FIJ Quarterly - Summer 2022 Edition

to do so, subject to criminal sanctions. In addition, Congress should eliminate the requirement in the federal Child Abuse Prevention and Treatment Act (CAPTA) that requires mandatory reporting of neglect. 43 The requirements place a duty on the community that is oftentimes confusing and results in an investigative approach when one is not always needed. Instead, communities should be educated and encouraged to contact local helplines or service referral agencies when appropriate. 44 In Nebraska, the community collaboratives and central navigators serve a similar role and can match In 2021, Nebraska established a pilot program, through a public-private partnership with Legal Aid of Nebraska, to assist families at risk of system-involvement who have not yet had a juvenile court case filed, with legal representation to address ancillary issues and to protect their rights during their involvement with CPS. This program should be expanded to all eligible families. However, federal guidance has been unclear about the ability of states to draw down Title IV-E funds to reimburse state agencies for pre-petition legal representation. 45 A proposed federal rule would clarify that Title IV-E funds can, in fact, be used for this purpose, and we urge its final promulgation. 46 Several jurisdictions across the country have implemented similar programs and research supports that attorneys with a community-lawyering and multi-disciplinary approach can reduce the need for more formal system involvement. 47 This legal representation and other due process protections 48 are critical to ensure that so-called “voluntary” cases do not constitute “hidden foster care.” 49 Implement a Robust Public Health Response to Substance Use Disorder and Require Consent for Prenatal Drug Testing assistance needs with services and support. Provide Pre-Petition Legal Representation As a society, we need to rethink our approach to substance use disorders. Instead of criminalizing and punishing addiction with foster care and criminal justice system involvement, we need to increase investments in community-based treatment, particularly approaches that keep families together. Moreover, hospitals should obtain written consent before drug testing pregnant and postpartum individuals in the absence of an emergency, preventing non-consensually obtained tests from being used to justify family separation. Related to this, CAPTA requires states to develop policies to address the needs of infants exposed to substance use during pregnancy. This provides an opportunity for states to clarify requirements around reporting by health care providers and to develop Plans of Safe Care focused on community-based services. 50 ______________ 43 42 U.S.C. § 5106a. 44 Nebraska’s Family Helpline: About the Helpline . Nebraska Department of Health and Human Services, 2020. http://dhhs. Accessed 1 May 2022. 45 Child Welfare Policy Manual 8.1B, Title IV-E, Administrative Functions/Costs, Allowable Costs - Foster Care Maintenance Payments Program . Children’s Bureau: An Office of the Administration for Children & Families. Questions 30-32. https://www. Accessed 1 May 2022. 46 Proposed 45 C.F.R. § 1356.60(c). AC89. Accessed 1 May 2022. 47 U.S. Department of Health and Human Services, Administration on Children, Youth, and Families. Utilizing Title IV-E Funding to Support High Quality Legal Representation for Children and Youth who are in Foster Care, Candidates for Foster Care and their Parents and to Promote Child and Family Well-being , ACYF-CB-IM-21-06. 14 Jan. 2021, p. 11. https:// Accessed 5 May, 2022. 48 In 2020, the Nebraska Legislature passed L.B. 1061 (codified, in part, at Neb. Rev. Stat. § 28-713.02(4)), which, among other things, requires DHHS to provide a written notice to the parent and caregiver in non-court-involved cases, including notice of the factual basis for DHHS involvement, the possibility that a petition could be filed in court in the future if it is determined that the safety of the child cannot be assured, and that the participation of the parent and caregiver in prevention services could be relevant evidence in any future proceedings. 49 Gupta-Kagan, Josh. “America’s Hidden Foster Care System.” Stanford Law Review , Vol. 72, 841-913 April 2020. 50 The federal Child Abuse Prevention and Treatment Act (CAPTA) as amended by the Comprehensive Addiction and Recovery Act (CARA); see 42 U.S.C. § 5106a(b)(2)(B)(ii) (2016); see also Protecting Our Infants Act, Pub. L. No. 114-91 (2015) (mandating that the U.S. Department of Health and Human Services make recommendations on preventing, identifying, and treating the effects of prenatal opioid use on infants); Infants Born Affected by Substance Abuse and an Update on Nebraska’s Response to the Comprehensive Addiction and Recovery Act (CARA), Letter from Danette Smith to Nebraska Birthing Hospitals . 23 Dec. 2019.

FIJ Quarterly | Summer 2022 | 115

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