Identity Theft & Kids Aging Out of Foster Care

I recently attended the National Association of Counsel for Children (NACC) Conference.  At the conference, I heard in a couple of different breakout sessions about one particular problem that is facing foster kids who have aged out of the system or are about to do so.  That is the problem of identity theft.  Studies show that 1/2 of the kids in foster care in California are victims of identity theft.  Estimates are that fewer South Dakota foster care kids are victims, but any number other than zero is too many.  Making the problem even worse is that most of these kids don't discover the identity theft until they have already aged out of the system and are without support and assistance with cleaning up the problem.

While in foster care, kids' personal information, including date of birth and social security number, passes through an untold number of hands.  HHS/DSS caseworkers and supervisors, attorneys, court personnel, counselors and therapists, medical professionals, and others all come into contact with the children's files.  In addition, kinship placements, foster families, group home staff, and immediate family all get copies of the children's files.  When children's identifying information passes through so many people's hands, as well as is retained by the child's biological family, it's really not surprising that when these kids age out, they often find out that they are victims of identity theft.

So what can we do about it?  Well for one thing, we can use something other than the children's social security number as an identifier.  This would make it slightly more difficult for the identities of children to be compromised.

In addition, we can do credit checks of foster care kids when they are 16 years old, so that identity theft & credit problems can be cleaned up before they age out of the system.  Many states have already enacted legislation mandating that their states' HHS/DSS do this as part of the process of educating and preparing those kids who are about to age out of the system.  South Dakota could certainly use those states' laws as a model for legislation here.  HHS could begin doing these credit checks as part of the process of preparing foster care kids to age out, even without legislation in place.  Guardians ad litem can and should assist in this process.

Moreover, kids who are about to age out of the system need to be educated so that they can protect themselves against others taking advantage of them once they do age out.  This education needs to be very practical and pragmatic.  Topics such as how you check your credit reports, what are the implications of cosigning or taking out a loan for someone else, etc. need to be covered.  Guardians ad litem need to ensure that these kids are getting the information that they need on this front.

This is something that cannot wait.  We need to begin taking these steps immediately to protect these children from further identity theft, and to help them clean up the cases of identity theft that have already occurred.

Rural Practice and South Dakota

I'm from South Dakota originally, but recently relocated to Nebraska.  When I lived in South Dakota, I practiced law from Rapid City, and ventured to other, smaller towns for the occasional case.  In Nebraska, I live and practice in a much more rural setting.  Holdrege, Nebraska is a town of about 5,000 people, set in a county of about 10,000 people.  However, many of my cases come out of the surrounding counties, the county seats of which are much smaller.

When I was a law student, I distinctly remember the Chief Justice of the South Dakota Supreme Court, David Gilbertson speaking to law students about the absence of attorneys in many rural communities and the problems this was creating in the administration of justice.  I remember thinking that rural practice could be an excellent opportunity, but not having a clue as to how one would find out about rural communities in need of attorneys.

Well, the South Dakota State Bar Association has taken up the challenge of studying the decline of rural law practice through its recent announcement of the creation of the Rural Practice Task Force (see page 2 of the State Bar Newsletter).  This development has been widely reported on, both within South Dakota (see the Argus Leader's coverage), as well as more widespread national coverage (see the Wall Street Journal Law Blog's coverage, see this post from the Rural Lawyer blog, and see this post from My Shingle).

In my short time thus far practicing law in rural Nebraska, I have already heard from one judge and multiple attorneys about the need for attorneys in certain rural communities, as well as the gratitude and relief that some new attorneys are moving to more rural communities to begin their careers.  It is clear to me that this problem is certainly not limited to South Dakota.

What should be done to address the problem of 'justice denied' in rural communities?  I'm not exactly sure, but I think that the task force created by the South Dakota State Bar is an excellent first step.  I, for one, will be following the task force's activity to see what they discover.

South Dakota Rural Areas Need Lawyers

When I was in law school, the need for attorneys to practice in rural areas was a topic much discussed among the students and the faculty.  Chief Justice Gilbertson, of the South Dakota Supreme Court, even came to the law school to discuss the issue on more than one occasion.  It looks like the Wall Street Journal has picked up the topic now.  You can access the story here, if you are interested in reading more.

Non-Probate Assets

I have previously posted explaining (see this post) why it is necessary for everyone to have a will, and explained some of the topics that are frequently covered in in a will.  I also explained that it's important to have an attorney draft that will for you because the attorney should be familiar with state law & can customize your estate planning documents to your needs.

In that post, I didn't cover the topic of non-probate assets.  Non-probate assets are things like 401Ks, IRAs, annuities, and insurance policies.  These are called non-probate assets because they pass outside of probate court.  These assets pass directly to the person listed as beneficiary, or directly to a spouse without a beneficiary designation.

Because of non-probate assets, it is important to review beneficiary designations to determine whether those designations are still appropriate.  In addition, it is important to let your estate planning attorney know about these kinds of assets so that the attorney can make recommendations to you, in order to ensure that your estate passes as you would like it to.  This post explains in more detail why it is so important.

Juvenile Law: Nebraska v. South Dakota

As an attorney who was first licensed in South Dakota, and who practiced there before moving to Nebraska, I grew accustomed to South Dakota procedures in different types of cases.  As a result, becoming acquainted with how things are done in Nebraska has been an adjustment and a definite learning experience.  Juvenile law is one area where there are definite differences between Nebraska and South Dakota.  Here are just a few of the differences between the two states, and my opinion on which is superior.

SD: Different types of cases involving juveniles (abuse & neglect, juvenile delinquency, child in need of supervision, etc.) each have their own chapter of the Code, and as a result, have slightly different procedures.

NE:  Different types of cases involving juveniles are all handled under one section of the Code, and therefore have uniform procedures.

Winner: NE.  It's really nice that the cases all have identical procedures, so that the attorneys and participants in the case cannot get tripped up by some minor difference in the procedures for different types of cases.  

SD: Child's attorney appointed to represent the interests of the child in an abuse & neglect case.  Child's attorney is an attorney for the child who also advocates the best interests of the child (as they quite often are the same thing), although a Guardian ad Litem (GAL) may be appointed if the child's stated interests appear to differ from the best interests of the child.  

NE: GAL appointed to represent the interests of the child in an abuse & neglect case.  GAL represents the best interests of the child, and an additional attorney may be appointed if the child's stated interests appear to differ from the best interests of the child.  

Winner: These are essentially equivalent, although just the reverse of one another.  

SD: Department of Social Services (DSS) prepares a Report to the Court before every hearing.  The Child's Attorney does not prepare a Report to the Court.  

NE: GAL prepares a Report to the Court before every hearing.  The Department of Health and Human Services (HHS) does not prepare a Report to the Court.  

Winner: Neither state wins.  There are benefits to both systems, and therefore I would recommend that both states adopt a requirement that DSS/HHS & the GAL/Child's Attorney prepare Reports to the Court.  HHS has information such as completion of parenting classes, treatment information from parents, as well as information about contacts with the parents, that is valuable for the parties, attorneys, and the judge to consider.  However, the GAL is more of an impartial outsider to the case than is DSS/HHS, and therefore is in a better position to make recommendations to the judge as to what should happen in the case going forward.  In addition, because the GAL is an attorney, and the social worker is not an attorney, the GAL is in a better position to review the law applicable to the case & ensure that it is complied with.  

SD: The State's Attorney represents DSS's interests and may require DSS to take action.

NE: The County Attorney does not represent HHS's interests, and HHS may bring in its own attorney if HHS's recommendations are in conflict with those of the County Attorney.  

Winner: South Dakota.  SD's procedure here is much cleaner and smoother.  It makes much more sense to have the County Attorney, who represents the interests of the State on a daily basis, advocate the position of a state agency.  Likewise, it makes sense for the County Attorney to have some control over the actions of the state agency prior to the case being heard before the judge.  

So as you can see, there are differences between how juvenile cases are handled in Nebraska and South Dakota.  There are benefits to the systems of each state, as well as reasons for the different approaches.  It also makes clear how important it is to be represented by an attorney familiar with these procedures.  

From the Mountains to the Prairies

I recently relocated from my hometown in the Black Hills of South Dakota to Holdrege, Nebraska.  It has definitely been a change for a girl used to seeing mountains every day to go to the prairies.  However, the landscape is not the only thing that is different about living in Nebraska.

Over on my new blog, From the Mountains to the Prairies, I'll be discussing legal issues relating to Nebraska, just as I've done here on topics relating to South Dakota.  From time to time, I may post a topic on both blogs and talk about the differences between the law in Nebraska and South Dakota, as those may be of interest to readers interested in both states' law.

If you're interested in Nebraska law, I hope that you'll check out the new blog as well.  Happy reading!

Exceptional Pardon Hearing Change

I recently found out about a change from the South Dakota Board of Pardons and Paroles with how they handle exceptional pardon and other clemency hearings, and as I know these are popular topics on this blog, I thought I would pass along this information to my readers.  

It used to be that the Board of Pardons and Paroles would handle all of the applications received in a given month at the next Board meeting.  This meant that the Board's meetings were not equal in length/time, and could vary greatly depending on the volume of clemency applications received.  The Board has recently made a change in that they only handle a certain number of applications in a given month (I believe they handle 5 per meeting, but don't know this for certain).  This means that there is a backlog of applications waiting for hearings.  

As a result, the process of attempting to obtain an exceptional pardon or other forms of clemency is a lengthier process  than it used to be.  Getting an application in to the Board for consideration as quickly as possible is important, as the applications are heard by the Board in the order they are received.