REASONABLE EFFORTS AND COURT IMPROVEMENT All-Sites Meeting - - PowerPoint PPT Presentation

REASONABLE EFFORTS AND COURT IMPROVEMENT All-Sites Meeting

National Quality Improvement Center- Collaborative Community Court Teams

Newport Beach

JULY 11, 2019

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REASONABLE EFFORTS

• Judge Leonard Edwards (ret.)
• Consultant, Mentor Judge
• Center for Families, Children & the Courts
• 455 Golden Gate Avenue, 6th floor
• San Francisco, CA 94102
• judgeleonardedwards@gmail.com
• Judgeleonardedwards.com

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USING THE REASONABLE EFFORTS TOOL TO ACHIEVE BETTER OUTCOMES

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Why do you work in the Child Welfare System?

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You want to improve outcomes for children and their families.

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REASONABLE EFFORTS

• Have you noticed that the federal Human

Services agency has started emphasizing reasonable efforts? That is about 40 years since the law was passed.

• They want more specificity in the court

records about the reasonable efforts findings.

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REASONABLE EFFORTS

• “For the child welfare system to become one

that respects the integrity of the parent-child relationship and seeks to minimize trauma, attorneys must use the tools the law provides and judges must make meaningful judicial determinations.”

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REASONABLE EFFORTS

• “Advocating vigorously for reasonable efforts

to be made to prevent removal when that is the situation.”

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REASONABLE EFFORTS

• “When removal is necessary, advocating that

reasonable efforts be made to finalize permanency plans and, when not made, advocating for a no reasonable efforts finding.”

• Jerry Milner, Associate Commissioner

Children’s Bureau and David Kelly Special Assistant to Court Improvement, U.S. HHS.

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REASONABLE EFFORTS

• “When we fail to take reasonable efforts

seriously, we do real harm to children and families.”

– Excerpted from “It’s Time to Follow the Law and Take Reasonable Efforts Seriously” by David Kelly, Special Assistant to the Associate Commissioner of the Children’s Bureau

BUILDING BETTER COURT SYSTEMS Are we removing too many children from their families? Is the work we do about rescuing children or supporting families?

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BUILDING BETTER COURT SYSTEMS The word now from the Children’s Bureau and Congress is preventing removal.

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REASONABLE EFFORTS

• What tools does the court system have to

encourage and facilitate change in the child welfare system?

• One of the most important is the Reasonable

Efforts finding.

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• II. REASONABLE EFFORTS: THE

LAW

The Adoption Assistance and Child Welfare Act

• f 1980 (AACWA)

The Adoption and Safe Families Act (ASFA) of 1997

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REASONABLE EFFORTS: THE LAW

The State Plan Federal Funding of Foster Care Monitoring the State and Local Welfare Agency

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REASONABLE EFFORTS: THE LAW

Judges must make and record certain findings: “Contrary to the Welfare of the Child” “Reasonable Efforts to Prevent Removal” “Reasonable Efforts to Facilitate Reunification” “Reasonable Efforts to Finalize Alternate Permanency Plans”

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REASONABLE EFFORTS: THE LAW

• What does reasonable efforts mean?

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REASONABLE EFFORTS

• Reasonable Efforts is a Term of Art.
• There is no fast and firm definition.
• It is the amount of services or social worker

effort that the law requires depending on the problem and the resources within the community.

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REASONABLE EFFORTS

• Essentially the court is telling the agency (and

the world) whether the agency has done its job and completed its responsibility towards the clients it serves and its promise to the federal government to use the federal money to serve children and families.

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REASONABLE EFFORTS

• What may be “reasonable” in one community

may not be in another. For example, compare the services available in Los Angeles County to those available in a rural county.

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REASONABLE EFFORTS

• The Juvenile Court must make reasonable

efforts findings at 3 critical points in every foster care case.

• 1. Within 60 days after removal
• 2. At the disposition if the child is removed

from the home.

• 3. After a permanent plan has been set.

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REASONABLE EFFORTS

• There is another finding the court can make.
• “NO REASONABLE EFFORTS”
• This means that the agency has not done its

job, and has not provided the services and supports that it should under the circumstances

• f the particular case.

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REASONABLE EFFORTS

• A Finding of “No Reasonable Efforts” has

substantial consequences for the agency and for the state.

• It means that the agency will not receive

federal money for its work on that case.

• That is one reason the “reasonable efforts”

finding is such a powerful tool.

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REASONABLE EFFORTS

• It does NOT mean that the child must be

returned to the parent.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• I. SITUATIONS
• A 3 year-old child was removed from her

mother’ care on an emergency basis because the mother was found passed out due to alcohol use and the child was wandering alone in the street.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• At the shelter care hearing the attorney for the

mother asks you to order a social worker to be

• n call for the child 12 hours a day. She says

that will permit the child safely to remain at home with the mother. The social worker will be able to ensure that the mother will not abuse alcohol.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• How Will You Rule?

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REASONABLE EFFORTS: EXAMPLES

• For Parents: these services are necessary to

prevent removal of the child.

• For Agency: these services cost too much. The

Agency has an obligation to the entire community and not just to a few families. The request, therefore, is unreasonable.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• Is it the job of the agency to provide services

to prevent removal of a child?

• Yes! This is the first mandate of the federal

law: Provide Reasonable Effort to Prevent Removal.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• Removing a child from parental care is more

traumatic than arresting a defendant. We must pay more attention to the initial hearings in juvenile dependency cases.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• But putting a social worker in the home is not

a viable solution. What can the legal system do with parents with substance use disorders who neglect their children?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

Courts are reactive. We don’t do prevention. Cases come to us after something has happened to a child.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

Perhaps we can prevent the next crisis. That is one of the strengths of Family Drug Treatment Courts.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

How about a pre-filing referral to a family drug treatment court? How about placing the mother with the child in treatment environment?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

The Family First legislation will support placement costs of a mother and child in an approved residential family-based substance- abuse treatment facility. The facility must be

• licensed. The placement could last for up to 12
• months. There is no income test for admission.

We need to take advantage of this opportunity.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

The Family First legislation also has identified three best practices for the treatment of parents with substance abuse issues/disorders: (1)Families Facing the Future (2)Methadone Maintenance Therapy (3)Motivational Interviewing

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REASONABLE EFFORTS AND COURT IMPROVEMENT

Whether these best practices will be approved as treatments the federal government will support economically depends on the decision of the Clearinghouse. They are now under review.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

HYPOTHETICAL SITUATION A 13 year-old child has threatened suicide several times. The parents do not know what to

• do. They called the social services agency for

help and the social worker removed the child on an emergency basis

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REASONABLE EFFORTS AND COURT IMPROVEMENT

At the shelter care hearing the social worker recommends placement in a psychiatric hospital. Do you have any other suggestions about the best plan for this child?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

The child could remain at home with wraparound services. What is wraparound?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

Katie A. v. Bonta, 2012 U.S. Dist. LEXIS 180499 .

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WRAPAROUND SERVICES

• Wraparound differs from many service delivery

strategies, in that it provides a comprehensive, holistic, youth and family-driven way of responding when children or youth experience serious mental health or behavioral challenges. Wraparound puts the child or youth and family at the center. With support from a team of professionals and natural supports, the family’s ideas and perspectives about what they need and what will be helpful drive all of the work in Wraparound.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• At a shelter care hearing the social worker

recommends that the court remove the children because the mother is homeless.

• Is this a reasonable efforts issue?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• The social worker must provide temporary

shelter.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

Same for Poverty – Poverty by itself is not a sufficient basis for removal.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• The states of Washington, Rhode Island,

Pennsylvania and New York have appellate cases affirming this statement.

• California has a statute.
• See Reasonable Efforts: A Judicial

Perspective, at pp 38-40.

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That’s this book.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• At a review hearing, the mother’s attorney asks

you to order the department to provide transportation so that the mother can visit her children.

• The agency replies that it does not have the

resources to do so.

• Is this a reasonable efforts issue?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• After a removal, how important is visitation?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• See Edwards, Reasonable Efforts: A Judicial

Perspective at pp, 41-47.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• What is the typical visitation order from a

court between children and their parents once the children have been removed by the court?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• If you want to see what a judge can do to

increase the amount of visitation and the quality of visitation, check out my article:

• Judicial Oversight of Family Visitation in

Child Reunification Cases.

• Download at Judgeleonardedwards.com (or

email me)

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• And if you want the most comprehensive

discussion regarding visitation (family time), read Family Time Practice Guide: A Guide to Providing Appropriate Family Time for Children in Foster Care, May 2017, A Project

• f the Georgia Supreme Court Committee for

Children and the J4C Court Improvement Initiative.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• Two recent appellate cases affirm the

importance of visitation:

• 1. In the Matter of R.J.F

.,

• 2019 WL 2098687 (Supreme Court of

Montana)

• 2. Donald W. v. Dep't of Child Safety, 2019
• Ariz. App. LEXIS 495, 2019 WL 2181154

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• At a permanency planning hearing the social

worker recommends that the youth remain in a group home where she has been for 2 years.

• Is that a Reasonable Efforts Issue?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• P.L 113-183 – This federal law states that the

court must determine what efforts have been made by the children’s services agency and/or probation to place a child in a home-like setting.

• This is the Preventing Sex Trafficking and

Strengthening Families Act of 2014

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• If the plan is APPLA, (Another Planned

Permanency Living Arrangement), the plan shall contain:

• (1) Documentation of intensive, ongoing,

unsuccessful efforts for family placement;

• (2) Redetermination of appropriateness of

placement at each permanency hearing.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• The court must make a determination

explaining why APPLA is the best permanency plan AND provide compelling reasons why it continues to not be in the best interests of the child to (1) return home, (2) be placed for adoption, (3) be placed with a legal guardian

• r (4) be placed with a fit and willing relative.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• BTW…How do you record whether

reasonable efforts have been provided? (1) check a box (2) write “reasonable efforts have been

• ffered”

(3) write out the facts that support a R/E finding.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• “I do not want courts and judges to get to the

point where they see their function in determining whether congregate care is appropriate for a child or not to be,

• ‘Where do I check the box?’”
• Jerry Milner, Children’s Bureau

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• The Family First Act (2018) continues the

efforts of the federal government to reduce the number of children placed in congregate care.

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REASONABLE EFFORTS: EXAMPLES

A child is removed from a mother’s custody after the social worker discovers that the mother has been the victim of repeated domestic violence and that the child has been exposed to that violence.

• Is there a reasonable efforts issue in this case?

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REASONABLE EFFORTS

• Check out
• Nicholson v Scoppetta, 344 F.3d 154 (2003)
• AND

Nicholson v Scoppetta, 820 N.E.2d 840 (2004) pp 51-56 Reasonable Efforts: A Judicial Perspective

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REASONABLE EFFORTS

Take-Aways:

• 1. This is an example of the first federal

mandate: Providing reasonable efforts to prevent removal.

• 2. It is important to appoint attorneys early

enough so they can prepare for the shelter care hearing.

• 3. The judge can issue a temporary restraining
• rder sua sponte.

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REASONABLE EFFORTS

Take-Aways:

• 4. Circumstances can change quickly after a
• removal. The court must be ready to respond

to changed circumstances.

• 5. If there are no attorneys or unprepared

attorneys, it is up to the judge to ask questions

• f the social worker.

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• Removing a child from parental care is more

traumatic than arresting a defendant. We must pay more attention to the initial hearings in juvenile dependency cases.

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REASONABLE EFFORTS

• There are almost no findings of “no reasonable

efforts to prevent removal” in the appellate case law.

• When litigated, the issue always arises in a

termination of parental rights hearing.

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REASONABLE EFFORTS

If there is an emergency removal of a child from parental care, are reasonable efforts required?

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REASONABLE EFFORTS

No – in an emergency, there is no time to provide reasonable efforts. Then, what happens to the social worker’s

• bligation to prevent removal?

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REASONABLE EFFORTS

It continues until the dispositional hearing or 60 days – whichever occurs first. The emergency removal was only temporary under the law. It was not a placement. Reasonable Efforts is a continuing obligation until the time the court orders a placement.

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REASONABLE EFFORTS

I mentioned relative preference in the video. Is relative placement preferable to foster care?

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REASONABLE EFFORTS

YES!

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REASONABLE EFFORTS

Studies show that children in relative care have a more stable placement, are likely to remain in their same school, and experience less trauma that children placed in foster care or congregate care. Congregate care is the least beneficial placement for the child.

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REASONABLE EFFORTS

What percentage of children removed from home are placed with relatives in the United States? What percentage of children removed from home are placed with relatives in California?

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REASONABLE EFFORTS

UNITED STATES = 32% CALIFORNIA = 32%

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REASONABLE EFFORTS

How long does it take to place a child with a relative? Consider background checks, fitness of the house, resources to support the relative. If there is a criminal conviction of a household member, how long does it take to secure a waiver?

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REASONABLE EFFORTS

An experiment in Los Angeles involves 10 of their regions (out of 20) Using upfront family finding, over the past year they have placed 84% of children removed from home into relative care. In many cases on the same day.

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REASONABLE EFFORTS

In Allegheny County (Pittsburgh), the placement rate with relatives is about 65%. See the articles I have made available to you and those written on my webpage Judgeleonardedwards.com

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REASONABLE EFFORTS

Relative placement is also preferred by the law.

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REASONABLE EFFORTS

• On relative preference, notice, and

engagement, see

• Fostering Connections to Success and

Increasing Adoptions Act of 2008 (PL 110- 351)

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REASONABLE EFFORTS

• P.L. 110-351; Section 103:
• Within 30 days after the child is removed from

his or her parents’ custody, Fostering Connections requires state agencies to exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives

• f a child (including any other adult relatives

suggested by the parents).

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REASONABLE EFFORTS

• Working with your welfare director, I believe

you can increase that percentage significantly. After all, there will never be enough foster homes.

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REASONABLE EFFORTS

• At the dispositional hearing, the social worker

writes in her report that she has not located the father or any relatives.

• Is that an issue that the court should examine?
• Could that be a “reasonable efforts” issue?

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REASONABLE EFFORTS

• How do you find fathers in your state?
• How do you find relatives?
• What questions do you ask social workers

when they can’t find either?

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REASONABLE EFFORTS

• Do you use Kinship Navigator tools?
• Do you use Family Finding?

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Reasonable Efforts

• The child has been removed because of

parental neglect. The caretaking parent is Native American and has a serious substance abuse problem. The social worker’s report indicates that she offered services to the parent in order to meet the ‘reasonable efforts’ requirement.

• What is the issue here?

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Reasonable Efforts

• The court must determine whether these

services meet the “Active Efforts” requirement

• f the Indian Child Welfare Act (ICWA).

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Reasonable Efforts

• Discussion and analysis of Active Efforts
• See Chapter V – Reasonable Efforts: A

Judicial Perspective.

• Pages 25-28.

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REASONABLE EFFORTS

• But the best definition of Active Efforts comes

from the recently published Bureau of Indian Affairs Guidelines.

• Go to Bureau of Indian Affairs Regulations -

2016.

• And see In re Nicole B., 175 Md. App. 450

(2007)

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REASONABLE EFFORTS

• Visitation is critical in social worker efforts to

help reunify a family after a removal.

• This is the second obligation in the federal

law:

• Reasonable efforts to reunify the family.

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REASONABLE EFFORTS

• Do you think it reasonable for a social worker

to hand a parent a list of programs that the parent must locate and complete?

• Is this complying with reasonable efforts?

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REASONABLE EFFORTS

• A child is removed from her mother because

the mother is mentally ill. Is this a reasonable efforts issue?

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REASONABLE EFFORTS

• The child protection system must deal with

mentally disabled parents.

• These cases are separated, state by state, in

Reasonable Efforts: A Judicial Perspective.

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REASONABLE EFFORTS

• Numerous cases around the country stand for

the proposition that the state has an obligation to provide reasonable services to mentally or intellectually challenged parents.

• Reasonable Efforts: A Judicial Perspective at

pages 56-60.

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REASONABLE EFFORTS

• And there must be a nexus (a connection)

between the mental disability and child safety and well-being.

• Reasonable Efforts: A Judicial Perspective at

pages 56-60.

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REASONABLE EFFORTS

• And this is true for substance abuse also.
• See the section from my book entitled

“Substance Abuse”.

• Several cases are noted (fn. #234) regarding

this proposition.

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REASONABLE EFFORTS: EXAMPLES

• A prospective adoptive mother comes before

the court at a review hearing and asks why the adoption has not been completed?

• The agency says that it is too busy and that

home studies take a long time.

• Is this an issue deserving a “no reasonable

efforts” discussion and possible finding?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• This video is an example of the third

reasonable efforts mandate: To ensure that a child reaches a permanent home as soon as possible. What is a permanent home?

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REASONABLE EFFORTS AND COURT IMPROVEMENT

• Parents, relatives, adoption, guardianship.
• Not foster care or congregate care.
• Reasonable Efforts to finalize alternate

permanency plans. 42 U.S.C. § 671(a)(15)(C); 45 CFR §1356.21(b)(2)

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REASONABLE EFFORTS: EXAMPLES

• The Adoptions and Safe Family Act (ASFA)

requires the agency to use reasonable efforts to secure a permanent home for the child.

• Reasonable Efforts to Finalize alternate

permanency plans. 42 U.S.C. § 671(a)(15)(C); 45 CFP §1356.21(b)(2)

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REASONABLE EFFORTS: EXAMPLES

• Your homework:
• (1) Find out how long it takes to complete an

adoption after a termination of parental rights.

• (2) Find out how the department conducts a

home study and how long it takes.

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REASONABLE EFFORTS

• If the court made a “no reasonable efforts”

finding in one of these cases, would the agency lose money?

• Then why should the judge make such a ruling

when the agency (and the state) will have less resources?

• Shouldn’t the judge just go along with the state

and find that what the agency provides is reasonable?

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REASONABLE EFFORTS

• Is it the role of the judge to rubber stamp

what the agency recommends?

• Is it the role of the judge to rubber stamp

what the district attorney in a criminal prosecution recommends?

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REASONABLE EFFORTS

• How might you suggest that the court use

the “no reasonable efforts” finding strategically?

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REASONABLE EFFORTS

• I suggest a strategic use of the No Reasonable

Efforts finding.

• Tell the agency you are about to make such a

finding, but then continue the case for a week

• r two to give the agency an opportunity to

take action.

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REASONABLE EFFORTS

• I call this “The Art of a No Reasonable Efforts

Finding”

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BUILDING BETTER COURT SYSTEMS Once you and your colleagues let members of your court system know that you are paying careful attention to the reasonable efforts issue, practice will improve and children and families will be better served.

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Another Important Resource . . .

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The best time to plant a tree is 20 years ago . . . The second best time is today . . .

Chinese Proverb

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"The Child's Name is Today" . . . Gabriela Mistral

CONTACT INFORMATION

• Hon. Leonard Edwards (ret.)
• California Judicial Council
• 455 Golden Gate Ave, 6th floor
• San Francisco, California 94102
• judgeleonardedwards@gmail.com
• Leonard.Edwards@jud.ca.gov
• Judgeleonardedwards.com
• (415) 865-8820

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