REASONABLE EFFORTS AND COURT IMPROVEMENT Same for Poverty – Poverty by itself is not a sufficient basis for removal. 45
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. 46
That’s this book. 47
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? 48
REASONABLE EFFORTS AND COURT IMPROVEMENT • After a removal, how important is visitation? 49
REASONABLE EFFORTS AND COURT IMPROVEMENT • See Edwards, Reasonable Efforts: A Judicial Perspective at pp, 41-47. 50
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? 51
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) 52
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 of the Georgia Supreme Court Committee for Children and the J4C Court Improvement Initiative. 53
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 54
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? 55
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 56
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. 57
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 or (4) be placed with a fit and willing relative. 58
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 offered” (3) write out the facts that support a R/E finding. 59
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 60
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. 61
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? 62
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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 64
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 order sua sponte . 65
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 of the social worker. 66
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. 67
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. 68
REASONABLE EFFORTS If there is an emergency removal of a child from parental care, are reasonable efforts required? 69
REASONABLE EFFORTS No – in an emergency, there is no time to provide reasonable efforts. Then, what happens to the social worker’s obligation to prevent removal? 70
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. 71
REASONABLE EFFORTS I mentioned relative preference in the video. Is relative placement preferable to foster care? 72
REASONABLE EFFORTS YES! 73
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. 74
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? 75
REASONABLE EFFORTS UNITED STATES = 32% CALIFORNIA = 32% 76
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? 77
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. 78
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 79
REASONABLE EFFORTS Relative placement is also preferred by the law. 80
REASONABLE EFFORTS • On relative preference, notice, and engagement, see • Fostering Connections to Success and Increasing Adoptions Act of 2008 (PL 110- 351) 81
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 of a child (including any other adult relatives suggested by the parents). 82
REASONABLE EFFORTS • Working with your welfare director, I believe you can increase that percentage significantly. After all, there will never be enough foster homes. 83
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? 84
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? 85
REASONABLE EFFORTS • Do you use Kinship Navigator tools? • Do you use Family Finding? 86
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? 87
Reasonable Efforts • The court must determine whether these services meet the “Active Efforts” requirement of the Indian Child Welfare Act (ICWA). 56
Reasonable Efforts • Discussion and analysis of Active Efforts • See Chapter V – Reasonable Efforts: A Judicial Perspective. • Pages 25-28. 89
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) 90
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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. 92
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? 93
REASONABLE EFFORTS • A child is removed from her mother because the mother is mentally ill. Is this a reasonable efforts issue? 94
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. 95
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 . 96
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 . 97
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. 98
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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? 100
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