Improving Implementation of the Federal Adoption Assistance and Child Welfare Act of 1980 By Judge Leonard P. Edwards1

Introduction The Adoption Assistance and Child a child from a parent's or guardian's Welfare Act of 1980' ("Act") significantly custody. changed child welfare law in the United This monitoring is a significant re- States. Of particular importance, the sponsibility for judges. Juvenile court Act created responsibilities for juvenile judges are already the gatekeepers for court judges, making them an integral the nation's child welfare system. State part of the operation of the law. Al- law requires them to decide the pr-opri- though the Act has been in effect for ety of social service agency removal of well over a decade, it is still misunder- a child from parental custody. The fed- stood and often ignored. eral statute and state implementing stat- This article examines the implemen- utesqave designated juvenile court tation of the Act and the reasons why it judges as the monitors of social service is not working as well as it might. It of- delivery to these same parents. fers technical assistance to judges, court Through child welfare court hearings, administrators, social service agencies, the juvenile court must determine attorneys and other interested persons whether the social service agency has regarding the Act's implementation. It made "reasonable efforts" to prevent focuses upon the judicial oversight of foster care placement or to rehabilitate abused and neglected children when and safely reunite families of children they are removed from parental cus- already in pla~ement.~ tody. The premises of this paper are that In these court proceedings, the stakes many social service agencies do not ef- are high by both human and fiscal mea- fectively deliver preventive and reuni- sures. Child abuse reports have risen fication services to families, that juve- dramatically in the past ten years.'; The nile court oversight of social service impact upon juvenile courts and the fos- delivery has been ineffective or nonex- ter care system has been significant.' istent, and that many juvenile courts do The number of juvenile court depen- not ensure that children in out-of-home dency cases has increased substantially, care attain a permanent home in a and more than 460,000 children are cur- timely fashion. As a result, many state rently in out-of-home care at a cost of child welfare systems do not serve chil- hundreds of millions of dollars annu- dren and families well, and most states ally." risk losing federal funding for social Judges are periodically called upon to services. This paper concludes with rec- engage in substantial oversight of ommendations on how a strong judi- agency decision making, but not with ciary and specialized training can im- the consequences described in the Act. prove implementation of the Act and If a judge finds that the state social ser- ensure that it operates as Congress in- vice agency has not adequately deliv- tended. ered services to a family from whom a child has been removed, that finding Overview may serve as the basis for reducing fed- Nowhere else in the law must judges eral aid to the agen~y.~A negative judi- play such an important role as in juve- cial decision may thus reduce financial nile dependency cases. The Act and support for the agency and make it even state laws based upon it" require the ju- more difficult to provide services to venile court judge to monitor the activi- families whose children may be or have ties of the social service agency before, been removed. during and after the state has removed The Act's drafters placed juvenile children and families. It describes the courts in the crucial position of moni- juvenile court judge's critical role in toring social service compliance with its implementing the Act and in oversee- terms. Unfortunately, a number of ing the entire juvenile dependency pro- implementation problems have im- cess; it also describes the juvenile court paired the effectiveness of judicial over- judge's relationship to the social service sight. Seven problems stand out: First, agency and the art of the "reasonable many people disagree with the law. At efforts" finding. one extreme, some argue that preserv- ing families is dangerous for children I. The Act and that abusive and neglectful families The Adoption Assistance and Child should not be given an opportunity to Welfare Act of 198016 governs juvenile change, rehabilitate, and be reunited dependency law in the United States. with their children.1° At the other ex- Enacted in response to widespread criti- treme, people claim that the state is too cisms of the country's child welfare sys- intrusive into family life, that fewer chil- tem, this federal legislation balances the dren should be removed from parental need to protect children with the policy custody, and that, once removed, chil- of preserving families. After lengthy dren should not be adopted, but should hearings, Congress concluded that wait until their parents are ready to have abused and neglected children too of- them returned." ten were unnecessarily removed from Second, some social service agencies their parents," that insufficient re- have not delivered the services as prom- sources were devoted to preserving and ised in their state plans.12 Third, some reuniting families,I8 and that children judges misunderstand or remain un- not able to return to their parents often aware of their duty to monitor social driftedlgin foster care without a perma- service delivery. Fourth, in many courts nent home.20Congress concluded that the "reasonable efforts" issue is not liti- children need permanent homes, pref- gated by the parties. With no one rais- erably with their own parents, but, if ing the issue, courts understandably do that is not possible within a reasonable not address it. Fifth, some judges un- time, with another permanent family.21 derstand their responsibility but are Permanent families provide children unwilling to exercise their power and better care than the state and help en- rule on social service failures.I3 Sixth, sure that they will grow into emotion- some judges understand their respon- ally stable, productive adults." sibility and are willing to exercise their power, but they record their findings Congress's response, the Adop- incorrectly. Seventh, in many jurisdic- tion Assistance and Child Welfare tions court structure impedes imple- Act of 1980, was based upon three mentation of the Act.I4 Often a state's important principles: constitution or state laws create barri- ers to implementation.I5 (1)preventing unnecessary foster The Act can and must be better imple- care placements; mented. The first of the following four (2) timely and safe reunification of sections examines the federal law, its children in foster care with their purpose and what it requires ofjuvenile biological parents when possible; court judges. The second section re- and views the Act's implementation, exam- (3) expeditious adoption of children ines recent trial and appellate decisions, unable to return home. The Act and provides information on judicial seeks to achieve these goals, in training and trial court practice. The part, by providing state social third section suggests ways in which service systems with "incentives implementation can be improved and to encourage a more active and features techniques proven effective in systematic monitoring of children several jurisdictions. The fourth section in the foster care system."23 outlines some specific steps jurisdic- tions should take to improve compliance with the Act and thereby better serve The major tenets of the Act and of case plan, and the progress the state implementing legislation which has been made toward are as follows: alleviating or mitigating the causes necessitating placement 1. To qualify for federal funding, the in foster care. The court or state must prepare a state plan administrative body must also describing the services it will project a likely date by which provide to prevent children's the child may be returned home removal from parental custody or placed for adoption or legal and to reunite child and parents guardian~hip.~~ after removal.24 The plan must 8. The juvenile court must hold a include a provision that the social hearing no later than 18 months service agency will make foster after the original out-of-home care maintenance payments in placement to determine a accordance with section 472 of permanent plan for the child. the Act. The court must determine 2. The social service agency must whether the child should be provide services to prevent re- returned to the parent, should moval of a child from parental continue in foster care, should custody and to reunite a removed be placed for adoption, or child with a parent or guardian.25 should (because of the child's 3. Where a child is involuntarily special needs or circumstances) removed from parental custody, be continued in foster care on a the juvenile court must make a permanent or long term basis.31 finding that continued placement 9. The juvenile court must also of a child with the parent or assure that these judicial deter- guardian would be contrary to minations are made in a timely the child's welfare.26 fashion. The involuntary 4. The juvenile court must make removal of a child must be "reasonable efforts" findings in reviewed, usually within 48 or each removal case, indicating 72 hours. Thereafter, the status whether the state, in fact, pro- of the child must be reviewed at vided services to eliminate the least every six months. The need for removing the child from child must be returned home or the parent.27 have a permanent plan (adop- 5. The juvenile court must also tion, guardianship or long term determine whether the state has care) in place within 18 months made "reasonable efforts" to of the removal.32 enable the child to be reunited 10.The juvenile court must approve with his family.28 any voluntary, non-judicial 6. The juvenile court must deter- foster placement within 180 mine whether the agency devel- days of the original placement.33 oped a case plan to ensure the 11.The juvenile court must ensure child's placement in the least that parents are provided restrictive, most family-like procedural safeguards when setting available in close proxim- their children are removed from ity to the parent's home, consis- the home or are moved into tent with the best interests and different foster homes.34 needs of the child.2g 7. The juvenile court or administra- Congress intended the Act to ensure tive review board must review a that social service agencies fulfill foster child's status at least once promises made in their state plans. every six months. At each The juvenile and family courts in each review the court or administra- jurisdiction were given the task of re- tive body must determine the viewing the delivery of social services continuing need for and appro- both before and after removal of a priateness of placement, the child for abuse or neglect. Congress extent of compliance with the made a deliberate decision to bive the courts substantial oversight responsibil- determines that the services offered 1ty. were inadequate, it will make a "no rea- The committee feels the elimination sonable efforts" finding. of the requirement for judicial deter- The possible findings are actually minations would be directly contrary more complex. The court may find that to the purposes of the legislation in that no reasonable efforts were offered, but it would move in the direction of pro- may also conclude that because of an vlding additional incentives for States emergency, no social services would to choose foster care placements over have prevented removal of the child. In the more difficult task of returning chil- this case, the court may make such an dren to their own homes or placing emergency finding to satisfy the re- them in adoptive homes. Moreover, quirement of the federal Act."" such a change would eliminate an im- Fourth, the court's findings must be portant safeguard against inappropri- properly recorded so an auditor can ate agency a~~tion.'? understand them. If the judge or court The federal government's role under the clerk incorrectly records the judicial Act is to ensure compliance by audit- findings concerning these issues, the ing court records. Where the social ser- social service agency may not receive vice agency complies with the Act and credit for satisfactory work or may get the court records compliance with the credit for improperly performed work. correct findings and orders, the federal To make matters even more complex, government will not penalize the state the Act does not define "reasonable ef- by demanding that federal funding be forts."") The term must be interpreted returned. If, however, the court records by each judicial officer in each case. do not reflect compliance w~ththe fed- Some services may be "reasonable" in eral law, the state will be required to re- one jurisdiction but not in another. For turn some of the federal monies that example, one community may be able have been pr~vided.~" to provide a home for a teenage mother and her baby, while such a resource may 11. Implementation of the Act be unavailable in another. In the latter Implementation of the Act has been community, the court may find that fail- uneven.:" The legislation is complex and ure to offer that service is reasonable is effective only when it is fully under- given the resources available to the so- stood by each participant. First, the cial service agency.'" state social service agency must submit It is difficult to monitor the Act's a plan to the federal government, a plan implementation to determine how well which is the basis for receipt of federal juvenile and family courts follow it. One monies to support foster care and other source of information comes from com- services for abused and neglected chil- mentators who have studied the child dren and their fa mi lie^.^^' The state plan welfare system. They indicate that com- details the social services which will be pliance with the law is uneven and in offered to families to prevent removal some jurisdictions nonexistent. One of their children and to promote reuni- commentator finds "impressive gains fying of families when children have occasioned by court-related provisions been removed. of the Act."'" He comments that peri- Second, the social service agency odic court review has made it more dif- must provide prevention and reunifica- ficult for social workers to leave a child tion services to these children and fami- in care without supervision or efforts lies. towards permanency. He believes the Third, the court must determine at the Act has helped avoid unnecessary hearing whether the services offered placement of many children, has re- were appropriate under the circum- duced the frequency of inappropriately stances. The term of art used in these lengthy placements, and has led to more hearings is "reasonable efforts." If the terminations of parental rights and court determines that the services of- adoptions of children who cannot re- fered were adequate, it will make a "rea- turn to their parents. He also observes sonable efforts" finding. If the court that courts and social services agencies are working together more closely as a The District's dereliction of its responsi- result of the bilities to the children in its custody is a However, this same commentator travesty. Although these children have concludes that "fully effective imple- committed no wrong, they in effecthave mentation has not occurred in many been punished as though they had. parts of the United State~."~"Insome Based upon the foregoing, the court jurisdictions compliance with the Act is holds that defendants have deprived the minimal: children in the District's foster care of In many densely populated, high pov- their constitutionally protected liberty in- erty urban areas, the child welfare sys- terest~.~~* tem operates very much in the same An appellate court in Illinois, review- manner as it did prior to the passage of ing the child welfare system in Cook P.L. 96-272.45 County (Chicago) with similar prob- Many of these jurisdictions are frus- lems, stated that the dependency and trated by limited resources throughout juvenile court systems were "abysmal the dependency system, including in- failures partly because the juvenile court sufficient numbers of social workers. As has not followed the a result, cases are poorly investigated, An attorney representing children in inadequate services are provided to the dependency actions in Pittsburgh, Pa. family to prevent removal, case plans wrote of her inability to meet the de- are not written in a timely fashion, and mands of increasing caseloads: reunification services are inadequate This afternoon 1 am in the midst of a pa- and untimely when children are re- per mountain, trying to acquire informa- moved. Because of insufficient re- tion about the 120plus children l Miill rep- sources, attorneys and guardians ad resent in over 55 hearings this Friday litem are overburdened with enormous before my county's Juvenile Court. I caseloads, court calendars are crowded, have been a lawyer with Child Advocacy cases are given only a few moments for over ten years, have seen caseloads each in court, and the entire process is triple and funding decrease, so that my slow and cumbersome, with perma- four full-time colleagues and myself have nency planning hearings46occurring responsibility for more than 1100 cases three, four, and five years after initial ~ach.~~ removal of a child.47 Despite these problems, the juvenile Moreover, a lack of understanding court dependency process works well in concerning the operation of the Act has some jurisdictions. Child abuse and severely limited its implementation. For neglect are reported and thoroughly in- example, many incorrectly believe that vestigated. Family preservation ser- a finding of "no reasonable efforts" pre- vices5"revent unnecessary removal of vents the court from removing a child children. When formal proceedings are from a dangerous h~me.~"everal initiated, the parties are well repre- states have even enacted legislation re- sented by attorneys and/or guardians ad quiring a finding of reasonable efforts litem who have reasonable caseloads. If before removing a These inter- a child must be removed from parental pretations of the federal Act are incor- custody, reunification services are pro- rect. The only consequence the Act pro- vided which give the parents a mean- vides for failing to provide adequate ser- ingful opportunity to reunite with their vices is loss of federal matching funds.50 child. If, after 12 or 18 months, reunifi- Several commentators have ad- cation is unsuccessful, a permanent plan dressed these issues, some with a mea- is established and implemented in a sure of despair." A federal judge hear- timely fashion. ing evidence about the child welfare Examples include Hamilton County, system in the District of Columbia, in- 0hio;"Vonoma County. California; cluding insufficient numbers of social Jefferson County, Kentucky;ji Santa workers, poor services, and inadequate Clara County, Calif~rnia;~~and Kent automation, concluded: County, Mi~higan.~~In the face of ris- The court vicws the evidence in this ing caseloads and the mandates of the case as nothing less than outrageous. federal Act, these counties and others like them throughout the country give months' rent needed to secure new a clear indication that compliance with housing. The housing assistance is not the federal law is possible. to be continued indefinitel~.~~ A second source of information about compliance with the federal Act is ap- The court concluded that the trial pellate case law, both federal and state. court acted consistently with the intent This law is divided between decisions of the legislature. which review juvenile court findings in individual cases and those which review The Legislature intended for the court issues covering an entire jurisdiction. to provide a check on DCFS powers, Findings of reasonable efforts are to protect families from hasty and rou- reviewable by appellate courts. These tine terminations by ensuring that ad- appellate decisions demonstrate that in equate services have been provided some states reasonable efforts issues are prior to termination. Without the thoroughly litigated, but the fact that the power to remedy inadequacies, this issues do not appear in the appellate check would be decisions in other states may indicate that they are not addressed in the juve- In a Missouri case, the social service nile courts."" agency removed four children from For example, a Pennsylvania decision their mother's custody when it was dis- found that the social service agency had covered that she had left them at home not provided reasonable efforts to an unattended and uns~pervised."~Appar- unwed teenage mother and her 14- ently this had happened on more than month-old infant after the mother had one occasion. Moreover, the mother come to the agency for help because she had on several occasions left her chil- had no money or place to stay. The baby dren with relatives, babysitters or her was removed, and the agency told the boyfriend and failed to return to pick mother "to get herself together and find them up. There was also evidence that a place and get some employment so the mother was an habitual drug user, she could have her daughter back." that she agreed to participate in a three Even after she had done what was re- month drug-counseling session, but quested, the agency did not return the that she failed to participate in that ses- baby to the mother's new home with- sion. out visiting it."' The juvenile court assumed jurisdic- The Supreme Court of Rhode Island tion over all the children and placed reviewed two cases in which the trial them with their father, giving the court had ordered the Department for mother visitation rights. The Court of Children and Their Families (DCF) to Appeals agreed that the juvenile court provide housing assistance to homeless properly took jurisdiction of the chil- families to assist parents in reuniting dren, but found that the agency had not with their children." DCF opposed provided "reasonable efforts" to prevent these orders, claiming that the court did or eliminate the need for removing the not have authority to order housing in children from their home. The court juvenile dependency matters and that reviewed the state statute concerning such expenditures would unduly tax the the removal of children and the neces- agency's limited resources. sity of proof that the agency had pro- The Supreme Court affirmed the trial vided reasonable efforts and that the court findings. It focused upon the court specifically review those efforts in statutory language empowering DCF its orders. The court concluded that: and concluded that housing subsidies were consistent with the purpose of re- The order of disposition entered in unification services: each case lacks both the determina- tion of whether or not the Division of The rental-subsidy payments are a Family Services made reasonable ef- stopgap measure designed to enable forts to avoid the need to remove each a reunifying family with no savings child from the home, what reasonable and little or no income to raise the se- efforts were, and a detail of the evi- curity deposit and the first few dence to explain those efforts.66 The Iowa Court of Appeals reversed The class action of Doe v. King was the juvenile court finding of reasonable brought in state court on behalf of efforts after placing into a group home abused and neglected children in Mas- a 12-year-old child who had committed sachusetts, alleging that the state was an aggravated assault. The appellate not adequately protecting these chil- court found no evidence that the agency dren. In August of 1984 the plaintiffs had made any attempt to "prevent or reached a settlement agreement with eliminate the need for removal of the the Massachusetts Department of Social child from the child's home.""' Services (DSS) which provided for (1) In In re Burns,ll" the Supreme Court workload controls and minimum staff- of Delaware declared how important ing patterns at DSS; (2) training of so- application of the Act is to the trial cial workers; (3) foster parent training; courts. The Division of Child Protective (4) health screening and a health care Services and Children's Bureau had tracking system for children in foster sought to terminate the mother's paren- care; (5) best efforts by DSS to monitor tal rights, alleging that she was unable the health care of children on their to plan, and had failed to plan, for her caseload who were not in foster care; child's physical needs. The Supreme (6) timely case reviews and reasonable Court reversed the trial court's order efforts to reunite families, and (71 moni- terminating mother's parental rights. It toring of service providers." noted that the social service agency had In Martin A. v. Gross," several fami- failed to give her adequate notice. The lies sued New York City's child welfare Court went on to declare the importance agency, which allegedly had not pro- of trial courts following the mandates vided preventive services to avoid hav- of the federal Act. ing their children placed in foster care. Such services included day care, home- In future cases of this type the Fam- maker services, parent training, trans- i1.v Court must ensure meaningful com- portation aid, clinic services, access to pliance with the Child Welfarc Act of emergency shelter, cash and goods, all 1980. . . and the appropriate Delaware of which the state guaranteed by stat- law. . . In doing so, the Family Court ute. The trial court granted the must interpret and apply the federal plaintiff's motion on the ground that the and state statutes to determine their City's preliminary injunction failure to application to a given case. Thus, provide preventive services violated where termination of parental rights state and federal law. This decision was is sought primarily on the ground that affirmed by the appellate court.'.' a parent has failed, or was unable, to LaShawn v. Di~on,'~brought on be- plan adequately for a child's needs, half of children in the District of Colum- and if that rather vague criterion is to bia against the District government, al- survive constitutional scrutiny, thc trial leged that children and families were court is required to make appropriate not receiving social services guaranteed findings of fact and conclusion of law by law. The Federal District Court re- as to the state's bona fide efforts to viewed the entire District of Columbia meet its own obligations. Without that, dependency system and found it to be no case of this sort, and all its cnor- a dismal failure. The judge's findings mous consequences, will pass appel- indicated that thejuvenile court was not late m uster."!' making any meaningful inquiry into ser- vices provided by the District's social In a number of other states, reason- service agency." able efforts findings have been re- In Illinois, the case of In re Ashlcy K viewed by appellate court^.^" began as an appeal of a visitation order Other litigation has examined the de- in a dependency case, but ended as a pendency system within an entire juris- full examination of the Cook County ju- diction. So-called impact litigation is venile court dependency sy~tem.~"The normally brought on behalf of a class appellate court found the entire system of persons, alleging that the entire class to be failing. Included in its findings is being denied specified rights. was the fact that thousands of children were awaiting permanency planning 3. Whether the court has signed the hearings years after they should have orders making the necessary been scheduled by law.;; As in the Dis- findings. trict of Columbia, it was clear that the 4. Whether there are case plans for juvenile court simply failed to engage each child. in any meaningful examination of the 5. Whether the state provides that services provided by the social service every child in foster care receives agency to the families whose children periodic hearinys."> had been removed.':' 6. Whether permanent plans have The effectiveness of impact litiyation been put in place in a timely has been seriously limited by the United fashion."+ States Supreme Court decision in Suter

\I. Artist M,"'which held that private These audits indicate that states often persons may not enforce the Act's "rea- are not in compliance with the federal sonable efforts" provision either under law. Department of Health and Human the Act itself or under 42 U.S.C. section Services records indicate that numerous 1983. Thus the children and families in states have been audited and some have Suter who sued the social service been penalized for failing to make the agency for its failure to provide case- required federal findings. For example, workers to children in a timely manner the 1987 audit of Georgia's Title IV-E fos- were without a remedy except those ter care expenditures resulted in a pen- specified in the Act, such as the federal alty of $2,586,779."; The 1984-1985 au- audits described infi-a,"" dit of Erie and Westchester counties in A third source of information con- New York resulted in a penalty of cerning the Act's implementation is the $1,817,346. After negotiations with the federal government. The Act requires State of New York, the final penalty was an examination or audit of court records set at $1,573,013."" The federal audit of to determine whether the court is prop- the State of Washington's Title IV-E fos- erly monitoring and recording its find- ter care payments resulted in a penalty ings regarding social service delivery. of $229,547." In a 1993 audit of These audits are conducted by the Of- California's child welfare system, the fice of Inspector General (OIG)and the Office of Inspector General reviewed Administration for Children and Fami- Title IV-E Foster Care Eligibility from lies (ACF),both divisions of the Depart- October 1,1988, to September 30, 1991.88 ment of Health and Human Services. The draft report revealed a lack of corn- The OIG and the ACF conduct audits in pliance with federal regulations in 319 various states on a regular basis.{'l Each out of 805 cases. The majority of errors audit reviews a representative number related to lack ofjudicial determinations of cases from the particular jurisdiction regarding "reasonable efforts" and for the audit period. The percentage of "continuance in the home was contrary failures is measured against the total to the welfare of the child."" The state amount of federal monies provided to liability in the draft report exceeded the state. The results of the audit are $54,000,000."i California's child welfare then presented to the state department system has experienced similar prob- of social services. For any failures by lems in the past.'jl Other audits have the state to follow the federal law, the produced similar penalties for states federal government will request reim- throughout the country."' bursement of the Title IV-E monies."' Audits also examine whether states have properly reviewed the status of The audits have examined a number children in placement as the Act re- of issues, including the following: quires.!'" An audit of the State of lllinois by the Administration for Children, 1. Whether the juvenile court has Youth and Families for fiscal year 1984 made reasonable efforts findings. determined that the state was ineligible 2. Whether the court has made the to receive $1,034,619. The audit deter- "contrary to the welfare of the mined that Illinois had not made timely child" findings. reviews of children in foster placement. backs. Only a portion of judges come This determination was affirmed by the to such conferences. Conference atten- Departmental Appeals Board,'14 but re- dance, moreover, does not guarantee versed in a later Departmental Appeals that those present will take advantage Board ruling.'" of the Act's training. Often several workshop choices are offered simulta- 111. Improving Implementation neously. Many judges choose not to at- Much room for improvement exists in tend such training because juvenile the Act's implementation. Many state court cases are a small part of their and local social service agencies do not dockets. Particularly where judges hear provide families with the services guar- the entire range of cases in the court's anteed in their state plans. They nei- jurisdiction, juvenile court matters may ther provide preventive nor reunifica- constitute a small percentage of the tion services to families, nor do they court's total workload. These judges ensure that children have permanent usually do not devote significant por- placements in a timely fashion."" Some tions of their continuing education time juvenile courts do not review the deliv- to juvenile court issues. ery of social services or make appropri- Even if a judge attends the session, ate findings regarding those services.'" much must be learned. The training Many judges do not understand the Act usually can provide only an overview of or its purposes, requirements or conse- the law and suggestions on how to quences. implement it in a particularjurisdiction. The stakes are high. Children may be There is not enough time to develop the unnecessarily removed from their fami- expertise necessary to enter appropri- lies and may remain in substitute care ate court orders so that they will pass for years. Families may be unnecessar- federal scrutiny. Adequate training ily separated. Children who cannot re- should include a review'of the Act, its turn home may never have a permanent impact on children and families, the placement. In addition, social service correct manner for recording the re- agencies may lose valuable resources quired findings and the Act's mandates through the federal audit process. concerning the judge's role. All participants in the dependency Such training should take place in process, particularly judges, need to be each local jurisdiction. It should include better trained about the Act. This is not thejudges, courtroom clerks, social ser- as simple as it may sound. The federal vice representatives, and any other Act has no training provisions. It was member of the court staff involved in assumed that courts and social service recording court findings. The training agencies would learn and understand should also include attorneys, guard- their responsibilities and how to fulfill ians ad litem, Court Appointed Special them. Advocates (CASAs)"" and social work- The legislation was passed more than ers. The training can focus on the Act 15 years ago, but it is still not well known and its implementation in the jurisdic- in many jurisdictions. Training has been tion. All members of the dependency sporadic and has been provided prima- system can address issues such as rep- rily by the National Council of Juvenile resentation of the parties, court and Family Court Judges, a judicial calendaring practices, local policies and membership organization which offers procedures, and judicial forms. Tech- education and technical assistance to nical assistance is available for such jurisdictions which request it. Since trainings from the National Council of 1980, the National Council, through its Juvenile and Family Court Judges and educational programs and Permanency the judges and staff they have available Planning for Children Project, has pro- for training. An example of the techni- vided many trainings both at its head- cal assistance available are the model quarters in Reno, Nevada, and through- forms developed for use in dependency out the country at national, state, re- cases by Judge Richard FitzGerald of gional and local conference^.^^ Louisville, Kentucky, and by the North- Conference training has its draw- ern California Bay Area Reasonable Ef- forts Prqject.""' to offer technical assistance to the court Recent federal legislation offers both and staff concerning all aspects of the state social service agencies arid court Act's implementation. To overcome systems the oppor-tunity to improve possible reluctance from judges to par- implementation of the Act."" The Fam- ticipate, the Judicial Council will intro- ily Preservation and Support Services d~iceand promote this training. If nec- part of the Omnibus Budget Reconcili- essary, otherjudges ~villaccompany the ation Act of 1993 provides that each trainers. A unic~ueaspect of this train- state will receive monies "to promote ing is that it will be financed principally family strength and stability, enhance by federal funding provided underfed- parental functioning and protect chil- era1 regulations which permit state and dren,"~~l'One of the goals of this legis- local training for foster care and adop- lation is to enable statcs to assess and tion assistance under Title IV-E.'"' make changes in state and local social Such training will also be extended to service delivery. The total amount of attorneys and all others who appear on rnoney authorized is approximately one behalf of children, parents, and the so- billion dollars over five years. cial service agency. Attorneys who ap- In addition, Congress has authorized pear in these proceedings must under- the I1.S. Department of Health and HLI- stand the Act and address the issues on man Services to provide $35 million in which the court must make findings grants to state courts over a four year pursuant to it. Court Appointed Spe- period."'.'The grant program's purpose cial Advocates ICASAsl and guardians is to help state juvenile court systems ad litem also must be trained in the law assess and improve their handling of so they can assist the court by comment- child abuse and neglect,foster care and ing on those issues in their court re- adoption cases. During the first year or ports. the grant program, thc state will corn- Correct implementation of the .Act is plete an asseysment describing its per- vitally important to all participants in formance and a plan for improve- dependency cases. If the court fails to n~ent."'~By taking advantage of this make or incorrectly records the re- m!! grant program, states can assess their quired findings, the social service juvenile court dependency systems and agency could lose valuable resources take steps to improve thetn.lfi and children and families rnay suffer California is currently experimenting unnecessarily lencgthy or needless sepa- with a training model designed to ad- rations. One means to provide educa- dress deficier~ciesin the federal Act's tion for all members of the legal and implementation. The State Department social service community is to have a of Social Services has agreed to include local or statewide conference devoted funding for judicial training in its bud- to fully implementing the Act. Califor- get. Leaders from the judiciary and so- nia has developed a useful model with cial services agencies will hire and train its annual Beyond the Bench Confer- several persons to serve as local experts ence. Co-sponsored by the Juvenile in implementing the .Act. These persons Court Judges of California, the State will work under the auspices of the Cali- Departrnetit of Social Serviccs, and the fornia ,Judicial Council. They will visit County %/elfare Directors, this confer- evcry judicial officer in the state who ence bt-ings together all major partici- hears juvenile dependency cases to con- pants in the dependency process for duct an on-site training session regard- two days each year. Participants help in51 the Act. The training will include plan the conference agenda so that is- the courtroom clerk, the court officer sues are examined on an interdiscipli- from the social service agency, and any- nary basis. The National Council of Ju- one else critical to the implementation venile and Family Court Judges has par- of the lam1. The trainers will explain the ticipated in each conference, bringing federal Act, its philosophy arid main both technical assistance and nationally provisions, thc necessity for judicial known speakers to enrich the proceed- oversight of social service deliverv, and ings. The result has been an improved the ways in which court orders must be child welfare svstem in which the par- recorded. There fill be an opportunity ticipants have a better working relation- IV. The Juvenile Court ship with one another,"'; a more com- Judge's Role plete appreciation ofthe federal law, and Effective implenientation of the Act an understanding of each participant's requires strong leadership from the ju- role.'"' venile court. It is necessary to have a In order to implement the federal law state statutory scheme consistent with effectively, some states may have to the Act"' and a social service system modify theirjuvenile court statutes. Their with sufficient resources to provide ser- new statutory scheme should reflect the vices to troubled families, but it is cru- federal law's philosophy, timelines, and cial to have leadership from the juve- mandates concerning service delivery nile court bench. This leadership must and judicial findings. Several state slatu- extend to court organization, judicial tory schemes, including those in Ohio, resources, training, and education. Minnesota, Missouri, and California, of- The juvenile court must be organized fer models for consideration.'"" to give dependency cases sufficient sta- Hopefully, adoption of some of these tus and resources."' These cases should innovations will persuade judges and ad- be managed by judges, not lesser judi- ministrators to renew their determina- cial officers.ll:' Judges hearing these tion to adhere to the Act's mandates. For cases should be interested in the juve- many judges and court systems, how- nile court's work and be prepared to re- ever; adherence has not been the rule. main in the court for at least three One unfortunate response to the Act has year^."^ been for some judges to "rubber stamp" Judicial rotation ofjudges hearing ju- reasonable efforts on all cases without venile dependency cases, or the move- any meaningful inquiry.ll" Some of these ment of a case among several judges, is judges say that they will not make a "no good neither for children and families reasonable efforts" finding if that find- before the court nor for the Act's imple- ing will result in loss of revenue to their mentation."I5 Preferably one judicial jurisdiction. They understand the Act, officer will hear a child welfare case but refuse to exercise their power even from start to finish. When more than if the social service agency has not deliv- one judge hears a case, each successive ered the required services. Otherjudges judge must go back to the beginning to are prepared to check the box or sign the understand the case's procedural and preprinted form without any inquiry. factual history. Having multiple judges Not only is this rubber-stamping a vio- hear a case increases the possibility that lation of the law but it also makes the Act facts will be forgotten. It reduces ac- meaningless. The Act instructs juvenile countability. It can turn judicial review court judges to make specified findings into an exercise of paper movement and based upon evidence presented in court. can I-esult in poorjudicial decisions con- By failing to take the Act seriously and cerning placement of chiIdren.lll exercise scrutiny over the social service In courts with four or more juvenile delivery process, the judge abrogates ju- court judges, it is preferable to divide dicial responsibility. The judge becomes the work into teams, one focusing upon part of the problem and becomes useless juvenile delinquency and one on juve- for the purposes of the law. nile dependency. This division of labor Moreover, these judges cr-eate an even results in better calendar management, greater problem. Ashlejr and LaShawn more and better judicial oversight of indicate what can happen when the ju- cases, and greater efficiency for the at- venile court remains silent or fails to do torneys, probation officers and social its job. It can result in a lack of account- workers who work with the juvenile ability by the social ser-vice system and tour-t.'" wholesale government neglect of chil- Juvenile court judges must ensure dren. By sitting by silently while the so- that the court has adequate judicial and cial service agency fails to do the tasks other resources lo fulfill its responsi bili- mandated by the Act, the juvenile court ties.ll" The judges must be prepared to participates in the systematic neglect of advocate for- sufficient judicial officers children and families. and staff to be assigned to the .juvenile court. This challenge may involve sub- exposed baby. Estimates are that ap- stantial political effort by the judges, but proximately 740,000 women will use one the risks of failing to take action are sig- or more illegal substances during their nificant. Children and families are not pregnancies each year.12Vuch expo- well served by understaffed juvenile sure can have a deleterious effect upon ~ourts.~~Woreover,the quality of the the fetus. If detected at birth, there may juvenile court's work will likely become be a report to child protective services, the focus of public inquiry and criticism investigation, and, in some cases, re- if the deficiencies persist."" moval of the baby and juvenile court in- Judges must also ensure competent tervention. representation for parents and children Research focusing upon court cases who appear in dependency proceed- of drug-exposed infants has identified ings.121 It is particularly important that policy and service delivery changes children have consistent independent which can maximize assistance to moth- representation throughout their depen- ers,~~~,Model protocols have been de- dency. In that way someone will be able veloped to provide services to these to retain the child's history, including babies and their mothers and enable the reasons for entry into the system. many of them to remain safely to- In addition, judges should establish gether.lZ The California Legislature en- standards for attorneys and guardians acted legislation mandating the creation ad litem which require them to partici- of such protocolslfiJand prohibiting the pate in training on a continuing basis.12 mandatory reporting to law enforce- Courts and social service systems need ment and child protective services that adequate resources to function ad- a baby was born substance-exposed.l3 equately, but that is not all. Each must When properly implemented, such pro- be operated intelligently. For example, tocols can result in a dramatically lower intake policies and practices, the ways rate of referrals to juvenile court with services are delivered to families, the excellent outcomes for the babies and timeliness of hearings, and the ways the mothers.l."' Jurisdictions with poli- cases are closed are all crucial to a well cies for automatic removal of drug-ex- run juvenile dependency system. posed babies from their mothers should Intake policies determine what qual- examine the successes of these model ity of case will be petitioned and come procedures. Similar strategies can be before the juvenile court. Jurisdictions developed for other categories of cases, vary widely in the ways they decide including physically abused children, whether to remove children from their children whose parents are incarcer- parents, in their ability to deliver pre- ated,l,;l and sexually abused children. ventive services and thereby avoid re- By focusing on the special factors moval, and in their willingness to pro- present in each type of case, decision vide services on a voluntary or informal makers can develop guidelines, risk as- basis. The same factual circumstances sessment instruments, and services may result in removal and formal court which will maximize the possibility that intervention in one jurisdiction and no a child can be safely maintained with the removal with in-home services in an- family. other.lz3 States should consider devel- The ways by which cases are closed oping guidelines relating to the factors and thus removed from the system are justifying removal of children from their often ignored as a method of control- parents as well as reunification. Con- ling caseloads for the child welfare sys- necticut has written standards for the tem. Judges, social workers, and attor- removal and return of children. To be neys must continually ask whether it is useful, such guidelines must be accom- necessaryfor a particular case to remain panied by training and review.lZ4 within the system. If the child has a safe A useful method of improving imple- and protective parent, the court should mentation is to examine carefully spe- fashion orders which protect the child cific types of cases to determine in the parent's custody and dismiss the whether specialized strategies can case.132 safely prevent removal of children from Often, reaching the permanent plan their parents. One example is the drug- of guardianship or adoption permits the court to dismiss the case, but delays in been ordered should be regularly re- reaching the permanent plan can un- viewed by the judge who made the or- necessarily keep these cases in the sys- der. Social workers and attorneys who tem for year-s.':':! These delays are both have been ordered to carry out the or- harmful to children and costly for an der should be prepared to report to the already under-resourced child welfare court the status of the plan. If the judge system. The law has carefully set out emphasizes the importance of these timelines for permanency planning. cases, they will reach conclusion and be Legal and mental health experts concur dismissed from the system. on the importance of reaching perma- Assuming that there is an adequately nency. Often, however, social workers staffed and organized juvenile court with feel no necessity to work on cases in dedicated judges who have both an in- which the child is in a stable home. terest in and long-term commitment to Other cases await with more pressing the work of the court, still more is nec- issues. Permanency planning can wait. essary. Judges must understand and be A significant barrier to permanency is prepared to follow all laws pertaining to the reluctance to try to adopt children removal and placement of abused and in place~nent.':'~Many believe teens, neglected children, delivery of social minority, and other special needs chil- services, and timeliness of hearings. dren are unadoptable."" Others are Oversight of social service delivery pre- ambivalent about terminating parental sents unique challenges. The judge is rights and moving to adoption, believ- asked to determine whether, under the ing that parents should be given an in- circumstances of each case, the social definite time to reunify with their chil- service agency has delivered reasonable dren. Some social workers, attorneys, services to the family. The determina- and judges will not take the steps nec- tion requires the judge to know some or essary to complete the adoption pro- all of the following factors: cess. In addition, many decision mak- ers refuse to proceed with termination 1. What services are available in the of parental rights unless there is a fam- community? ily identified for the adoption.':"' This 2. How quickly can the families use reluctance stems from their belief that the services? a child is not "adoptable" unless the 3. Are family preservation services adopting family has been identified and available to all families which their unwillingness to place a child in come in contact with the social legal limbo without parents. This prac- service agency? To some fami- tice actually reduces the possibility of lies? To this family? adoption. First, most experts agree that 4. I-low often and under what a child's adoptability is not dependent conditions do children visit their on the identification of the adoptive parents after the court has re- family.':" Second, many families will not moved them? consider a child who is still in the legal 5. I4as the social service agency system. With so many highly publicized taken advantage of other service stories about adoptive families having providers in the community to give up their child because of par-en- which could help families enter- tal rights which had not been legally ter- ing the child welfare system? minated, these families understandably Examples of such service provid- want their child to be free fr-orn the le- ers include mental health coun- gal system before they initiate adoptive seling, drug and alcohol treat proceedings. ment, housing, domestic vio- It is up to judges lo ensure that chil- lence counseling, health care, dren reach permanency. Judges should recreation, day care, and have a complete list of all children over parenting classes by private and whom the courl has jurisdiction. The public agencies.'.'" list should include the status of each case and how long it has been in the Ensuring that hearings take place in a system. Cases in which guardianships timely fashion presents the juvenile or termination of parental rights have court judge with a formidable task. The legal process seems to be synonymous families. Both strive to protect children with delay. Reports indicate that chil- and preserve families. Nevertheless, a dren can take from five to ten years to tension exists between the two.14' The reach a permanent plan which by law Act calls upon the court to oversee the should be completed within 18 agency, to make orders relating to place- months.'" Missing parties or attorneys, ment and care of the child, and in many incomplete reports, insufficient notice circumstances to direct what the agency to parties, and crowded calendars com- should do. This oversight takes place bine to make it likely that a court pro- within a legal environment, one which ceeding will not be prepared to proceed the agency frequently finds foreign and within the statutory time frame. It is up h0sti1e.I~~ to the judge to provide leadership by im- The agency often must defend its ac- pressing upon all parties the importance tions in court. Its social workers are of hearing cases expeditiously. cross-examined by attorneys, its judg- ment is challenged, and the court may The juvenile courts also must develop make orders which the agency finds and adhere to firm time standards for unreasonable, unfounded and imprac- deciding cases. In some cases, parental tical. Most of all, the agency finds itself rights can be terminated shortly after the in an adversarial process, one which initial determination. In some cases, seems ill-suited to the goals of child pro- adoptlon proceedings should proceed tection and family preservation. promptly. In other cases, permanency Juvenile court judges have also found plans must be de~,elopcd,and the Court the relationship difficult and unsatisfac- should monitor D.C.ES.'s progress with tory. Judges complain that juvenile de- the family over a period oftime. In some pendency work is little more than so- cases, courts will need to extend dead- cial work with a legal gloss. Reviewing lines because of the facts of the particu- the delivery of social services is an lar case. But in every case, the Court untraditional, complex task that many must assure that progress is being made judges have not been interested in and the need for quick action . . . the learning. When social service agency "child's sense of time" . . . is respected.'"" staff reveal their displeasure with court oversight and the adversarial process, The Juvenile Court Judge's it does not make the tasks facing the Relationship to the Social judge any more attractive.'" Service Agency The social service agency and the ju- Both the juvenile court and the social venile court, however, cannot do with- service agency have crucial roles in the out one another. Our society will not child welfare system. Social services is permit the agency to remove children the designated community agency for temporarily or permanently without delivering preventive and supportive some oversight. Parents and children services to families in crisis. The juve- need to have the opportunity to ques- nile court provides the legal framework tion state action which violates family for state intervention into family life. integrity, and the court seems a logical The Act further defines the relationship choice for that oversight. Moreover, between the social service agency and child protective services and social ser- the juvenile court. As has been noted vice agencies need the power and pres- earlier, the juvenile court must oversee tige of the courts when making deci- delivery of social services to a family be- sions concerning the removal and re- fore and after a child has been removed. turn of abused and neglected chil- Sanctions for a failure to provide ad- dren.lM When there are allegations of equate services include the loss of fed- "child snatching"14%r unwisely return- eral dollars. ing children to abusive parents,I49t is In this unique relationship, both the critical that the agency be able to point juvenile court and the social service out that each of its decisions to remove agency have the same goal: to produce or return a child has been approved by positive outcomes for children and a judge. The challenge seems to be to develop Because of the intensive up front ser- a better working relationship between vices, attorneys have found it difficult social services and the courts. To that to contest a petition. There were only end, reference to jurisdictions which nine contested hearings in 1993. have smoothly working child welfare When a petition is filed, the parents systems may be are constantly reminded of the urgency The principal attributes of a success- of the proceedings. At the dispositional ful dependency system appear to in- hearing the judge advises the parents clude an adequately resourced social of the date beyond which reunification service system which can deliver ser- services will not be extended. This date vices immediately to families in crisis, is written in the court order. At each and a responsive court system prepared review the judge reminds the parents to ensure that a child removed from pa- that time is of the essence. rental care reaches permanency with- If a child is removed from parental out unnecessary delay. An examination custody, Sonoma County offers a vari- of two model jurisdictions, Sonoma ety of reunification services to the fam- County, California, and Kent County, ily. Reunification is achieved in over Michigan, reveals both of these at- 50% of the cases within the statutory tributes. eighteen month period. When the court A suburban county with approxi- determines that reunification is not pos- mately 420,000 people, Sonoma has con- sible, it will discontinue services and set sistently led California in the number of a hearing to determine a permanent abuse and neglect cases safely resolved plan.'" The juvenile court will hold without removing the child from paren- hearings to terminate parental rights or tal care. In 1993,101 new families were establish guardianships within four brought under juvenile court jurisdic- months after reunification services have tion, averaging about eight petitions a ended. Most of these hearings are un- month. These filings were the result of contested, and any trials are heard approximately 9,000 calls and letters to within 30 days of the four month date.152 the Emergency Response division of the Judge Arne Rosenfield, for many social service agency.148 During 1993 years the Presiding Judge of the there were 835 families in the Family Sonoma County Juvenile Court, says Maintenance Program (in-home ser- that both the social service agency and vices), 115 children in Family Reunifi- the court are dedicated to preserving cation and 155 children in permanency families and keeping cases out of the planning. Thirteen adoptions were fi- system. He commented that he and na1i~ed.l~~ Commissioner Buckley have been active As Commissioner Jeanne Buckley in helping develop community-based states: services for families as part of the net- work for both family maintenance and We continue to front-load in an effort reunification services. Once a case is to keep families out of the system. For petitioned, however, they know that the many years there has been a philoso- case is serious and they move it along phy in the Social Services Department expeditio~s1y.l~~ and the Court that children should be Commissioner Buckley notes that the with their biological parents if at all pos- most difficult aspect of this philosophy sible, and the Court should intervene is helping the public understand that only when necessary. We are able to removing children is not necessarily the provide counseling, parenting, respite, best way to deal with issues of parental teaching homemakers, transporta tion, abuse and neglect.'" Many people be- etc. to families in the Family Mainte- lieve that abusive parents should be nance Program. We continue to develop punished and not given an opportunity services in the community to meet the to change their behavior and reunite needs of the families, from drug treat- with their children. Based on her expe- ment to an innovative program for abu- rience, Commissioner Buckley has sive families.'50 found that with the use of timely social services most children can be safely re- turned to their parents.'55 Kent County, Michigan, with a popu- veloped through the leadership of lation of approximately 510,000, has Judge John Steketee. That process in- long been recognized as having one of cludes experienced, dedicated juvenile the best juvenile dependency systems court judges, well-trained staff, and a in the United States.lqi Its success can commitment to completing the legal he attributed to a combination of process within the statutory time prompt, intensive social services and a frame.l"? well-organized court system. Effective Kent and Sonoma counties demon- social service delivery enables most strate that when social service systems cases to be resolved without court in- operate effectively the work of the ju- tervention. Over the past 10 years there venile court goes much more efficiently. has been an average of 3,000 reports of When parents and attorneys realize that child abuse and neglect in the County, extensive preventive services have been rising to 4,500 reports in 1993. In 1993, provided before a petition is filed and a after screening, 1,700 of those reports child removed, the task for the juvenile were field-investigated, resulting in 250 court becomes much more straightfor- juvenile court petitions on behalf of ap- ward. As Judge Steketee has noted proximately 500 children. In about half about the excellent preventive services of these cases the children had been re- delivered in Kent County: moved by the social service agency. For those children who were removed, Bv the time a petition is filcd, the about half were reunited with their fami1.v has bcen gi\.en a wide array of fa mi lie^.^'^ social scrviccs. Those are well docu- The Kent County Juvenile Court has mcnted. Filing a petition clearly be- a strong permanency planning policy. comes a last resort. The result is that For those parents who are not success- in Kent County more than 50% of thc ful in reuniting with their children, there petitions which arc filed result in a ter- is a high likelihood that their parental ~ninationof parental rights and an rights will be terminated and their chil- adoption. All parties aqrec that social dren will be adopted. The juvenile court seri,iccs has of2red whatever services has averaged over 100 terminations of were appropriate, but the family was parental rights over the past five years, not in a position to take advantagc of with 83 in 1993. Of the children freed them."'.: for adoption, 85'21 have a successful adoption within six months. There were Other modifications to the juvenile de- 130 adoptions in 199'1 and 173 in 1992.'"" pendency court operation can help re- A significant reason for the success duce tension between the court and the of Kent County's dependency system social service agency and build a posi- has been its ability to provide excellent tive relationship among all participants. in-home ser-vices to large numbers of First, there should be regular meetings families. In 1993, 480 families received between the agency management and in-home assistance including intensive the juvenile court administration, in- family preservation services.'"" Michi- cluding the presiding judge, lead staff, gan is fortunate to have Families First, and chief clerk. These meetings should the nation's most successful family pres- address administrative issues of com- ervation program. Families First has mon interest. Second, there should be become an integral part of social ser- periodic meetings between representa- vice delivery throughout the state in tives of all participants in the juvenile rural and urban settings, including De- dependency process. These meetings troit. It has become a model which should focus upon day-to-day opera- other states are beginning to dupli- tional issues, complaints about how the cate."'" system is running, and matters of con- Those who work within the Kent cern to any participant. From these County Juvenile Court believe that the meetings, improvements in the depen- system works well partly because of the dency system may be developed, such statutory scheme enacted by the Michi- as different calendaring, new forms, gan legislaturel';l and partly because of improved security, and much more.lti4 the excellent juvenile court process de- Third, judges should consider adopt- Trainings and seminars offer two pos- ing a calendaring system which in- sibilities. A conference is a third.16!' cludes alternative means of resolving cases before contested hearings. No The Art of the "No Reason- case should be set for trial without some able Efforts" Finding kind of judicially supervised settlement Judges must follow the law. This conference in which all parties appear means holding hearings on whether to identify the issues, ensure completion children can be returned to parents of discovery and other preliminary mat- without harm, whether the social ser- ters, and hopefully resolve the case. vice agency provided reasonable ef- Judges should also consider developing forts, and what the permanent plan for mediation programs which enable con- children should be if reunification has flicts to be resolved with the assistance not been successful after 12 or 18 of skilled mediators.lC5Court calendars months. To follow the law, a judge must should be organized so that they serve be prepared to make a "no reasonable the public as well as the court. By ask- efforts" finding. This finding, however, ing all families to appear at the first call should be used skillfully to ensure that of the calendar, the court process may services are provided without unneces- be efficient, but many families will have sarily penalizing the local social service to wait until the end of the calendar to agency. There is an art to the utilization be heard. Courts should experiment of the "no reasonable efforts" finding. with time-specific calendars in order to A principal purpose of the federal Act meet clients' needs.lh" is to have the agency provide adequate Fourth, the dependency system must services to families to prevent removal have a means of evaluating its impact of children and to reunite children with upon the children and families with their families after removal. 'The court whom it deals. Bureaucracies often fo- can have great impact upon the deliv- cus their energies upon systems issues ery of social services by letting the and forget to ask whether they are serv- agency understand what the court be- ing the clients for whom they were cre- lieves should be done in each case. The ated. The social service agency and the services the court finds appropriate or court should regularly evaluate how "reasonable" may include day care, children and families experience the homemakers, parent training, transpor- dependency process. Leaders within tation aid, clinic services, access to the dependency system must be ready emergency shelter, food, money, and to examine any suggestions and make more. What is "reasonable" depends changes if they are valid.lhi upon the facts of a particular case, but Fifth, judges should attempt to reduce the court must inform the social service acrimony which often develops in de- agency what it expects. In this way the pendency cases, particularly between agency will know what to expect when social workers and parents and between the reasonable efforts issue arises in attorneys representing opposing par- court. ties. Emotions run high when children When the court determines the are removed from families. The depen- agency has not provided sufficient ser- dency process does not need to have vices and that its actions have been un- additional stress placed upon it by per- reasonable, the court can make a "no sonality differences and unnecessary reasonable efforts" finding. An effec- conflicts. The judge can have a great tive alternative to consider, however, is impact upon the tone of these proceed- to announce that the court will make ings both in and out of the court by let- such a finding unless certain services ting all parties know that common cour- are provided in the following day or tesies must be observed and that bick- two, and then continue the case and ering will not be tolerated.16R give the agency the opportunity to com- Finally, judges and agency adminis- ply with the court's suggestions. trators should agree to co-sponsor For example, a case may come before events which bring the professional par- the court in which a child must be re- ticipants in the dependency system to- moved from a parent. The agency pro- gether in non-adversarial settings. duces sufficient evidence that services were provided but were inadequate to provide. In addition, they should be permit safe return of the child. The widely disseminated so that members agency indicales Lhat the child will be of the public, and particularly those in placed in foster care. The court should the juvenile court system, can have ac- ask whether relative placement has cess to them. At a minimum, each state been explored. If not, the parents and social service agency should send a their attorneys should be consulted copy of its state plan to every juvenile about relatives who should be immedi- court judge in the state. State plans are ately investigated for their ability to pro- particularly important since the United vide a temporary home for the child. States Supreme Court ruling in Suter v. Relative care often is less traumatic for Artist M.,"' in which the court fore- the child, leads to more meaningful and closed individual claims for violations frequent contact between parents and under the Act and declared that any the child, and may even be less costly. sanctions for such violations must be Once the agency understands that the sought exclusively pursuant to its dic- court will inquire about relatives in ev- tates. Since the Act utilizes the auditing ery case, the investigation regarding process as its primary sanction for the relatives will take place before the pre- supervision of state compliance with liminary protective hearing. The threat state plans, access to those plans by the of a "no reasonable efforts" finding will court system is critical.I7j have changed social service practice If the court concludes that a particu- and benefited children and families.Ii0 lar service is reasonable, and the social Another way in which the "no reason- service agency maintains thal it cannot able efforts" finding can be utilized ef- afford the service, the court might con- fectively relates to the availability of ser- sider giving the agency the opportunity vices. If the social service agency indi- to approach the elected officials who cates that a particular service, home- control its finances. Armed with the making for example, is not available, the warning that the adverse consequences court may wish to take evidence on of a "no reasonable efforts" finding will whether that service should reasonably be forthcoming, the agency may have be provided in that community to fami- more persuasive powers with political lies at risk of losing their children. One leaders.Iiq The letter attached at the con- source of information for the court may clusion of this Appendix offers an ex- be the state plan in which the state de- ample of this strategy. Of course, the partment of social services indicates to agency may have within its own re- the federal government what services sources the ability to provide the ser- it will provide to families in exchange vice. Many agencies have reorganized for the federal monies it receives. If the their service delivery system to provide state plan indicates that family preser- services more quickly and intensively.I7" vation, visitation or other critical ser- These approaches assume that the ju- vices are available, the judge should venile court judge is prepared to learn determine what these services are and how social services are delivered and how they can be used. what services are available in the com- Unfortunately, state plans for Title IV- munity. They also assume the judge will E monies are difficult to locate, and, take an active role on the bench, fulfill once found, are difficult to understand. that role, and have the impact antici- The plans are written in bureaucratic pated by the federal Act."" language comprehensible only to those The juvenile court judge has a role in the federal and state agencies. Even even if the situation seems hopeless, as if they were available, judges and attor- it may in some urban jurisdictions neys would find these plans useless for where thousands of children languish the reasonable efforts determinations in care without permanent plans, where which must be made in court."' social services do not exist, and where State plans must be much more than observers call the system an abysmal private communications between the failure. The role is not to sit idly by, ig- state and federal government. They nore the law, and become one of the si- must be clearly written and must indi- lent professionals who agree not to dis- cate what services the state promises to cuss what is happening."' The juvenile court judge's role is to follow the law, to family preservation and permanency for speak out in court and demand better children. Those within the child wel- services for the children and families fare system must examine how the law who come before the court. It is to end is implemented, participate in training the conspiracy of silence and speak out on its implementation, and dedicate in the community so that decision-mak- themselves to follow its dictates. In this ers at the highest political levels under- way we can maximize the opportunities stand they have given the court a task for our nation's most vulnerable chil- but have failed to provide the resources dren and their families. necessary to complete that task.l7"s There is reason for optimism concern- the San Francisco County Civil Grand ing the implementation of the federal Jury declared in reviewing the difficul- law. Several new federal initiatives will ties facing the San Francisco child wel- give states the opportunity to assess fare system: service delivery to families and utilize llln a democracy child welfare does not new federal money to create a more ef- receive its proper attention unless there fective response to families in crisis. are political leaders willing to stake their Court systems will be provided the op- careers on delivering real and lasting portunity to assess and improve court solutions to the problems of children.17" operations. Resources, of course, are what much Several jurisdictions have demon- of this discussion has been about. The strated that the law can work well, that social service agency would gladly pro- resources can be effectively used, and vide services if the resources were avail- that children and families can be well able, but often they are not. The court served. Early provision of intensive so- "understands" this and remains quiet. cial services, well organized court sys- But the court must not be co-opted into tems, and cooperation between those silence. The court must let leaders in who serve these children and families the legislative and executive branches are common to all. In jurisdictions in know that there are serious resource which the juvenile dependency system deficiencies which they have an obliga- is not functioning well, the juvenile tion to address. The court can do no court judge has a crucial role to play. less. The judge can use the techniques built into the federal law, including the "rea- Conclusion sonable effort" provision, to change so- The Adoption Assistance and Child cial service practice. The judge can Welfare Act of 1980 redefined child wel- work with the social service agency to fare policy and legal practice in the improve the system. If resources are United States. The Act emphasizes pre- inadequate, the judge can help persuade ventive and reunification services and political leaders of the system's needs. permanency planning for children. It The juvenile court judge is in a unique challenges social service agencies to position to ensure that the federal Act change the ways in which they deliver is properly implemented. With an ad- services to families. It gives oversight equately resourced and intelligently run responsibility of children in placement court system, the judge can have a posi- to juvenile court judges. tive impact upon the delivery of ser- Over a decade after its passage, the vices, the timeliness of service delivery, federal law is not being implemented and the availability of services in the well in many jurisdictions. There are community. Once a child is under the numerous reasons, including inad- court's protection, the judge can ensure equate resources and the failures of so- that families are provided with due pro- cial service agencies and juvenile courts cess, that they receive social services to follow the law. This must change. and that permanency for the child is The federal Act provides sensible policy reached in a timely fashion. The real- for children who are at risk of being or ization of these goals will greatly ben- who have been removed from their efit our nation's most vulnerable chil- homes. It recognizes the overriding dren and their families. importance of child protection while striking a reasonable balance between Author's Address: 12 Richard P. Kusserow, Harriers to Freeing Chil- Honorable Leonard P. Edwards drcn for Adoption, (Department of Health and Santa Clara County Superior Court Human Services, Washington, D.C.)February 191 North First Street 1991. San Jose, CA 95113 13 Congress anticipated this response from the courts, but concluded that the judiciary would Notes take the newly-created responsibility seriously. 1 The author is a Superior Court .Judge in Santa Child Welfare Act of 1980, Pub. L. No. 96-272, Leg- Clara County, Californja. The author wishes to islative Histr~r:\.(U.S.Congress, Washington D.C.) express thanks to R~jbertPraksti, Judge William 1980, at 1465. 'rhc committee is aware of allega- .It~nes,Helen Uonnelly, Jennifer Williams, and tions that thc,iudicial determination requirement Patricia White for assisting in the preparation of can become a mere pro forma exercise in paper this article. shutfling to obtain federal funding. While this 2 42 U.S.(:., 5 670 et scq. 11989). ccl~ildoccur in some instances, the committee is 3 As of 1<1<20,only 24 states had enacted ilnple- unwilling to accept as a general proposition that menting legislation. See Alice Shotton, "Making the judiciaries r~fthe states would so lightly treat Reasonable Efforts in Child Abuse and Neglect a responsibility placed upon them by federal stat- (Iases: Ten Years Latcr," Ca1.bVcst.L.Rev. 223 ute for the protection of children. Id. 11989-1990). Several other states have enacted 14 To ensure implementation uf the "reasonable such legislation sincc then. See, e y.. An Act Rela- efforts" requirement, a state should review its ti\,csto Proceedings In\-ol\.ingChildren in Need of statutes to determine whether legislative change Care and Protection, Mass.Rcv.Stat. Ch. :XI3 of the or change in court rules may be helpt'~11or neces- Acts of 11111:3, (Supp. 19941. sary in assuring the court's cooperation in rela- 4 See, supra end. 3. tion to the judicial determination requirements 5 42 U.S.(:. 9 670 (a)(15) (1989). in section 472(a) (1).Policq- Announcement (U.S. 6 From 1!185 to 1990 there was a 31'%,increase in Department of Health and Human Services, Ad- reports of child abuse, reaching a total of 2.5 mil- ministration for Children, Youth and Families, lion reports in 198!)-1900. It290 Survey (National Human Development Services) 1984, at 4, 5. (:vinmittcc on the Prevention of Child Abuse, 15 Two commentators summarize the barriers C:hicago] 1990. Another indication is drug use facing judicial oversight: by pregnant women. Deanna S. Gomby and [Tlhe author it,^ ofjudges in thesc mattcrs is often Patricia H. Shiono, "Estimating the Number of limited; the,): do not ha\.c thc powcr to order the Substance Exposed Infants," The Future of Chil- agenc:b- to provide services to an individual. In drcxn,1.1, Springj 11191, at 17-25. Estimatesarc that some states, thc courts wrll make a positive "rea- from 375,000 to 739,200 babies are born sub- sonable ctfi~r-ts"dcterlnination regardless of stance-exposed each year as a result of maternal agency cfforts in order to ensure federal funding. dr~iguse. Judgcs are not trained in matters over which the 7 Hardin reports a 312%) increase in child abuse ,ju\ r~nilccourt has,juri.sdiction and, because of nl- and ncglect case filings in New York between 1984 tation schedules, rr.n~ainin the assignment for a and 1!lf{11, a 2512'%, increase in Michigan between short period of tin?^.. Cr~nsequently, they do not 11184 and 1988, and a 90'%,increase in Rhode ls- acquire thc experienc,e needed to handlc thcsc land between 1982 and 1989 Mark Hardin, Ten sensitivc cases. While judges in some localities \bars Later: ln~plementationof l'ublic Lat~,'Ifi- make a good faith effort to determine rvhcther 272 b):the Coui.ts, (American Bar Association adequate services have bccn offered to the film- Center on Children and the Law) 1990. ilj; in many localities a po.siti~,efinding is mcrclj. 8 .I. Tatara, "Child Substitute Flo~vData for FY a matter of checking a box on a preprinted form. 1!1!jO and Child Substitute Care Population Care Susan Goodman and .loan Hurley, Reasonable Ef- Trends Since FY 1986 [Revised Estimates),"\'CIS fi~rts: Who Decitles What's Reasonable? (U.S. Research Notes (May 3. 1091). Department of Health and Human Services, 9 42 U.S.1:. 5 (i70 (a) (15) (15189). Washington, D.C.) 1993, at 8. 10 Michele Incjrassia and John Mc(:ormick, "Why 16 42 U.S.C. 5 670 et seq. (1989). Leave Childrcn with Bad Parents?" Newsweck. 17 Most mental health authorities agree that cliil- April 25,1994, at 52-56;, Heather McDonald, "The dren need stable and continuous care to achieve Ideology of 'Family Prcservatiun,"' The Public 1n- normal emotional growth. Ilisruption in their tereat, No. 115, Spring 1994, at 45-60. placements or relationships can harm children 11 Mary Pride, Thc Child Abuse Industr,~, and make it more difficult for them to form close (Crossway Books 1986); Richard Wexler, emotional relationships in life. See generally, I\/oiindcd li~nocents:The Real Victims of the War Goldstein, Solnit and Freud, Beyond the Best In- Against Child Abuse, (Prometheus Books 1990). terests of the Child, (Free Press 1973); Leon A. These children without permanent homes were Rosenberg, "TheTechnic[ues of Psychological As- identified in congressional hearings leading up sessment as Applied to Children in Foster Care to the passage of P.L. 06-272 as caught in "foster and Their Families," Foster Childr-en in the Courts, care drift." See, Garrison, infra end. 19. That at 550-574 (Mark Hardin, cd. 1983). these children are not adopted anti often do re- 18 A major reason for the enactment of legisla- turn lio~ticis vcrified by the .American Public tion dealing with these programs is the evidence Welfare Association which states that two thirds that many foster care placements may be inap- of children who leave foster carc arc reunited propriate, that this situation may exist at least in with their parents and only 7.7'%,are adopted. part because federal law is structured to provide Ingrassia and Mc(:ormick, supra end. 10, at 56. stronger incentives for the LIS~of foster carc than The delays in reaching a permanent home once for attempts to provide permanent placements. in foster carc arc well-documented by Richard P. Adoption Assistance and Child Welfare Act of Kusscrow. See, Kusserow, inky end. 12. 1980, Pub. L. NII. 96-272, Legislative History(U.S. Congress, Washington, D.C.) 1980, at 1464. placement. 123 Cong.Rec. S22684 (daily ed. Au- 19 "Foster care drift" describes the situation of gust 3,1979) (statement of Senator Cranston dur- children lost in the child welfare system who ing Congressional hearings). Note that thc dis- move from placement to placement w~thoutever positional hearing referred to by Senator achieving permanency. See, Marsha Garrisun, Cranston is a hearing which takes place no later "Why Terminate Parental Rlghts?,"35 Stan L.Rev. than 18 months after the child has been removed 423 (11183). from the family. It is more commonly referred to 20 See, Marylee Allen, et al., "A Guide to the as a permanency planning hearing. The term Adoption Assistance and Child Welfare Act of "dispos~t~on"usually refers to the hearing which 1980," Foster Children in the Courts, at 576-577 takes place immediately after the court has taken (Mark Hardin, ed. 1980). jurisdiction over the child. See also, H.R. Rep. 21 See, M. Allen and J. Knitzer, Children Without No. 136, 96th Cong., 1st Sess. 50 (1979) (remarks Homes (1978); V. Pike, et al., Permanent Planning of Rep. Ullman]. for Children in Foster Carc: A Handbook for So- 32 Id. cial CVorkers (1977). 33 Social Security Act 55 472ia) (1) (el - (g); 42 22 See, Goldstein, Solnit and Freud, supra end. U.S.C.A. 5 672 (a) (11, (e),(f), (g) (M1est Supp. 1994). 17; Michael Wald, "State Intervention on Behalf 34 In mostjurisdictions these safeguards include of 'Neglected' Children: A Search for Realistic the r~ghtto notice of the proceedings, the right Standards, 27 Stan.L.Rev.985 (1983). to be represented by counsel, the right to a hear- 23 Vermont Department of Social and Rehabilita- ing on the issues before the court, and the right tive Services if. U.S. Department of Health and to appeal the dec~sionsof the court. Social Secu- Human Services, 798 F.2d 57, United States De- nty Act 55 427 (a1 (2) (El, 471 (a)(151, 471(a) (161, oartment 5'3 (2d Cir. 1986). cert. denied, 479 U.S. 472 (a) (I),472 (el, and 475 (5). See also, 42 U.S.C. 1064 (.Ian. 27, 1987); Rehearing denied, March 2, 5 675 (5)((1) (1!)8!1). 1987. The Act also requires the parents to be able to The Act encourages states to prevent the unnec- participate at all reviews. This participation has essary removal of children from their homes and been interpreted to mean that the parents have to reunify foster children with the~rfamilies, by the right to notlce, to receive informat~onon making state eligibility for Title IV-B and Title IV- which the agency is basing its proposed plan, and E funds cvntingent upon the implementation of to have representation. Allen, et al.. supra end. certain serviccs and protections for children and 20, at 597. their fam~lies.Supra end. at 20 (a) (1989). 35 Child Welfare Act of 1980, P.L. 96-272, Lecgis- 24 42 U.S.C. 5 670 (a)(19891. lative History (U.S. Congress, Washington D.C.) 25 42 U.S.C. 55 fj70 and 675 (5) (198'3).In order tu 1980, at 1465. protect children from be~ngunnecessarily re- A revlew by a body external to the agency In- moved from their homes and placed in foster creases the likel~hoodof careful case planning care, the amendments would require that preven- and requires the agency to account for the child's tive services must first be made ava~lableto the well-being. Allen, et al., supra end. 20, at 583. child and the family. These services may include, 36 The Secretary shall approve any plan which for eample, homemaker services, day care, 24- complies w~ththe provisions of subsection (a) of hour crisis intervention, emergency caretaker this section. However, in the case in which the services, emergency temporary shelters and Secretary finds, after reasonable notice and op- group homes for adolescents, and emergency portunity for a hearing, that a state plan which counseling. H.R. Rep. No. 136, 96th Cong., 1st has been approved by the Secretary no longer Sess. 46-47 (19791. complies with the provisions of subsect~on(a) of 26 42 U.S.C. 5 672 la] (1) (11189). this sect~on,or that in the administration of the 27 42 U.S.C. 5 671 (a)(151 (1989). plan there is a substantial failure to comply with 28 Id. the provis~c~nsof the plan, the Secretary shall 29 42 U.S.C. 5 ti75 (5) (A)(1!189). notify the state that further payments will not be 30 42 U.S.C. § 675 (5) (B)(1980). See also, State of made to the state ~~nderth~s part, or that such Vermont Dcpartment of Social and Rchahilitation payments will be made to the state but reduced Services i.. U.S. Department of Health and Hu- by an amount which the Secretary determines man SeriYces, supra end. 23. appropriate, unt~lthe Secretary is satisfied that 31 42 L1.S.C. 5 675 (5) (C) (1989). [TJheprovision there is no longer any such failure to comply, and for a dispositional hearing after a set period of until he is so satisfied he shall make no further time is, I belleve, of critical importance. One of payments to the state, or shall reduce such pay- the prime weaknesses of our existing foster care ments by the amount specified in his notificat~on system is that, once a child enters the system and to the state. 42 U.S C. S 671(b) (19891. remains in it for even a few months, the child is 37 See, Hardin, supra end. 7. likely to become "lost" in the system. Yearly judi- 38 42 U.S.C.5s 670 and 671 (1989). c~alreviews ofthe ch~ld'splacement too often be- 39 A copy of model forms that can be utilized In come perfunctory exercises with little or no fo- such a case and in juvenile court dependency cus upon the difficult question of what the child's matters can be obtalned from Mary Mentaberry, future placement should be. Foster care, with few Director, Permanency Planning Project, National exceptions, should be a temporary placement: Council of Juven~leand Family Court Judges, P.O. ~infortunately,under our existing system, tempo- Box 8970, Reno, Nevada 80507. rary foster care becomes a permanent solution 40 Some states have defined "reasonable efforts." for far too many children. This provision requir- For example, the M~nnesotaJuvenile Code pro- ing a dispositional hearing after a ch~ldhas been vides: In foster care for a specific period of time should "Reasonable efforts" means the exercise of duc assist states in making the difficult, but critical, diligence by thi' rcsponslble social servicx, agc.nc). decisions regarding a foster child's long-term to use appropriate and available services to meet the nccds of the child from the child's fimi/y; or upon removal, services to eliminate the need for ticular family. Some of the common elements in removal and reunite the family. Services may in- programs delivering family preservation services clude those listed under section 256F.07, subdivi- are as follows, Keeping Families Together: the sion 3, and other appropriate services available Case for Family Preservation, at 8-9 (Edna in the community. The social service agency has McConnell Clark Foundation 1985): the burden of demonstrating that it has made rea- sonable efforts. Minn. Stat. 5 260.012(b) (West - They accept only families on the verge of hav- Supp. 1992). See also, N.Y. Soc. Ser. 5 384-b (8) (fl ing a child placed. (McKinney Supp. 1992) (defining "diligent efforts"). See also, In the Interest of A.L.W., 773 S.W.2d 129 - They are crisis-oriented and see each family as (Mo. Ct. App. 1989) (cites the definition of rea- soon as possible after the referral is made. sonable efforts in Mo. Rev. Stat. 5 211.183 [West 1984 and Supp. 19941 therein). -Their staff responds to families round the clock, 41 A definition of reasonable efforts would not maintaining flexible hours seven days a week. necessarily be helpful to the implementation of the federal law. Minn.Stat. 5 260.012(b) (West - Their intake and assessment process carefully Supp. 1992). As the Minnesota definition indi- ensures that no child is left in danger. cates, any attempt to define reasonable efforts must be general, leaving great discretion for the -They deal with each family as a unit, rather than judge to compare the efforts undertaken to the focusing upon parents or children as problem- available resources or the resources which should atic individuals. have been available. Id. 42 See, Hardin, supra end. 7, at 3. - Workers see families in their own homes, mak- 43 Id. ing frequent visits convenient to each family's 44 Id., at 53. schedule. 45 It is unlikely, in situations described above, that a meaningful "reasonable efforts" determi- -Their approach combines teaching family mem- nation can be made. The overloading of the sys- bers skills, helping the family obtain necessary tem without necessary resources (e.g., services, resources and services, and counseling based on agency and court personnel, automated systems) an understanding of how each family functions hinders any sort of meaningful reform and allows as a system. for little more than crisis management. Goodman and Hurley, supra end. 15, at 10. -They deliver services based on need rather than 46 See, supra end. 31 (definition of permanency on categories that would ordinarily be assigned planning hearing). to each case. 47 Kusserow, supra end. 12; Debra Ratterman, "Termination Barriers: Speeding Adoption in - Each worker carries a small caseload at any New York State Through Reducing Delays in Ter- given time. Sometimes staff members work in mination of Parental Rights Cases," Final Report, teams of two to a family, providing each other American Bar Association Center on Children and with support and easing the demands of their ir- the Law 119911; Hardin, supra end. 7, at 55-56. regular schedules. 48 Shotton, supra end. 3, at 227. 49 Id. - They limit the length of their involvement with 50 Policy Announcement, ACYF-PA-84-1 (U.S. each family to a short period, typically between Department of Health and Human Services, two and five months. Washington D.C.) .Ian. 13, 1984, at 4. 51 Charlotte B. McCullough, "The Child Welfare -They provide their staff with ongoing in-service Response," The Future of Children, 1.1, Spring training and often require of new staff members 1991, at 61-62; Leroy H. Pelton, For Reasons of a degree in social work or deep knowledge of the Poverty, at 76 (Praeger 19891. community. 52 LaShawn A. v. Dixon S.P., 762 F.Supp. 959 (D.D.C. 1991),aff'd LaShawn v. Kelly, 990 F.2d 1319 - They follow up on families to assess their (D.C. Circ. 1993). progress and evaluate the program's success. Id. 53 In re Ashley K., 571 N E 2d 905 (I11.App. Ct. For one of the best explanations of the value of 1991). family preservation, see, Douglas Nelson, Recog- 54 Georgene Siroky, Youth Law News, July-Au- nizing and Realizing the Potential of "Family Pres- gust, 1993, at 20. The situation for attorneys in ervation" (The Center for the Study of Social Cook County is no better: Policy, Washington D.C.) 1988. And see, A Round . . . [Olverworked public defenders have only a Table Discussion of Fifteen State-Based Child Ad- few minutes to interview juvenile clients prior to vocates on Family Preservation Services (Citizens important hearings. Final Report of the Illinois for Missouri's Children, St. Louis) 1991. Supreme Court Special Commission on the Ad- 56 Mark Hardin, "Judicial Implementation of Per- ministration of Justice, Part 11: Juvenile Justice manency Planning Reform: One Court that (Springfield, 111.) 1993, at 4, 9. Works," American Bar Association Center on Chil- 55 Family preservation services is a term gener- dren and the Law, 1992; Dependency Department ally referring to services provided to families at Five Year Review, 1986-1990 (Hamilton County risk of dissolution. Typically, these services are Juvenile Court, Cincinnati) 1991. delivered for a short term and are designed to 57 Andrew Gottesman, "Two Cities Can Teach meet the specific needs of the family. Family pres- Chicago Juvenile Court Lessons," Chi. Trib., De- ervation services are often delivered in home by cember 22, 1993, at 1, 15, 16. workers who have one or two families and are 58 H. Ted Rubin and Richard J. Gable, Depen- able, therefore, to work intensively with each par- dency Proceedings in California Juvenile Courts 74 LaShawn A. v. Dixon K., supra end. 52. (National Center for State Courts, San Francisco) 75 Id. 1990. 76 In re Ashley K., supra end. 53. 59 See, Steps for Preserving Families, Guidelines 77 Id. for Practice, (Kent County Juvenile Court Rea- 78 See, Foster Care Reform Litigation Docket sonable Efforts Project Staff, Grand Rapids, (National Center for Youth Law, San Francisco) Michigan) 1989 (a description of the law, poli- 1993 (a summary of foster care reform litigation). cies and procedures developed by the Kent 79 Suter v. Artist M., 112 S.Ct. 1360, 118 L.Ed. County Juvenile Court). See also, Ron Apol, 2d 1 (US. 1992). Kent County Reasonable Efforts Model Court 80 Bernardine Dohrn, "The Plaintiff Children: Project, Final Report, (Kent County, Michigan) The Meaning of Suter v. Artist M.," Civil Rights 1990. Litigation and Attorney Fees Annual Handbook, 60 Shottop, supra end. 3. Volume 8 National Lawyers Guild, Saltzman and 61 In lnterest of S.A.D., 555 A.2d 123 Wolvovitz, Clark, Boardman, Callaghan, (Pa.Super.Ct. 1989). Deerfield, Illinois, (1993). 62 In re Nicole G., et al., 577 A.2d 248 (R.1.1990). 81The objectives of our audit were to evaluate 63 Id., at 250. the state's administration of the program in en- 64 Id., at 252. A similar result was reached in suring that Federal funds claimed for Federal the case of Norman v. Johnson, 739 F.Supp. 1182 financial participation (FFP)for foster care main- (N.D.I11., 19901, in which the court found that the tenance payments were made on behalf of chil- state of Illinois wrongfully placed children in fos- dren who met eligibility requirements stipulated ter care because, in part, their parents were un- by Federal laws and regulations. Draft Audit of able to provide adequate housing. For the avail- fitle IV-E Foster Care Eligibility in California for ability of federa1 housing assistance, refer to the the Period October 1, 1988, through September Family Unification Act, 42 U.S.C.A. S 1437(f) 30, 1991 (Department of Health and Human Ser- (West 1978 and Supp. 1993). vices, San Francisco) 1993, at 1. 65 In the Interest of A.L.W, 773 S.W.2d 129 82 42 U.S.C. S 675 (5) (B) (1989). (Mo.Ct.App.1989). 83 State of Vermont Department of Social Ser- 66 Id., at 133 (the case was rev'd and remanded vices v. U.S. Department of Health and Human to the juvenile court to take further action con- Services, supra end. 23. sistent with the directions of the appellate court). 84 Documents reflecting the issues addressed 67 In Interest of M.D.S., 488 N.W.2d 715 (Iowa by federal auditors for Xtle IV-E foster care eli- App. 1992). gibility can be obtained from the author. For a 68 In re Burns, Del. Supr., 519 A.2d 638 (1986). more detailed outline of how the audits are con- 69 Id. ducted, see, Financial Review Guide for On-Site 70 In the Matter of Star A., 435 N.E.2d 1080 (N.Y., Reviews of the Title IV-E Foster Care Program 1982);In the Matter of Sheila G., 462 N.E.2d 1139 (US. Department of Health and Human Ser- (N.Y. 1984); In re Kathaleen, 460 A.2d 12 (R.I. vices, Office of Human Development Services) 1983); In the Interest of C.K.M.H., 829 S.W.2d 674 May, 1985. See also, Richard Kusserow, Semi- (Mo. Ct. App. 1992); Williams v. Department of annual Report to the Congress, October 1, 1988 Health and Rehabilitative Services, 568 So.2d 995 -March 31,1989 (Department of Health and Hu- (Fla. Ct. App. 5th Dist. 1990); In re Jamie M., 472 man Services, Office of Inspector General) 1989, N.E.2d 311 (N.Y. 1984). California's appellate at 81; Richard Kusserow, Semiannual Report to courts have examined reasonable efforts issues the Congress, April 1,1990 - September 30,1990 in a large number of cases. E.g., Michael S., 188 (Department of Health and Human Services, Of- Cal.App.3d 1448, 234 Cal.Rptr. 84 (1987); Micah fice of Inspector General) 1990, at 84; Richard S., 198 Cal.App.3d 557, 243 Cal.Rptr. 756 (1988); Kusserow, Semiannual Report to the Congress, Victoria M., 207 Cal.App.3d 1317, 255 Cal.Rptr. October 1, 1991 - March 31, 1992 (Department 498 (1989); Kristin IN,222 Cal.App.3d 234, 271 of Health and Human Services, Office of lnspec- Cal.Rptr. 629 (1990); Mario C., 226 Cal.App.3d tor General) 1992, at 78. 599, 276 Cal.Rptr. 548 (1991); Riva M., 235 85 Letter from Wade F. Horn, Commissioner, Cal.App.3d 403,286 Cal.Rptr. 592 (1991); Walter Administration for Children Youth and Families, P., 228 Cal.App.3d 113, 278 Cal.Rptr. 602 (1991); to James G. Ledbetter, Commissioner, Depart- Christina L., 3 Cal.App.4th 404,4 Cal.Rptr.2d 680 ment of Human Resources, Georgia, (October, (1992);Dino E., 6 Cal.App.4th 1768,8 Cal.Rptr.2d 1988) (a copy of this letter is available from the 416 (1992); Joanna Y., 8 Cal.App.4th 433, 10 ACYF or from the author). Cal.Rptr.2d 422 (1992); John V., 5 Cal.App.4th 86 Letter from Wade F. Horn, Commissioner, 1201, 7 Cal.Rptr.2d 629 (19921; Misako R., 2 Administration for Children, Youth and Fami- Cal.App.4th 538, 3 Cal.Rptr.2d 217 (1992); Brit- lies, to Cesar A. Perales, Commissioner, New tany s.,17 Cal.App.4th 1399, 22 Cal.Rptr.2d 50 York State Department of Social Services (July, (1993); Regina V., 22 Cal.App.4th 711, 27 1990) (a copy of this letter is available from the Cal.Rptr.2d 515 (1994). And see, Shotton, supra ACYF or from the author). end. 3. 87 Letter from Wade F. Horn, Commissioner, 71 Case number 37561 (Mass. Super. Ct., filed Administration for Children, Youth and Fami- Sept. 24,1979); 80-51 (Mass. App. Ct.); SJC-2115 lies, to Paul Trause, Secretary, Department of (Mass. Sup. Jud. Ct.). Social and Health Services, State of Washing- 72 138 Misc.2d 212 (N.Y.Sup.Ct. 19871, aff'd 153 ton (October 22, 1992) (a copy of this letter is A.D.2d 812 (N.Y.App.Div. 1989). available from the ACYF or from the author). 73 The case was consolidated for disposition 88 Draft Audit, supra end. 81 (the outcome of with Consentino v. Perales, 551 N.E.2d 603 (N.Y. the audit is still unknown). 1990). 89 However, the significance of the number and the types of deficiencies, and related dollars, 2, Family Preservation and Support Services; noted in the audit shows a need for strengthen- Omnibus Budget Reconciliation Act of 1993 ing controls over the program. In particular, the (P.L.203-66);45 C.F.R., Part 92. high incidence of noncompliance with the judi- 102 Letter from Olivia A. Golden, Commissioner, cial requirements mandated by Federal legisla- Administration for Children, Youth and Families, tion requires corrective action. Without effective Department of Health and Human Services, implementation of this requirement, controls over Washington, D.C. to Interested Persons (Febru- the inappropriate removal of children from their ary 15, 1994). homes are weakened. Draft Audit, supra end. 81, 103 P.L. 103-66, 55 13711(d) (2) and 13712. at ii. 104 The assessment is to address how juvenile 90 Draft Audit, supra end. 81. courts are: (a)fulfilling Title IV B and IV-E require- 91 However, the problems that we found in our ments in foster care cases; (b) making decisions case reviews extended throughout the 3-year whether to place children into foster care; (c) de- period covered by the audit, and appeared to be ciding whether to terminate parental rights; and ongoing. Our previous statewide audit of (d) authorizing appropriate permanent place- California's Foster Care program by the OIG Of- ment, without undue delay, for children who can- fice of Audit Services contained the same type of not safely return home. Id. problems identified in this audit. The report cov- 105 All states are encouraged to take advantage ered Fiscal Years 1985 and 1986, and resulted in of these grants. Technical assistance for court questioned costs of $9,969,292 (report number A- systems is being offered by the National Council 09-87-00077, issued July 22, 1988). Of that of Juvenile and Family Court Judges, P.O. Box amount, $8,453,563 was upheld by ACF, and the 8970, Reno, Nevada 89507, attention: Mary state paid this amount to the Federal government. Mentaberry. Draft Audit, supra end. 81, at 16. 106 CFR Chapter XIII, 55 1356.65(b)and (c) (Oc- 92 This conclusion is based upon the author's tober 1, 1989, ed.). conversations with members of the Administra- 107 "A good working relationship between the tion for Children Youth and Families, as well as court and the child welfare agency is essential in conversations with juvenile court judges around meeting the needs of children and families." the country who report that their states have lost Goodman and Hurley, supra end. 15, at 10. Title IV-E monies through the audit process. 108 The conference of the juvenile dependency 93 42 U.S.C. 5 627 (1989). system that we attended has been held annually 94 Illinois Departmental Appeals Board, Dept. of in California for the past 5 years. This confer- Health & Human Services, Docket No. 87-154; ence brings together federal, state, county and Decision No. 1037 (April 13, 1989). judicial personnel for a continuing dialogue on 95 Illinois Departmental Appeals Board, Dept. of child welfare issues. The ACF supports this con- Health and Human Services, Docket No. 91-111; cept and is recommending similar annual re- Decision No. 1335 (June 1, 1992). gional conferences throughout the nation. Draft 96 Hardin, supra end. 7; Kusserow, supra end. Audit, supra end. 81, at 23. (For further informa- 12; Ratterman, supra end. 47. tion about the Beyond the Bench Conference, 97 Hardin, supra end. 7; Shotton, supra end. 3. contact the author at the Superior Court, 191 N. 98 The Permanency Planning for Children Project First Street, San Jose, California 95113.) of the National Council of Juvenile and Family 109 Cal.Welf. &. Inst. Code 5 300 et seq. (West Court Judges and the Edna McConnell Clark Supp. 1994); Minn. Stat. 55 260.01(b), 260.155, Foundation have published numerous educa- 260.172 and 260.191 (Supp. 1994); Mo. Ann. Stat. tional materials for judges, including booklets, 5 211.183 (Vernon Supp. 1994); Ohio Rev. Code benchguides, protocols, and articles. Three book- Ann. 5 2151.419 (Anderson, 1994). lets have been particularly helpful for judges: 110 In many jurisdictions the trial judge must Keeping Families Together: The Case for Family merely check a box on a preprinted court form Preservation, supra end. 55; Making Reasonable to indicate that reasonable efforts were provided Efforts: Steps for Keeping Families Together, su- in the case. Shotton, supra end. 3. In some other pra end. 55; Protocol for Making Reasonable Ef- jurisdictions the court order forms simply include forts to Preserve Families in Drug-Related Depen- a preprinted statement that reasonable efforts dency Cases, (National Council of Juvenile and were made, thus making the finding possible Family Court Judges, Reno) 1992. See, Katharine without the judge's even checking a box. Id., at English, A View from the Bench: The Judge's Role 227. In some states, courts and agencies have in Promoting Effective Planning for Families and taken a cynical approach, seeking to assure re- Children (National Council of Juvenile and Fam- ceipt of federal funding without the court taking ily Court Judges, Reno) 1991 (another important a meaningful look at reasonable efforts. In such training article). states, words indicating the agency has made rea- 99 Court Appointed Special Advocates (CASAs) sonable efforts are preprinted into court order are trained volunteers who are appointed by the forms used when removal of a child is authorized, court to speak on behalf of children in court. and laws are structured so a judge cannot autho- There are more than 500 CASA programs rize a foster placement without a positive find- throughout the United States with more than ing of reasonable efforts. Hardin, supra end. 7, 50,000 advocates. For further information con- at 54. tact National CASA Association, 100 W. Harrison 111 As of 1990, only about 24 states had passed St., North Tower, Suite 500, Seattle, Washington legislation addressing the juvenile court's reason- 98119-4123. able efforts determination. Shotton, supra end. 100 See, supra end. 39 (copies of these forms can 3, at 234. See also, State of Vermont D.S.S. v. U.S. be obtained). Dept. of HHS, supra end. 30, at 62. Recognizing 101 Title IV-B of the Social Security Act, Subpart the lengthy delays caused by the transfer to a dif- ferent court for termination of parental rights recently similarly modified its juvenile court proceedings, several states have enacted legisla- structure. tion permitting juvenile courts to hear termina- Judge William Jones of Mecklenberg County, tion proceedings. Cal. Welf. & Inst. Code 5 300 et North Carolina (Charlotte),suggests that juvenile seq., (West 1994). The procedures in this law have dependency and delinquency cases should be been upheld by the California Supreme Court in divided among the juvenile court judges hearing Cynthia D. v. Superior Court of San Diego Couniy, cases. He points out that dependency cases are 851 P.2d 1307 (1993). Such a statutory scheme has more stressful and that dividing the calendars will significantly reduced unnecessary delays in the protectjudges against burnout. Letter and notes legal process without denying parents their due from Judge William Jones to Judge Leonard process rights. Id. Legislation in Minnesota, Edwards (March 14,1994) (a copy of the letter is Missouri, and Ohio also offers improved proce- available from the author). dures to implement Public Law 96-272. See, su- 118 Edwards, supra end. 112, at 35. Family court pra end. 109. judges and attorneys representing children must 112 Edwards, Judge Leonard, "The Juvenile be educated and empowered to make appropri- Court and the Role of the Juvenile Court Judge," ate decisions for families and children and to help Juvenile and Family Court Journal, Vol. 43, No. 2, them get the services they need. They, as well as 1992, at 26. chiId welfare caseworkers, must be relieved of 113 Recommendation for the use of masters, ref- the staggering caseloads that make reflective erees, or commissioners as a practical and effi- decision-making impossible. America's Children cient way to increase judicial resources.Resource At Risk: A National Agenda for Legal Action Guidelines - Improving Child Abuse and Neglect (American Bar Association, Chicago) 1993, at 47. Court Process, (National Council of Juvenile and 119 Edwards, supra end. 112, at 41. Family Court Judges, Reno) 1995. However, the 120 For example, Robert B. Gunnison, "S.F. Fos- use of lesser judicial officers presents significant ter Care CaIled Worst in California," S.F Chron., problems. March 3, 1994, at 1. No juvenile court has had . . . [Mlany (including judges, attorneys and the more publicity, most of it negative, than the Cook public) conclude that the work of thejuvenile court County Juvenile Court. Much of that court's dif- is of lesser importance than the work performed ficulties relate to long-standing under funding of by judges. If attorneys disagree with a ruling of the juvenile court judiciary. Andrew Gottesman, one of these officers, the law provides that a judge "Juvenile Court Can Rarely Spare the Time to review the findings. More importantly, these ju- Care," Chi. Trib., December 21, 1993, at 1; Jan dicial officcrs lack political power in the commu- Crawford, "Juvenile Court Judged a Disaster," nity. If there are problems in developing re- Chi. Trib., December 23, 1993, at 1; "State Court sources, in ordering agencies to comply with or- System Needs More Change," Editorial, Chi. Sun- ders, in getting things to happen outside of the Times, December 23,1993; "44 Vacancies in Courts courtroom, these judicial officers have less power Should Be Filled Now: Commentary," Chi. Sun- to accomplish the task. The power of the juvenile 7imes, January 14, 1994; see also, Bellows, et al., court is necessarily diminished by having lesser supra end. 116. judicial officers perform the work of the juvenile 121 (c)The presiding judge of the juvenile court court. Id., at 34. should: 114 Id., at 34-35. 115 Id., at 35 36. See, Policy Alternatives and Cur- (1) Encourage attorneys who practice in juvenile rent Court Practice in the Special Problem Areas court, including all court-appointed and contract of Jurisdiction Over the Family (National Center attorneys, to continue their practice in juvenile for Juvenile Justice, Pittsburgh) 1993, at 21-25 (a court for substantial periods of time. A substan- discussion on the complex issues surrounding tial period of time is at least two years and pref- rotation). erably from three to five years. 116 A tragic example of the problems caused by multiple judges making decisions concerning the (21 Confer with the county public defender, same child was reported by a committee con- county district attorney, county counsel and other vened to investigate the death of Joseph Wallace. public law office leaders and encourage them to The committee reported that five judges in Cook raise the status of attorneys working in the juve- and Kane counties made rulings concerning Jo- nile courts as follows: hire attorneys who are in- seph, but that they were not provided with criti- terested in serving in the juvenile court for a sub- cal information about previous court hearings. A stantial part of their career; permit and encour- court system which ensures that a child appears age attorneys, based on interest and ability, to before the samejudicia1 officer will substantially remain in juvenile court assignments for signifi- avoid this problem. See, Joel J. Bellows, et al., cant periods of time; work to ensure that attor- The Report of the Independent Committee to In- neys who have chosen to serve in the juvenile quire into the Practices, Processes and Procced- court have the same promotional and salary op- ings in the Juvenile Court as They Relate to the portunities as attorneys practicing in other as- Joseph Wallace Case, Chicago (1993) (a copy of signments within a law office. this report is available from the author). The Jo- seph Wallace case was also reported in lngrassia (3) Establish minimum standards of practice to and McCormick, supra end. 10. which all court-appointed public office attorneys 117 Most of the metropolitan courts in Califor- will be expected to conform. These standards nia have adopted this structure, including Orange should delineate the responsibilities of attorneys County, San Diego County, Los Angeles County, relative to investigation and evaluation of the Sacramento County, San Francisco County, and case, preparation for and conduct of hearings, Santa Clara County. The Denver Juvenile Court and advocacy for their respective clients. (4) In conjunction w~thother leaders in the legal pendency Cases, (Permanency Planning Project, community, ensure that attorneys appointed in Reno, Nevada) 1992. the juvenile court are compensated in a manner 128 Model Needs Assessment Protocol, SB 2669 equivalent to attorneys appointed by the court in (Health and Welf. Agency, Sacramento, Califor- other types of cases. Rule 24 [c): Standards of nia) 1991. Judicial Administration Recommended by the Ju- 129 For purposes of this article, a positive toxi- dicial Council, (West 19941. cology screen at the time of the delivery of an infant is not in and of itself a sufficient basis for And see, Leonard Edwards, "A Comprehensive reporting child abuse or neglect. However, any Approach to the Representation of Children: The indication of maternal substance abuse shall lead Child Advocacy Coordinating Council," 27 Fam- to an assessment of the needs of the mother and ily Law Quarterly 3 (Fall 1993) at 417-431 the child pursuant to Section 10901 of the Health 122 Rule 24(d), supra end. 122; NCJFCJ, et al., and Safety Code. If other factors are present that Making Reasonable Efforts (Edna McConnell indicate risk to a child, then a report shall be Clark Foundation, New York, N.Y.) 1987, at 62. made. However, a report based on risk to a child which relates solely to the inability of the parent In a Task Force Report focusing upon judges and to provide the child with regular care due to the professionals working in the juvenile and family parent's substance abuse shall be made only to courts, the recommendations included manda- county welfare departments and not to law en- tory training on family and juvenile court issues forcement agencies. Cal. Penal, Code § 11165.13, for all judges within one year of taking the bench [West Supp. 1994). and specified the topics to be covered in that 130 Commissioner Jeanne Buckley noted in aju- training. The Task Force recommended similar dicial seminar that cases involving the drug-ex- training for attorneys, mental health providers, posed baby do not have a significant impact upon and social work professionals. Senate Task Force the Sonoma County Juvenile Court because those on Family Relations Court, Final Report, Senate cases do not come before the court. She said that Office of Research, Sacramento, CA (1990)at 32- there were so many services available to the baby 36. and mother in her county that most cases are 123 State statistics in California reveal wide varia- safely resolved without any formal legal interven- tions in social service practices in different juris- tion. dictions. In some counties the numbers of chil- 131 Barbara Bloom and David Steinhart, Why dren who remain in their homes with services is Punish the Children: A Reappraisal of the Chil- five to ten times greater than other counties. dren of incarcerated Mothers in America, (NCCD, Sonoma and San Mateo counties stand out as ex- San Francisco) 1993. amples of jurisdictions which are able to main- 132 This technique has been refined in Califor- tain children safely in their homes with services. nia with the enactment of several statutes which Statewide Report on Children? Services Caseload, outline how such dismissals can take place. See, November, 1992 California Dept. of Social Serv., Cal. Welf. & Inst. Code 55 304 and 362.4, Juvenile Sacramento, California) November 1992. Court Forms JV-200 & JV-250; Leonard Edwards, "The Relationship of Family and Juvenile Courts Similar differences exist in lllinois where the in Child Abuse Cases," 27 Santa Clara L. Rev 2 numbers of abuse and neglect petitions per 1,000 [Spring 19871, at 201-278. juveniles reveal that Champaign, Madison, and 133 Kusserow, supra end. 12. Cook counties have three to four times as many 134 See, generally, Kusserow, supra end. 12. petitions as Will and Lake counties. Probation 135 Judith K. McKenzie, "Adoption of Children Division, Administrative Office of Illinois Courts, with Special Needs," The Future of Children, 1992 Annual Illinois Juvenile Petition, Adjudica- Adoption, (Center for the Future of Children, tion, and Prosecution Report (Probation Division, David and Lucile Packard Foundation) Vol. 3, No. Administrative Office of lllinois Courts, Illinois) 1, Spring 1993, at 63-64. 1992, cited in Final Report of the lllinois Supreme 136 This conclusion is based upon the author's Court Special Commission on the Administration conversations with juvenile court judges of .lustice, Part 11: Juvenile Justice, (Illinois Su- throughout the United States. preme Court Special Commission, Springfield, 137 McKenzie, supra end. 135, at 64-66; James Illinois) 111113. at 17. A. Rosenthal, "Outcomes of Adoption of Children 124 Ruth Lork, et al., "When Home Is No Haven: with Special Needs," The Future of Children, Child Placement Issues (1992)," reprinted in DCYS Adoption, supra end. 135, at 77-88. Bullctin #30, Man. Vol. 2 (a copy of the guidelines 138 See, generally, Keeping Families Together: is also contained in Appendix D of America's The Case for Family Preservation, supra end. 97, Children At Risk), supra end. 119. at 47-53; Edwards, supra end. 112, at 28. 125 The authors note that cigarette and alcohol 139 Kusserow, supra end. 12. exposure occurs among 38%) and 73% of all preg- 140 Final Report of the Illinois Supreme Court, nancies, respectively. Gomby and Shiono, supra supra end. 54, at 9. end. 6. 141 There's a lot of tension between CPS and the 126 Inger J. Sagatun-Edwards, Coleen Saylor, court. CPS workers are somewhat enraged with and Bethany Shifflett, Drug Exposed infants in the court. They have trouble accepting that the the Social Welfare System and Juvenile Court, court can't act on "I want" or "I feel." Workers forthcoming in Child Abuse and Neglect. A copy sometimes wind up resentful of the court because is available from the author. it imposes deadlines, requires reports, orders 127 National Council of Juvenile and Family appearances, and they feel overwhelmed.. . Court Judges, Protocol for Making Reasonable [Caseworkersl have a history of poor relation- Efforts to Preserve Families in Drug-Related De- ships with the court. When it goes to court ev- eryone reads the caseworker's report and says 154 supra end. 150. "Where's the proof?" When things are dropped 155 Id. in the petition, the workers say "Doesn't anyone 156 Kent County has been selected as a model read our reports?" Caseworkers aren't thinking by the American Bar Association as it attempts about evidence and legal limits. Alternatives to to identify the best juvenile dependency systems Adjudication in Child Abuse and Neglect Cases, in order to provide technical assistance to other (The Center for Policy Research, Denver) 1992, at jurisdictions. Arn Shackelford, "Juvenile Court 20. System Studied as Model," Grand Rapids Press, 142 Nathan Glazer has criticism for judicial ad- Michigan, April 20,1994. The Kent County Juve- ministration of social services. "Should Judges nile Court was recognized as a model in the book, Administer Social Services," by Nathan Glazer, Howard Jones, Children in Trouble: A National The Public Interest, No. 50, Winter 1978, at 64-80. Scandal, D. McCay Co., N.Y., 1969. Judge John 143 Some judges think they know more about Steketee has been honored numerous times for each case than the social worker who has handled his leadership as Presiding Judge of the Kent it. And some agencies routinely frustrate judges County Juvenile Court. by giving out too little information on the cases 157 These statistics were provided by Ron Apol, at hand. Keeping Families Together, supra end. Supervisor, Permanency Planning Department, 97, at 34. Kent County Juvenile Court, Grand Rapids, 144 Child protective service workers are open Michigan. targets for public criticism. Society is quick to 158 Id. blame them if a child is reinjured or killed. But 159 See, supra end. 55 (for a definition of family society is also quick to blame them for the num- preservation services). ber of children "snatched from their parents and 160 Gerald H. Miller, "Families First Keeps Chil- placed in the "limbo" of foster care. Key Drew, dren Safe at Home," Detroit Free Press, Sunday, "The Role Conflict of the Child Protective Service May 1,1993, at 3F. For further information about Worker: Investigator Helper," Child Abuse and Families First, contact Susan Kelley, Director, Neglect, Vol. 4, 1980, at 250. Families First, 235 S. Grand Avenue, #415, Lan- sing, Michigan 48909. (313) 434-8277). It seems that child protection agencies cannot 161 One of the unique aspects of the Michigan win. In the first case, an allegation is dealt with statutory scheme is that each case of a child re- in a routine fashion, and a child dies. On the sec- moved from home is reviewed every 91 days in- ond occasion, a suspicion leads to a prompt and stead of six months as mandated by the federal decisive action [which later proves unnecessary]. Act. [MCL 712A.19(3); MCR 5.973(8)(211. The ju- Either way the social services department finds venile court also makes permanency planning itself pilloried for bureaucratic delay or for over- decisions at 12 rather than at 18 months. [MCR zealous intrusion into family life. Robert Dingwall, 5.973 (D) (211. These changes were based upon John Eekelaar, and Topsy Murray, The Protection experience in Michigan that frequent reviews of Children, (Basil Blackwell Ltd., Oxford, En- were helpful for the reunification process and that gland) 1983, at 1-2. the six months after the 12 month hearing was 145 Pride, supra end. 11; Wexler, supra end. 11. not helpful in reuniting families. See also, Donald 146 Ingrassia and McCormick, supra end. 10. N. Duquette, Michigan Child Welfare Law (Michi- 147 Refer to the jurisdictions cited at supra end. gan Department of Social Services, Ann Arbor) 56-59 and the accompanying text. 1990. 148The emergency response unit is comparable 162 See, supra end. 59. to child protective services in other states. 163 Phone calls between Judge John Steketee 149 Jurisdictions can measure the success of and Judge Leonard Edwards (February to April their preventive services by comparing the num- 1994). bers of families receiving in-home services to 164 See also, "Relationship Between Court and those in which the child was removed and the Social Services Agencies," Judicial Review of Chil- family is receiving reunification services. In dren in Placement Deskbook, (NCJFCJ, Reno, Sonoma County there are far more families in the Nevada) 1984, at 39. Family Maintenance Program than in all other 165 Recommendation 7.10. In addition to con- programs combined. tinuing to mandate mediation in child custody 150 Letter from Jeanne M. Buckley, Superior cases, the courts should expand mediation's use Court Commissioner, to Judge Leonard P. to all appropriate family and juvenile matters, Edwards, Santa Clara County Superior Court including dependency, minor delinquency mat- (March 15,1994) (a copy is available from the au- ters, and financial issues. Children and Families, thor). Justice in the Balance: 2020, Commission on the 151 These hearings are described in Cal. Welf. & Future of the California Courts, ch. 7 (California Inst. Code $35 366.216 & 366.22 (West Supp. 1994). Judicial Council, San Francisco) 1994, at 127. 152 These hearings are held pursuant to Cal. Welf. & Inst. Code § 366.26 (West Supp. 1994). The Mediation represents a significant improvement California Supreme Court has held this statutory over the pretrial approaches utilized in most ju- scheme constitutional in the case of Cynthia D. v. venile courts. Alternatives to Adjudication in Child Superior Court, 815 P.2d 1307 (1994). Buckley, Abuse and Neglect Cases, supra end. 141, Execu- supra end. 143. tive Summary. 153 Letter from Judge Arnold D. Rosenfield, Sonoma County Superior Court, to Judge Pursuant to Statutes of 1992, ch. 360, SB 1420 Leonard P. Edwards, Santa Clara County Supe- (19921, California has a five-county pilot project rior Court (April 26,1994) (a copy is available from offering mediation in juvenile dependency cases. the author). Thus far the results seem to be very positive for all parties involved. An evaluation of the project tucky, refers to state plans as works of fantasy will be conducted in the summer of 1994 (for fur- belonging in the fiction section of local book ther information, contact the author). stores. So few state plans have been presented 166 Judge Donna Hitchens, the Presiding Judge in court proceedings nationwide that his state- of the San Francisco Juvenile Court has devel- ment cannot be verified. oped such a calendaring system. For further in- 172 Suter, supra end. 79. formation, contact her at the Juvenile Court, 375 173 Id. at 1369, n. 12. See also, 42 U.S.C. § 672(a) Woodside Avenue, San Francisco, CA 94127. (1989). 167 Richard O'Neil, Director of the Santa Clara 174 That's the one beauty of this damned system. County Social Service Agency, hired a consult- If he's really serious about it, a judge can say, "This ing firm to evaluate the county's child welfare is the service I ~vant,and county, you provide it." system from the perspective of the clients, includ- This then gives the count,y the leverage to go to ing children, parents, and foster parents. This the Board of Supervisors and sa,y, "This is man- evaluation will be of great assistance in develop- dated; it's on the books, >,ou have to fund it." Ei- ing policies which are sensitive to client's needs. ther way, the judges are going to do that. or For further information, contact the Social Ser- someone's going to bring a class action suit. vice Agency, 1725 Technology Drive, San Jose, CA 95110. This was a statement by Elsa ten Broeck, then a 168 The Santa Clara County Bar Association has social services administrator in San Mateo adopted a Code of Professional Conduct describ- County, California, as quoted by Claudia Morain ing the behavior expected of attorneys in and out in "Making Foster Care Work," California Law- of the courtroom. This Code has been approved yer, January 1984, at 27. by both the Superior and Municipal courts in the 175 Joan Barthel, For Children's Sake: The Prom- county and is posted in many courtrooms (a copy ise of Farnil), Preserr.ation, (Edna McConnell Clark is available from the author). Foundation, New York) 1992, at 67-77. 169 See, supra end. 107. 176 The role of the juvenile courtjudge combines 170 Judge William Jones of Mecklenberg County, judicial, administrative, collaborative, and advo- North Carolina (Charlotte) offers anotherjudicial cacy components. Edwards, supra end. 112, at strategy. He makes a finding of "no reasonable 25. See also, Rule 24, supra end. 122. efforts" for a specified period of time, orders the 177 Edwards, supra end. 112, at 41. agency not to seek state or federal reimbursement 178 Id., at 40-41. dollars for the foster placement, and orders the 179 "Foster Care in San Francisco," 1993-1994 agency to provide written proof that it has not Civil Grand Jury, City and County of San Fran- sought such payment. This technique empha- cisco, 1994, at 5. sizes to the agency the direct relationship be- tween the failure to provide reasonable efforts and the loss of federal monies supporting foster children. Letter and notes from Judge William Jones to Judge Leonard Edwards (March 14, 1994) (a copy is available from the author). Judge Leslie C. Nichols of the Santa Clara County Su- perior Court has utilized a different strategy. A drug addicted mother voluntarily turned her young child over to the Department of Family and Children's Services (DFCS) and dependency pro- ceedings were initiated. It was clear to the DFCS worker and Judge Nichols that outpatient treat- ment would not be sufficient to rehabilitate the mother and that residential treatment would be necessary. He ordered a 30-day review hearing to hasten the DFCS's effort to find such a place- ment. When the agency reported that no free program was available, Judge Nichols ordered the agency to pay for residential treatment. If they failed to do so, he told them he would find that they had not provided reasonable efforts to the mother. Shortly thereafter the DFCS reported they had bccn able to place the mother. They said that they had moved her to the top of a waiting list. Judge Nichols reported that his hard-line approach works on a case-by-case basis but has its limitations when larger, system shortages are the issue. This strategy was recounted in Judge Peggy Hora, et al., "The Legal Community's Re- sponse to Drug Use During Pregnancy in the Criminal Sentencing and Dependency Contexts: A Survey of Judges, Prosecuting Attorneys, and Defense Attorneys in Ten California Counties," Southcrn California Review of Law and Women's Studies, Vol. 2, No. 2, Spring 1993, at 527-575,557. 171 Judge Richard FitzGerald of Louisville, Ken- Superior Court State of California

Santa Clara County Superior Court Building 191 North First Street San Jose, California 95113 (4061 299-3949

Chambers of Leonard P. Edwards, Judge

December 6,1989

Richard O'Neil, Director Department of Family and Children's Services 55 West Younger San Jose, California 95110

Dear Dick: I am writing to explain why the Juvenile Court Judicial Officers have made several "no reasonable efforts" findings in the past few months and what I believe the findings mean to the Department and the County. I believe these issues are novel and deserving of some detailed explanation. As you know, pursuant to both state and federal law, the Court is required to make reasonable efforts findings at almost every stage of a dependency action. Reasonable efforts refers to those actions which the Department would reasonably be expected to take to enable chil- dren to remain safely at home before they are placed in foster care. It also refers to those actions the Department would reasonably make to reunite foster children with their biological parents. Two issues have recently resulted in findings of no reasonable efforts. The first is the failure of the Department to provide a placement for teenage mothers and their babies. The second is the failure of the Department to provide intensive in-home services to enable drug abusing mothers and their drug exposed babies to be placed together in the community. In each of these types of cases, the Social Workers who appear in my court are working hard to prevent the removal of children and to provide services to facilitate reunification. They are, however, unable to provide the services on the scale to which I refer. Instead, they report to me in court that they have looked everywhere, that these services do not exist and that, as a result, the baby must be removed from the mother's care. Richard O'Neil December 6,1989 Page Two

These are cases in which everyone in the courtroom agreed that the baby and mother should be together and, but for the lack of resources, they would be placed with one another. Moreover, everyone agreed that the provision of these services was reasonable under the circumstances. Indeed, these services have been widely discussed in Santa Clara County as being a necessary part of the effective support of children and families in the County. They are available in many counties both in and out of California. The finding of "no reasonable efforts" in these cases is important for several reasons. First, it is an indication that certain specified services were all that were necessary to retain a child with a parent. Second, it means that, given the circumstances of the County, the services are not extraordinary or unreasonable. Third, it may mean the Department will be unable to complete permanency planning for the child. Without a finding of "reasonable efforts," the termination of parental rights may not be legally possible. See Welfare and Institutions Code Section 366.22. Finally, the finding means that the Department cannot be reimbursed for the costs of a child's out-of-home care. See 42 U.S.C. Sections 671(a) (15) and 672 (a) (1). Pursuant to my duties as Juvenile Court Judge, I am advising you of the consequences of a no reasonable efforts finding and hoping that by working with the Board of Supervisors you will be able to take steps to ensure that such services are available to the children and families in Santa Clara County. Of course, I will do whatever I can to assist you in your efforts. Thank you for your consideration and attention to this important problem. I look forward to hearing from you about its resolution.

Sincerely yours,

LEONARD EDWARDS Presiding Judge, Juvenile Court

LE: hd cc: Board of Supervisors County Executive Presiding Judge, Superior Court Superior Court Juvenile Court Committee County Counsel District Attorney Public Defender Chief Probation Officer Federal Compliance Officer