Catherine E. Enright

Published February 2022

 Many of you, like me, may not remember what happened on your 18^th birthday.  We remember that we magically became an adult capable of making most adult decisions overnight.  We may even remember the presents we received or the celebrations we had on that enchanted day.  However, I would venture to say that, like me, you probably had no idea of the true legal consequences of turning 18 because you had a support network there to help continue to guide you and provide for you.  For example, many of us were still in high school, and although 18, our daily life remained largely unchanged.  Unlike others, the true consequences and realities of adulthood were still far off.  But for many children in the foster care system, their 18^th birthdays were of much more consequence than your 18^th birthday.

In Idaho, that all changed for children in foster care beginning on October 1, 2021, when Idaho implemented its extended foster care (EFC) legislation.   That was the day that meant the world for one youth, whom I currently represent in a child protection matter.  We will call this youth “Timmy.”  For Timmy, the changes that were made on October 1^st and the extension of foster care allowed him to feel more normal on his 18^th birthday, which came later in October.  For Timmy, the extension of foster care beyond his 18^th birthday meant that he could focus on school and transitioning out into the adult world in the same way that any other average Idahoan youth would.  This article will introduce you to Timmy and his story, and then take you through the state and federal extended foster care requirements.

The story of Timmy

To give a picture of cases where EFC is necessary and where it works, I want to share a little about Timmy’s story.  Timmy came into foster care when he was 15 years old.  After an initial stay with a foster family here in Idaho, it became apparent that Timmy needed some additional psychological services and a higher level of care, so the Idaho Department of Health and Welfare (IDHW) found an appropriate placement in a therapeutic group home out of state, where Timmy has remained ever since.  His mother, unfortunately, passed away about a year ago, and his father has never actually worked his case plan, but it was never Timmy’s desire to terminate parental rights, and it was not in Timmy’s best interests as there was no other family or adoptive placement suitable for Timmy and his needs, especially after the tragic passing of his mother.

Timmy is set to graduate high school with his diploma in summer of 2022, but he just needed a place to stay at least to get him through his education.  All of the support people that Timmy knows now are in the therapeutic group home, and he wants to stay at that home at least until he graduates.  By staying at that home, he can also continue to receive counseling with his counselor, with whom he has a strong bond.  He can also continue in the same school with the same teachers.  The home provides him with hands-on training in various trades which Timmy can pursue after leaving foster care.  If EFC had not come into existence, Timmy would not have continued to have all of these services or supports. 

What is extended foster care and how was it created?

Extended foster care is a term for continuing a youth in the custody and control of the IDHW beyond his 18^th birthday and up to his 21^st birthday.[1]  Since the youth is already 18 and technically an adult, it is a voluntary program, which means the youth has to sign on to continue being subject to the rules and authority of IDHW and/or the foster parent.  In that way, EFC is very much like when your child turns 18 and continues to live at home.  This may be to avoid rent or food costs, but it may also be that the newly minted 18 year old is still finishing high school, and is preparing for their next chapter.  EFC allows the youth to continue living in foster care while requiring the youth’s “parent” (the State of Idaho) to continue to help provide his basic necessities.

EFC in Idaho was created under H.B. 336, which was signed into law by Governor Little on April 23, 2021.[2]  H.B. 336 amended several sections of the Idaho Code relating to juveniles in order to comply with the Family First Prevention Services Act (FFPSA) passed into law by Congress in February 2018.  FFPSA was created and passed as a way to turn the focus of the child welfare system toward providing resources so that children could safely remain with their families, if at all possible, rather than going through the trauma of a removal from the home and placement into foster care.[3]  Although Idaho lumped EFC in with the other changes being made in accordance with FFPSA, the ability to provide extended foster care came from amendments to the title IV-E program by way of the Federal Fostering Connections to Success and Increasing Adoptions Act of 2008.[4]

The two changes to the Idaho Code under H.B. 336 to create extended foster care were relatively minor.  The first change was to simply add a section to I.C. § 16-1622, which is the portion of the Child Protective Act that deals with review hearings, allowing the court to extend foster care for a person between the ages of 18 and 21 in order to help that person achieve “successful transition to adulthood,” provided that certain other qualifications are met.[5]  The other minor change was to add a line to the Idaho Code section about the retention of jurisdiction in Child Protective Act cases.  This change allows courts to retain jurisdiction over the child beyond his 18^th birthday if jurisdiction is extended by the court pursuant to I.C. § 16-1622(5).[6]

Who qualifies for EFC?

The qualifications for EFC are few but rather broad.  Of course, a person must be 18 years or older to qualify for EFC, and he will only qualify up until his 21^st birthday.[7]  As previously noted, the youth must voluntarily agree to EFC as well since he is technically an adult capable of living on his own and making most adult decisions by law.  Those are the more obvious and general conditions.  However, there are more specific conditions which must be met.

First, the youth must have previously been in the custody of the State of Idaho up until his 18^th birthday.[8]  This provision is included as the program was meant to be a transitional program for youth to be able to successfully exit foster care and enter into the adult world.  If this was not a qualification, any person ages 18 to 21 could request to be a dependent of the State of Idaho, which is not the intent of either the foster care program, or the EFC program. There are other social programs available for those not within the foster care system.

Once those qualifications are met, the Idaho Code requires that we look to the United States Code for the additional qualifications, specifically those under 42 U.S.C. § 675(8)(B)(iv).[9]  Under that section, the youth must meet one of five criteria.  He must either be: 1) completing high school or a high school equivalent program, such as a GED program; 2) enrolled in college or vocational education; 3) participating in “a program or activity designed to promote, or remove barriers to, employment;” 4) employed at least 80 hours per month; or 5) have a medical condition which renders him incapable of doing activities 1-4 and such incapability is regularly documented and updated in the case plan for the youth.[10]  It would be rather difficult not to meet one of those five qualifications, so the vast majority of youth who would previously have “aged out” of foster care at 18 will now qualify for EFC.

What are the benefits of EFC?

Now, some of you die hard child protection practitioners may be saying, “But what about the Independent Living Program?  Didn’t that already cover helping youth transition into adulthood?”  The short answer to that is yes and no.  There are several differences in the Independent Living Program and EFC.  While Idaho’s Independent Living Program is meant to help youth ages 14-21 develop skills necessary to transition from foster care to being able to live on their own, EFC has many additional benefits and services available on top of the Independent Living Program.[11] 

The eligibility criteria for the Independent Living Program is vastly different than the EFC qualifications, and there are some disqualification factors to consider with the Independent Living Program as well.  To be eligible for the Independent Living Program, the youth must have been in care for 90 cumulative days at some point after his 14^th birthday, but there are only certain types of placements which would qualify, and even if adopted or having achieved permanency under a legal guardianship, youth can still qualify for the Independent Living Program.[12]

The nice thing is that the two programs are not mutually exclusive, so you can still receive services under the Independent Living Program while also being in EFC program.  For the youth, the only real drawback to the EFC program is the youth must give up some autonomy for the continued oversight of IDHW and the courts.  EFC allows the courts to continue having jurisdiction over the youth and the case for as long as the youth remains in care or until EFC eligibility ends at age 21.[13] 

In many cases, it may be of extra benefit to the youth to still continue to have relationships with the judges, social workers, attorneys, and guardians ad litem who have been a part of the youth’s life for quite some time and may even be the only family-like support people that the youth has.  Most often, the attorney for the youth is a court-appointed attorney from a public defender’s office like mine, and once a child protection case closes, our contact with the youth usually ends unless the contact continues on the attorney’s personal time.

What is the process for EFC?

As EFC is a new program in Idaho, the process for EFC is evolving and subject to change.  Timmy was the first case of EFC in Idaho that I am aware of, so of course none of the professionals involved in Timmy’s case had any idea what we were doing.  Many thanks and kudos go out to the people at IDHW, on the Child Protection Committee, and working for the Administrative Office of the Courts for answering my frantic calls and emails as we tried to figure out what needed to happen by when and which forms to use.  After consultation with those wonderful individuals, the process we used for Timmy’s case was actually fairly painless, but I do suggest starting the process early by doing everything you can to prepare the youth and to make sure the court has all of the necessary information and documents to order the continued jurisdiction.

First and foremost, you need to make sure that the youth actually wants to participate in EFC and will sign on to the program voluntarily.  EFC is entirely based on the cooperation of the youth, so that is a piece you will want to get established earlier than when the youth turns 18.  For Timmy, we had several conversations about EFC starting about four or five months before his 18^th birthday.  If the youth is already engaged in the Independent Living Program, they will have an Independent Living Transition Planning meeting to create a transition plan for the youth, which will also be of great benefit. 

I strongly recommend that that transition meeting or another similar meeting occur at least two months before the youth’s 18^th birthday.  The transition plan is different than the case plan.  In EFC cases, the social worker will need to develop a new case plan for EFC.  These EFC case plans look similar to a regular case plan in a Child Protective Act case, but there is a different focus, as the case plan for EFC will focus more on service needs of the youth and how those needs will be fulfilled rather than what the parents or various parties need to do to address areas of concern and reunify with their child.

Prior to the youth’s 18^th birthday, the social worker will need to submit the new case plan to the court along with an Affidavit for Review of Transition Plan and Notice of Extended Foster Care.  That affidavit is created by the social worker and should include all of the information necessary for the judge to determine that the youth meets eligibility requirements for EFC and to authorize continued jurisdiction.  The affidavit submitted in Timmy’s case was a stock form where the social worker was able to check the necessary boxes, such as what grounds for EFC the youth met under 42 U.S.C. § 675(8)(B)(iv).  In that affidavit, it will also include what the transition plan will be and goes through each individual health and education passport document, which are documents like birth certificates, driver’s license, social security card, medical insurance card, and others that a youth will need going forward into adulthood.

Once the necessary documentation has been submitted, there should be a hearing in the Child Protective Act case just prior to the youth’s 18^th birthday.  At that time, the court can hear from the youth himself about whether he is voluntarily entering into EFC, and the parties can go over any unresolved issues or questions that the court may have.  The court will then have to specifically authorize EFC and specify the grounds in 42 U.S.C. § 675(8)(B)(iv) under which the youth qualifies.  The court should specify a set period of time for which EFC is authorized, as required under I.C. § 16-1622(5).  The court should also set another regular review hearing within six months.  On the youth’s 18^th birthday, once he has reached the age of majority and has the ability to legally sign onto an agreement, the youth will need to sign on to the case plan and any other documentation required by IDHW to continue to provide services.

Conclusion

Thus, while EFC may have just been achieved by two minor adjustments to the Idaho Code, as demonstrated through this article, it changed at least one life immensely.  For many of us, turning 18 is a cause for celebration, but for others, it is a cause for uncertainty.  With EFC, that uncertainty can be turned into celebration, transition, and opportunity.  I encourage practitioners to consider whether EFC could help in any of your cases.

BIO:

            Catherine is a Deputy Public Defender with the Bonner County Public Defender’s Office.  She has worked in child protection law in various capacities since 2010 and is recognized as a Child Welfare Law Specialist by the National Association of Counsel for Children.  She lives in Sandpoint with her husband, dog, and two rambunctious guinea pigs.

Catherine E. Enright is a Deputy Public Defender with the Bonner County Public Defender’s Office.  She has worked in child protection law in various capacities since 2010 and is recognized as a Child Welfare Law Specialist by the National Association of Counsel for Children.  She lives in Sandpoint with her husband, dog, and two rambunctious guinea pigs.

Endnotes

[1] I.C. § 16-1622(5)

[2] https://legislature.idaho.gov/sessioninfo/2021/legislation/H0336/

[3] https://www.childwelfare.gov/topics/systemwide/laws-policies/federal/family-first/

[4] https://www.childwelfare.gov/pubpdfs/extensionfc.pdf

[5] I.C. § 16-1622(5)

[6] I.C. § 16-1604(1)

[7] I.C. § 16-1622(5)

[8] Id.

[9] Id.

[10] 42 U.S.C. § 675(8)(B)(iv)

[11] https://healthandwelfare.idaho.gov/services-programs/children-families/child-and-family-services-and-foster-care/about-independent

[12] https://healthandwelfare.idaho.gov/services-programs/children-families/child-and-family-services-and-foster-care/eligibility

[13] I.C. § 16-1604(1).