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REASONABLE EFFORTS AND COURT
IMPROVEMENT
All-Sites Meeting
National Quality Improvement Center-
Collaborative Community Court Teams
Newport Beach
JULY 11, 2019
1
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.com
2
USING THE REASONABLE EFFORTS
TOOL TO ACHIEVE BETTER
OUTCOMES
3
Why do you work in the Child Welfare
System?
4
You want to improve outcomes for
children and their families.
5
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.
6
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.”
7
REASONABLE EFFORTS
• “Advocating vigorously for reasonable efforts
to be made to prevent removal when that is the
situation.”
8
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.9
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?
11
BUILDING BETTER COURT SYSTEMS
The word now from the Children’s Bureau and
Congress is preventing removal.
12
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.
13
II. REASONABLE EFFORTS: THE
LAW
The Adoption Assistance and Child Welfare Act
of 1980 (AACWA)
The Adoption and Safe Families Act (ASFA) of
1997
14
REASONABLE EFFORTS: THE
LAW
The State Plan
Federal Funding of Foster Care
Monitoring the State and Local Welfare Agency
15
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”
16
REASONABLE EFFORTS: THE
LAW
• What does reasonable efforts mean?
17
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.
18
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.
19
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.
20
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.
21
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
of the particular case.
22
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.
23
REASONABLE EFFORTS
• It does NOT mean that the child must be
returned to the parent.
24
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.
25
REASONABLE EFFORTS AND
COURT IMPROVEMENT
• At the shelter care hearing the attorney for the
mother asks you to order a social worker to be
on 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.
26
REASONABLE EFFORTS AND
COURT IMPROVEMENT
• How Will You Rule?
27
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.
28
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.
29
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.
30
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?
31
REASONABLE EFFORTS AND
COURT IMPROVEMENT
Courts are reactive.
We don’t do prevention.
Cases come to us after something has
happened to a child.
32
REASONABLE EFFORTS AND
COURT IMPROVEMENT
Perhaps we can prevent the next crisis.
That is one of the strengths of Family Drug
Treatment Courts.
33
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?
34
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.
35
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
36
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.
37
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
38
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?
39
REASONABLE EFFORTS AND
COURT IMPROVEMENT
The child could remain at home with
wraparound services.
What is wraparound?
40
REASONABLE EFFORTS AND
COURT IMPROVEMENT
Katie A. v. Bonta, 2012 U.S. Dist. LEXIS
180499
.
41
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.
42
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?
43
REASONABLE EFFORTS AND
COURT IMPROVEMENT
• The social worker must provide temporary
shelter.
44
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
63
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
91
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
99
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
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?
101
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)
102
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)
103
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.
104
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?
105
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?
106
REASONABLE EFFORTS
• How might you suggest that the court use
the “no reasonable efforts” finding
strategically?
107
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
or two to give the agency an opportunity to
take action.
108
REASONABLE EFFORTS
• I call this “The Art of a No Reasonable Efforts Finding”
109
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.
110
Another
Important
Resource .
. .
111
The best time to plant a tree is 20 years ago . . .The second best time is today . . .
Chinese Proverb
112"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.com
• (415) 865-8820113
