LGBTQ+ Children/Nonminor Dependents
1200-500.01| Date: 02/28/2020
Overview
This policy provides guidance and resources for providing services to lesbian, gay, bisexual, transgender, queer, questioning (LGBTQ+) children/nonminor dependents (NMDs) and information on placement requirements for Transgender and gender non-conforming (TGNC) children/NMDs in out-of-home care based on current legislation and best practice.
TABLE OF CONTENTS
Sexual Orientation, Gender Identity, and Expression (SOGIE)
Disclosures to Family/Resource parents
Case Planning and the Child and Family Team (CFT)
Sexual Orientation, Gender Identity, and Expression (SOGIE)-
Disclosures to Family/Resource parents
Case Planning and the Child and Family Team (CFT)
Transgender and Gender Non-Conforming (TGNC) Children/NMDs
Version Summary
This is a new policy that addresses providing services to LGBTQ+ and gender non-conforming (GNC) children/ nonminor dependents (NMDs) and provides guidance and resources to ensure that LGBTQ+/ GNC children/NMDs receive specific services to ensure their well-being. This policy includes information from Senate Bills 731 and 89, Assembly Bill 2119, and the Los Angeles County Placement Coordinating Memorandum agreement between The Department of Mental Health, the Probation Department, and the Department of Children and Family Services.
In a 2014 study conducted by the RISE Program of the Los Angeles LGBT Center, the Williams Institute at UCLA, and Holarchy Consulting, findings showed that:
Not only are LGBTQ+ youth overrepresented in the foster care population, there are also significant disparities in experience between LGBTQ+ youth and their non-LGBTQ+ counterparts. According to the Williams-Holarchy study LGBTQ+ children/NMD:
Sexual Orientation, Gender Identity, and Expression (SOGIE)
LGBTQ+ and GNC children/NMDs have the right to be free of harassment and discrimination based on their actual or perceived SOGIE (sexual orientation, gender identity, or gender expression), or association.
LGBTQ+ and GNC children/NMDs shall not be exposed to attempts to change their SOGIE and cannot be forced to hide their SOGIE in order to get support, receive services, be placed, etc.
Any information about a child/NMD’s identification as LGBTQ+ or GNC - however, the information is obtained – is to be treated as private and confidential. Unwarranted disclosure of SOGIE information may subject a child/NMD to rejection, ridicule, harassment, or abuse. Caution should be taken when recording or sharing this information and should only be done when necessary to advance the child/NMD's well-being and after consulting with the child/NMD and securing the child/NMD's consent. The child/NMD may withdraw their consent or limit it at any time.
Information about a child/NMD's identification as LGBTQ+ should not be disclosed to other children/NMDs, outside parties, individuals, or agencies, including health care or social service providers, without the child/NMD's permission/consent, unless such disclosure is necessary to comply with state or federal law or relevant to an emergency mental health or medical incident.
The extent and limits of keeping confidential information about a child/NMD's SOGIE is to be explained to the child/NMD. If for any reason disclosure of the information is required to be shared with another individual, the child/NMD is to be informed to whom the information will be disclosed and the reason for the disclosure. In such a case, the individual receiving the information is to be informed about the parameters of said disclosure and the party disclosing the information needs to plan to mitigate any risks pertaining to the disclosure.
The disclosure of medical and mental health information, including Protected Health Information (PHI) is regulated by federal and state laws. Under federal law, the Health Insurance Portability and Accountability Act (HIPAA) of 1996, protects the privacy of patient health information. HIPPA limits disclosure of what it calls "protected health information" (PHI). Under state law, California Code 56, et seq, protects medical and mental health information. Pursuant to federal and state laws, DCFS staff may not disclose medical or mental health information unless a specific legal exception applies. Unauthorized disclosure of confidential medical or mental health information carries both civil and criminal penalties.
A child/NMD’s sexual orientation is confidential and is not to be disclosed in any court reports unless the child/NMD has given permission to share the information.
Disclosures to Family/Resource parents
Personnel shall not disclose information about a child/NMD's status as TGNC to a child/NMD's parent, legal guardians, resource parents, or other family members without the expressed consent of the child/NMD including in CFTMs.
Regardless of a parent/s wishes for disclosure it is the child/NMD’s right to choose whether or not to disclose their sexual orientation.
Case Planning and the Child and Family Team (CFT)
Affirming behaviors from parents/resource parents of the child/NMD's SOGIE may vary and can be a fluid process. The Child and Family Team (CFT) will work to protect the child/NMD from potential rejecting experiences in their living situation, and in service provision including but not limited to: educational, medical, mental health environments; and extracurricular activities. A goal of the case planning process is to be affirming of the child/NMD, as well as their peers, and parents/resource parents wherever they may be in their own process. Therefore, the child/NMD’s SOGIE shall be a consideration in all case planning processes. A subject-matter expert, with demonstrated competency, may be retained to support this process, if necessary. In addition, the expert may be involved in CFTMs with the child/NMD’s permission. This includes but is not limited to office-designated LGBTQ+ champions and external stakeholders/providers.
The CFT will drive the case planning process and ensure that significant connections are included in the plan for the child/NMD. The CFT will ensure that parents/resource parents have sufficient services, support, and resources to meet the needs of the child/NMD in their care. The CFT will assist with accessing these supportive services and resources. In addition, it will provide and facilitate whatever additional expertise is necessary to form and/or maintain healthy relationships between parents/resource parents and children/NMDs, including advocacy and education of outside parties (e.g. educational, legal, medical).
Anytime there is a change in placement based on the child/NMD's housing needs, the CFT will work closely in the replacement of the child/NMD. Staff from both the current placement and the potential new placement shall closely collaborate prior to and during the replacement to ensure continuity of care.
Children/NMDs have the right to be placed in homes and facilities according to their gender identity, regardless of their sex assigned at birth or sex/gender marker listed in their court, child welfare, medical, or vital records.
Self-identification is a fluid process, which may occur before, during, or after being placed. While children/NMDs have the right to be placed according to their gender identity, not all LGBTQ+, transgender and/or gender non-conforming (TGNC) children/NMDs will want to be placed based on their gender identity; however, some children/NMDs will be clear in their desire and must be placed accordingly. As per legislation, the intake process must include assessment of all the child/NMD’s placement needs, including but not limited to the child/NMD's gender identity.
A child/NMD’s SOGIE identity is confidential information. Staff may not divulge this information to anyone, including a child/NMD's roommate, without the child/NMD's expressed consent to document and/or disclose.
With regards to room assignments, a child/NMD's gender identity should not be the only deciding factor. Roommate compatibility assessments should be completed routinely. Staff placing a child/NMD can advocate for rooming assignments based on the needs of the child/NMD.
Placement decisions are to be made with regards to the best interest of the child/NMD based on recommendations from the CFT, Transitional Shelter Care (TSC) Program, Resource Family Approval (RFA) CSW, MDT, and the child/NMD.
Per AB 2119 children/NMDs in foster care have the right to receive physical health and mental health care that includes gender affirming medical and mental health care services and are to be involved in the development of case plan elements related to placement and gender affirming health care, consistent with their gender identity.
Per state law, children/NMDs in foster care are entitled to certain reproductive and sexual health care rights. Including being informed about their reproductive and sexual health care rights, upon entry into foster care and at least once every six months at the time of a regularly scheduled contact. Refer to Youth Reproductive Health and Pregnancy 0600-507.10 policy.
All DCFS staff shall establish and maintain a culture of safety, inclusivity, and dignity where every child/NMD’s identity is affirmed and their well-being is ensured.
Sexual Orientation, Gender Identity, and Expression (SOGIE)
SOGIE is to be documented, if consent is given, in the CWS/CMS Client Notebook ID page in the Sexual Orientation, Gender Identity, and Gender Expression fields. CSWs must follow the outlined Instructions for Entering SOGIE Data into CWS/CMS and be aware of the following:
CSW Responsibilities
All information regarding a child/NMD’s SOGIE is confidential and not to be disclosed to anyone or documented without the child/NMD’s expressed consent. Each category of SOGIE data shall only be documented if a child/NMD expresses consent to document and disclose. For any field(s) a child/NMD does not express consent, CSW shall only select “Declines to state” in CWS/CMS and should not otherwise document and/or disclose.
If a child/NMD expresses consent for SOGIE to be documented and/or disclosed, the CSW is to document in the CWS/CMS Client Notebook ID page, in the respective sexual orientation or gender identity description field the following:
“**CONFIDENTIAL** On DATE child/NMD expressed consent for ____ [sexual orientation or gender identity] data to be documented and/or disclosed. **CONFIDENTIAL**
In the absence of a description field for gender expression, CSWs shall follow the same documentation procedure utilizing the gender identity description field.
For example, a child/NMD may disclose that they are heterosexual (sexual orientation), gender queer (gender identity), and feminine (gender expression); however, they may express that they do not give consent for their gender identity or expression to be documented or disclosed. In such a case, the CSW shall only document the sexual orientation as disclosed, and include the following note in the description field:
** CONFIDENTIAL ** On DATE child/NMD expressed consent for sexual orientation to be documented ** CONFIDENTIAL **.
In the gender identity and gender expression fields, the CSW shall select “declines to state.”
If a child/NMD provides specific information regarding to whom or what can be shared/documented, CSWs are to include the specifics in the Description Fields.
CSWs may not document or disclose SOGIE information to anyone, including a child/NMD's roommate(s), parents/guardians, or resource parents without the child/NMD's expressed consent to do so. Staff can advocate for rooming assignments based on the needs of the child/NMD.
All placements shall be safe and affirming of children/NMD’s SOGIE and placement decisions are to be made with regards to the best interest of the child/NMD based on recommendations from the CFT, Transitional Shelter Care (TSC) Program, Resource Family Approval (RFA) CSW, MDT, and the child/NMD.
To help ensure that all placements are safe and affirming of a child/NMD’s SOGIE, the following should be discussed with a transgender youth/NMD before placement is sought:
At no time should a child/NMD’s identification as transgender be disclosed without their explicit consent; while, as default, a child/NMD’s gender assigned at birth will be disclosed unless the child/NMD gives explicit consent to disclose their gender identity
For additional assistance with finding placements, CSWS may refer to the Transitional Shelter Care (TSC) Program to access help from the Accelerated Placement Team (APT). CSWs may refer to 0100-510.37 Transitional Shelter Care (TSC) Program for guidance on requesting placement assistance.
The disclosure of medical and mental health information, including Protected Health Information (PHI), is regulated by federal and state laws. Under federal law, the Health Insurance Portability and Accountability Act (HIPAA) of 1996, protects the privacy of patient health information. This includes but is not limited to gender affirming care. CSWs may refer to policy 0600-500.20 Health and Medical Information for guidance on confidentiality of Medical Records.
SOGIE information is not to be documented in Court Reports or otherwise disclosed in court proceedings unless a child/NMD has expressed consent for said information to be documented and/or disclosed. In such a case, the CSW shall follow the documenting consent protocol.
Disclosures to Parents/Guardians and Resource Parents:
Per WIC 827, a child/NMD’s SOGIE is not to be disclosed to other individuals or agencies, without the child/NMD’s permission. Staff is not to disclose or document a child/NMD’s SOGIE to a child/NMD’s parents/guardians and resource parents without the child/NMD’s expressed consent to do so. In such a case, the CSW shall follow the documenting consent protocol.
Regardless of a parent/s wishes for disclosure it is the child/NMD’s right to choose whether or not to disclose their sexual orientation
Case Planning and the Child and Family Team (CFT)
A child/NMD’s CFT shall establish and maintain a safe and inclusive culture where the child/NMD’s SOGIE is affirmed and their well-being is ensured.
CSWs are to ensure that a child/NMD’s SOGIE consent is confirmed with them prior to any CFTMs as it pertains to any parties who may be present. Documenting consent protocol shall be followed to reflect any updates and CSWs shall follow all procedures for Child and Family Team meetings.
Transgender and Gender Non-Conforming (TGNC) Children/NMDs
TGNC children/NMDs have the right to be placed according to their gender identity, irrespective of the sex/gender marker listed on any legal/medical documents. SB 731 (2015) policy shall be provided to all children/NMDs prior to out of home placement, parents/guardians at time of removal, and resource parents at orientation and redetermination.
TGNC children/NMDs have the right to access bathrooms and showers that align with their gender identity, regardless of sex assigned at birth and/or legal documentation. Safety planning and prudent parenting standards shall be utilized for TGNC children/NMDs regarding the use of bathrooms and showers. Alternative arrangements should only be made at the request of the TGNC child/NMD; TGNC children/NMDs shall not be compelled to use alternative bathrooms/showers. Prudent Parenting standards should apply when the child's/NMD's needs may put them in danger. Alternative arrangements may include, but are not limited to:
TGNC children/NMDs have the right to participate in and have access to all available services/programs. Resource parents and service providers are to provide care and support inclusive of their identity. The CFT can be utilized to access additional resources (e.g. gender affirming care, programs, etc.) with expressed consent from and at the request of the child/NMD.
TGNC children/NMDs may designate a name and pronouns to be used that reflects their identity, even if their name has not been legally changed and/or legal documentation has not been updated. Placements shall address TGNC children/NMDs using their asserted name and pronouns. DCFS shall ensure that all placements are in compliance with legal requirements, are affirming, and utilize best practices. A TGNC child/NMD's personal rights must be respected; misgendering and use of derogatory terms by any party shall be addressed and may be considered maltreatment.
A TGNC child's/NMD's asserted name and pronouns shall be included on all documents in conformity with confidentiality practices. Using the child/NMD’s asserted name and/or pronouns shall only be done with the expressed consent of the child/NMD and to the extent the child/NMD has given their consent. On all DCFS and court documents, the child/NMD will first be referred to by their legal name, along with the child's/NMD's asserted name as an AKA, with the asserted name and pronouns emphasized in order to minimize confusion as to which name/pronouns to use. Thereafter, the child/NMD shall be referred to by their asserted name and pronouns.
EXAMPLE:
Jane Doe, AKA John Doe (they/them/theirs), is currently placed with their paternal aunt. They are attending their school of origin where ........
In the event that the child/NMD expresses an interest in changing their legal name and/or gender marker, petitions to the court may be utilized. CSWs shall consult with minor’s counsel on this process if child consents and can refer children/NMD to the Los Angeles Superior Court self-help page at https://www.courts.ca.gov/41237.htm for further information. DCFS will not/cannot petition for any legal name change, but can make the juvenile court aware if this is something the child/NMD desires and the child/NMD has given consent to bring this to the court’s and/or minor’s counsel’s attention.
Per AB 2119 “Gender affirming health care” means medically necessary health care that respects the gender identity of the patient, as experienced and defined by the patient, and may include, but is not limited to the following:
Gender identity formation is a typical, healthy part of child development and generally begins around two (2) years old. However, healthy development may be impacted by negative bias and rejection. When a child/NMD expresses an incongruence with regards to their gender identity as it relates to their sex assigned at birth, qualified and affirming experts may be consulted, and age-appropriate resources shall be provided to the child/NMD.
When possible and appropriate, parents/guardians should be involved in the child's/NMD's health care. Children/NMDs can receive hormone therapy, including but not limited to: hormone blockers and hormone replacement therapy; however, parental or court consent is required, with limited exceptions (Family Code 6922). Should the child/NMD request any gender affirming care, the agency shall have the child/NMD assessed by a qualified, licensed, and affirming medical practitioner with competency in working with transgender children/NMDs as soon as possible.
If any child/NMD placed is already in the process of transitioning through the use of hormones, DCFS may need legal approval (parental or court) for continued treatment and must obtain medical advice, guidance, and clearance for formal prescriptions; which must be obtained promptly to ensure continuity of care. DCFS shall ensure that staff and resource parents are in compliance with medical protocols and the physician’s treatment plan. In cases where the child/NMD has an anticipated change of placement, a healthcare continuity plan shall be developed.
In the event that the child/NMD expresses the desire for gender-affirming care and/or the medical professional recommends gender-affirming care, but consent is not given by the medical rights holder, a court hearing date shall immediately be requested to approve said care.
Resource Families (i.e. care providers, such as foster parents and group home providers) in consultation with the CSW shall be responsible for ensuring that children/NMDs, who remain in long-term foster care, receive age-appropriate, medically accurate, culturally sensitive pregnancy prevention information that includes:
Refer to Youth Reproductive Health and Pregnancy 0600-507.10 policy and ACL 16-82 for further information.
Different scenarios may arise on a case-by-case basis regarding LGBTQ+ children/NMDs, CSWs and SCSWs are to conference and/or contact County Counsel for any questions.
FYI- 18-07-Transgender Children/Nonminor Dependents in Out-of-Home care
Los Angeles County Placement Coordinating Memorandum
Recognize Intervene Support Empower (RISE) Program Glossary
Instructions for Entering SOGIE Data into CWS/CMS
LA County Foster Youth Bill of Rights (FYBOR)
Williams-Holarchy study on LGBTQ+ youth in foster care
Mapping the Road to Equity, The Annual State of LGBTQ+ Communities 2018
California Sexual and Reproductive Health Care- California Healthy Youth Act
Respectfully asking Sexual Orientation/Gender Identity SOGI Questions
LA County LGBTQ+ Youth Resources
Managing Information SOGIE Maintaining the Health and Safety of Youth in Care
Sharing and Disclosure of Protected Health Information (PHI) for DCFS Involved Children
https://www.courts.ca.gov/41237.htm Los Angeles Superior Court self-help page-Info on name change
DCFS 6120 LGBTQ+ Tailored Services to Youth Program Referral Form
0100-510.61 Placement Responsibilities
0100-520.10 Evaluating a Prospective Caregiver
0100-510.37 Transitional Shelter Care (TSC) Program
0100-510.17 Placing a Child in Out-of-Home Care
0100-510.60, Placement Considerations for Children
0100-570.05, Qualify of Life in Out-of-Home Care
0600-500.20 Health and Medical Information
0600-501.10 Consent for Routine Medical Care
0600-507.10 Youth Reproductive Health and Pregnancy
0070-548.01 Child and Family Team (CFT)
All County Letter 17-64 – Outlines the placement changes for children and NMDs per Senate Bill 731 (2015). It requires that children and NMDs in out of home care shall be placed according to their gender identity if the child/NMD so desires per WIC 16006, WIC 16001.9(a)(24), H&S Code 1502.8.
All County Letter 16-82 – Outlines the reproductive and sexual health care and related rights of youth and Nonminor Dependents (NMDs) in foster care.
All County Letter 19-27 –Gender Affirming Care for Minor and Nonminor Dependents in Foster Care.
All County Letter 21-149- Provides county child welfare and probation departments with guidance and instructions regarding how to document required Sexual Orientation, Gender Identity, And Expression (SOGIE) information in the Child Welfare Services/Case Management System (CWS/CMS) for every child and nonminor dependent (NMD) served in California’s child welfare system.
AB 2119- Gender Affirming Care for Minor and Nonminor Dependents in Foster Care
Health and Safety Code section 1502.8 – Requires the Department of Social Services to adopt regulations consistent with the new personal right of minors and NMDs in foster care to be placed in out-of-home care according to their gender identity, regardless of the gender or sex listed in their court or child welfare records.
Title 22, Division 6, Chapter 9.5, Section 89377 – States that a caregiver is responsible for applying the Reasonable and Prudent Parent Standard and what factors to consider.
California Department of Social Services (CDSS), All County Information Notice (ACIN) I-20-08 - References and incorporates current and new legal requirements regarding health records for foster children, access to foster child’s PHI by CSWs, documentation of PHI in CWS/CMS, and restrictions on sharing PHI gathered by DCFS.
California Health and Safety Code § 1502.8
Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. V1232g; 34 CFS Part 99)
Welfare and Institutions Code (WIC) Section 16001.9 (a)(1-41) - States that all children placed in foster care, either voluntarily or after being adjudged a ward or dependent of the juvenile court pursuant to Section 300, 601, or 602, shall have the rights specified in this section. These rights also apply to nonminor dependents in foster care, except when they conflict with nonminor dependents’ retention of all their legal decision making authority as an adult.
Welfare and Institutions Code section 16001.9(a)(24) – Affords the right of all minors and nonminors in foster care to be placed in out-of-home care according to their gender identity, regardless of the gender or sex listed their court or child welfare records.
Welfare and Institutions Code section 16006 – Requires that all children and NMDs in out-of-home care be placed according to their gender identity, regardless of the gender or sex listed in their court or child welfare records.
Welfare and Institutions Code (WIC) Section 16013 (a)(b) - States that all persons engaged in providing care and services to foster children, including, but not limited to, foster parents, adoptive parents, relative caregivers, and other caregivers contracting with a county welfare department, shall have fair and equal access to all available programs, services, benefits, and licensing processes, and shall not be subjected to discrimination or harassment on the basis of their clients’ or their own actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status. (b) Nothing in this section shall be interpreted to create or modify existing preferences for foster placements or to limit the local placement agency’s ability to make placement decisions for a child based on the child’s best interests.
California Health and Safety Code § 1522
California Health and Safety Code § 15422.41(c)(1)(H)(I)(K)
California Health and Safety Code § 1522.41(c)(2)(G)(I)
California Health and Safety Code § 1522.41(d)(3)(5)
California Health and Safety Code § 1529.2(b)(5)-(6);(c)(2)
California Health and Safety Code §1563(c)(5);(d)(6)(13)