 208or asset limitations for any other benefit program. The notice provisions of this subsection (x)
234234 209shall go into effect 18 months after the passage of this legislation. Until the effective
235235 210implementation date, the department will make best efforts to ensure compliance with the notice
236236 211requirements set forth in this subsection (x).
237237 212 (6) Transition Age Youth
238238 213 (i) At the age of 14, the department shall begin collaborating with the child to plan their
239239 214transition from foster care to adulthood. Transition planning should cover all areas needed for a
240240 215youth to be stable and successful as an adult, including but not limited to, planning for visits
241241 216and/or contact with parents and siblings; building relationships with other caring adults,
242242 217particularly with life-long connections; making an education plan including post-secondary
243243 218education; finding vocational, employment and career counseling and placement; securing stable
244244 219housing; developing expertise in daily living skills; maintaining physical, reproductive and
245245 220mental health care and health insurance; learning how to access community resources and public
246246 221benefits and services; connecting with other state agencies; developing financial skills including
247247 222but not limited to, understanding budgeting and money management as well as checking and
248248 223savings accounts; and receiving, understanding and correcting, if applicable, his/her consumer
249249 224credit report. The department shall provide all associated services and supports necessary for
250250 225such planning. 12 of 13
251251 226 Every child shall have the right to a transition plan at least one year prior to turning 18
252252 227years old crafted by the department at the direction of the transition age youth, regardless
253253 228whether they will continue under the responsibility of the department upon turning 18, that
254254 229includes personalized, detailed, tangible, available and clear options for resources for meeting
255255 230their basic needs including, but not limited to, housing, education and vocational supports which
256256 231fulfill the requirements of 42 U.S.C. s.675 (5)(H), as amended.
257257 232 (ii) Every child who turns 18 while in custody of the department has the right to continue
258258 233under the responsibility of the department and receive young adult services until turning 23,
259259 234pursuant to federal requirements. Each child shall be offered a Voluntary Placement Agreement
260260 235by the department in the month prior to their turning 18 years old. The Voluntary Placement
261261 236Agreement shall be developed together with the child during permanency and transition
262262 237planning. Every child shall be made aware of this right and any federal requirements governing
263263 238services for transition age youth throughout the transition planning process.
264264 239 (iii) Every child above age 18 who has chosen to remain under the responsibility of the
265265 240department has the right to leave and re-enter custody at any time for any reason.
266266 241 (iv) The department shall have the responsibility of identifying all appropriate housing
267267 242opportunities available to a youth turning 18, a young adult leaving the care of the department
268268 243after the age of 18, and a youth who re-enters the department.
269269 244 (7) Remedies
270270 245 (i) Each child shall have the right to have these rights enforced. 13 of 13
271271 246 (ii) If the child, the child’s attorney or the child’s foster parent or placement provider
272272 247believes any of the above rights have been violated, the child shall have the right to discuss the
273273 248alleged violation with the department, file a complaint with the department’s ombudsman, file a
274274 249complaint with the office of the child advocate, request a fair hearing or petition the Juvenile or
275275 250Probate and Family Court for a determination and enforcement of these rights. The department
276276 251shall not retaliate against or punish a child, an attorney, a foster parent or placement provider for
277277 252asserting this right. If the department, ombudsman, the office of the child advocate or the court
278278 253determines the child's rights have been violated, the department shall resolve the violation as
279279 254soon as practicable. The department must provide the child with contact information for the
280280 255ombudsman, the office of the child advocate and the court.
281281 256 (e) The commissioner of the department of children and families or designee, shall
282282 257submit a report to the office of the child advocate, house and senate committees on ways and
283283 258means, the joint committee on children, families and persons with disabilities, and the house and
284284 259senate clerks’ offices on the number and types of complaints or alleged violation received
285285 260pursuant to this act.