Resource Guidelines: Improving Court Practice in Child Abuse & Neglect

RESOURCE GUIDELINES Improving Court Practice in Child Abuse & Neglect Cases

NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES Reno, Nevada RESOURCE GUIDELINES Improving Court Practice in Child Abuse & Neglect Cases

Authored by the Publication Development Committee Victims of Child Abuse Project 2 Honorable David E. Grossmann, Chairman Spring 1995

National Council of Juvenile and Family Court Judges Louis W. McHardy, Executive Director University of Nevada, Reno

Approved by National Council of Juvenile and Family Court Judges Officers and Board of Trustees January 1995

This document was supported by Grants No. 92-CT-CX-0001 and No. 95-CT-FX- 0001 from the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. Support for the development and publication of this document also was received from The Edna McConnell Clark Foundation of New York City. National Council of Juvenile and Family Court Judges University of Nevada, Reno, P.O. Box 8970, Reno, Nevada 89507. ©1995 by the National Council of Juve- nile and Family Court Judges. All rights reserved. Reproduction of this publication for educational purposes is encouraged, with attribution to “RESOURCE GUIDELINES -Improving Court Practice in Child Abuse and Neglect Cases, published by the National Council of Juvenile and Family Court Judges, Reno, Nevada.” TABLE OF CONTENTS

I. INTRODUCTION...... 9 A. Need for Guidelines ...... 10 B. Purpose of Guidelines ...... 11 C. Scope of Guidelines ...... 11 D. Key Principles Underlying Guidelines ...... 12 1. Avoiding Unnecessary Separation of Children and Families ... 12 2. Reunification ...... 13 3. When Reunification is Not Feasible ...... 13 4. The Need to Make Timely Decisions in Child Abuse and Neglect Litigation ...... 14 5. The Oversight Role of the Juvenile and Family Court ...... 14 E. Endnotes ...... 16

II. GENERAL ISSUES ...... 17 A. Authority of the Juvenile and Family Court and the Role of the Judge ...... 18 B. Calendaring for One Family-One Judge ...... 19 C. Case Flow Management ...... 19 1. Judicial Commitment and Leadership ...... 20 2. Standards and Goals ...... 20 3. Monitoring and Information System ...... 20 4. Scheduling for Credible Court Dates...... 20 5. Court Control of Continuances ...... 21 3 D. Judge-Supervised Judicial Officers ...... 21 E. Access to Competent Representation ...... 22 1. Attorneys ...... 22 2. Guardians ad Litem/Court Appointed Special Advocates (GAL/CASAs) ...... 23 F. Court Facilities ...... 24 G. Voluntary Agreements for Care ...... 24 H. Emergency Orders ...... 25 1. Child Protection ...... 25 2. Speedy Issuance of Orders ...... 26 3. Procedural Protections in Emergencies ...... 26 4. Advancing the Litigation in Emergencies ...... 26 5. Procedure for Emergency Hearings ...... 27 I. Endnotes ...... 27

III. PRELIMINARY PROTECTIVE HEARINGS ...... 29 A. Introduction ...... 30 B. Who Should Be Present ...... 33 C. Filing the Petition ...... 36 D. Key Decisions the Court Should Make at the Preliminary Protective Hearing ...... 37 Table of Contents

E. Additional Activities at the Preliminary Protective Hearing ...... 39 F. Submission of Reports to the Court...... 40 G. The Court’s Written Findings of Fact and Conclusions of Law at the Preliminary Protective Hearing ...... 40 H. Conclusion...... 41 I. Resource Guideline ...... 42 J. Preliminary Protective Hearing Checklist ...... 43 K. Endnotes ...... 44

IV. ADJUDICATION HEARINGS ...... 45 A. Introduction ...... 46 B. Timing of Adjudication ...... 47 C. Admissions and Agreements ...... 47 D. Who Should Be Present ...... 48 E. Key Decisions the Court Should Make at the Adjudication Hearing ...... 49 F. Additional Decisions at the Adjudication Hearing ...... 50 G. The Court’s Written Findings of Fact and Conclusions of Law at the Adjudication Hearing...... 50 H. Conclusion...... 50 I. Resource Guideline ...... 51 4 J. Adjudication Hearing Checklist ...... 52 K. Endnotes ...... 52

V. DISPOSITION HEARINGS ...... 53 A. Introduction ...... 54 B. Need for Separate Proceeding at Disposition ...... 54 C. Timing of Disposition...... 55 D. Agreements by the Parties ...... 55 E. Who Should Be Present...... 55 F. Submission of Reports to the Court...... 56 G. Key Decisions the Court Should Make at the Disposition Hearing ...... 57 H. The Court’s Written Findings of Fact and Conclusions of Law at the Disposition Hearing ...... 60 I. Conclusion...... 61 J. Resource Guideline ...... 62 K. Disposition Hearing Checklist ...... 63

VI. REVIEW HEARINGS ...... 65 A. Introduction ...... 66 B. Timing of Review ...... 67 C. Agreements by the Parties ...... 68 Table of Contents

D. Who Should Be Present...... 68 E. Key Decisions the Court Should Make at the Review Hearing ...... 70 F. Submission of Reports to the Court...... 72 G. The Court’s Written Findings of Fact and Conclusions of Law at the Review Hearing ...... 73 H. Conclusion...... 73 I. Resource Guideline ...... 74 J. Review Hearing Checklist ...... 75 K. Endnotes ...... 76

VII. PERMANENCY PLANNING HEARINGS ...... 77 A. Introduction ...... 78 B. Timing of Permanency Planning Hearings ...... 79 C. Agreements By the Parties ...... 80 D. Who Should Be Present...... 80 E. Key Decisions the Court Should Make at the Permanency Planning Hearing ...... 80 F. Submission of Reports to the Court...... 82 G. The Court’s Written Findings of Fact and Conclusions of Law at the Permanency Planning Hearing ...... 83 H. Conclusion...... 84 5 I. Resource Guideline ...... 84 J. Permanency Planning Hearing Checklist ...... 85 K. Endnotes ...... 86

VIII. TERMINATION OF PARENTAL RIGHTS HEARINGS ...... 87 A. Introduction ...... 88 B. Petition and Notice ...... 89 C. Voluntary Relinquishment of Parental Rights...... 90 D. Pretrial Proceedings ...... 91 1. Case Flow Management ...... 91 2. Appointment of Counsel ...... 92 3. Discovery ...... 93 4. Pretrial Conferences and Meetings...... 93 5. Submission of Reports to the Court ...... 93 E. Timing of the Termination Hearing...... 94 F. Who Should Be Present...... 94 G. Key Decisions the Court Should Make at the Termination of Parental Rights Hearing...... 95 H. The Court’s Written Findings of Fact and Conclusions of Law at the Termination of Parental Rights Hearing ...... 95 I. Post-Termination Placement Plan and Judicial Monitoring...... 95 Table of Contents

J. Conclusion...... 97 K. Resource Guideline ...... 98 L. Termination of Parental Rights Hearing Checklist...... 99 M. Endnotes ...... 99

IX. ADOPTION HEARINGS ...... 101 A. Introduction ...... 102 B. Adoption Hearings...... 102 C. Who Should Be Present ...... 102 Persons Who Should Always Be Present at the Uncontested Adoption Hearing ...... 102 Persons Who Should Always Be Present at the Contested Adoption Hearing ...... 103 Persons Whose Presence May Also Be Needed at the Contested Adoption Hearing ...... 103 The Court’s Written Findings of Fact and Conclusions of Law at the Adoption Hearing ...... 103 D. Conclusion...... 104 E. Resource Guideline ...... 104 F. Adoption Hearing Checklist ...... 105

6 MASTER CHECKLISTS ...... 107

GLOSSARY ...... 121

APPENDIX A: Time Resource Calculations ...... 125

APPENDIX B: Alternatives to Contested Litigation in Child Abuse and Neglect Cases ...... 131

APPENDIX C: “Improving Implementation of the Federal Adoption Assistance and Child Welfare Act of 1980” ...... 139 PUBLICATION DEVELOPMENT COMMITTEE MEMBERS

Judge David E. Grossmann Judge Sophia H. Hall Chairman Circuit Court of Cook County Publication Development Committee Chicago, Illinois President-Elect Judge Sharon P. McCully National Council of Juvenile Third District Juvenile Court and Family Court Judges Salt Lake City, Utah Hamilton County Juvenile Court Judge David B. Mitchell Cincinnati, Ohio Circuit Court of Baltimore City Judge William E. Gladstone Baltimore, Maryland Retired Judge Judge Gerald E. Rouse Dade County Juvenile Court Fifth Judicial District Court Miami, Florida Columbus, Nebraska Judge E. Preston Grissom Judge Paul R. Wohlford Chesapeake Circuit Court Bristol County Juvenile Court Chesapeake, Virginia Bristol, Tennessee

CONSULTANTS AND ADVISORS

Steve Baron Judge Thomas E. Hornsby Superior Court of California 15th Judicial Circuit Court Santa Clara County Dixon, Illinois San Jose, California Joe Kroll Referee Paul DeMott North American Council Hamilton County Juvenile Court on Adoptable Children Cincinnati, Ohio St. Paul, Minnesota Judge Leonard P. Edwards Judge B. Thomas Leahy Superior Court of California Retired Judge Santa Clara County Superior Court of New Jersey San Jose, California Newark, New Jersey 7 Judge Ninian M. Edwards Judge J. Dean Lewis Retired Judge 15th District Juvenile and St. Louis County Circuit Court Domestic Relations Court Clayton, Missouri Fredericksburg, Virginia Judge James M. Farris Judge John F. Mendoza 317th District Court Retired Judge Beaumont, Texas Eighth Judicial District Court Judge Carmen A. Ferrante Las Vegas, Nevada President Michael Piraino National Council of Juvenile National Court Appointed Special and Family Court Judges Advocate (CASA) Association Superior Court of New Jersey Seattle, Washington Paterson, New Jersey Judge Gerald E. Radcliffe Judge Richard J. FitzGerald Common Pleas Court Jefferson County District Court Probate and Juvenile Divisions Louisville, Kentucky Chillicothe, Ohio Peter W. Forsythe Judge W. Donald Reader Consultant Fifth District Court of Appeals Dover, New Hampshire Canton, Ohio Mark Hardin Judge Philip H. Rose American Bar Association Vinton County Court of Common Pleas Center on Children and the Law McArthur, Ohio Washington, D.C. Maria E. Schmidt Judge Martin A. Herman National Center for State Courts Superior Court of New Jersey Arlington, Virginia Woodbury, New Jersey Barbara Seibel Chief Justice Gerald W. VandeWalle Director of Court Services Supreme Court of North Dakota Hamilton County Juvenile Court Bismarck, North Dakota Cincinnati, Ohio Judge Roy B. Willett Justice Charles E. Springer 23rd Judicial Circuit Court Nevada Supreme Court Roanoke, Virginia Carson City, Nevada Judge Marshall P. Young Judge John P. Steketee District Judge Kent County Juvenile Court Federal Court Grand Rapids, Michigan District of South Dakota Rapid City, South Dakota

PUBLICATION STAFF

RENO National Council of Juvenile M. James Toner and Family Court Judges Associate Director of Continuing Judicial Education Louis W. McHardy Patricia J. White Project Director, Victims of Child Senior State Training Specialist Abuse Act Project Publication Editor Executive Director, NCJFCJ, and Dean, National College of Juvenile and Family Law PITTSBURGH Cheryl M. Davidek National Center for Senior Administrative Assistant Juvenile Justice Krista R. Johns Director of Curriculum E. Hunter Hurst III Mary Volpa Mentaberry Director, National Center for 8 Project Manager, Assistant Editor Juvenile Justice Robert Praksti Richard Gable Project Director, Permanency Director of Applied Research Planning for Children Project Gregory Halemba Arne L. Schoeller Research Associate Associate Director, Planning and E. Hunter Hurst IV Development Research Assistant Thelma K. Sekiguchi Patricia Torbet Senior Administrative Assistant Research Associate

ACKNOWLEDGEMENT

These guidelines were developed by Special thanks go to Mark Hardin a committee of the National Council of of the American Bar Association Juvenile and Family Court Judges, com- Center on Children and the Law prised of active member judges who and Barbara Seibel, Director of were joined by representatives from the Court Services of the Hamilton National Conference of Chief Justices County Juvenile Court in Cincin- and the American Bar Association Ju- nati, Ohio, for their significant con- dicial Administration Division. Staff of tributions to this project. These Re- the National Council of Juvenile and source Guidelines are recommended Family Court Judges and its research for use by judges, court personnel, so- arm, the National Center for Juvenile cial service workers, attorneys and re- Justice, worked in conjunction with lated professionals. Readers are urged committee members and consultants to to use this information to ensure that develop these recommendations to help as many children as possible have guide the acquisition and allocation of stable, caring, and supportive families, judicial resources. not only during their early years, but for a lifetime. I. INTRODUCTION

INTRODUCTION TABLE OF CONTENTS

I. Introduction

A. Need for Guidelines ...... 10

B. Purpose of Guidelines ...... 11

C. Scope of Guidelines ...... 11

D. Key Principles Underlying Guidelines ...12 1. Avoiding Unnecessary Separation 9 of Children and Families ...... 12 2. Reunification ...... 13 3. When Reunification is Not Feasible ...... 13 4. The Need to Make Timely Decisions in Child Abuse and Neglect Litigation ...... 14 5. The Oversight Role of the Juvenile and Family Court ...... 14

E. Endnotes ...... 16 I. Introduction

A. Need for Guidelines Victims of child abuse and neglect volved. To perform their expanded come before juvenile and family court oversight role, courts need to under- judges for protection from further harm stand how public child welfare agen- and for timely decision-making for their cies operate and what services are avail- future. In response, judges make criti- able in the community for endangered cal legal decisions and oversee social children and their families. service efforts to rehabilitate and main- Unfortunately, many courts have nei- tain families, or to provide permanent ther the ability nor the resources to alternative care for child victims. These meet these new demands. Judicial oversight responsibilities require a large caseloads have actually risen at the portion of the court’s attention, same time that the number of issues, workload and resources as the reported hearings, and parties have increased. number of child abuse and neglect cases As a result, in many jurisdictions, the grows each year. Public awareness of quality of the court process has gravely the tragedy of physical and sexual abuse suffered. Hearings are often rushed in of children has led to a recent explosion child abuse and neglect cases. There in court referrals. The problem has been are also frequent and unfortunate de- exacerbated by poverty, the impact of lays in the timing of hearings and deci- drug-exposed mothers and infants, HIV sions, causing children to grow up Syndrome, the continuing dissolution of without permanent homes. Many the family unit, and the growing recog- courts know little about relevant agency nition that child victims are often found operations or services. All too often, in violent families. child welfare agency employees spend Throughout the United States, child unnecessary hours waiting for court abuse and neglect proceedings in the hearings while they could be “out work- juvenile and family courts have been ing in the field.” 10 transformed by new demands placed The nation’s juvenile and family upon the courts. These demands have courts need a clear description of ways included escalating judicial caseloads, to fulfill their responsibilities in child increasingly difficult cases, and a signifi- abuse and neglect cases. This descrip- cant new role assigned to juvenile and tion must explain the decision-making family courts in abuse and neglect cases. process in these cases and describe re- In the 1970’s, juvenile and family sources needed to create such a pro- courts were expected only to determine cess. whether a child had been abused or ne- What is needed is a clear vision of ju- glected and, if so, whether the child venile and family court procedures in needed to be removed from home or child abuse and neglect cases, based placed under court or agency supervi- upon the experiences of demonstration sion. At present, however, courts are ex- courts which already have been rela- pected to make sure a safe, permanent, tively successful in performing their and stable home is secured for each new role. The new vision must be real- abused or neglected child. This change istic, clarifying the resources necessary has been brought about by major fed- to meet 21st century demands. eral foster care reform legislation, the The increased responsibilities and re- Adoption Assistance and Child Welfare sultant administrative tasks which P.L. Act of 1980—boxed at right on page 11 , 96-272 requires of judges are taxing al- (P.L. 96-272) and major revisions in state ready overburdened people and sys- laws. tems. Juvenile and family court judges As a result of recent changes in fed- are the gatekeepers of our nation’s fos- eral and state law, juvenile and family ter care system. They must ultimately courts now take a far more active role in decide whether a family in crisis will be decision-making in abuse and neglect broken apart and children placed in fos- cases. More complex issues are now ter care or whether placement can be decided in each case, more hearings are safely prevented through the reason- held, and many more persons are in- able efforts of our social service system. I. Introduction

Duties Imposed by the Adoption Assistance and Child Welfare Act If reasonable efforts to preserve or re- of 1980 (P.L. 96-272) on State unify families are not evaluated and en- Juvenile and Family Courts sured through effective judicial review, then families and children are unnec- Federal Requirements Applicable to essarily harmed. State Juvenile and Family Courts: Note: Additional information on P.L. 96-272 is provided in Appendix C. “Im- • Evaluation of reasonableness of proving the Implementation of the Fed- services to preserve families. eral Assistance and Child Welfare Act • Periodic review hearings in foster of 1980,” by the Hon. Leonard P. care cases. Edwards, superior court judge in Santa • Adherence to deadlines for Clara County, California. permanency planning decisions. • Procedural safeguards concerning B. Purpose of Guidelines placement and visitation. The purpose of these resource guidelines is to set forth the essential elements Indirect Impact on Courts of of properly conducted court hearings. Federal Requirements: The guidelines describe the requirements of juvenile and family courts in • More termination of parental fulfilling the role now placed upon them rights cases. by federal and state laws. These guide- • More adoption, custody, and lines also describe how court calendars relative placement cases. can be efficiently managed to achieve efficiency and avoid delays; explain the Some Additional Duties court staffing and organization neces- Often Imposed on Juvenile and sary to make the judicial process run 11 Family Courts By State Statute smoothly; and clarify costs associated or Court Rule with such reforms. Everything Specified by Federal Law, These guidelines are meant to influ- Plus the Following: ence future administrative and funding decisions concerning juvenile and fam- • Prompt review of emergency ily courts. They are intended to help placements. correct the gaping discrepancies that • Strict deadlines for adjudication presently exist between legislative de- (trial). mands and judicial resources for child • Strict deadlines for disposition. abuse and neglect cases. • Oversight of agency case planning. • Periodic review in all cases. C. Scope of Guidelines • Stricter deadlines for permanency These guidelines set forth the ele- planning decisions. ments of a high-quality judicial process • Procedural safeguards stricter than in child abuse and neglect cases. They those specified by federal law and specify the necessary elements of a fair, provided through the courts. thorough, and speedy court process in • More termination of parental rights cases brought for the protection of proceedings due to updated grounds. abused and neglected children. The • Oversight of agency efforts to place guidelines cover all stages of the court abused or neglected children with process, from the preliminary protective relatives. hearing until juvenile and family court involvement has ended. These guide- Source: M. Hardin, Judicial Implementation of Permanency lines assume that the court will remain Planning Reforms: One Court That Works (ABA 1992). I. Introduction

involved until after the child has been most notably the Hamilton County Ju- safely returned home, placed in a new, venile Court in Cincinnati, Ohio. secure and legally permanent home — Throughout the deliberations resulting whether through adoption or legal cus- in the final document, Hamilton County tody — or has reached adulthood. experience was observed, measured These guidelines address the process and documented to provide a base of itself rather than substantive law. They reality for understanding both the need do not offer criteria for state agency or for good practice and the requirements court intervention in the lives of fami- necessary to assure it can occur. lies, but are limited to matters of judi- Technical information is provided in cial procedure, organization, staffing, Appendix A - Time Resource Calcula- and finances. The guidelines do not at- tions to further guide court administra- tempt to define child abuse and neglect, tors and judges estimating docket time, describe what kinds of child abuse or judicial time and ancillary court staff neglect justify a child’s removal from time necessary to implement the Re- home, specify when children can safely source Guidelines. Estimates are pro- be returned home, or set forth sug- vided of the annual time requirements gested grounds for the termination of for new cases from initial disposition parental rights. through ongoing case review to termi- Instead of focusing on the criteria for nation. judicial decisions, these guidelines set forth the characteristics of each hear- D. Key Principles ing itself. The guidelines outline needed Underlying Guidelines procedural steps for each hearing, de- The most basic principle underlying scribe key decisions that must be made, these guidelines is the need for compre- specify when each hearing needs to take hensive and timely judicial action in place, and the role of each participant. child welfare cases. These guidelines 12 recognize the need to assure safe and The guidelines outline needed permanent homes for abused or neglected children and the prominent role procedural steps for each hearing, of the judiciary in this process. Other describe key decisions that must key principles include: be made, specify when each hearing needs to take place, 1. Avoiding Unnecessary Separa- and the role of each participant. tion of Children and Families When the state is forced to intervene The guidelines also explain the nec- on behalf of abused and neglected chil- essary preconditions for conducting dren, it is not enough to protect them thorough, meticulous, and timely hear- from immediate harm. When the state ings. For example, courts need certain is deciding whether to place children administrative supports to effectively outside the home, it must take into ac- manage the pace of litigation. To con- count not only the children’s safety, but duct proper hearings, courts must meet also the emotional impact of separation. certain personnel requirements, pro- Throughout its involvement, the state vide necessary types of equipment, have must strive to ensure that children are adequate facilities and work space, have brought up in stable, permanent fami- workable caseloads, and provide for lies, rather than in temporary and un- diligent advocacy for the parties. These stable foster placements under the su- guidelines clarify such requirements pervision of the state. with specific reference to child abuse The need to provide permanent and neglect litigation in juvenile and homes for abused or neglected children family courts. is the fundamental principle behind the These guidelines were not developed Adoption Assistance and Child Welfare in a vacuum, but resulted instead from Act of 1980.1 The obligation to achieve the working experience of many courts, permanency is also set forth in most I. Introduction states’ juvenile court acts and laws au- necessity of foster placement.6 States thorizing the termination of parental have reinforced this federal require- rights. ment through state statutes, regula- Statutory provisions designed to tions, and written policies. achieve permanency for abused or neglected children are based on several 2. Reunification widely accepted principles of child de- Achieving permanent homes for velopment. First, many mental health abused and neglected children also in- professionals believe that stable and cludes working toward the reunification continuous care givers for children are of families that have had to be sepa- very important to normal emotional rated. When there has been no safe way growth.2 According to these authori- to prevent the need for foster place- ties, children need secure and uninter- ment, states must make reasonable ef- rupted emotional relationships with adults who are responsible for their To prevent unnecessary removal care. Repeatedly disrupted placements of children from their homes, the and relationships can interfere with a state must take strong, affirmative child’s ability to form close emotional steps to assist families. relationships after reaching maturity. Second, children need the security of having parents committed to their care. forts to bring about the safe reunifica- The lack of parents who provide uncon- tion of children and their families.7 ditional love and care can profoundly States have spelled out this obligation insult a child’s self-image.3 through state statutes, regulations, and Third, having a permanent family policies. Among the requirements are adds predictability to a child’s life. Fos- the following: individual written case ter care, with its inherent instability and plans specifying state efforts to reunify impermanence, can impose great stress families; placement in the least disrup- on a child. Weathering the normal situ- tive setting possible; actual services 13 ational changes of childhood in a per- pursuant to the case plans; and periodic manent family enables a child to envi- review of each case to ensure timely sion a more secure future.4 progress toward reunification. Fourth, the child-rearing competence of autonomous families is always supe- 3. When Reunification rior to that of the state.5 Parents are is Not Feasible likely to be capable of making the best, Of course, some children in foster most timely decisions for a child, while care cannot safely be returned home in decision-making concerning a child in spite of the state’s best efforts to assist state-supervised foster care can often be the family. The best state efforts to as- fragmented and inconsistent. sist families do not always improve pa- If it is important that children be rental behavior or enable parents to care raised in stable and secure families, it for their children. In cases where fam- follows that the state should, when pos- ily reunification is not feasible, the sible, protect the child without remov- search for a new, permanent home for ing the child from home. Preventing un- the child supersedes that as a goal. necessary removal also helps to pre- Federal law makes it clear that per- serve the constitutional right of families manent homes are to be arranged for to be free from unwarranted state in- children unable to be reunited with their terference. families within a reasonable time.8 State To prevent unnecessary removal of laws and policies on such issues as case children from their homes, the state review, termination of parental rights, must take strong, affirmative steps to custody, adoption of children with spe- assist families. Toward this end, federal cial needs, and adoption subsidy rein- law requires child welfare agencies to force this concept. make “reasonable efforts” to prevent the I. Introduction

4. The Need to Make Timely foster home, or whether and when they Decisions in Child Abuse and may be placed in a new permanent Neglect Litigation home are frightening. Court delays can be a major obstacle The law requires courts to make to achieving permanency for abused timely decisions for abused or neglected and neglected children. Even where the children. Under federal law, a decision pace of litigation is tightly managed, concerning the permanent placement of decision-making in child abuse and ne- each child is to take place within 18 glect cases can extend for many months. months of when a child is first placed When juvenile or family court proceed- into foster care.10 Many states set ings are allowed to proceed at the pace stricter deadlines. To be able to meet of other civil litigation, children spend such deadlines in making a permanent years of their childhood awaiting placement decision for a child, the ear- agency and court decisions concerning lier stages of the litigation must also their future. occur in a timely manner. Children have a very different sense Combatting delays in juvenile court, of time from adults. Short periods of where there are many stages to the liti- time for adults seem interminable for gation and many participants in the pro- children, and extended periods of un- cess, can be more difficult than in other certainty exacerbate childhood anxiety. courts. Yet efforts to speed litigation in When litigation proceeds at what attor- child welfare can be successful. There neys and judges regard as a normal are great variances in court delays from pace, children often perceive the pro- jurisdiction to jurisdiction, and while ceedings as extending for vast and infi- differences in caseloads can be the nite periods. cause, docketing practices and case flow management have their effect. Some courts have very successfully used case 14 When juvenile or family court flow management to reduce delays in proceedings are allowed to child welfare litigation. To do so, how- proceed at the pace of other civil ever, the courts have had to make timely litigation, children spend years of litigation a high priority. their childhood awaiting agency and court decisions concerning 5. The Oversight Role of the their future. Juvenile and Family Court Child welfare cases impose a special obligation on juvenile and family court The passage of time is magnified for judges to oversee case progress. Case children in both anxiety levels and di- oversight includes two requisites: state rect effect. Three years is not a terribly fulfillment of its responsibilities and long period of time for an adult. For a parental cooperation with the state. six-year-old, it is half a lifetime, for a The oversight obligation of judges in three-year-old, it is the formative stage child welfare cases is necessary because for trust and security, and for a nine- special circumstances apply: (1) court year-old, it can mean the difference be- involvement in child welfare cases oc- tween finding an adoptive family and curs simultaneously with agency efforts failing to gain permanence because of to assist the family; (2) the law assigns age. If too much time is spent in foster to the juvenile court a series of interre- care during these formative years, life- lated and complex decisions that shape time problems can be created.9 the course of state intervention and de- Court delays caused by prolonged liti- termine the future of the child and fam- gation can be especially stressful to ily; and (3) because of the multitude of abused and neglected children. The persons dealing with the child and fam- uncertainty of not knowing whether ily, there is increased potential for de- they will be removed from home, lay and error. whether and when they will go home, Unlike most litigation, child abuse and when they might be moved to another neglect cases deal with an ongoing and I. Introduction changing situation. In a criminal case, tion. Termination of parental rights pro- by contrast, the trial usually deals with ceedings rely heavily upon the court’s whether specific criminal acts took findings during all earlier stages of the place at a specified time and place. But case. in a child welfare case, the court must In child welfare cases, the judge is not focus on agency casework and paren- merely the arbiter of a dispute placed tal behavior over an extended period of before the court, but, rather, sets and time. In making a decision, the court repeatedly adjusts the direction for state must take into account the agency’s plan intervention on behalf of each abused to help the family and anticipated and neglected child. These decisions changes in parental behavior. At the encompass not only the issues of custody, same time, the court must consider the placement, and visitation, but also, in evolving circumstances and needs of many states, the case plan for the child, each child. including exactly which services are to The juvenile court or family court be provided to the child and family. judge is required to remain actively involved over a period of time in child welfare litigation. The judge does not Combatting delays in juvenile simply make a one-time decision con- court, where there are many cerning the care, custody, and place- stages to the litigation and many ment of a child, but rather makes a se- participants in the process, can be ries of decisions over time. In effect, more difficult than in other courts. step-by-step the judge must determine how best to assure the safe upbringing of the child, and that the child is even- Because its decisions in child welfare tually placed in a safe and permanent cases are interlocking and sequential, home. the court performs a more managerial The decisions that must be made in and directive function than in other liti- 15 child welfare litigation are not merely gation. Court decisions shape agency litigation management decisions, but actions by identifying dangers and de- decisions governing the lives and fu- fining the agency’s approach to each tures of the parties. For example, over case, and related delivery of services to time a court may order, in a single child the child and family. Regular court re- welfare case: the child’s emergency view of each case refines and redefines placement into shelter care; the child’s agency involvement. Because of the placement into extended foster care; the nature of this decision-making in child parents’ participation in treatment; the welfare cases, the judge has a distinct parents’ submission to evaluation or impact on the course of agency work testing; the parents’ participation in a with each family. revised treatment plan; a schedule for Each of the key principles underly- parent-child and sibling visitation; ter- ing these Resource Guidelines empha- mination of parental rights; and the sizes the tremendous responsibility un- child’s adoption. The length, scope, and dertaken by judges hearing child abuse continuous nature of these determina- and neglect cases. This judicial respon- tions involves the court in the lives of sibility gives rise to a number of gen- the parties and the operations of the eral issues involved in court organiza- agency to a degree unlike other court tion and operation. The most pertinent cases. of these general issues are examined in All decisions in a child welfare case the following section. are interrelated. Just as the findings at the adjudication (trial) shape the disposition (the decision concerning the child’s custody, placement, and services), subsequent review hearings typically focus on how the parties have re- acted to the court’s decision at disposi- I. Introduction

E. Endnotes 1. Public Law 96-272 (enacted June 17, 1980) repealed the old foster care provisions of Title IV-A of the So- cial Security Act, added a new Title IV-E (Foster Care and Adoption Assistance), and amended Title IV-B (Child Welfare Services) of the Social Security Act, see 42 USC §§620 et seq. and §§ 670 et seq. 2. See, e.g., J. Goldstein, A. Freud and A. Solnit, Be- yond the Best Interests of the Child (New York: Free Press, Macmillan 1973); Leon A. Rosenberg, “The Tech- niques of Psychological Assessment as Applied to Children in Foster Care and Their Families,” Foster Children in the Courts, 550-74 (Boston: Butterworth Legal Publishers, 1983); M. Rutter, Maternal Depriva- tion Reassessed, 179-97 (1981). 3. See David Fanshel and Eugene B. Shinn, Children in Foster Care: A Longitudinal Investigation, 479-82 (New York: Columbia University Press, 1978); Michael Wald, State Intervention on Behalf of “Neglected” Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stanford Law Review 623, 645 (1976); E. Weinstein, The Self-Image of the Foster Child (1960).

4. See V. Pike, et al., Permanent Planning for Children in Foster Care: A Handbook for Social Workers, 1-2 (Portland: Regional Research Institute for Human Ser- vices, Portland State University, 1977); M. Allen and J. Knitzer, Children Without Homes: An Examination of Public Response to Children in Out-of-Home Care, 41 (Washington, D.C.: Children’s Defense Fund, 1978). 5. See J. Goldstein, A. Freud and A. Solnit, supra, at 51-52; I. White, Federal Programs for Young Children, Review and Recommendations (1973); Institute for Judicial Administration/American Bar Association Juvenile Justice Standards Project, Standards Relat- 16 ing to Abuse and Neglect, Standard 1.1 (Washington, D.C.: American Bar Association, 1981); Michael Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stanford Law Review 985, 989-1000 (1975).

6. See 42 USC §671(a)(15); Debra Ratterman, G. Diane Dodson and Mark A. Hardin, Reasonable Efforts to Prevent Foster Placement: A Guide to Implementation 2d ed (Washington, D.C.: American Bar Association, 1987).

7. See 42 USC §§671(a)(15), 427(a)(2)(C).

8. See 42 USC §§427(a)(2)(C), 675(1)(B), 675(5)(B), 675(5)(C).

9. Pat O’Brien, Youth Homelessness and the Lack of Adoption Planning for Older Foster Children: Are They Related?, Adoptalk Newsletter, North American Coun- cil on Adoptable Children, 1821 University Avenue, Suite N-498, St. Paul, Minnesota 55104, (612) 644-3036.

10. See 42 USC § 675(5)(C); Marylee Allen, Carol Golubock, and Lynn Olson, “A Guide to the Adoption Assistance and Child Welfare Act of 1980,” Foster Chil- dren in the Courts, 575-611 (Boston: Butterworth Le- gal Publishers, 1983). II. GENERAL ISSUES

GENERAL ISSUES TABLE OF CONTENTS

II. General Issues

A. Authority of the Juvenile and Family Court and the Role of the Judge ...... 18

B. Calendaring for One Family-One Judge ...... 19

C. Case Flow Management ...... 19 1. Judicial Commitment and Leadership ...... 20 2. Standards and Goals ...... 20 3. Monitoring and Information System...... 20 4. Scheduling for Credible Court Dates ...... 20 5. Court Control of Continuances ...... 21 D. Judge-Supervised Judicial Officers...... 21 17 E. Access to Competent Representation .. 22 1. Attorneys ...... 22 2. Guardians ad Litem/Court Appointed Special Advocates (GALs/CASAs) ...... 23

F. Court Facilities...... 24

G. Voluntary Agreements for Care ...... 24

H. Emergency Orders ...... 25 1. Child Protection ...... 25 2. Speedy Issuance of Orders ...... 26 3. Procedural Protections in Emergencies...... 26 4. Advancing the Litigation in Emergencies...... 26 5. Procedure for Emergency Hearings ...... 27

I. Endnotes ...... 27 II. General Issues

A. Authority of the Juvenile and Family Court ery of services and treatment for chil- and the Role of the Judge dren and families. The judge must be Juvenile and family courts have the prepared to hold all participants ac- responsibility to protect the rights of countable for fulfilling their roles in the parties before the court and ensure safe, court process and the delivery of ser- permanent homes for abused and ne- vices. glected children. Among the most State laws differ concerning the au- pressing judicial concerns in abuse and thority of juvenile and family courts to neglect cases are the principles of treat- determine what services are to be pro- ment, rehabilitation, family preserva- vided to abused and neglected children tion, and permanency planning. and their families, to specify where fos- Child protection agencies, service ter children are to be placed, to decide providers, guardians ad litem and attor- the terms of agency case plans, to re- neys all play critical roles in child abuse solve disputes between different public and neglect cases. For the child wel- agencies, and to set the terms of visita- fare system to function in the best in- tion. None of these should be shielded terests of children, it is essential that all from judicial oversight, because each these major participants discharge their has constitutional overtones. Without responsibilities in an effective and re- procedural protection, decisions touch- sponsible manner. Ultimately, however, ing on these issues could be instruments children are placed pursuant to court or- of discrimination or oppression. ders. Therefore, the juvenile court has the responsibility to hold the entire system accountable. To discharge this re- The following are some of sponsibility, the juvenile court must the possible bases for a court have authority commensurate with the to revise or overturn agency task assigned. decisions concerning services, Juvenile and family court judges can case plans, child placement, 18 be leaders in their communities, state interagency disputes, or capitals, and at the national level to im- visitation: prove the administration of justice for children and families. Judges can be (1) Agency action is contrary to law. active in the development of policies, laws, rules and standards by which the (2) Agency recommendations are courts and their allied agencies and sys- not in accord with the evidence tems function. Judges can inform the presented at the hearing. The community of the unique and diverse proposed disposition will not needs of troubled children and their adequately address the abuse or families. Judicial responsibility for im- neglect that the court found the partiality does not preclude judicial parents to have committed. leadership. The very nature of the office mandates that the judge act as an (3) Evidence before the court advocate and convener to assure that demonstrates the futility or needed services for children and fami- inappropriateness of action lies are available and accessible. proposed by the agency. Judges should encourage the continuing education of all who serve in the juvenile and family court system, includ- The court must insist that the pro- ing themselves. Professional training posed plan or disposition is complete topics should encompass cultural com- and, when it is not, must direct the petence and gender fairness, as well as agency to respond. The court’s over- interdisciplinary education among all sight role also includes the application court-related disciplines. of sanctions against parties which fail Juvenile and family court judges must to appropriately respond to court or- have the authority by statute or court ders. rule to order, enforce and review deliv- II. General Issues

B. Calendaring for One Family-One Judge abling families to anticipate a judge’s re- In many courts, child abuse and ne- sponse to their future conduct. glect cases are assigned to a specific judge or judicial officer at the time the Direct calendaring gives judges case is first brought to court, and this a sense of ownership in each case. initial judge conducts all subsequent hearings, conferences, and trials. Courts in which one family is assigned The court’s long-term, detailed case to one judge throughout its court expe- knowledge can prevent parties from rience are said to use “direct resurrecting previously rejected argu- calendaring.” By contrast, courts with ments. It also prevents parents from “master calendaring” can reassign cases repeating excuses for lack of progress to different judges at different stages of and wasting the court’s valuable time the case. Direct calendaring (also and the child’s priceless youth. Because known as “individual calendars”) is par- of the court’s continuous involvement ticularly suitable for abuse and neglect in each case, the judge can quickly re- cases because this type of litigation typi- view files, agency reports, and case plan cally involves complex hearings extend- changes before each hearing, allowing ing over a long period of time. Direct for informed decisions on case sched- calendaring enables judges or judicial uling, both in terms of frequency and officers to become thoroughly familiar length of time allotted for hearings. with the needs of children and families, Direct calendaring gives judges a the efforts over time made to address sense of ownership in each case. When those needs, and the complexities of a judge knows that his or her involve- each family’s situation. ment will extend beyond the immedi- A unique judicial perspective is devel- ate hearing, the judge is more likely to oped by a single judge hearing all mat- invest the time necessary to gather com- ters related to a single family’s court ex- plete information, to assess the results perience. Knowledge gained of family of decisions, and to develop a working 1519 circumstances and responses to court relationship with all the parties. orders may increase the quality of government’s response to family crises. C. Case Flow Management This long-term perspective identifies Court administrators recently have patterns of behavior exhibited over time developed new techniques to reduce by all parties involved in a case, prevent- litigation delays, collectively known as ing a judge from too heavy a reliance “case flow management.” Effective case on social service agency recommenda- flow management is essential in abuse tions. In states where judges are ex- and neglect cases because it is essential pected to approve and review agency to successful permanency planning. case plans, a single judge provides con- Permanency planning means achieving sistency and continuity, developing a permanent placements for abused or case plan in a logical, step-by-step man- neglected children within a relatively ner. A judge who has remained in- short period of time, either through volved with a family is more likely to their safe return home, or their place- make decisions consistent with the best ment in a new, legally secure permanent interests of the child. home. Sound case flow management Direct calendaring allows the court to by juvenile and family courts is needed speak with a single voice and convey to assure that delays in the court pro- consistent messages and expectations cess do not interfere with the timely to the parties. Parties can rely on the achievement of permanency. Case flow court’s direction without concern that a management also helps the court moni- different judge at the next hearing will tor the agency to make sure the case is interpret the case differently. This can being moved diligently and decisively prevent families from feeling that toward completion.1 strangers who know nothing about them are controlling their lives, en- II. General Issues

The following are the basic tools of tact agency staff to remind them of judi- case flow management: (1) judicial lead- cial deadlines for the filing of reports. ership and commitment; (2) standards Serious breaches of court deadlines can and goals; (3) a monitoring and infor- be brought to the attention of the pre- mation system; (4) scheduling for cred- siding judge. ible trial dates; and (5) judicial control Court staff should operate a comput- of continuances.2 An additional key erized data system capable of spotting characteristic of case flow management cases that have been seriously delayed, in child abuse and neglect cases is the and capable of measuring court use of direct calendaring. progress in case flow management. This information system should maintain sta- 1. Judicial Commitment tistics on the length of time from case and Leadership filing to case closure. The system should The court must demonstrate an un- also monitor the length of key steps in mistakably strong commitment to the litigation, such as petition to adjudi- timely decisions in child abuse and ne- cation, petition to disposition, and ter- glect cases. It must communicate to its mination of parental rights petition to own employees, the attorneys practic- final written findings of fact and conclu- ing before it, and the child welfare sions of law. These statistics should be agency that timely decisions are a top periodically reported and used to evalu- priority. It must conduct and participate ate the effectiveness of case flow man- in educational programs concerning the agement. elimination of delays. The court also must make necessary organizational ad- 4. Scheduling for justments related to delays, in coopera- Credible Court Dates tion with court and agency staff. The In the great majority of cases, the court court must design explicit processes to should hold hearings on the date that ensure timely hearings and must make they are originally scheduled. To make 20 sure they are implemented by all judges this possible, attorneys and parties must and administrative staff. understand that trial dates are firm. There often must be pretrial conferences 2. Standards and Goals prior to contested hearings to resolve Specific and detailed timetables for preliminary issues and to arrive at a time the different stages of litigation are es- estimate for the hearing. There should sential to an effective delay-reduction be no major interruptions in contested program. There must be explicit dead- hearings. It should be unusual for a con- lines for each preliminary protective, tested hearing not to be completed on adjudication, disposition, review, and the day scheduled or within a few days permanency planning hearing. There thereafter. must be specific deadlines for the completion of termination of parental There should be no major rights proceedings. These limits should interruptions in contested be incorporated into court rules and made legally binding upon the court. hearings.

The early appointment of counsel and Serious breaches of court other representation is another impor- deadlines can be brought to the tant factor in scheduling firm trial dates. attention of the presiding judge. Attorneys for parents and children must be present and actively involved in the 3. Monitoring and very first court hearing and all hearings Information System thereafter. Many jurisdictions substan- Court staff can monitor the timing of tially delay adjudication and disposition court proceedings in several ways. They because of delays in the appointment of may use tickler files to help the judge or counsel. judicial officer schedule hearings within Another way to keep hearings on required deadlines. Court staff can con- schedule is to set hearing dates in open II. General Issues

D. Judge-Supervised court with parties and advocates Judicial Officers present to receive a written court order Whenever possible, child abuse and specifying the date and time of the next neglect cases should be heard by a hearing. judge, even in jurisdictions in which judicial resources are at a premium. In the majority of jurisdictions throughout The court must have a firm and the nation, however, judges have the effective policy on continuances. authority to appoint judge-supervised judicial officers to preside over hearings The order should also specify ac- and make decisions concerning cases tions to be taken by each party, includ- assigned to them. Judicial officers typi- ing social service personnel, and list ap- cally serve at the pleasure of the judge propriate timelines. The order should who appointed them, and their deci- be written in easily understandable lan- sions are subject to review by a judge. guage so that all parents and other non- Such judicial officers are often referred lawyers understand clearly what actions to as “associate judges,” “magistrates, “ are required before the next hearing. “referees,” “special masters,” “hearing officers,” or “commissioners.” 5. Court Control of Continuances When judge-supervised judicial offic- The court must have a firm and effec- ers are employed, the principle of one tive policy on continuances. Continu- family-one judge must still be main- ances should not be allowed because tained. Cases should not be shifted be- hearing dates prove inconvenient for tween judges and hearing officers at attorneys and parties. Continuances different stages of the proceedings. If should be granted only when attorneys cases can be appealed from the hear- or parties are ill; essential witnesses can- ing officer to the judge, they should not not be located; or service of process has be retried by the judge. Rather, the not yet been completed. Neither should judge should promptly review a tape or continuances be granted based upon transcript of the hearing. Retrials waste 21 the stipulation of the parties. Adminis- judicial time, delay case decisions, and trative personnel should not be autho- undermine the principle of one family- rized to grant continuances. The rea- one judge. son for any continuance should be in- The use of judge-supervised judicial cluded in the court record. As the re- officers can be an appropriate alterna- sult of these procedures, it should be tive when judges, particularly in large difficult or impossible to avoid court urban areas, are faced with increasing continuance policies. child abuse and neglect caseloads. The One of the consequences of a firm use of judicial officers can provide sev- policy on continuances is better use of eral advantages. First, the use of judi- judicial resources. With strong continu- cial officers is cost-effective, signifi- ance policies, pretrial conferences, and cantly increasing the staffing resources calendar calls in contested matters, few needed to move these cases through the hearings should need to be rescheduled system in a timely manner with close at the last minute. judicial oversight. By reducing hear- With a strict policy against continuing costs, the use of judicial officers al- ances and an adequate number of lows a court system to devote more time judges, all hearings can be set for a time to each case, resulting in lower certain. This includes even the most caseloads, fewer delays and closer routine matters such as case review monitoring of cases. hearings. When cases are set for a time Second, the use of judicial officers in certain, typical waiting time can be less neglect and abuse cases can help than 20 minutes, with hearings occa- achieve greater consistency in case pro- sionally being delayed up to an hour or cessing and outcomes. One administra- more. Reduction of waiting time for tive judge can appoint judicial officers agency caseworkers and other wit- who share consistent views and phi- nesses can result in major reductions in government expenditures.3 II. General Issues

losophies. That administrative judge motions and petitions. If attorneys fail can further develop principles, guide- to take timely action to correct errors lines and policies governing the han- or to resolve cases, the quality and time- dling of cases within the court system. liness of the court’s decision-making Third, the use of judicial officers may suffers. improve case flow management within Throughout the United States, there a court. When independent judges hear is an extraordinary range in the quality cases, and case docketing and court of counsel in child abuse and neglect administration is weak, it can be impos- cases. The quality of counsel ranges sible to establish uniform and efficient from the worst inactivity and incompe- practices to combat delays. tence (e.g., attorneys who meet their cli- Finally, judge-supervised judicial of- ents only shortly before hearings) to at- ficers can develop greater specialization torneys with a high degree of dedica- and expertise than can realistically be tion and skill. developed by many judges because they Courts have a great ability to posi- can be appointed to exclusively or pre- tively influence the quality of counsel. dominately hear child abuse and neglect Courts can set prerequisites for ap- cases and can be selected as a result of pointments, including requirements for their interest and expertise in this spe- experience and training. Some courts cialized area of the law. require attorneys to attend training and “second chair” cases before taking an Each party must be competently appointment to a child abuse or neglect and diligently represented in case. Some courts have implemented videotaped training sessions to speed order for juvenile and family the eligibility of attorneys for appoint- courts to function effectively. ments. Courts also can set specific standards for how parents and children 22 should be represented, including the E. Access to Competent obligation to continue representation Representation through all stages of the case. Courts Juvenile and family courts should take can impose sanctions for violation of active steps to ensure that the parties in their standards, which might include child abuse and neglect cases have ac- the termination of an attorney’s ap- cess to competent representation. At- pointment to represent a specific client, torneys and other advocates determine, the denial of further appointments, or to a large extent, what information is even fines or referral to the Bar com- presented to a judge. Each party must mittee for professional responsibility. be competently and diligently repre- It is necessary to provide reasonable sented in order for juvenile and family compensation for such improvements. courts to function effectively. Juvenile and family courts should urge state legislatures and local governing 1. Attorneys bodies to provide sufficient funding for Attorneys present information to the attorney compensation. court through opening statements, questions, and answers. A judge must Throughout the United States, receive complete and accurate information in order to make a well-informed there is an extraordinary range decision. This will not occur unless at- in the quality of counsel in child torneys are competent and diligent. abuse and neglect cases. Counsel must thoroughly investigate the case and prepare a list of issues and The court can play an important role questions in advance of court hearings in training attorneys in child abuse and to ensure that the judge has complete neglect cases. Judges and judicial of- and accurate information. Much of the ficers can volunteer to provide training initiative for decisions and actions and publications for continuing legal comes from attorneys in the form of education seminars. II. General Issues

Before becoming involved in an ating court proceedings. abuse and neglect case, attorneys • If the child has been removed from should have the opportunity to the home, determine what contacts the assist more experienced attorneys agency has since made with the parents in their jurisdiction. They should and the child, and what efforts were also be trained in, or familiar with: made to reunify the family prior to the preliminary protective hearing. • Legislation and case law on abuse • Conduct a full interview with the and neglect, foster care, termination of client to determine what involvement, parental rights, and adoption of children if any, the child welfare agency has had with special needs. with the parent or child; what progress • The causes and available treatment the parents and child have made; and for child abuse and neglect. what services the client (parent or age- • The child welfare and family pres- appropriate child) believes would be ervation services available in the com- helpful. munity and the problems they are de- • In preparation for such proceed- signed to address. ings as adjudication, disposition, peri- • The structure and functioning of the odic review, and termination of paren- child welfare agency and court systems, tal rights proceedings, interview key the services for which the agency will witnesses including child welfare routinely pay, and the services for which agency personnel, key service provid- the agency either refuses to pay or is pro- ers to the child and family, representa- hibited by state law or regulation from tives of other key agencies, and others paying. with knowledge of the case. • Local experts who can provide at- • Review all documents that have torneys with consultation and testimony been submitted to the court. on the reasonableness and appropriate- • Review the agency’s file and any ness of efforts made to safely maintain pertinent law enforcement agency re- 23 the child in the home. ports to evaluate the case and to ensure that the agency has complied with its After attorneys are assigned or own procedures and regulations. retained on an abuse and neglect • Obtain or subpoena necessary case, they should do the following: records, such as school reports, medical records and case records. • Actively participate in every critical • When necessary, arrange for inde- stage of the proceedings, including but pendent evaluations of children or par- not limited to hearings on adjudication, ents. disposition, periodic case review, perma- • Stay in regular contact with clients, nency planning, termination of parental writing letters and making telephone rights, and adoption. When necessary to calls when necessary and using tickler protect the interests of the client, the at- files. torney should introduce and cross exam- • Continue to remain in contact with ine witnesses, file and argue motions, de- the agency and monitor case progress velop dispositional proposals for the between court hearings. court, and file appeals. • Thoroughly investigate the case at 2. Guardians ad Litem/Court every stage of the proceedings. Attorneys Appointed Special Advocates should know, among other things, the (GALs/CASAs) family’s prior contacts with the child wel- Recent legislative developments have fare agency; who made the decision to recognized children’s need for indepen- bring the case to court; the basis for state dent representation in dependency pro- intervention, including the specific harm ceedings. The Child Abuse Prevention state intervention is supposed to prevent; and Treatment Act of 1974 required and what alternatives, including voluntary states receiving federal funds for the in-home services and placement with prevention of child abuse and neglect relatives, were considered prior to initi- to provide a guardian ad litem (GAL) for II. General Issues

every child involved in such proceed- equipment should be available. ings. Since the federal act failed to de- The courtroom must have adequate fine the role or responsibilities of GALs, seating capacity, but need not have the some jurisdictions appoint specially appearance of a traditional courtroom. qualified and trained attorneys as GALs; Smaller but comfortable courtrooms are some appoint trained citizen volunteers often appropriate. The use of a conven- as GALs, such as CASAs; and some tional courtroom may be intimidating to lacking sufficient funding fail to provide children appearing before the court. children with GAL representation. The judge should exercise some dis- Court Appointed Special Advocates cretion in protecting the privacy inter- (CASAs) are specially screened and ests of each party. Persons not directly trained volunteer guardians ad litem involved in the hearing should not be (GALs) appointed by the court to speak permitted to be present in the court- up for the best interests of abused and room. Other space should be provided neglected children. They review for parties, witnesses, and attorneys records, research information, and talk waiting for hearings in the same court. to everyone involved in the child’s case. There should be no side discussions or They make recommendations to the distractions permitted while the court court as to what is best for the child and is in session. monitor the case until it is resolved. Both trained volunteers and attorneys The use of a conventional must play a significant role in provid- courtroom may be intimidating ing GAL representation for children. In to children appearing before jurisdictions where there is role conflict the court. and confusion, there should be joint efforts to clarify and define mutual re- The courtroom should have a tele- sponsibilities. Juvenile and family phone. A bailiff should be in the court- courts must continue to examine meth- room, and the judge should have a si- ods of using both volunteers and attor- lent buzzer or other device available to 24 neys to improve the representation of obtain additional security personnel children involved in dependency pro- when necessary. ceedings.4 The judge or a court staff member . should have a personal computer in the F. Court Facilities courtroom that is linked to a laser The courthouse should be centrally lo- printer or other comparably efficient cated in the community it serves and printer. The computer is needed to per- should be readily accessible through mit instantaneous preparation and dis- mass transit. The courtroom itself tribution of court orders and findings should be separate and apart from at the hearing. Court forms can easily courtrooms used for adult criminal and be programmed into the computer to civil cases. Ideally, courtrooms used for facilitate rapid preparation of the or- abuse and neglect cases should be ders. Judges, other judicial officers, and physically separated from courtrooms clerical staff must be trained in com- used for other juvenile court proceed- puter operations. ings. If this is not feasible, child abuse If a tape recorder rather than a court and neglect cases can be separated from reporter or stenographer is used, the other matters on the court’s docket court must have appropriate, high-qual- through scheduling. ity recording equipment available to al- Hearings should be held in a court- low efficient and cost-effective tran- room sufficient to accommodate the ju- scriptions. Where permitted by law, the dicial officer and court staff, the agency court alternatively may use video-tap- attorney and social worker, the guard- ing equipment and dispense with the ian ad litem, the custodial and non-cus- transcription process. todial parents and their attorneys. There should be at least three counsel G. Voluntary Agreements tables in the room: one for the agency, for Care one for the guardian ad litem and one State law typically allows parents to for the parents. Appropriate recording enter into voluntary agreements with II. General Issues public child protection agencies for the should be required to prepare a case temporary placement of a child in fos- plan whenever a child is placed pursu- ter care. These agreements, which are ant to a voluntary agreement. The case entered into prior to court involvement, plan should provide, at a minimum, are often referred to as voluntary agree- each treatment goal that must be ments for care. achieved for reunification to occur, the Voluntary agreements can serve use- services to be provided, and the terms ful purposes. In cases where a short- of visitation. term placement is necessary for a defined purpose, such as when a parent A voluntary agreement enters in-patient hospital care, a volun- should always be in writing tary agreement can allow the temporary and on a form that explains the placement of a child without unnecessarily involving the court and expend- parents’ rights. ing its scarce resources. Voluntary agreements can provide a method of To prevent misuse of voluntary agree- immediately placing children in foster ments, judges should review each care with parental consent prior to ini- agreement when cases involving them tiating court involvement. This can become active with the court. If a judge avoid the need to petition the court for notices a pattern of misuse of voluntary emergency removal. agreements, he or she can seek correc- Voluntary agreements, however, can tive action by bringing the problem to be misused by child-placing agencies. the attention of appropriate administra- Without proper safeguards on volun- tors within the agency. If a child has tary agreements, agencies can place been placed inappropriately pursuant to children for extended periods without a voluntary agreement, a judge may find court involvement, thus circumventing (when appropriate) that the agency court review of agency efforts. Volun- failed to make reasonable efforts to pre- tary agreements also can be misused to vent or eliminate the need for placement place children in foster care under cir- of the child. 25 cumstances where the agency lacks sufficient cause to seek court-ordered H. Emergency Orders placement of the child. To prevent misuse of voluntary agree- 1. Child Protection ments, a statutory framework should The majority of states allow the re- exist to regulate their use and to ensure moval of an allegedly abused or ne- judicial oversight. The use of voluntary glected child prior to issuance of a court agreements should be limited, and all order. In emergency situations, it may voluntary agreements should be time- be necessary to take steps to protect a limited. Statutes should provide that all child at or even before the beginning of agreements automatically expire after a litigation. It may be necessary to im- short, defined period of time, and can mediately remove a child from home or be extended only with the agreement of to expel from the home a parent who is all parties and with court approval alleged to have abused or neglected the based upon a written report from the child. agency. Voluntary agreements should While quick and decisive action is be approved only when it is apparent sometimes necessary for the protection that each involved parent was a full and of the child, it can have a drastic impact able participant in the agreement pro- on the family. Precipitous and un- cess. planned removal of a child from home A voluntary agreement should always or forcible removal of a parent is always be in writing and on a form that explains traumatic. Once such action is taken, it the parents’ rights: the right to reason- is difficult to reverse. able visitation with the child; the right First, the court must act quickly to en- to be consulted on decisions regarding sure protection of the child. Second, the the child’s care and placement; and the court must provide prompt procedural right to revoke the agreement upon protection for parents, consistent with proper notice to the agency. The agency the safety of the child. Third, it must II. General Issues

move proceedings forward as quickly These options are listed in order of as possible. Fourth, the court must priority, with the preferred procedure make as careful and considered a deci- listed first. Thus, emergency custody sion as emergency circumstances allow. should be obtained through a hearing where the parents have the opportunity 2. Speedy Issuance of Orders to appear, unless this would place the The police or the child protection child in danger. When such a hearing agency (whichever is responsible under is requested, it should be conducted as state law for emergency removal of chil- soon as possible. Court-appointed dren) should have virtually immediate counsel for both the parents and the access to the court in emergency situa- children and/or a GAL/CASA for the tions. When the court is not open (eve- children should be immediately avail- nings, weekends, and holidays), there able for such a hearing. If parents can- should be 24-hour access to a judge to not be located in spite of agency efforts issue orders. Judges should be pro- to notify them, the court must proceed vided with electronic pagers to perform with an ex parte hearing and instruct the this function, and this responsibility agency to continue diligent efforts to should rotate. To allow for such rota- provide such notice. tion in sparsely populated rural coun- In some cases, providing parents with ties, one judge should be empowered advance notice will endanger the child. to take emergency calls for more than Emergency custody or expulsion of an one county. abuser through an ex parte hearing may If an emergency arises during hours then be selected. It might not be safe to when the court is in operation, the court notify the parents before removing the should provide a hearing on the same child if there is reason to believe that day. To make this possible, the court the parent might harm the child, intimi- may need to set aside special times for date or convince the child not to pro- emergency hearings such as the first vide information, or abscond with the thing in the morning or afternoon or at child. 26 the end of the court day. If an emergency occurs in the evening or on a weekend or holiday, the court 3. Procedural Protections may issue an ex parte order by tele- in Emergencies phone. In states where the agency is In emergency situations, there are authorized to take custody, an ex parte several ways in which the decision to telephone custody order usually autho- remove a child or alleged abuser might rizes the agency to take custody of the be made: child and instructs the police to provide • An in-court hearing about which assistance. An ex parte order for re- parents are given prior notice and the moval of a parent is necessarily ex- opportunity to appear; ecuted by police. • An ex parte, in-court hearing about The final option, action by the police which parents are not notified; or agency without prior court approval • An ex parte hearing by telephone should be permitted only when it is not in which parents do not participate; practical to use one of the first four op- • An ex parte hearing by telephone tions. For example, sometimes children in which parents participate via tele- are taken into custody by the police at phone; the time that the police arrest a parent. • Action by the police or child pro- In these cases, police subsequently con- tection agency without prior court ap- tact the agency to arrange emergency proval. placement for the child, and agency personnel come before the court at the State law defines which of the preced- preliminary protective hearing. ing options are available and under what circumstances. In states without 4. Advancing the Litigation applicable statutes, this may be done in Emergencies either through court rules or informal In the event an ex parte order must court procedures. be issued, there are three important II. General Issues steps: first, the court must review the agency’s efforts to notify the parents and other responsible adults. Second, counsel should be provided as soon as parents are notified and consideration should be given to appointment of a GAL/CASA. Third, a preliminary protective hearing should immediately be scheduled to give parents the opportunity to contest the emergency order.

5. Procedure for Emergency Hearings Ex parte hearings should be brief proceedings, in which the caseworker tes- tifies concerning immediate danger to the child. A brief discussion of recent efforts by the agency to assist the family should seek to identify safe, non-disruptive ways to protect the child without removing the child or the alleged abuser from the home. The ex parte hearing should be recorded, whether the hearing occurs in court or via telephone. The recording should be preserved as part of the court record. A written report also should be filed by the agency or police after the hearing. The report should contain a complete description of the circum- 27 stances of the removal. The recording of the hearing and the written report both provide a record that will be helpful in later proceedings and help protect against careless or false statements in requests for emergency orders.

I. Endnotes 1. See M. Solomon and D. Somerlot, Caseflow Man- agement in the Trial Court: Now and For the Future (Washington, D.C.: American Bar Association, 1987); American Bar Association, Defeating Delay: Develop- ing and Implementing a Court Delay Reduction Pro- gram (Washington, D.C., 1986).

2. See supra, M. Solomon and D. Somerlot, at 7-8. 3. See Mark Hardin, How to Work With Your Court: A Guide for Child Welfare Agency Administrators (Washington, D.C.: American Bar Association, 1993).

4. Rebecca H. Heartz, “Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness”, Family Law Quarterly, Vol. 27, No. 3 (Washington, D.C.: American Bar Associa- tion, Fall 1993). 28 III. PRELIMINARY PROTECTIVE HEARINGS

PRELIMINARY PROTECTIVE HEARINGS TABLE OF CONTENTS

III. Preliminary Protective Hearings

A. Introduction ...... 30

B. Who Should Be Present ...... 33

C. Filing the Petition ...... 36

D. Key Decisions the Court Should Make at the Preliminary Protective Hearing ... 37 29

E. Additional Activities at the Preliminary Protective Hearing ...... 39

F. Submission of Reports to the Court..... 40

G. The Court’s Written Findings of Fact and Conclusions of Law at the Preliminary Protective Hearing ...... 40

H. Conclusion...... 41

I. Resource Guideline ...... 42

J. Preliminary Protective Hearing Checklist ...... 43

K. Endnotes...... 44 III. Preliminary Protective Hearings

A. Introduction The preliminary protective hearing is tive measure and return the child to the the first court hearing in a juvenile abuse family only after a full investigation is or neglect case. A preliminary protec- completed. This perspective ignores the tive hearing is referred to in some juris- great risk of out-of-home placements, dictions as a “shelter care hearing,” “de- the disruption such placements cause to tention hearing,” “emergency removal the child and the family, and the emo- hearing,” or “temporary custody hear- tional and fiscal costs involved in placing.” The preliminary protective hearing ing children. It also ignores the reality occurs either immediately before or im- that safe, in-home caretakers can often mediately after a child is removed from be found if adequate investigation is home in an emergency. This initial hear- undertaken and services are provided. ing may be preceded by an ex parte order directing placement of the child. In Once a child is removed it extreme cases, a child may have been becomes logistically and practically removed from home without prior court more difficult to help a family approval, and the preliminary protective hearing is the first review of the place- resolve its problems. ment by the court. In all states, the preliminary protective To evaluate the likelihood and sever- hearing must take place within a short ity of harm if the child is returned home, time after the child has been removed the court must take into account not only from home. The time limit is specified the facts and circumstances that gave by state law and, in most states, must rise to the original removal of the child occur within one to three judicial work- (i.e., the parents’ or guardian’s possible ing days after removal. abuse or neglect), but also what might Ideally, when a parent is contesting the be done to safeguard the child in the agency’s decision to seek placement of home. That is, the court should evalu- a child, the preliminary protective hear- ate both the current danger to the child, 30 ing should occur prior to the removal of and what can be done to eliminate the the child. Removal should occur only danger. Harmful consequences of re- after a completed court hearing and pur- moval should also be considered. Re- suant to a court order. If this is not pos- moval is always a traumatic experience sible, the preliminary protective hearing for a child. Once a child is removed it should occur within 72 hours after the becomes logistically and practically child has been placed outside the par- more difficult to help a family resolve its ents’ care. problems. The main purpose of the preliminary A primary goal of the court should be protective hearing is to make a decision to make the preliminary protective hear- concerning whether or not the child can ing as thorough and meaningful as pos- be immediately and safely returned sible. The court should conduct an in- home while the trial is pending. This ini- depth inquiry concerning the circum- tial decision is often the most important stances of the case. It should hear from decision to be made in an abuse and all interested persons present. As part neglect case. Although it is made on an of its inquiry, the court should evaluate emergency basis, the decision must be whether the need for immediate place- based upon a competent assessment of ment of the child could be eliminated by risks and dangers to the child. providing additional services or by The preliminary protective hearing is implementing court orders concerning an emergency matter. The family is of- the conduct of the child’s caretaker. If ten in crisis. Great demands are placed the court determines that the child needs upon the social service agency to stabi- to be placed, the court must evaluate the lize the situation and to provide services appropriateness of the placement pro- to permit the child to safely remain at posed by the agency and seek the least home or return home. Unfortunately, disruptive alternative that can meet the many social service agencies believe it needs of the child. For example, the is safer to remove the child as a preven- court should explore whether the needs III. Preliminary Protective Hearings

of the child could be met in the home of adjudication, disposition, and review. a relative. This not only preserves court resources Whether or not the court decides at the but reduces the cost and harm of unnec- preliminary protective hearing that a essary, prolonged out-of-home place- child can safely go home, the court must ment of children. determine whether the agency has made A timely and thorough preliminary reasonable efforts to preserve the fam- protective hearing can shorten the time ily. Courts should insist that adequate of foster care and speed the judicial pro- services are delivered to prevent the cess. By ensuring speedy notice of all need for placement, and make certain parties, the hearing avoids delays due that decisions to remove children from to difficulties with service of process. By their homes are made prudently and af- ensuring early, active representation of ter full consideration of less disruptive parties, the hearing avoids trial delays alternatives. due to scheduling conflicts and the late At the same time, the court should en- appointment of unprepared advocates. sure that appropriate efforts are being By clearing the trial (adjudication) date made by the agency to provide for the at a very early time, the hearing avoids needs of the family in a timely manner. later scheduling conflicts that otherwise The court can order the agency to ob- would delay trial dates. By thoroughly tain any additional reports or diagnos- exploring all issues at the preliminary tic assessments that may be needed such protective hearing, the court can resolve as psychological evaluations, drug abuse and dismiss some cases on the spot, assessments or school records involving move quickly on some pretrial issues the children. (such as discovery or court-ordered ex- If the child will remain outside the amination of parties), encourage early home pending the trial, it is important settlement of the case, encourage to keep in mind that the time in which prompt delivery of appropriate services the preliminary protective hearing is to the family, and monitor agency case- held is a critical period of crisis for the work at a critical stage of the case. family. It is the responsibility of the court Another purpose of the preliminary 31 to make sure that the agency takes im- protective hearing is for the court to mediate steps toward family reunifica- begin setting a problem-solving atmo- tion and tries to maintain the relation- sphere so the child can remain safely at ship between parent and child. home or be safely returned home as A secondary purpose of the prelimi- quickly as possible. Parents are often nary protective hearing is for the court angry and emotionally distraught at this to move the litigation forward as quickly hearing. The agency may have filed for as possible and to oversee the agency’s emergency removal because the rela- initial involvement in the case. Time is tionship between the social worker and of the essence in child abuse or neglect parents has broken down. The cases. At the preliminary protective adversarial nature of court proceedings hearing the court should take steps to can aggravate tensions between the par- eliminate potential sources of delay in ties. The court should take active steps the litigation. to defuse hostilities, to gain the cooperation of the parties, and to assist parties Time is of the essence in child in attacking the problem rather than abuse or neglect cases. each other. Although the judge or judicial officer should not assume the role of case- When preliminary protective hearings worker, there are practical steps that a are thorough and timely, some cases can court can take to gain the cooperation be resolved with no need for subsequent of the parties and develop a problem- court hearings and reviews. In other solving atmosphere. The court should cases, a thorough and early preliminary remember that for many parents the protective hearing can help simplify and preliminary protective hearing will be shorten early hearings and can move the their first experience in court. The court case more quickly to the later stages of can explain the hearing process to the III. Preliminary Protective Hearings

parents so they are less confused. The hearing with the perception that they court can explain that it is not an arm of were treated fairly by a court that is con- the agency, but that its role is to be an cerned about their interests and that is impartial decision-maker, acting upon striving to build a working relationship information provided by all parties. The between the parties so that the need for court can carefully listen and seek to court intervention can be ended as thoroughly understand the perceptions quickly as possible. and concerns of all parties present at the A complete preliminary protective hearing. The court can insist that proper hearing requires a substantial initial investment of time and resources. Such ...there are practical steps that a an investment results in better decisions court can take to gain the coop- for children and their families, and pre- eration of the parties and develop serves the resources of the court and a problem-solving atmosphere. child welfare system. Significant costs are incurred when a child is unnecessarily placed outside of the home. A decorum is maintained by each party so child can suffer serious emotional and that all persons present are treated with behavioral problems from the disrup- dignity and respect. The court can at- tion and upheaval caused by placement. tempt to identify areas of agreement and The parents’ feelings of inadequacy and mediate areas of dispute between par- helplessness may be intensified, thereby ties so that some disputes are resolved making efforts to change their behavior by agreement rather than through con- even more difficult. The family may lose tested hearings. its income and housing, if the family has been dependent on public assistance. Due to the constraints of time, in As a result of these and other effects of some cases it might not be possible removing a child, extra efforts must of- for the court to conduct a careful ten be made and significant costs in- and complete initial preliminary curred to resolve problems as early as 32 protective hearing. In these possible in each case. circumstances, the court should: By insisting that adequate services are delivered to safely prevent the need for • Decide all issues that can be placement and by making certain that immediately resolved at the current decisions to remove children from their preliminary protective hearing; homes are made with great care, courts • Provide specific guidance as to the can avoid costs associated with unnec- persons who must be present and essary placements. By investing the the issues to be decided at the time to carefully review agency efforts subsequent preliminary protective and to suggest or order additional or hearing; and more appropriate services, the court • Continue the preliminary may find that its own time and resources protective hearing for not more are saved when cases are resolved in a than 24 hours. more timely manner.

At the conclusion of the preliminary protective hearing, the parties should leave with a decision from the court concerning the placement of the child that is based on thorough understanding and careful consideration of the circumstances of the case. The parties should see that the court has taken an active role to move the case forward and to make certain that the agency responds to the needs of the family and child in a timely manner. The parties should leave the III. Preliminary Protective Hearings

B. Who Should Be Present Relatives with legal standing or other custodial adults Persons who should always When parents do not have custody, be present at the preliminary other custodians or guardians must, by protective hearing: law, be given notice and the opportunity to participate in preliminary protective • Judge or judicial officer hearings. • Parents whose rights have not In many child neglect cases, parents been terminated, including have left children in the homes of rela- putative fathers tives or friends who have become full- • Relatives with legal standing or time caretakers but without legal cus- other custodial adults tody. Full-time caretakers without legal • Assigned caseworker custody but functioning as parents (in • Agency attorney loco parentis) also should be present at • Attorney for parents (separate the preliminary protective hearing. attorneys if conflict warrants) Their presence is needed both because • Legal advocate for the child the best decision may be to leave the and/or GAL/CASA child in their homes prior to trial and • Court reporter or suitable because they often have vital informa- technology tion about the child and family. • Security personnel Unfortunately, because preliminary protective hearings are set on short time frames, it is difficult to notify parents Judge or judicial officer through service of process. The social A judge or equally knowledgeable, worker from the agency is often in the law-trained judicial officer appointed by best position to notify parents of a pre- a judge, presides over the preliminary liminary protective hearing and should protective hearing and is responsible for be expected to do so. The court can making the required decisions. At a monitor agency efforts to notify parents minimum, the judicial officer should be by enquiring at the hearing as to what 33 a lawyer. Whenever possible, the judi- efforts were made to notify the parents cial officer should be a person who regu- and by setting additional hearings larly presides over child abuse or neglect within a few days if a parent fails to ap- cases, who is familiar with the workings pear. The prospect of an additional court of the entire child welfare system, and appearance can motivate agency social who has broad knowledge of and expe- workers to secure the attendance of par- rience with the services and placement ents at the preliminary protective hear- options available in the community. ing.

Parents whose rights have not Assigned caseworker been terminated, including To provide the court with complete, putative fathers accurate, and up-to-date information for It is critical that all parents involved in the hearing, the caseworker with pri- the life of the child be made a part of the mary responsibility for the case must be court case as soon as possible. Non-cus- present. When this is not possible, the todial parents and involved putative fa- worker’s supervisor, who has been well thers should be present because, if the briefed on the case, should be present. child cannot be returned to the custodial parent immediately, it might be pos- Agency attorney sible to place the child with the other The preliminary protective hearing is parent rather than in state care. a critical event. This stage of the pro- Putative fathers who have not previ- ceedings may have a powerful impact ously been involved in the child’s life on the child and family, and on the long- should also be brought into the court term outcome of the case. All parties process as quickly as possible. Timely should be represented by counsel at the resolution of paternity issues is both in preliminary protective hearing. Further, the best interests of the child, and essen- the court should expect counsel to have tial to further case processing. prepared for the hearing in advance. III. Preliminary Protective Hearings

This requires, at a minimum, that the at- ings. In all courts, security personnel torney has interviewed witnesses and must be immediately available to the conferred with both the worker and court whenever needed. In some parts counsel for other parties well in advance of the United States, security concerns of the hearing. may be serious enough to require guards or bailiffs to be present during Attorney for parents (separate attor- all hearings. neys if conflict warrants) Because of the critical strategic impor- Persons whose presence tance of the preliminary protective hear- may also be needed at the ing, it is essential that parents have preliminary protective hearing: meaningful legal representation at the hearing. Most parents involved in these • Age-appropriate children proceedings cannot afford counsel. • Extended family members Therefore, parents should be instructed • Adoptive parents to appear well in advance of the actual • Judicial case management staff hearing so their eligibility for court-ap- • Law enforcement officers pointed counsel can be determined, • Service providers counsel can be appointed, and parents • Adult or juvenile probation or can confer with counsel in advance of parole officer the hearing. • Other witnesses

Legal advocate for the child In addition to persons who always and/or GAL/CASA should be present at preliminary protec- Federal and state law requires legal tive hearings, there are others whose representation for children in child presence may also be needed, depend- abuse and neglect cases, and this should ing upon the facts and circumstances of apply at the critical preliminary protec- the case: tive hearing. In different jurisdictions, 34 the mode of legal representation for chil- Age-appropriate children dren and the responsibilities of the ad- Children often should be present at vocate vary. the preliminary protective hearing, but To obtain the presence of an attorney their attendance can depend upon many for the parents and a guardian ad litem factors including the age of the child, the at preliminary protective hearings, the physical and emotional condition of the court needs to make arrangements with child, and degree that requiring the child the on-call organization that provides to be present might traumatize the child. these persons for preliminary protective As an alternative to bringing the child hearings. To facilitate scheduling, the to a hearing, the agency may choose to court can set aside specific times and present the child’s hearsay statements days when preliminary protective hear- and then allow the child’s guardian ad ings will be held. litem to have access to the child at an off-site location or by telephone. In all Court reporter or suitable technology cases, the child should be accessible in A court reporter or stenographer the event that the court determines that should be present to accurately record the child’s presence is necessary. all proceedings at each preliminary protective hearing. If electronic technology Extended family members is substituted for a court reporter, the re- When relatives either are already according equipment must be of appropri- tively involved with a child or are inter- ately high quality to allow the efficient, ested in caring for a child, their presence cost-effective, and timely production of can be valuable at a preliminary protec- a hearing transcript, when needed. tive hearing. Relatives can provide essential information about the situation, Security personnel can help protect the child in the home Security personnel should be available (thus allowing the court to return the during all child abuse and neglect hear- child home), and can become the imme- III. Preliminary Protective Hearings diate caretaker of the child, if necessary. Other witnesses It is helpful for the court to observe the It should be remembered that critical child’s relatives and be able to speak to decisions affecting the lives of children them directly at the hearing. are made at preliminary protective hearings. While continued placement of a Adoptive parents child outside the home prior to adjudi- Adoptive parents must, by law, have cation may be essential to a child’s safety, the same rights in the legal process as in some cases it also may be unneces- biological parents. sary and traumatic to the child. To ensure careful and informed judicial deci- Judicial case management staff sions, the court must make it possible It is possible for courts to function ef- for witnesses to testify at the preliminary ficiently with no judicial staff other than protective hearing. When appropriate, the judge or judicial officer in the court- the court should be prepared to briefly room. However, administrative staff continue the hearing to allow the testi- who are present in the courtroom can mony of witnesses. help the judge by greeting the parties, The agency is responsible for secur- handing out papers, operating tape re- ing the attendance of its own witnesses. cording equipment (where applicable), This is often difficult because witnesses preparing and checking court orders, may be unavailable on the short time and completing errands and tasks nec- frames required by preliminary protec- essary to help the judge complete the tive hearings, and subpoenas often can- hearing. not be delivered in time for the hearing. The agency also may not know to what Law enforcement officers degree the hearing will be contested, Law enforcement officers who remove and therefore, may not know which wit- children from dangerous situations are nesses will actually be needed. often key witnesses. They sometimes Eyewitnesses to the neglect or abuse need to be present to testify when par- of the child, police officers who have in- ents demand the child’s immediate re- vestigated the case, service providers 35 turn home. who have been involved with the family, and medical providers who have ex- Service providers amined the child can all provide valu- When a family has already been inten- able testimony at the preliminary pro- sively involved with a service provider tective hearing. If these witnesses are such as a public health official, home- unavailable to testify in court, the agency maker, or mental health professional, can arrange a telephone conference call. that professional may provide essential As a last resort, written reports prepared information at the preliminary protec- for the hearing, business and medical tive hearing. The professional may, for records, or police reports can be made example, assist the court to identify a available to the court. means of leaving the child safely at If the court considers the in-court tes- home. timony of an absent witness essential, the next hearing in the case can be set Adult or juvenile probation on the first available date when the wit- or parole officer ness can be present. The court can con- Family members may either presently vey its expectations to the agency con- or recently have been involved with ju- cerning necessary witnesses by continu- venile or adult probation or parole ser- ing the preliminary protective hearing vices. Department officers with past or for the presence of the essential witness. current knowledge pertinent to the family’s circumstances can often provide the court with valuable testimony. Both juvenile and adult probation and parole departments should be contacted and potential witnesses identified and asked to appear at the preliminary protective hearing. III. Preliminary Protective Hearings

Courts can make sure that encourage parents and others to attend. parties and key witnesses are To ensure that attorneys and other ad- present by: vocates are present during preliminary protective hearings, the court may need to take even stronger steps. Where at- • Requiring quick and diligent torneys are appointed from lists, the notification efforts by the agency; court may need to revise procedures for • Requiring both oral and written the appointment of counsel so that ap- notification in language under- pointment occurs prior to the prelimi- standable to each party and nary protective hearing. Attorneys and witness; parties may need to be instructed to ap- • Requiring notice to include pear before the hearing begins so that: reason for removal, purpose of (a) their eligibility for appointed coun- hearing, availability of legal sel can be determined in advance; and assistance; (b) parties can confer with counsel be- • Requiring caseworkers to fore the hearing begins. encourage attendance Where courts enter into contracts with of parents and other parties. outside organizations to provide legal representation for parents and children, To make sure that parents, custodians, the contracts need to specify that the ad- and other witnesses are present during vocates will be present prior to prelimi- preliminary protective hearings, special nary protective hearings to meet with efforts are required. Understandable ex- their clients and that they will prepare planations of what has happened must for the hearing to the extent practical be handed to parents, custodians, or given the limited time available. caretakers when children are first removed. A written notification in under- C. Filing the Petition standable language must state the reason for removal, the time and place of • A sworn petition or complaint 36 the hearing, the name and number of a should be filed at or prior to the person to call to obtain court-appointed time of the preliminary counsel, and the need for immediate ac- protective hearing. tion. For parents, custodians, and other • The petition should be complete caretakers who are not present when and accurate. children are taken, the agency must make diligent efforts to provide them It is important for petitions to be filed with this information. At the hearing, at or before preliminary protective hear- the agency caseworker must explain ings for at least two reasons. First, if the what has been done to notify the par- petition is ready at the time of the hear- ties. Finally, court staff must be avail- ing, it can be given to parents on the able to take calls from parents and to spot, avoiding the need for service at arrange for the appointment of counsel. parents’ homes. Second, service of the Perhaps the most important factor in petition at the preliminary protective influencing whether parents and others hearing provides the parties with ad- will actually appear at the preliminary equate notice of the reasons for the court protective hearing is the attitude of the proceedings. To provide proper notice assigned caseworker. Juvenile and fam- of the charges, the petition must contain ily courts should require caseworkers to a complete and accurate statement of the exert their best efforts to have parents reasons for agency intervention. and other necessary witnesses attend the preliminary protective hearing. In some cases, this may even involve arranging appropriate transportation for parties. Courts can take several approaches to persuade caseworkers both to attend preliminary protective hearings and to III. Preliminary Protective Hearings

D. Key Decisions the Court As explained above, the key decision Should Make at the Prelimi- that the court makes at the preliminary nary Protective Hearing: protective hearing is whether to return a temporarily-placed child home imme- • Should the child be returned diately. Often, the child’s removal from home immediately or kept in home triggers the preliminary protec- foster care prior to trial? tive hearing, and the hearing is held to • What services will allow the decide whether the child needs to stay child to remain safely at home? outside the home. • Will the parties voluntarily agree In deciding whether to return the child to participate in such services? home, the court evaluates the danger to • Has the agency made reasonable the child by hearing allegations of abuse efforts to avoid protective or neglect. In addition, the court needs placement of the child? to examine whether there are any pos- • Are responsible relatives or sible means of protecting the child with- other responsible adults out placing the child in foster care. available? • Is the placement proposed by • What services will allow the the agency the least disruptive child to remain safely at home? and most family-like setting that To decide whether there are available meets the needs of the child? means to allow a child to be maintained • Will implementation of the safely at home, the court must be made service plan and the child’s aware of services available in the com- continued well-being be moni- munity. In neglect cases, for example, tored on an ongoing basis by a emergency homemakers, day care, or GAL/CASA? in-home baby-sitters can often eliminate • Are restraining orders, or orders immediate danger to the child. In a wide expelling an allegedly abusive variety of cases, intensive home-based parent from the home services in which professionals spend appropriate? long periods of time in the home sharply 37 • Are orders needed for examina- reduce danger to the child. tions, evaluations, or immediate services? • Will the parties voluntarily • What are the terms and condi- agree to participate in such tions for parental visitation? services? • What consideration has been In some states, the court can order given to financial support of specific, in-home services to ensure the the child? child’s safety while remaining or returning to the family. In other states, the The preliminary protective hearing court can order that the child be main- provides the court with an opportunity tained in the home, or returned home, to make basic decisions concerning the with child welfare agency assurance that placement of the child; take steps to family-based or home-based services move the litigation forward; oversee the will be provided. All juvenile and fam- agency’s initial involvement with the ily court judges must become informed case; and emphasize specific problem- about the existence and availability of solving so that the child can safely re- services in the community. main home or be returned home as quickly as possible. • Has the agency made reasonable efforts to avoid The following is a discussion of protective placement of the child? specific key decisions to be made In connection with the decision to re- by the court at the preliminary move a child from home, the court also protective hearing: must determine whether the responsible public agency has made reasonable ef- • Should the child be returned forts to preserve the family. Upon de- home immediately or kept in ciding to remove a child, the court must foster care prior to trial? decide both whether the agency has III. Preliminary Protective Hearings

made reasonable efforts to prevent the the most appropriate and least disrup- need for the child’s removal from home tive placement. For example, children and, whether, within the short time avail- should not routinely be placed in group able, the agency has made reasonable home shelters when they are capable of efforts to make it possible for the child functioning in the family-like setting of to safely return home. The “reasonable a foster home. efforts” determination is required by fed- If the most appropriate setting for the eral law, as a condition for state receipt child is not immediately available on an of federal foster care matching funds.1 emergency basis, the court should make It is also required by statute in most certain that appropriate referrals are states.2 made so that the child can be moved to Reviewing agency efforts to keep the a preferred placement when one be- family together is necessary not only comes available. because federal law requires it, but also because review of agency efforts helps • Will implementation of the the court to decide whether the child can service plan and the child’s contin- safely be returned home. By taking a ued well-being be monitored on careful look at the agency’s prior efforts an ongoing basis by a GAL/CASA? to help the family, the court can better The preliminary protective hearing evaluate both the danger to the child and also provides the opportunity for the the ability of the family to respond to court to consider appointment of a GAL/ help. CASA for the child. Appointment early in the court process allows ample time • Are responsible relatives or for the GAL/CASA to gather informa- other responsible adults available? tion and make recommendations to the At the preliminary protective hearing, court and provides continuity of repre- the court needs to take into account what sentation for children whose casework- help may be obtained from appropriate ers and foster parents are likely to relatives or other responsible adults in- change through the course of court pro- 38 volved with the child. Immediate place- ceedings. ment with relatives or another responsible adult is possible if either is willing • Are restraining orders, or or- to care for the child and the agency has ders expelling an allegedly abusive already been able to favorably evaluate parent from the home appropriate? them. In child abuse cases where a child is Even if relatives or other responsible alleged to have been physically or sexu- adults are not available to assume full- ally abused by only one parent, it may time care of a child, they may be avail- be that the child can be safely returned able as a resource to supervise visitation to the non-abusing parent. In order to when necessary. Sometimes, the agency ensure that the child will be protected, will not have had time to assess relatives it may be necessary to issue protective or other responsible adults involved with orders concerning the child. These may the child prior to the preliminary pro- include, for example, orders expelling tective hearing. If it is too early to evalu- the allegedly abusive parent from the ate relatives or other adults, but place- home or restraining the allegedly abu- ment of the child with them is a possi- sive parent from contacting or visiting bility, the court needs to set a schedule the child. for prompt agency evaluation. • Are orders needed for • Is the placement proposed by examinations, evaluations, or the agency the least disruptive and immediate services? most family-like setting that meets During many preliminary protective the needs of the child? hearings, the court should order an ex- If the child must be removed from amination or evaluation by an expert. home and cannot be placed with rela- For example, the court may need to au- tives or a responsible adult, the court thorize a prompt physical or mental ex- should evaluate the placement proposed amination of the child to assess the by the agency to determine whether it is child’s need for immediate treatment. III. Preliminary Protective Hearings

An expert evaluation of a child is fre- • What consideration has been quently essential for placement planning given to financial support of the if the child needs to be placed outside of child? the home. An evaluation can often iden- All potential sources of financial sup- tify special treatment needs of the child; port for the child should be identified for example, whether the child will need and considered in court decisions affect- placement in a residential treatment fa- ing the child. This includes financial cility or therapeutic foster home. support for health services, special edu- Further examination of the child may cational or developmental needs, and be needed to preserve evidence bearing basic child support. Paternity issues on whether the child has been abused. which remain unresolved at the time of The need for such examinations and the preliminary protective hearing re- evaluations is often already clear at the main a judicial priority at all subsequent preliminary protective hearing, and or- proceedings. dering them at that time can speed the pace of litigation. E. Additional Activities at Sometimes an expert evaluation is the Preliminary Protective needed to determine the fitness of a par- Hearing ent or relative to provide immediate care for the child. If the evaluation is posi- • Reviewing notice to missing tive it can curtail the child’s separation parties and relatives; trauma by allowing the child’s early re- • Serving the parties with a copy of turn from foster care. On the other the petition; hand, if the evaluation is negative, its • Advising parties of their rights; early submission will speed the pace of • Accepting admissions to litigation and shorten the child’s stay in allegations of abuse or neglect. foster care. A judge may also recom- mend an examination, hold an additional There are a number of other functions hearing and subpoena witnesses if the that the court should perform at the pre- evaluation does not take place as recom- liminary protective hearing, in addition 39 mended, and may withhold a positive to the preceding key decisions: determination of reasonable efforts if evaluations are not promptly completed. • Reviewing notice to missing parties and relatives • What are the terms and One of the most important functions conditions for parental visitation? of the court during the preliminary pro- If a child cannot be returned home af- tective hearing is to oversee the agency’s ter the preliminary protective hearing, early efforts to locate and notify miss- immediate parent-child visitation often ing parties and relatives. During the pre- can ease the trauma of separation. Early liminary protective hearing, the court visitation helps to maintain parental in- should inquire about parties who are not volvement and speed progress on the present and should require an explana- case.3 tion of agency efforts to locate and no- Judicial oversight of visitation helps to tify them of the proceeding. Speedy ensure that visitation is begun promptly, decision-making is critical in child abuse that it is permitted frequently, and that or neglect cases, and timely notice to the unnecessary supervision and restric- parties helps prevent delays. tions are not imposed. The court should make an initial decision concerning the • Serving the parties with a frequency, duration and terms of visita- copy of the petition tion for the parents, such as whether If the petition and summons have been visitation should be supervised or unprepared in advance of the preliminary supervised. The court should also de- protective hearing and the parties are cide whether there is a need for any ad- present, the preliminary protective hear- ditional orders concerning the conduct ing provides an excellent opportunity to of the parents or agency efforts to pro- efficiently complete service of process. vide services to the parents or child. III. Preliminary Protective Hearings

• Advising parties of their rights If a law enforcement agency was in- If a party is unrepresented by counsel volved in removal of the child from at the preliminary protective hearing, the home, an officer who was present court should advise the party of the right should submit a report. This report to counsel, including the right to court- should describe precisely what the of- appointed counsel, where applicable. ficer observed during the incident. This Even when the parties are represented report should be made available to the at the hearing, the court should explain parties no later than the report by the nature of the hearing and the pro- agency staff. ceedings that will follow. G. The Court’s Written • Accepting admissions to Findings of Fact and allegations of abuse or neglect Conclusions of Law at the When counsel has been provided in Preliminary Protective advance of the preliminary protective Hearing Should: hearing, parties are sometimes willing to stipulate to a judicial finding that they have abused or neglected the child. Re- • Be written in easily understandable viewing and accepting the stipulation at language which allows the parents that point advances the pace of the liti- and all parties to fully understand gation and simplifies the work of the the court’s order. agency and its attorneys. If child is placed outside the home: F. Submission of Reports to the Court: • Describe who is to have custody and where child is to be placed; • The court should require • Specify why continuation of child in submission of agency and/or law the home would be contrary to the enforcement reports at least one child’s welfare (as required to be 40 hour prior to the preliminary eligible for federal matching funds); protective hearing. • Specify whether reasonable efforts have been made to prevent place- • Reports to the court should ment (including a brief description describe all circumstances of of what services, if any, were pro- removal, any allegations of abuse vided and why placement is or neglect, and all efforts made to necessary); try to ensure safety and prevent • Specify the terms of visitation. need for removal. Whether or not the child is Given the short time from removal of returned home: the child to the time of the preliminary protective hearing, it is not reasonable • Provide further directions to the to expect lengthy reports and written as- parties such as those governing sessments to be submitted in advance of future parental conduct and any the hearing. However, agency staff agency services to the child and should be expected to submit a brief parent agreed upon prior to written description of the circumstances adjudication. surrounding the removal of the child and • Set date and time of the next the agency’s prior efforts, if any, to pre- hearing. serve the family. This report should be provided to the other parties and their attorneys as early as possible in advance At the conclusion of the hearing, the of the hearing and no later than one hour court’s written findings of fact and con- in advance. Advance submission of the clusions of law should be prepared and report is needed to give the parents an distributed in person to the parties. This opportunity to offer a defense or to pro- should occur at the conclusion of the pose alternatives to foster placement. hearing while the parties are still III. Preliminary Protective Hearings present. Handing out an order and find- H. Conclusion ings addressing the issues gives the par- A timely, careful and complete prelimi- ties an immediate, written record of nary protective hearing can benefit each what has been decided, what they are child and family before the court by: expected to do prior to the next hearing, any social services voluntarily ac- • Preventing the unnecessary cepted, and the date and time of the next removal of children from their hearing. families by carefully evaluating When the form is on a computer, the the danger and exploring order and findings can be filled in possible safe alternatives to quickly at the conclusion of the hearing. removal. The form should include the court’s ex- • Limiting the trauma when a press findings concerning: child must be removed by requiring liberal parent-child (1) whether the child needs to be visits (where safe and appropri- placed in substitute care and under ate), by identifying appropriate whose custody the child should be placements, and making sure placed; that relatives and family friends (2) whether the child’s continued will promptly be contacted and residence in or return to the home involved. would be contrary to the child’s • Speeding casework when best interests and welfare; children must be temporarily (3) whether the placement proposed removed from their families by by the agency is the least disrup requiring early evaluations, tive placement that meets the examinations and emergency needs of the child; services. (4) whether the agency has made • Speeding litigation by early reasonable efforts to prevent or completion of critical court eliminate the need for placement business such as service of of the child; process, establishment of trial 41 (5) what the initial terms of visitation date, and face-to-face meetings will be; between attorneys and clients. (6) whether additional orders are • Explaining to parents and other needed concerning the conduct of family members why the state the parents or agency efforts to has intervened and how the provide services; and judicial process works. (7) whether additional orders are • Beginning early discussions of needed to address the immediate settlement possibilities and needs of the child, such as appropriate services to children immediate medical treatment and families. or evaluation.

Along with its legal conclusions, the court should provide a brief explanation of the facts upon which its conclusions are based. The court’s entry need not be elaborate, but should document that the court has addressed each of the basic issues presented at a preliminary protective hearing, and that the court’s decision is based upon a reasoned analysis of the evidence presented. The entry should also document the court’s orders and expectations concerning the parents’ and the agency’s future conduct. III. Preliminary Protective Hearings

I. Resource Guideline

It is recommended that 60 minutes be allocated for each preliminary protective hearing.

Hearing Activity Time Estimate

1. Introductory Remarks 5 Minutes • introduction of parties • advisement of rights • explanation of the proceeding

2. Adequacy of Notice and Service of Process Issues 5 Minutes

3. Discussion of Complaint Allegations/Introduction of Evidence 15 Minutes • introduction of the complaint • caseworker testimony • witness testimony • parent testimony

4. Discussion of Service Needs/Interim Placement of Child 15 Minutes • parental visitation • sibling visitation • service referral

5. Reasonable Efforts Finding 5 Minutes

6. Troubleshooting and Negotiations Between Parties 10 Minutes 42 • time for parents to speak and ask questions • explanation of court procedures to confused parents • identification of putative fathers and investigation of paternity issues • identification of potential relative placements • restraining orders

7. Issuance of Orders and Scheduling of Next Hearing 5 Minutes • issue interim custody order (as necessary) • preparation and distribution of additional orders to all parties prior to adjournment

Time Allocation 60 Minutes *

*Child abuse and neglect cases are frequently resolved without contested hearings by agreement of the parties. Because an outcome reached by agreement is often superior to an outcome reached through litigation, courts should encourage settlement without contested litigation in appropriate cases. Alternatives to contested litigation include settlement conferences conducted by the parties, judicially-supervised settlement conferences, and formal mediation. For more information on alternatives to contested litigation in child abuse and neglect cases, please see Ap- pendix B. III. Preliminary Protective Hearings

J. Preliminary Protective Filing the petition: Hearing Checklist • A sworn petition or complaint Persons who should always should be filed at or prior to the be present at the preliminary time of the preliminary protective protective hearing: hearing. • The petition should be complete • Judge or judicial officer and accurate. • Parents whose rights have not been terminated, including puta- Key decisions the court should tive fathers make at the preliminary protective • Relatives with legal standing or hearing: other custodial adults • Assigned caseworker • Should the child be returned • Agency attorney home immediately or kept in • Attorney for parents (separate foster care prior to trial? attorneys if conflict warrants) • What services will allow the child • Legal advocate for the child and/ to remain safely at home? or GAL/CASA • Will the parties voluntarily agree • Court reporter or suitable technology to participate in such services? • Security personnel • Has the agency made reasonable efforts to avoid protective place- Persons whose presence may also ment of the child? be needed at the preliminary • Are responsible relatives or other protective hearing: responsible adults available? • Is the placement proposed by the • Age-appropriate children agency the least disruptive and • Extended family members most family-like setting that • Adoptive parents meets the needs of the child? • Judicial case management staff • Will implementation of the 43 • Law enforcement officers service plan and the child’s • Service providers continued well-being be • Adult or juvenile probation or monitored on an ongoing basis parole officer by a GAL/CASA? • Other witnesses • Are restraining orders, or orders expelling an allegedly abusive Courts can make sure that parties parent from the home and key witnesses are present by: appropriate? • Are orders needed for examina- • Requiring quick and diligent tions, evaluations, or immediate notification efforts by the agency; services? • Requiring both oral and written • What are the terms and notification in language under- conditions for parental visitation? standable to each party and • What consideration has been witness; given to financial support of • Requiring notice to include the child? reason for removal, purpose of hearing, availability of legal Additional activities at the assistance; preliminary protective hearing: • Requiring caseworkers to encourage attendance of parents • Reviewing notice to missing and other parties. parties and relatives; • Serving the parties with a copy of the petition; III. Preliminary Protective Hearings

• Advising parties of their rights; K. Endnotes • Accepting admissions to 1. See 42 USC §§ 672(a)(1), 671(a)(15). allegations of abuse or neglect. 2. For a general discussion of the reasonable efforts requirement, see National Council of Juvenile and Fam- Submission of reports to the court: ily Court Judges, et al., Making Reasonable Efforts: Steps for Keeping Families Together (New York: The Edna McConnell Clark Foundation, 1987); D. Ratterman • The court should require et al., Reasonable Efforts to Prevent Foster Placement: submission of agency and/or law A Guide to Implementation (Washington: American Bar Association, 1987). enforcement reports at least one hour prior to the preliminary 3. On the necessity for liberal parent-child visitation for children in foster care, see K. Blumenthal and A. protective hearing. Weinberg, eds., Establishing Parent Involvement in • Reports to the court should Foster Care Agencies (New York: Child Welfare League of America, 1984); Blumenthal and Weinberg, “Issues describe all circumstances of Concerning Parental Visiting of Children in Foster removal, any allegations of abuse Care,” in Foster Children in the Courts, 372-398 (Bos- ton: Butterworth Legal Publishers, 1983). or neglect, and all efforts made to try to ensure safety and prevent need for removal.

The court’s written findings of fact and conclusions of law at the preliminary protective hearing should:

• Be written in easily understandable language which allows the parents and all parties to fully understand the court’s order.

44 If child is placed outside the home:

• Describe who is to have custody and where child is to be placed; • Specify why continuation of child in the home would be contrary to the child’s welfare (as required to be eligible for federal matching funds); • Specify whether reasonable efforts have been made to prevent placement (including a brief description of what services, if any, were provided and why placement is necessary); • Specify the terms of visitation.

Whether or not the child is returned home:

• Provide further directions to the parties such as those governing future parental conduct and any agency services to the child and parent agreed upon prior to adjudication. • Set date and time of next hearing. IV. ADJUDICATION HEARINGS

ADJUDICATION HEARINGS TABLE OF CONTENTS

IV. Adjudication Hearings

A. Introduction ...... 46

B. Timing of Adjudication ...... 47

C. Admissions and Agreements ...... 47 D. Who Should Be Present ...... 48 45 E. Key Decisions the Court Should Make at the Adjudication Hearing ...... 49

F. Additional Decisions at the Adjudication Hearing ...... 50

G. The Court’s Written Findings of Fact and Conclusions of Law at the Adjudication Hearing ...... 50

H. Conclusion...... 50

I. Resource Guideline ...... 51

J. Adjudication Hearing Checklist...... 52

K. Endnotes ...... 52 IV. Adjudication Hearings

A. Introduction The adjudication is the trial. This is pointments are made. the stage of the proceedings in which Case outcomes are improved when all the court determines whether allega- interested parties receive timely notice tions of dependency, abuse or neglect of the adjudication. Parties include not concerning a child are sustained by the only the parent allegedly committing evidence and, if so, are legally sufficient the abuse or neglect, but also non-cus- to support state intervention on behalf todial parents, putative fathers, other of the child. If the petition seeking court persons with legal custody, and, de- intervention on behalf of a child is sus- pending upon state laws, long-term tained, the court may proceed to the dis- physical custodians. In many courts, position stage and determine who shall such parties are not currently being have responsibility for the child and un- given notice prior to adjudication, par- der what conditions. Adjudication pro- ticularly when the custodial parent ob- vides the basis for state intervention into jects. Yet, when the parties are provided a family, while disposition concerns the with early notice, they may make essen- nature of such intervention. In some tial contributions to resolving the case, states, the adjudication hearing is called by (a) giving important information to the “jurisdictional hearing” or “fact find- the court, (b) providing a placement for ing hearing.” the child, (c) paying child support, or (d) The outcome of adjudication controls offering important emotional support whether the state may intervene over for the child. the objections of the family. In all cases, When parties are not provided with the legal rights of interested parties are notice prior to the adjudication, this of- affected by the adjudication and they ten prolongs children’s placement in therefore are entitled to notice as a mat- foster care. For example, when a ter of constitutional law. The manner noncustodial parent or putative father in which the adjudication is conducted is first notified after efforts to work with also has important long-term implica- the custodial parent are exhausted, new 46 tions for the child and family. First, a efforts must be initiated to work with speedy adjudication can reduce the the noncustodial parent or putative fa- length of time a child spends in place- ther. ment. Often it is necessary for the court to make a definitive decision whether It is necessary to resolve issues or not a child has been abused or ne- of paternity at an early point in glected before the agency and parents can begin to work together. The time the litigation. in which this adjudication is completed may control the timing of later judicial When parents are missing, parties proceedings. In some states, the should be expected to enlist the assis- grounds for termination of parental tance of the Parent Locator Service rights require the passage of a certain which locates missing parties in child period of time after the adjudication or support cases. This service must be disposition order. provided for free. Specific limits apply A primary characteristic of the adju- concerning the time within which the dication hearing is that formal legal pro- search must occur. cess must be used to notify essential It is necessary to resolve issues of pa- parties and witnesses of the hearing and ternity at an early point in the litigation. secure their attendance. This should include prompt blood test- At preliminary protective hearings, ing, if necessary. It may be necessary problems may arise because of short to resolve paternity in order to deter- notice for obtaining representation for mine such questions as whether the pu- parents and guardians ad litem for chil- tative father should be admitted as a dren. This problem should be ad- party to the litigation, whether an attor- dressed at the preliminary protective ney should be appointed to represent hearing so that by the time an adjudica- him if he is indigent, and whether he tion hearing is held, all necessary ap- should be considered as a candidate for IV. Adjudication Hearings

custodian of the child if he is interested. able delays in the notification of parties, An accurate trial record at adjudica- and unforeseen personal emergencies. tion has importance beyond the adjudi- For the sake of administrative simplic- cation itself. Adjudication should deter- ity, the same time limit should apply to mine the precise nature of the abuse or other abuse and neglect cases as well. neglect so that disposition, case work, Juvenile court proceedings generally and later court review can be focused on should go forward when related crimi- the specific facts which resulted in state nal proceedings are pending. Delays in adjudication delay progress toward A clear record of the facts estab- family rehabilitation and reunification. lished at adjudication may be In cases where reunification is impos- useful in later legal proceedings. sible, delays in adjudication also delay progress toward termination of parental rights and adoption efforts. intervention. Until the facts have been Occasionally, special circumstances legally established at adjudication, the can justify delaying juvenile court pro- agency may be unable to secure the co- ceedings pending the completion of a operation of the parents who have de- criminal case. For example, if allega- nied any problems exist. A clear record tions of a heinous crime committed by of the facts established at adjudication both parents against the child were may be useful in later legal proceedings. pending, and a criminal conviction This record may foreclose later factual would form a legal basis for termination disputes or may provide important evi- of parental rights under state law, it may dence which would otherwise be un- be advisable to delay juvenile proceed- available. ings and proceed directly to termination upon completion of the criminal case. B. Timing of Adjudication Principles of sound case flow manage- C. Admissions and Agreements ment require that there be specific and Most petitions are uncontested. 47 strict time limits for every stage of the Therefore, court policies and proce- court process, including the adjudica- dures for uncontested adjudications are tion. particularly important. An uncontested Because of the traumatic effect of re- adjudication, in the form of an admis- moval of a child from the home, it is es- sion by the parents or their attorneys sential that the adjudication hearing take or an agreement or stipulation among place as soon as it is practical. Court the parties, may take place any time af- rules or guidelines need to specify a time ter the first court appearance, up to the limit within which the adjudication must date of trial. be completed. Court enforcement of a When petitions are uncontested, it is time limit within which adjudication essential that the court’s findings accu- must take place compels court clerks, rately record the reasons for state inter- attorneys, investigators, and social vention. Negotiated findings that do not workers to adjust to a quicker pace of accurately describe the abuse or neglect litigation. should be avoided. Experience in many jurisdictions has Adjudicatory findings of abuse and shown that it is possible to conduct the neglect should be the benchmark adjudication within 60 days after re- against which later case progress is moval of the child. Some jurisdictions measured. Adjudicatory findings are set even shorter time limits. Accordingly, the basis for the case plan and later are when a child is in emergency protective equally important to case review. The care, the adjudication should be com- case plan should address the real dan- pleted within 60 days of the removal of gers or abuse or neglect which neces- the child, whether or not parties are will- sitated court intervention. ing to agree to extensions. Exceptions The original findings are again a criti- should be allowed only in cases involv- cal point of reference when the court ing newly discovered evidence, unavoid- must later decide whether a child can IV. Adjudication Hearings

safely return home. The accuracy of D. Who Should Be Present adjudicatory findings should not be bar- gained away and judges should discour- The adjudication hearing requires age this practice. Case reviews should the attendance of many if not most measure the progress the family is mak- of the same persons required for ing in eliminating the abuse or neglect attendance at the preliminary which was the original reason for state protective hearing. Among those intervention, as specified in the who should always be present are: adjudicatory findings. Based upon these considerations, al- • Judge or judicial officer legations of abuse should be pursued • Parents whose rights have not unless the prosecutor states that the al- been terminated, including putative legations cannot be proved, or cannot fathers be proved without the child’s in-court • Relatives with legal standing or testimony, and mental health experts other custodial adults state that such testimony would be trau- • Assigned caseworker matic to the child. Similar assurances • Agency attorney should also be required in cases where • Attorney for parents (separate allegations of physical abuse or drug attorneys if conflict warrants) abuse have been dropped. • Legal advocate for the child and/or There are limits to a judge’s role in GAL/CASA overseeing settlement agreements, due • Court reporter or suitable to the court’s impartiality and lack of in- technology dependent knowledge of the facts of a • Security personnel case. Nevertheless, many inappropriate pleas and stipulations can be elimi- Parents, guardians, and custodians of nated through careful judicial scrutiny. children should be present at the adju- Parties should be able to stipulate or dication hearing, even when the case is 48 consent to adjudicatory findings with- uncontested. This should include out addressing dispositional issues. noncustodial parents and putative fa- Likewise, they should also be permitted thers whenever practical. Parents, to reach a simultaneous settlement of guardians, and custodians need to be adjudication and disposition. However, present to enable the court to ensure in states where agencies are required that they fully understand and approve to submit predisposition reports, no their plea or stipulation. combined adjudication-disposition In many states, it is realistic to expect agreement should be approved unless service of process on all parties prior to the parties received the agency’s predis- adjudication. This is possible in states position report well in advance of the where statutes authorize speedy proce- agreement. dures for service of process on missing Before accepting a stipulation or ad- parties. But in states where, for ex- mission, the court should determine ample, service by publication is re- that the parties understand the content quired and can take months to com- and consequences of the stipulation or plete, it may be necessary to complete admission. Written copies of a stipula- the adjudication based upon service of tion or admitted facts should be pro- process only on the custodial parents or vided to the parties and their counsel. other guardian or custodian. When this is necessary, it is advisable for a judge to complete the adjudication before publication and go forward with disposition. The judge should then make sure that service is completed as soon as possible. If parties appear in a timely manner after receiving notice, they should be permitted to be heard on all issues, including application for custody of the child and dismissal of the case. IV. Adjudication Hearings

Judges need to be exacting concern- Among persons whose presence ing the presence of noncustodial par- may also be needed at the adju- ents and putative fathers at the adjudi- dication hearing are: cation. When noncustodial parents and putative fathers are brought into the liti- • Age-appropriate children gation late, children often remain in fos- • Extended family members ter care longer than necessary. If • Adoptive parents noncustodial parents and putative fa- • Judicial case management staff thers are notified early, they may be able • Law enforcement officers to take the children into their own • Service providers homes and provide good care for them. • Other witnesses There are several ways judges can encourage the presence of noncustodial If the adjudication is contested, addi- parents and putative fathers at adjudi- tional witnesses deemed necessary by cation. First, as discussed earlier, the parties must be present. The court’s noncustodial parents and putative fa- role in identifying and ensuring the thers should be encouraged to attend presence of parties is vital. preliminary protective hearings. Where In spite of agency efforts, parents, parties have not been located, additional other parties and key witnesses often pretrial hearings should be convened to may be unavailable to attend give them further opportunity to appear adjudicatory proceedings. The court or for the agency to provide an expla- may wish to examine agency efforts to nation of their absence. Second, if an identify and locate parties and key wit- agency is unable to locate and person- nesses, and problems with the service ally serve a noncustodial parent or pu- of process. tative father prior to adjudication, the agency should be required to submit an E. Key Decisions the affidavit describing its efforts to locate Court Should Make at the and serve the noncustodial parent or Adjudication Hearing putative father. Third, if there is more 49 that can be done to locate a missing The principal decisions that the party, the judge should provide instruc- court must make at adjudication tions to the petitioner and should then are: (1) which allegations of the monitor the ongoing search. petition have been proved or When putative fathers are identified admitted, if any; (2) whether there and brought into the case, the court is a legal basis for continued court should first determine if there is agree- and agency intervention; and ment among all parties concerning pa- (3) whether reasonable efforts ternity. If it is agreed that the putative have been made to prevent the father is the actual father and there are need for placement or safely supporting facts, this individual should reunify the family. be accepted as a party to the litigation. If there is disagreement or the evidence The court’s findings at the adjudica- is unclear, the court should promptly tion hearing lay a foundation for subse- order tests for paternity. When pos- quent planning. Findings identify the sible, paternity tests should be com- problems that must be corrected to al- pleted prior to adjudication. low the child to be safely returned home If adjudication is uncontested, all par- or to be safely maintained in the home. ties who have been located and served The findings provide direction to the should be present at the hearing with agency for devising a service plan for their attorneys. The presence of all par- the family. The adjudicatory findings ties and their attorneys is needed to en- also provide a starting point for deter- able them to defend the stipulation or mining whether the parents have ad- agreement and to answer the judge’s equately responded to the problems questions. If the adjudication is con- which caused court intervention. This tested, the same people who should be issue becomes crucial in determining at the preliminary protective hearing when and if reunification can occur or should be present at the adjudication. if termination of parental rights should IV. Adjudication Hearings

be pursued. Because adjudicatory find- If the child is to be in foster care prior ings are crucial to case planning, the to disposition, the judge also may need court must be careful to address all fac- to set terms for visitation, support, and tual allegations set forth in the petition other intra-family communication or complaint. pending disposition. This may include The court must also determine both parent-child and sibling visits. whether the responsible public agency Visitation and other communication is has made reasonable efforts to prevent critical to preserving and maintaining the need for placement of the child. The family relationships during the period court must decide both whether the of separation. Terms of visitation also agency made reasonable efforts to pre- must protect the safety of the child. vent the need for the child’s removal from home and, whether the agency is G. The Court’s Written Findings engaged in reasonable efforts to make of Fact and Conclusions of Law it possible for the child to safely return at the Adjudication Hearing home. The “reasonable efforts” deter- As explained previously in the section mination is required by federal law, as on admissions and stipulations, it is im- a condition for state receipt of federal portant that the adjudicatory findings foster care matching funds.1 It is also accurately reflect the reasons for state required by statute in most states.2 intervention. While findings need not include details of abuse or neglect (e.g., F. Additional Decisions at the the size and shape of bruises due to ex- Adjudication Hearing cessive corporal punishment), findings do need to provide enough detailed in- If the disposition hearing will formation to justify agency and court not occur within a short time choices for treatment and services. The after the adjudication hearing, findings must be specific so that, at a the judge may need to make later time, there will be a defensible ba- additional temporary decisions sis for refusing to return a child home 50 at the conclusion of adjudication. or terminating parental rights if parents For example, the judge may fail to improve. It is also imperative that need to: all parties understand the court’s findings and how they relate to subsequent • Determine where the child is to case planning. be placed prior to disposition hearing; H. Conclusion • Order further testing or evaluation of the child or parents A timely, careful and complete ad- in preparation for the disposition judication hearing can benefit each hearing; child and family before the court by: • Make sure that the agency is, in preparation for disposition, taking • Resolving disputed issues of fact in prompt steps to evaluate a timely manner at the adjudication relatives as possible caretakers, hearing and addressing all the allega- including relatives from outside tions set forth in the petition, the court the area; avoids unnecessary delays that arise • Order the alleged perpetrator to when the parents and agency cannot stay out of the family home and agree on what problems need to be re- have no contacts with the child; solved for reunification to occur or for and the children to remain safely at home. • Direct the agency to continue its • Making a timely decision as to efforts to notify noncustodial whether the agency is able to prove its parents, including unwed fathers. case at the adjudication hearing, the court reduces the time that children may unnecessarily spend in foster care in those cases where the agency’s case is ultimately dismissed. IV. Adjudication Hearings

• Conducting a timely hearing, the hearings and establish a calendar to court emphasizes by its example the im- accommodate such hearings without portance of time in the lives of the chil- the need for routine postponements and dren involved and the need to move the delays. Courts must require that all nec- case towards successful completion as essary participants be present and on soon as practicable. time. In determining the number of Enough time must be set aside for judges needed in organizing the court the completion of careful and complete calendar, the court must calculate both adjudication hearings. Each court must the frequency of hearings and their av- determine the typical range in length of erage length.

I. Resource Guideline It is recommended that a minimum of 30 minutes be allocated for each adjudication hearing.

Hearing Activity Time Estimate

1. Introductory Remarks 2 Minutes • introduction of parties • advisement of rights • explanation of the proceeding

2. Adequacy of Notice and Service of Process Issues 3 Minutes

3. Testimony in Support of Admission Stipulation 10 Minutes • caseworker testimony • testimony by parents and other witnesses 51 • expert witness testimony (as necessary)

4. Service Update/Immediate Service Plan 5 Minutes • reasonable efforts finding • adjustment of the child to placement • family preservation services • visitation

5. Troubleshooting and Negotiations Between Parties 5 Minutes • judge-attorney conferences • ensuring parents understand content and consequences of plea/stipulation • resolution of any paternity and child support issues

6. Issuance of Orders and Scheduling of Next Hearing 5 Minutes • order assessments and evaluations required for case disposition • preparation and distribution of additional orders to all parties prior to adjournment

Minimum Time Allocation 30 Minutes IV. Adjudication Hearings J. Adjudication For example, the judge may need to: Hearing Checklist • Determine where the child is to be Persons who should always placed prior to disposition hearing; be present at the adjudication • Order further testing or evaluation hearing: of the child or parents in preparation for the disposition hearing; • Judge or judicial officer • Make sure that the agency is, in • Parents whose rights have not been preparation for disposition, taking terminated, including putative prompt steps to evaluate fathers relatives as possible caretakers, • Relatives with legal standing or including relatives from outside other custodial adults the area; • Assigned caseworker • Order the alleged perpetrator to • Agency attorney stay out of the family home and • Attorney for parents (separate have no contacts with the child; attorneys if conflict warrants) •Direct the agency to continue its • Legal advocate for the child and/or efforts to notify noncustodial GAL/CASA parents, including unwed fathers; • Court reporter or suitable technology • When the child is to be in foster • Security personnel care prior to disposition, set terms for visitation, support, and other Persons whose presence may intra-family communication also be needed at the adjudication including both parent-child and hearing: sibling visits.

• Age-appropriate children The court’s written findings • Extended family members of fact and conclusions of law at • Adoptive parents the adjudication hearing should: 52 • Judicial case management staff • Law enforcement officers • Accurately reflect the reasons for • Service providers state intervention. • Other witnesses • Provide sufficiently detailed information to justify agency and Key decisions the court should court choices for treatment and make at the adjudication hearing: services. • Provide a defensible basis for • Which allegations of the petition refusing to return a child home or have been proved or admitted, terminating parental rights if if any; parents fail to improve. • Whether there is a legal basis for • Be written in easily understand- continued court and agency able language so that all parties intervention; know how the court’s findings • Whether reasonable efforts have relate to subsequent case planning. been made to prevent the need for • Set date and time of next hearing, placement or to safely reunify the if needed. family. K. Endnotes Additional decisions at the 1. See 42 USC §§ 672(a)(1), 671(a)(15). adjudication hearing: 2. For a general discussion of the reasonable efforts requirement, see National Council of Juvenile and If the disposition hearing will not oc- Family Court Judges et al., Making Reasonable Efforts: Steps for Keeping Families Together (New York: The cur within a short time after the adjudi- Edna McConnell Clark Foundation, 1987); Debra cation hearing, the judge may need to Ratterman et al., Reasonable Efforts to Prevent Foster Placement: A Guide to Implementation (Washington, make additional temporary decisions at D.C.: American Bar Association, 1987). the conclusion of adjudication. V. DISPOSITION HEARINGS

DISPOSITION HEARINGS TABLE OF CONTENTS

V. Disposition Hearings

A. Introduction ...... 54

B. Need for Separate Proceeding at Disposition ...... 54

C. Timing of Disposition...... 55 D. Agreements by the Parties ...... 55 53 E. Who Should Be Present ...... 55

F. Submission of Reports to the Court..... 56

G. Key Decisions the Court Should Make at the Disposition Hearing ...... 57

H. The Court’s Written Findings of Fact and Conclusions of Law at the Disposition Hearing ...... 60

I. Conclusion...... 61

J. Resource Guideline ...... 62

K. Disposition Hearing Checklist ...... 63 V. Disposition Hearings

A. Introduction Disposition is the stage of the juvenile evaluate progress in the case. Where court process in which, after finding the family problems can be clearly de- that the child is within jurisdiction of the scribed, appropriate services can be court, the court determines who shall identified, and appropriate objectives have custody and control of the child. can be chosen, this will provide a clear Depending upon the powers and re- focus for subsequent review hearings. sponsibilities of the court under state The precision with which the needed law, the court may set additional condi- changes and remedial steps can be tions concerning the child’s placement identified at disposition depends on the and may issue specific directions to the timing of the disposition hearing and parties. the nature of the family problems. If the Court proceedings to determine dis- family problems are not yet fully known, position are a crucial part of the juve- the case plan may need to set up fur- nile court process. At disposition the ther evaluation rather than to set con- court makes the decision whether to crete behavioral goals for parents. If continue out-of-home placement or to family problems are already clear, it is remove a child from home. A full ex- appropriate for the court to state in amination of this issue is needed, includ- some detail what the parties are ex- ing an examination of the agency’s plan pected to accomplish. Where the to protect the child from further harm, agency and parents have already to prevent placement and to determine worked out an initial case plan by the safe alternatives to placement. Based time of the disposition hearing, it may on this examination, the court can then be desirable for the court to incorpo- evaluate whether these agency actions rate particular provisions of the plan constitute reasonable efforts to prevent into its written findings of fact and con- placement. Dispositional reports and clusions of law. written case plans that address these issues are needed to help the court and B. Need for Separate 54 parties evaluate the question of removal. Proceeding at Disposition When the court decides to place a Disposition should be considered child outside the home, additional steps separately from adjudication because a are needed to minimize the harm of separate or bifurcated hearing assures separation. The court should set terms that there will be appropriate focus on for appropriate visitation and parent- dispositional issues such as removal of child communication. The court may the child and visitation. When need to specify services needed to help adjudicatory and dispositional functions the child deal with the trauma of sepa- are not separated, emphasis often falls ration and to deal with the child’s other on the placement decision at the ex- special needs. When the separation of pense of other dispositional issues. This siblings is unavoidable, visitation and can result in court authorization of re- communication between siblings must moval without careful consideration of be addressed during disposition. alternatives such as in-home services. Decisions at disposition should help The hearing process must be structured the agency and parents develop an ap- to make it more likely that dispositional propriate plan to address the specific issues will be explicitly addressed. problems which necessitated state in- Whether the petition has been sus- tervention in the case. While adjudica- tained, and what is to happen next to tion should identify the problems justi- the child, are two distinct determina- fying court involvement, disposition tions that need to be examined sepa- should make sure that the parties work rately in order to accord full consider- out a plan to resolve them. The court ation. The two decisions are as distinct should ensure that the agency and court from one another as a finding of guilt is do not work at cross purposes. distinct from sentencing in a criminal Disposition should set a framework case. It is important that they not be for review. Effective dispositional pro- blurred. ceedings enable review proceedings to Special reports often prepared for the V. Disposition Hearings

disposition hearing address issues of evidence, unavoidable delays in obtain- placement, visitation, and services. ing critical witnesses, and unforeseen These reports typically contain hearsay personal emergencies of parties or information or information that does counsel. not comply with other rules of evidence. It is unfair for these reports to be con- D. Agreements by the Parties sidered at adjudication. At disposition, When parties admit the allegation of the court needs time to consider them the petition or stipulate to a set of facts properly. for the adjudication, they often also submit a stipulated dispositional order at C. Timing of Disposition the same time. When a combined stipu- Disposition should occur quickly. Of- lation of adjudication and disposition is ten a decision on disposition is neces- proposed to the court, the judge should sary before significant case planning take special care that the stipulation is can begin. This is particularly true when complete and well-considered. The the need for out-of-home placement is stipulation should address not only the contested. When a child is in emer- facts supporting child placement, care, gency placement, it is imperative that and treatment decisions, but also what there be a careful decision on placement actions and progress are expected of the as soon as possible so that children do parties. not spend unnecessary time away from Whenever disposition is being stipu- their homes. Adjudication and disposi- lated rather than tried by the court, the tion should be separate functions, but court should ensure that the issues of it may be appropriate to allow the dis- disposition have been thoroughly con- position hearing to follow in a bifur- sidered by all parties, especially both cated manner immediately after the parents. Case planning should continue adjudicatory phase of the process if: (a) to progress as if a contested disposition all required reports are available and hearing had been concluded. When a have been received by all parties or their proposed dispositional agreement is not attorneys at least five days in advance complete, the parties should be required 55 of the hearing; and (b) the judge has had to work out the issues or to present them the opportunity to review the reports to the court for resolution. after the adjudication. The degree of detail to be included in the stipulated disposition should be Often a decision on disposition is consistent with the requirements con- necessary before significant case cerning findings of fact and conclusions of law for contested dispositions. The planning can begin. character of the dispositional findings and orders may vary according to the The dispositional decision need not constitutional and statutory powers of determine an inflexible list of services the court over disposition. The speci- and assistance to be provided to the ficity also may depend upon the amount child and the family. In many cases, the of time which has elapsed since the state disposition hearing determines only the first became involved in the case. services and assistance to be provided at an early stage of the case. Ongoing E. Who Should Be Present evaluation and work with the family will Different witnesses may be required develop this further, and the disposi- to address dispositional issues as optional decision will be revised during posed to those who were needed at ad- subsequent case reviews. Therefore, judication. Because the disposition there is no need to postpone the deci- hearing determines whether the state sion in order to achieve resolution of has made reasonable efforts to avoid the every issue. need for placement and what services Disposition should be completed are needed, service providers will be within 30 days after adjudication, except needed as witnesses if there are factual where extensions of time are required disputes concerning these issues. for such reasons as newly discovered V. Disposition Hearings

As mentioned in preceding bring appropriate persons to the dispo- sections on preliminary sition hearing, issuing subpoenas if nec- protection and adjudication essary. If necessary parties and key wit- hearings, among those who nesses fail to appear, the hearing should should always be present are: be scheduled at the earliest possible time, and incentives identified to ensure • Judge or judicial officer complete participation at the resched- • Parents whose rights have not uled hearing. been terminated, including putative fathers F. Submission of Reports • Relatives with legal standing or to the Court other custodial adults In most states, rules regarding the • Assigned caseworker competence of evidence apply in adju- • Agency attorney dication hearings but not in disposition • Attorney for parents (separate hearings. As a result, written reports attorneys if conflict warrants) inadmissible as hearsay generally can- • Legal advocate for the child not be considered by the court at the and/or GAL/CASA adjudicatory phase. At the disposition • Court reporter or suitable hearing, however, written reports gen- technology erally can be considered by the court. • Security personnel These might include reports submitted by a guardian ad litem/Court Appointed As previously mentioned in Special Advocate (GAL/CASA) ap- recommendations on preliminary pointed for the child, or psychological, protection and adjudication medical, developmental, educational or hearings, among those whose other reports or evaluations ordered at presence may also be needed are: the adjudicatory stage. The submission of these reports prior • Age-appropriate children to the disposition hearing can serve sev- 56 • Extended family members eral purposes. The process of report- • Adoptive parents writing can tighten a social service • Judicial case management staff agency’s own analysis of a case. Sub- • Law enforcement officers mission of written reports by agency • Service providers workers and other specialists can assist • Adult or juvenile probation or the parties and their counsel to think parole officer about and contribute to the disposi- • Other witnesses tional decision. Written reports can also be of direct help to the judge in reach- Because the disposition hearing fo- ing a decision. cuses on the future well-being of the It is important that the agency report child, it is often helpful to have persons be distributed to the parties well in ad- present who may be called upon to care vance of the disposition hearing, allow- for the child or work with the family. ing the parties time to consider agency These might include a homemaker, pub- proposals for disposition. This enables lic health official, mental health profes- the parties to develop alternatives, call sionals, other service providers, close witnesses, and subpoena and cross ex- family friends, responsible relatives, amine persons who provided informa- and personnel from any government tion relied upon in the agency’s report. agency in contact with the child or fam- Early submission of the report can im- ily. prove the parties’ understanding of dis- Government representatives can pro- positional issues and enable them to vide the court with comprehensive in- more effectively contribute to the dis- formation on particular aspects of fam- positional decision, enhancing the de- ily functioning, and may help identify liberations and decisions of the court. additional resources available to assist The court should set rules or develop the child or family. forms regarding both the timing and Judges should instruct the agency to content of agency predisposition re- V. Disposition Hearings ports. Strict deadlines are needed to • A description of the placement ensure that the report is submitted to and where it is located; the parties far enough in advance of the • Proposed arrangements for hearing to give them an opportunity to visitation; investigate its statements and propose • Placement of the child’s siblings alternatives. Without such deadlines, and, if they are to be apart, pro- agency workers may conclude that re- posed arrangements for visitation; ports are not required until the disposi- • An appropriate long-term plan for tion hearing or shortly before. the child’s future; and If statutory requirements are insuffi- • Proposed child support. cient, the court should regulate the content of predisposition reports through Court rules and forms for predispo- court rules or forms. In developing such sition reports should be carefully de- rules or forms, the court should consult signed to assist judges in preparing closely with responsible child welfare written findings of fact and conclusions agency. of law. The form used for the agency report should be precisely worded to Among other things, the predis- address the exact issues. This allows the position report should include the judge, when appropriate, to incorporate following: by reference the agency form. It also helps ensure that the oral submissions • A statement of family changes that by the agency will assist the court in the are needed to correct the prob- preparation of its findings. lems necessitating state intervention, with timetables for accom- G. Key Decisions the plishing them; Court Should Make at the • A description of services to be Disposition Hearing provided to assist the family; and The key decision in a disposition hear- • A description of actions to be ing is whether a child must be placed taken by parents to correct the away from home. The court must de- 57 identified problems. cide whether there are ways of fully protecting the child in the home, including When the agency recommends consideration of in-home services or in- foster placement an affidavit of tensive monitoring of the household. reasonable efforts should be If the child is to remain at home, the submitted. The following are judge usually needs to impose specific some additional key elements of conditions on both the parents and the the report: agency. In considering conditions to be imposed on the agency, the judge • A description of the efforts made should determine what agency super- by the agency to avoid the need vision will be needed for the child’s pro- for placement and an explanation tection and what services will be pro- why they were not successful; vided. • An explanation why the child There are several issues of parental re- cannot be protected from the sponsibility when a child is allowed to identified problems in the home remain at home. The court usually even if services are provided to needs to impose specific behavioral di- the child and family; rectives upon the parents and to clarify • Identification of relatives and their obligations to cooperate with the friends who have been contacted child welfare agency. In many cases, the about providing a placement for judge must also establish or modify the the child. child support obligations and visitation rights of the non-custodial parent. In Other information that should some cases, the judge may need to is- be included either in the affidavit sue a no-contact order for the child’s of reasonable efforts or an protection. At disposition, unresolved accompanying court report is: issues of paternity and child support V. Disposition Hearings

must be examined and addressed. of special services or court orders regu- There are a number of critical issues lating the conduct of the parents. when children are to be removed from The court may grant an agency cus- home. Primarily, the court must deter- tody of a child for placement into foster mine custody of the child, either to a care. This is an appropriate disposition relative or other responsible adult with when the child cannot yet be safely re- or without ongoing agency supervision. turned home, but reunification may oc- If the agency is to have custody of the cur at a future date after the parents child, the court may need to set specific have addressed problems that caused conditions concerning the child’s place- the placement of the child. This may ment, depending on whether the judge also be an appropriate disposition when has this responsibility under state law. the plan is to work towards placement For example, the court may require the of the child with a relative who is un- child to be placed in a certain type of able to assume immediate custody. home or facility, to be placed with sib- The court may choose to award cus- lings, or even to be placed in foster care tody of a child to a relative or other re- with a specific relative or family friend sponsible adult. This is an appropriate if that person meets agency foster care disposition when the long-term plan is licensing requirements. for the child to be raised by that rela- Other important issues for the judge tive or other individual and further to determine when a child is placed agency involvement is not planned. away from home include parental and In some states, the agency may re- sibling visitation and communication, quest termination of parental rights in and the types of services to be provided the original petition. In such cases, the to the family. In some cases, disposi- court may grant the motion for termi- tion is not too early for the judge to nation at disposition if statutory specify what parental improvement is grounds for termination are satisfied, required before the child will be allowed thereby freeing the child for adoption. to come home. In many states, a de- This disposition is appropriate when: a) 58 tailed case plan must be approved by reunification with the parent clearly is the judge either during or soon after not possible within a reasonable time disposition hearing. frame even if reunification services are provided, b) there are no appropriate All of the key decisions that were relatives who can assume custody of the addressed at the preliminary child, and c) there is a reasonable prob- protective hearing are revisited ability that the agency can secure an at the disposition hearing. In the adoptive home for the child. When pa- course of evaluating these issues, rental rights are terminated, the long- the court must make formal legal term plan for the child nearly always decisions regarding the following: should be placement in a permanent adoptive home. • What is the appropriate statutory disposition of the case and long-term • Where should the child be placed? plan for the child? When a child, for safety reasons, can- If a child is adjudicated abused or ne- not be placed with a family member, the glected, a long-term plan must imme- best alternative placement must be diately be developed to guide agency sought, pending reunification with a and court decision-making on the child’s parent or completion of another long- behalf. A number of dispositional alter- term plan for the child. The court must natives must be coordinated with the decide whether the type of placement long-term plan for the child. The court proposed by the agency is the least dis- may allow the child to remain in the ruptive, most family-like, and meets the home of a parent, relative, or other re- needs of the child. Among factors af- sponsible adult, subject to orders of pro- fecting placement suitability are the po- tective supervision. This is an appro- tential for the placement to facilitate priate disposition when the child can re- timely family reunification; the mainte- main safely at home with the provision nance of sibling groups in a single V. Disposition Hearings

placement; the primary language spo- case plan to determine whether the plan ken by a child in need of placement; and is comprehensive in identifying all the geographic proximity to family mem- problems that need to be addressed to bers, schools and friends. meet the needs of the entire family, Courts should first seek to place chil- whether the plan defines clear, objec- dren with relatives, when placement tive and measurable behavioral changes with a parent is not possible. If a rela- to be achieved, and whether the services tive placement is unavailable, then a fos- proposed are the best available to bring ter home placement should be consid- about the necessary changes in behav- ered. Residential or group home place- ior. The court should take time in re- ments may be necessary for children viewing the plan to make certain that unable to function in a family-like set- all parties understand the plan and what ting, when less disruptive placements is expected of them in the plan. If the are unavailable, or when they are the court is dissatisfied with the plan pro- only type of placement which would al- posed by the agency, it can reject the low siblings to remain together. plan and require the agency to submit a new plan. When parental rights are If empowered to do so under state terminated, the long-term plan law, the court can order modifications for the child nearly always should of the proposed plan. For example, the be placement in a permanent court might modify the plan if parties adoptive home. dispute its terms and the evidence sus- tains their position. The court might determine that the plan fails to meet le- • Does the agency-proposed case gal requirements. The court might plan reasonably address the problems modify the plan because services to be and needs of child and parent? provided are not related to the abuse or At the time of the preliminary protec- neglect leading to court intervention. tive hearing, the agency probably will If the court enters an order requiring not have had sufficient time or informa- the agency to provide a placement or 59 tion to develop a complete, written case services not suggested by the agency, plan. By the time of the disposition the court should make sure the order is hearing, however, the agency should be clear and includes findings or conclu- required to present a written case plan sions setting forth the basis for the or- which addresses all aspects of the der. In particular, the court should set agency’s involvement with the family. A forth the legal or evidentiary basis for key decision to make at the disposition its decision. The court should make sure hearing is whether to approve, disap- that the agency ordered to provide the prove or modify the case plan proposed services had notice and the opportunity by the agency. to be heard. If approval of the case plan is a function assigned to the court by state law, • Has the agency made reasonable the case plan should identify problems efforts to eliminate the need for to be resolved before the court’s in- placement or prevent the need for volvement ends; changes in parental placement? behavior that must be achieved; services This issue should be addressed at ev- to be provided to help achieve these ery stage of the hearing process. After changes; and the deadlines and respec- examination of agency efforts at the pre- tive responsibilities of each party in pro- liminary protective hearing, and again viding services and achieving case plan at the adjudicatory hearing, the court goals. The case plan should also iden- must again at the disposition hearing tify any special needs of the child and examine and determine the reasonable- the services to be provided to meet ness of agency efforts to rehabilitate and those needs. Finally, the case plan reunite the family. Major changes in should set forth the terms and condi- family functioning, membership, fi- tions of the parents’ visitation. nances, attitude, skills and other perti- The court should actively review the nent developments can be made be- V. Disposition Hearings

tween court hearings. Although statu- preparing findings can be reduced by tory requirements differ from state to ensuring that the agency’s dispositional state, a judicial determination of reason- report covers the same issues as the able efforts to eliminate the need for court’s findings. If the agency report is placement is good practice at each stage well-prepared and supported, the court of the dependency process. can repeat, modify, or refer to portions of the report in its findings. • What, if any, child support When there has been a recommenda- should be ordered? tion that a child be placed outside the The court should order child support home, judicial findings should address for children in foster care whenever par- the feasibility of in-home services as an ents are able to help cover the costs of alternative to removal. This should be this substitute care. Child support expected by the parties. When the court should be addressed in the disposition consistently makes findings concerning order unless the state sets child support whether in-home services can or can- determinations through a different fo- not prevent the need for placement, the rum for children in foster care. agency is encouraged to be more dili- Child support obligations of parents gent and thorough in exploring possible with children in foster care should not safe alternatives to removal. Determin- be unduly burdensome. When setting ing whether available services can pre- support amounts, the court should con- vent the need for removal is also very sider any special financial costs arising closely related to the federally required from foster care placement. Such costs judicial determination of reasonable ef- might include the maintenance of extra forts to prevent placement and, after living space in preparation for the placement, to make it possible for the child’s return home, services to facili- child to safely return home. tate the child’s safe return home, transportation to family visits or to participate in services, and time off work to 60 allow participation in services.

• When will the case be reviewed? After the disposition hearing is completed, the court will need to set additional hearings to review progress toward case plan goals, and to make timely changes or corrections in the case plan. The next review hearing should be set at the conclusion of the disposition hearing, although parties to the case may request a case review hearing at any time. The court may request that the parties submit written progress reports at specified dates concerning case plan progress or other ongoing issues in the case.

H. The Court’s Written Findings of Fact and Conclusions of Law at the Disposition Hearing Detailed dispositional findings can help to structure the court’s decision- making, establish a more complete record, and encourage more thorough consideration of the decision to place a child away from home. The burden of V. Disposition Hearings

The court’s written findings of fact and conclusions of law at the I. Conclusion disposition hearing should: A timely, careful and complete • Determine the legal disposition of disposition hearing can benefit the case, including the custody of each child and family before the the child, based upon the statutory court by: options provided under state law. • State the long-term plan for the • Providing the time necessary to child (e.g., maintenance of the child develop a comprehensive case plan in the home of a parent, reunifica- which addresses all issues in need of tion with a parent or relative, resolution, which carefully identifies permanent placement of child with the responsibilities of all parties, and a relative, placement of the child in which incorporates the legitimate a permanent adoptive home.) concerns and interests of all parties. • When applicable, specify why This allocation of time and careful continuation of child in the home case planning increases the likelihood would be contrary to the child’s that the plan will be successfully welfare. implemented in a timely manner. • Where charged with this • Devoting the time to develop a responsibility under state law and carefully drafted and comprehensive based upon evidence before the case plan, the court reduces the need court, approve, disapprove or to schedule subsequent hearings to modify the agency’s proposed case make changes and corrections in the plan. plan. • Determine whether there is a plan • Carefully devising a case plan and for monitoring the implementation identifying appropriate services, the of the service plan and assuming court may, at the conclusion of the the child’s continued well-being? Is disposition hearing, be able to return a GAL/CASA available to do this? children to their parents‘ home with 61 • When placement or services are protective orders. ordered that were not agreed upon • Enough time must be allocated for by the parties, specify the evidence the completion of careful and com- or legal basis upon which the order plete contested disposition hearings. is made. Each court must determine the typical • Specify whether reasonable efforts range in length of contested hearings have been made to prevent or and establish a calendar to accommo- eliminate the need for placement. date such hearings without the need • Specify the terms of parental for routine postponements and delays. visitation. Courts must require that all necessary • Specify parental responsibilities for participants be present and on time. child support. In determining the number of judges • Be written in easily understandable and in organizing the court calendar, language so that parents and all the court must calculate both the parties fully understand the court’s frequency of contested hearings and order. their average length. • Set date and time of next hearing, if needed. V. Disposition Hearings

J. Resource Guideline

It is recommended that a minimum of 30 minutes be allocated for each disposition hearing.

Hearing Activity Time Estimate

1. Introductory Remarks 2 Minutes • introduction of parties • advisement of rights • explanation of the proceeding

2. Adequacy of Notice and Service of Process Issues 3 Minutes

3. Reasonable Efforts Findings 5 Minutes

4. Adequacy of the Agency Case Plan 10 Minutes • parental conditions • agency conditions • visitation plan • service plan for child and family • long-term plan

5. Troubleshooting and Negotiations Between Parties 5 Minutes • discuss with parents the specifics of the case plan to ensure that they understand what is expected of them • determine ways that the agency and the court can assist 62 parents in complying with the case plan 6. Issuance of Orders and Scheduling of Next Hearing 5 Minutes • issue disposition order addressing custody • schedule review and permanency planning hearings • preparation and distribution of additional orders to all parties prior to adjournment

Minimum Time Allocation 30 Minutes V. Disposition Hearings

K. Disposition Hearing When the agency recommends Checklist foster placement, an affidavit of reasonable efforts should be Persons who should always be submitted. The following are present at the disposition hearing: some additional key elements of the affidavit: • Judge or judicial officer • Parents whose rights have not • A description of the efforts made by been terminated, including the agency to avoid the need for putative fathers placement and an explanation why • Relatives with legal standing or they were not successful; other custodial adults • An explanation of why the child • Assigned caseworker cannot be protected from the • Agency attorney identified problems in the home • Attorney for parents (separate even if services are provided to the attorneys if conflict warrants) child and family; • Legal advocate for the child • Identification of relatives and and/or GAL/CASA friends who have been contacted • Court reporter or suitable technology about providing a placement for the • Security personnel child.

Persons whose presence may also Other information that should be needed at the disposition be included either in the affidavit hearing: of reasonable efforts or an accompanying court report is: • Age-appropriate children • Extended family members • A description of the placement and • Adoptive parents where it is located; • Judicial case management staff • Proposed arrangements for visitation; • Law enforcement officers • Placement of the child’s siblings 63 • Service providers and, if they are to be apart, • Adult or juvenile probation or proposed arrangements for parole officer visitation; • Other witnesses • An appropriate long-term plan for the child’s future; and Submission of reports to the • Proposed child support. court. Predisposition reports should include: Key decisions the court should make at the disposition hearing: • A statement of family changes needed to correct the problems • What is the appropriate statutory necessitating state intervention, disposition of the case and long- with timetables for accomplishing term plan for the child? them; • Where should the child be placed? • A description of services to be • Does the agency-proposed case provided to assist the family; and plan reasonably address the • A description of actions to be problems and needs of child and taken by parents to correct the parent? identified problems. • Has the agency made reasonable efforts to eliminate the need for placement or prevent the need for placement? • What, if any, child support should be ordered? • When will the case be reviewed? V. Disposition Hearings

The court’s written findings of fact and conclusions of law at the disposition hearing should:

• Determine the legal disposition of the case, including the custody of the child, based upon the statutory options provided under state law. • State the long-term plan for the child (e.g., maintenance of the child in the home of a parent, reunification with a parent or relative, permanent placement of child with a relative, placement of the child in a permanent adoptive home.) • When applicable, specify why continuation of child in the home would be contrary to the child’s welfare. • Where charged with this responsibility under state law and based upon evidence before the court, approve, disapprove or modify the agency’s proposed case plan. • Determine whether there is a plan for monitoring the implementation of the service plan and 64 assuming the child’s continued well-being. Is a GAL/CASA available to do this? • When placement or services are ordered that were not agreed upon by the parties, specify the evidence or legal basis upon which the order is made. • Specify whether reasonable efforts have been made to prevent or eliminate the need for placement. • Specify the terms of parental visitation. • Specify parental responsibilities for child support. • Be written in easily understandable language so that parents and all parties fully understand the court’s order. • Set date and time of next hearing, if needed. VI. REVIEW HEARINGS

REVIEW HEARINGS TABLE OF CONTENTS

VI. Review Hearings

A. Introduction ...... 66

B. Timing of Review ...... 67

C. Agreements by the Parties ...... 68

D. Who Should be Present ...... 68

E. Key Decisions the Court Should 65 Make at the Review Hearing ...... 70

F. Submission of Reports to the Court..... 72

G. The Court’s Written Findings of Fact and Conclusions of Law at the Review Hearing ...... 73

H. Conclusion...... 73

I. Resource Guideline ...... 74

J. Review Hearing Checklist ...... 75

K. Endnotes ...... 76 VI. Review Hearings

A. Introduction Review hearings are the court pro- dicial oversight of children in foster care ceedings which take place after dispo- and can help judges identify inadequa- sition and in which the court compre- cies in government’s response to child hensively reviews the status of the case. abuse and neglect. For example, incom- Review is vital to cases involving each plete case plans can prolong foster care child within the court’s jurisdiction, placement by failing to clearly specify whether or not the child is in placement. what each party must do to facilitate At the conclusion of the disposition family reunification. Agency case plans hearing the court identified a long-term may be based on boilerplate forms goal for the child. If family reunification which fail to adequately document a was the case goal, the original case plan case. A plan may be developed solely approved at the disposition hearing by agency staff, without the collabora- should have identified behavioral tion of parents or the child. A plan may changes required of the parents, ser- fail to specify agency services or par- vices to be provided, a long-term plan ticular behaviors and changes expected for the child’s future, and other appro- of the parents. priate details. Review hearings exam- Unresolved case disputes may block ine progress made by the parties since case planning progress. Each party the conclusion of the disposition hear- may be proceeding unilaterally without ing. They also provide an opportunity confronting a disputed issue, although for correction and revision of the case the dispute may constitute a roadblock plan. The purpose of review hearings to family reunification. When agency is to make sure that cases progress and caseloads are high, cases may be ne- that children spend as short a time as glected. If things are going “smoothly” possible in temporary placement. No in a child’s foster home, appropriate at- matter how carefully initial case plan- tention may not be paid to family reha- ning is examined at the disposition hear- bilitation and progress toward reunifi- ing, periodic review is needed to keep cation. 66 cases moving toward successful The agency may unnecessarily restrict completion. parent-child contacts, accelerating Review hearings should re-examine breakdown of the parent-child relation- long-term case goals and change any ship. Frequent parental visitation is es- which are no longer appropriate. Just sential but burdens agency casework- as review hearings should hasten fam- ers. Parents may be unaware that they ily reunification when possible, they can challenge visitation arrangements should also help identify cases in which and may become discouraged by the reunification should be discarded as a terms imposed. goal because a child cannot safely be Agencies may fail to take timely ac- returned home in a timely fashion. tion to move children out of foster care. Review hearings are necessary be- Such inertia may be due to caution, in- cause continuation of a child in foster decision, or subtle incentives to main- care for an extended time has a nega- tain the legal status quo. Bringing a ter- tive affect on a child and family. A child mination of parental rights proceeding in foster care forms new relationships is time consuming and may even appear which may weaken his or her emotional forbidding to individual caseworkers. ties to biological family members. A Without prodding by foster care review, child shifted among foster homes may workers may forego legal action. lose the ability to form strong emotional Effective review hearings can address bonds with a permanent family.1 A care- each of these problems and can improve ful decision concerning the future of planning for children. Judicial review every child is needed as soon as pos- helps a case progress by requiring the sible. Review hearings can help ensure parties to set timetables, take specific that decisions concerning a child’s fu- action, and make decisions. Review ture are made at regular intervals and hearings provide a forum for the par- implemented expeditiously. ents, helping assure that their viewpoint Review hearings provide regular ju- is considered in case planning. Through VI. Review Hearings careful scrutiny of the case plan by the program until the case is brought back attorneys and the court, case content to court. Parties must have the means and planning problems can be identi- to obtain timely review. fied. Terms of the plan can be specified Federal law requires that reviews be so that all parties understand their obli- conducted by either a court or an “ad- gations and the court can assess ministrative body,” such as an agency progress. team or a panel of volunteer citizen re- Regular and thorough review hear- viewers.2 ings create incentives for the agency to It is optional under federal law make decisions concerning the perma- whether courts conduct the routine re- nent status of a child. When the review view hearings. hearing is challenging and demanding, Federal law contemplates a routine greater consideration is given to the but thorough review of case progress examination of all placement options. to make sure cases are not neglected Review hearings also create a valuable and, if necessary, to refine case plans. record of the actions of the parents and Specifically, review is: agency. Current information is put on ...to determine the continuing neces- the record and is more likely to be freely sity for and appropriateness of the place- exchanged at a review than in proceed- ment, the extent of compliance with the ings to terminate parental rights or to case plan, and the extent of progress compel family reunification. which has been made toward alleviating Unfortunately, there are a number of or mitigating the causes necessitating formidable pitfalls that can thwart effec- placement in foster care, and to project tive review hearings. Regular review a likely date by which the child may be hearings consume a great deal of time. returned to the home or placed for adop- Careful docket management and appro- tion or legal custody.3 priate judicial caseloads are needed to States that require courts to conduct prevent caseworkers, parents, attor- periodic review hearings must make neys, and other parties from having to sure that courts are able to perform this 67 spend long hours in the courthouse function properly. waiting for review. Some states have chosen not to have Reviews can malfunction as a rubber judges conduct reviews. The best alter- stamp of agency recommendations or native or complement to judicial review produce arbitrary decisions based on is review by panels of judicially ap- inadequate information. Effective re- pointed citizen volunteers. Whatever view requires adequate court time and form of review is used, it is critical that properly paid and trained lawyers to the parties be present and that question- collectively determine what information ing is conducted with rigor. Members comes before the court. Lawyers must of citizen review panels should be care- be expected to do their job and come to fully recruited, screened, trained and court with a clear position on the case. supervised by court personnel. Citizen If volunteers such as guardians ad litem review panels should be judicially ap- or court appointed special advocates pointed and supervised. There should (GAL/CASAs) are assigned, they should be an adequate ratio of court staff to be prepared to make a recommendation volunteers and there should be at least as to the best interests of the child. one panel per 100 children to be re- Irregular review may inhibit agency viewed. A professional staff person case planning. Long delays between should be present at all panel reviews. court hearings and unnecessarily complex court orders may deprive the B. Timing of Review agency and the parents of the flexibility Timetables for review hearings are needed to move forward. For example, governed by both federal and state stat- if a court orders parents to participate ute. Federal law specifies that review in a particular program which proves of children in foster care (by a court or to be inappropriate, the parent is under administrative body) must occur at least a continuing obligation to remain in the once every six months.4 Some state stat- VI. Review Hearings

utes require more frequent oversight services to the family, visitation (where and many courts conduct case review applicable), agency oversight of the more frequently than statutes require. family, location of missing parents, de- Frequent review hearings require termination of paternity. (For a more that courts have sufficient personnel to complete listing and discussion of issues conduct the hearings properly. What- to be addressed during a review, see ever the frequency of mandatory re- Section E entitled “Key Decisions the view, the court should have the ability Court Should Make at Review.”) to conduct hearings more frequently than the minimum intervals. Where D. Who Should Be Present review hearings are mandated at least every six months, it should still be com- Persons who should always be mon to hold reviews at two or three present at review hearings: month intervals at particularly critical stages of a case. In special circum- • Judge or judicial officer stances, it also should be common to • Parents whose rights have not bring matters back to court on short been terminated, including notice. putative fathers • Age-appropriate children C. Agreements by the Parties • Relatives with legal standing or Whenever issues presented at a re- other custodial adults view are stipulated rather than tried by • Foster parents the court, the court should take the time • Assigned caseworker to thoroughly review the agreement • Agency attorney with the parties. The court should en- • Attorney for parents (separate sure that all review issues have been attorneys if conflict warrants) thoroughly considered by all parties, es- • Legal advocate for the child and/ pecially both parents, if involved. If the or GAL/CASA parties’ agreement is not comprehen- • Court reporter or suitable 68 sive, the court may need to hear evi- technology dence to resolve disputes. The court • Security personnel might also adjourn the hearing to give the parties time to resolve issues or present them to the court for a decision. Judge or judicial officer If the court conducts frequent review Although states can comply with the hearings, any agreed statement of facts review requirements of federal law should convey the recent history of the through a citizen or administrative re- case. The history should include an view process, it is important that when agreed statement concerning services review hearings are conducted by the provided to the child and family since court, they are conducted by the same the last hearing, actions taken by the judge or judicial officer who hears other parents in accord with the case plan, stages of the proceedings. The involve- and progress made toward ending state ment of one judge creates consistency intervention. This provides a definitive in the directions given the family and record of what has occurred since the agency, avoids rehashing old argu- previous disposition or review. This ments, and allows the judge or judicial record will be invaluable later in the officer who presides over the review to case when it is necessary to decide be thoroughly familiar with the facts whether to reunite the family or termi- adduced from previous hearings. nate parental rights. If the parties have reached agreement Parents whose rights have not as to future steps to be taken, the court been terminated, including should either make sure that the agree- putative fathers (or other persons ment is comprehensive or resolve any with whom the agency is working issues not considered. A comprehen- toward reunification, such as sive agreement might include such is- potential adoptive parents) sues as placement, services to the child, If the court-approved plan is to re- VI. Review Hearings unify the child with a parent, whether give the judge the opportunity to ob- or not the child lived with the parent serve the foster parents. prior to placement into foster care, it is essential for that parent to participate Assigned caseworker in the review. Parents can provide the The caseworker with primary respon- court with important information con- sibility for the case must be present to cerning their perception of problems provide the court with complete, accu- encountered in completing tasks or ob- rate, and up-to-date information at the taining services, difficulties encoun- hearing. Judges should not continue or tered in working with the agency, and delay a review hearing due to lack of in- concerns they may have regarding the formation or case involvement by a care of their children. Such information caseworker. When important facts are is essential to the participation of par- not known, the hearing should be reset ents in the case planning process. Par- for an early date, and, if necessary, ap- ents must be present to receive infor- propriate subpoenas should be issued. mation from the court and agency. At the review, the parents can receive im- Agency attorney portant feedback from the court and It is important that the agency have agency as to what tasks must be com- effective representation at the hearing pleted and when. because the court’s decisions concerning the case plan are crucial to its suc- Age-appropriate children cess. Important information is elicited Children should be present at some at the review hearing and the record point during the hearing to give the established at that time can be critical judge the opportunity to observe them. to later case outcomes; an attorney is Age-appropriate children can provide needed to help develop the record and the court with information as to their note important evidence. The agency perception of their needs, interests and attorney also can further case progress concerns. Older children will often have by obtaining court ordered evaluations, questions regarding their circum- excluding a perpetrator from a house- 69 stances, the case plan, and projected hold, or obtaining information impor- time frames for achieving case plan tant to the case. Depending on the ju- goals. Their questions can be answered risdiction, the agency may be repre- at review. A court may choose to have sented by an attorney employed by the children present only during portions agency, the state attorney general, the of a hearing. Special circumstances may county attorney, or the county prosecu- infrequently justify the absence of chil- tor. dren from an entire hearing. Attorney for parents (separate Relatives with legal standing or attorneys if conflict warrants) other custodial adults The presence of the parents’ attorney Relatives with legal standing, repre- at the review hearing is vital to make sentatives of placement facilities where sure that the agency is carrying out its children are placed, or other custodial responsibility to assist the parents. The adults who work directly with children attorney needs to correct the record to can often provide valuable information avoid negative or inaccurate informa- at review concerning adjustment of chil- tion about the parents. The attorney dren to placement, their special needs, needs to make sure that the parents’ and additional services required. interests and views are taken into account in all decisions on placement, visi- Foster parents tation, services, and case plan modifi- Foster parents who care for and ob- cations. serve children on a daily basis are often in the best position to describe the Legal advocate for the child present status of a child. Foster parents and/or GAL/CASA should be present both to make this in- A well-trained legal advocate for the formation available to the judge, and to child and/or GAL/CASA must be VI. Review Hearings

present to make sure that the child’s in- E. Key Decisions the Court terests are being protected and not be- Should Make at the Review ing subordinated to the organizational Hearing needs of the agency or the convenience of agency personnel. The advocate also • Whether there is a need for needs to ensure that the views of chil- continued placement of a child. dren are considered by the court. If a child is placed outside a parent’s home, the court should determine the Court reporter or suitable technol- necessity of placement. In deciding ogy and Security personnel whether the family can be safely re- As in other stages of the hearing pro- united, the court should consider the cess, these staffing and equipment re- extent to which the parents have en- sources should be available for all re- gaged in and benefited from services view hearings. outlined in the case plan; the capacity and willingness of the parents to care The following are persons whose for the child; the extent to which presence may also be needed at changed parental behavior allows for reviews: the child’s safe return home; the extent to which parental behavior may con- • Extended family members tinue to endanger the child; the appro- • Adoptive parents priateness of interactions between par- • Judicial case management staff ents and children during visitation; and • Service providers the recommendations84 of service provid- • Adult or juvenile probation or ers. If the court determines that a child parole officer should not be returned home, the court • Other witnesses should identify the additional progress • School officials which would allow a safe family reunification. Service Providers 70 Persons who provide services to the • Whether the court-approved, parents and children, such as therapists, long-term permanent plan for teachers, and parenting instructors, can the child remains the best plan often provide valuable information to for the child. the court concerning the family’s Not every case requires the same pe- progress and recommendations for ad- riod of time to determine whether fam- ditional services. ily reunification is possible. In some If a particular service provider is not cases, circumstances compel a case to available to attend the hearing, the court proceed immediately from complaint or should make certain that the agency petition 84to termination of parental caseworker has obtained detailed infor- rights. At review, it may immediately mation on the participation and become clear that the case plan being progress of the parents in that service. pursued for the family is no longer fea- Ideally, written reports from all service sible. For example, a plan of reunifica- providers should be provided to the tion with a parent would no longer be court. feasible if the whereabouts of the par- It is often helpful for all persons who ent were unknown for a substantial pe- are involved with the family to meet riod of time, if the parent were subject with each other at the review so that to long-term incarceration, or if the par- everyone understands case plan goals ent failed continuously over an ex- and the treatment needs of the family. tended period to remedy the problems The involvement of service providers at that caused a child to be placed. When reviews helps to coordinate services it becomes apparent that the plan ap- with court-approved treatment goals. proved at the disposition hearing is no longer the best plan for the child, the court should direct the agency to present a new permanent plan. VI. Review Hearings

Whether family reunification is pos- tion of parental rights or other perma- sible becomes clear much sooner in nent loss of custody should they fail to some cases than in others. To avoid meet their responsibilities under the unnecessary foster care, judges should plan. not continue a goal of reunification af- As a case approaches successful re- ter it is apparent that the goal cannot unification, the case plan may need to be achieved or cannot assure safety of be amended to reflect family reunifica- the child. tion.

• Whether the agency is making • Whether the child is in an reasonable efforts to rehabilitate appropriate placement which the family and eliminate the adequately meets all physical, need for placement of a child. emotional and educational When the case plan goal is family re- needs. unification, the agency should be held The court should review information accountable for meeting its obligation on the behavior and overall adjustment to provide services to the family. The of each child to his or her placement and court should make specific factual find- school. The court should also be in- ings as to what efforts the agency is formed of the specific services being making to eliminate the need for place- provided to meet each child’s physical, ment of the child and whether such ef- emotional and educational needs. forts are reasonable. The court should At a review, the court may receive in- identify any areas in which agency ef- formation indicating that the needs of a forts are inadequate and set forth orders child are not being met in the child’s to address these inadequacies. placement. For example, if a child’s behavior is causing the possible disrup- • Whether services set forth in the tion of a third foster home placement, it case plan and the responsibili- may be necessary for the court to direct ties of the parties need to be the agency to pursue placement at a clarified or modified due to more specialized therapeutic foster 71 the availability of additional home. information or changed In some cases, a child experiencing circumstances. difficulty in placement may be success- It often becomes obvious at a review fully maintained in that placement if ad- that the case plan should be revised to ditional services are provided. The child reflect changed circumstances or new may require mental health counseling, information. Additional or different ser- a special education program at school, vices may be needed than those identi- or other specialized services. The fos- fied in the original case plan. ter parent may benefit from respite care If the parents have not complied with or training in managing difficult behav- a court-ordered case plan, the judge iors. If such services were not identi- should consider whether the parents fied in the initial case plan, they should were capable of complying. If so, it may be court-ordered at the review. be necessary to remind them of the prior order and explain that their con- • Whether the terms of visitation tinued non-cooperation may lead to the need to be modified. termination of their parental rights. The As parents successfully engage in ser- judge should also consider initiating vices and modify their behavior, it may contempt of court proceedings. be appropriate to provide less restric- At the review the court can correct tive, more extensive visitation. As the any misunderstood expectations. Be- time for reunification approaches, there fore making the decision whether and is a need to expand visits to include how to revise the case plan, the judge overnight visits in the parents’ home. should question the parents. Parents The court should review the terms of should be asked whether they can meet visitation at the review to determine the plan requirements. Parents should whether terms and conditions of visits also be informed of the risk of termina- should be modified. VI. Review Hearings

• Whether terms of child support predisposition reports. Report writing need to be set or adjusted. and submission assist the parties in ana- Parents who are able to pay should be lyzing the case, and help the judge reach expected to help cover the costs of fos- a decision. It is important that reports ter care. Support amounts should either be distributed to the parties well in ad- be reviewed or adjusted during review vance of the review. This allows time hearings. The court should take care to for the parties to consider agency pro- avoid financial burdens that interfere posals, and allows the parties time to with family reunification. Particularly prepare for the hearing. inexpedient are delays in setting sup- Rules or forms are needed regard- port followed by retroactive lump sum ing the timing and content of pre-review support orders. These often make it im- reports. Strict deadlines are needed to possible for parents to maintain or to ensure that the report is submitted to obtain residential space in preparation the parties far enough in advance of the for the child’s return home. hearing to give them an opportunity to investigate its statements and propose • Whether any additional court alternatives. orders need to be made to move When the agency recommends con- the case toward successful tinued foster placement, an affidavit of completion. reasonable efforts should be submitted Additional court orders may be to help ensure the reliability of the re- needed to move the case toward suc- port. cessful completion. For example, if one parent has successfully completed ser- The following are some key vices, but the other has not, it may be elements of the affidavit: possible to return the children to the one parent who has completed the case plan • A description of the efforts made with orders limiting the contact of the by the agency to reunify the family other parent. since the last disposition or review 72 hearing and an explanation why • What time frame should be those efforts were not successful; followed to achieve reunification • An explanation why the child or other permanent plan for cannot presently be protected each child. from the identified problems in At the conclusion of the review, the the home even if services are court should always determine what ad- provided to the child and family. ditional actions are necessary to successfully complete the case plan goals The affidavit or an accompanying re- and set forth reasonable time frames in port should address each of the issues which such actions should be com- discussed in Section E, entitled Key De- pleted. By setting deadlines, the court cisions the Court Should Make at Review. emphasizes the importance of time in Courts should review the format of cur- the lives of children and makes clear the rent court reports to make sure that they court’s expectations. The time frames call for that information. set forth in the court’s written findings Court rules and forms for pre-review of fact and conclusions of law can later reports should be carefully designed to be used by the court to hold all parties assist judges to submit complete writ- accountable by requiring explanations ten findings of fact and conclusions of when reasonable deadlines are not met. law. If judges are required to cover par- The court must also set the time and ticular issues in orders or findings, the date for the next review. report should address each such issue. Accordingly, the form used for agency F. Submission of Reports pre-review reports should be worded as to the Court precisely as possible to address the ex- The submission of pre-review reports act issues that need to be addressed by by the child welfare agency and GALs/ the judge. This will assist the court in CASAs can serve the same purpose as preparation of its findings. VI. Review Hearings

G. The Court’s Written Findings of Fact and Conclusions of Law The issues to be addressed in the at the Review Hearing agency’s predisposition report or petition should also be addressed in the court’s written findings of fact and con- • Set forth findings as to why the clusions of law. children are in need of continued placement outside the parents’ home or continued cost of super- H. Conclusion vision, including the specific risks Judicial findings can strengthen the to the child; court’s decision-making and create a • Set forth findings as to whether more complete record. When there are and why family reunification and detailed findings at adjudication, dispo- an end to court supervision con- sition, review hearings, and perma- tinues to be the long-term case nency planning hearings, it is far easier goal; to move toward a permanent plan for • Set forth findings as to whether each child. With a clear judicial record the agency has made reasonable of repeated revisions in case plans, the efforts to eliminate the need for agency’s adherence to plans, and paren- placement, with specific findings tal inaction, termination of parental as to what actions the agency is rights proceedings become far less bur- taking; densome on the parties. When there • Set forth detailed findings of fact were clear findings at the previous hear- and conclusions of law as to ing, including instructions to the parties, whether the parents are in com- there is far greater likelihood that there pliance with the case plan and will be a consistent pattern of decisions identify specifically what further in the case. Without a strong written actions the parents need to com- record, there is a risk that the same is- plete; sues and excuses for parental inactivity • Set forth orders for the agency to or agency indecision can be repeated. make additional efforts necessary The burden of preparing findings can 73 to meet the needs of the family be reduced by ensuring that the and move the case toward agency’s report covers the same issues completion; as those that are to be addressed in the • Be written in easily understand- court’s findings. If the issues are the able language which allows the same and the report is well-prepared, parents and all parties to fully un- the court can repeat, modify, or refer to derstand what action they must portions of the report in its findings. take to have their children returned to their care; • Approve proposed changes in the case plan and set forth any court- ordered modifications needed as a result of information presented at the review; • Identify an expected date for final reunification or other permanent plan for the child; and • Make any other orders necessary to resolve the problems that are preventing reunification or the completion of another permanent plan for the child. • Set date and time of next hearing, if needed. VI. Review Hearings

I. Resource Guideline

It is recommended that 30 minutes be allocated for each review hearing.

Hearing Activity Time Estimate

1. Introductory Remarks 2 Minutes • introduction of parties • advisement of rights • explanation of the proceeding

2. Adequacy of Notice and Service of Process Issues 3 Minutes

3. Case Status/Review of Case Plan 10 Minutes • adequacy and appropriateness of current placement • progress toward long-term goal • continued need for current placement • new or changed case circumstances • additional services needed to achieve long-term goal • modifications needed regarding visitation and child support

4. Reasonable Efforts Finding 5 Minutes

5. Troubleshooting and Negotiations Between Parties 5 Minutes • confusion regarding specifics of the case plan and what is expected of parents • visitation and child support issues 74 • discuss need for additional orders to facilitate case progress

6. Issuance of Orders and Scheduling of Next Hearing 5 Minutes • preparation and distribution of orders to all parties prior to adjournment

Time Allocation 30 Minutes VI. Review Hearings

J. Review Hearing Checklist • Whether the terms of visitation need to be modified. Persons who should always be • Whether terms of child support present at the review hearing: need to be set or adjusted. • Whether any additional court • Judge or judicial officer orders need to be made to move • Parents whose rights have not the case toward successful been terminated, including completion. putative fathers • What time frame should be • Age-appropriate children followed to achieve reunifica- • Relatives with legal standing or tion or other permanent plan for other custodial adults each child. • Foster parents • Assigned caseworker Submission of reports • Agency attorney to the court: • Attorney for parents (separate attorneys if conflict warrants) Pre-Review Report • Legal advocate for the child and/ Pre-review reports by the child or GAL/CASA welfare agency and the GAL/CASA • Court reporter or suitable can serve the same purpose as predis- technology position reports. Pre-review reports • Security personnel should include: • A statement of family changes Persons whose presence may also needed to correct the problems be needed at the review hearing: necessitating state intervention, with timetables for accomplishing • Extended family members them; • Adoptive parents • A description of services to be • Judicial case management staff provided to assist the family; and • Service providers • A description of actions to be 75 • Adult or juvenile probation or taken by parents to correct the parole officer identified problems. • Other witnesses • School officials Affidavit of Reasonable Efforts When the agency recommends Key decisions the court should continued foster placement, an affida- make at the review hearing: vit of reasonable efforts should be submitted. The following are some • Whether there is a need for key elements of the affidavit: continued placement of a child. • A description of the efforts made • Whether the court-approved, by the agency to reunify the family long-term permanent plan for since the last disposition or review the child remains the best plan hearing and an explanation why for the child. those efforts were not successful; • Whether the agency is making • An explanation why the child reasonable efforts to rehabilitate cannot presently be protected the family and eliminate the need from the identified problems in for placement of a child. the home even if services are • Whether services set forth in the provided to the child and family. case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances. • Whether the child is in an appropriate placement which adequately meets all physical, emotional and educational needs. VI. Review Hearings

The court’s written findings of fact K. Endnotes and conclusions of law at the 1. M. Rutter, Maternal Deprivation Reassessed, 179-197 review hearing should: (England: Harmondsworth, Penguin, 1981); J. Bowlby, Attachment and Loss (New York: Basic Books, 1973); J. Goldstein, A. Freud and A. Solnit, Beyond the Best In- • Set forth findings as to why the terest of the Child, 2d ed. (New York: Free Press, children are in need of continued Macmillan 1979). placement outside the parents’ 2. See 42 USC §§ 675(5)(B), 675(6). home or continued court supervi- 3. See 42 USC § 675(5)(B). sion, including the specific risks to the child; 4. See 42 USC § 675(5)(B). • Set forth findings as to whether and why family reunification and an end to court supervision continues to be the long-term case goal; • Set forth findings as to whether the agency has made reasonable efforts to eliminate the need for placement, with specific findings as to what actions the agency is taking; • Set forth detailed findings of fact and conclusions of law as to whether the parents are in compliance with the case plan and identify specifically what further actions the parents need to complete; • Set forth orders for the agency to 76 make additional efforts necessary to meet the needs of the family and move the case toward completion; • Be written in easily understandable language which allows the parents and all parties to fully understand what action they must take to have their children returned to their care; • Approve proposed changes in the case plan and set forth any court- ordered modifications needed as a result of information presented at the review; • Identify an expected date for final reunification or other permanent plan for the child; • Make any other orders necessary to resolve the problems that are preventing reunification or the completion of another permanent plan for the child; and • Set date and time of next hearing, if needed. VII. PERMANENCY PLANNING HEARINGS

PERMANENCY PLANNING HEARINGS TABLE OF CONTENTS

VII. Permanency Planning Hearings

A. Introduction ...... 78

B. Timing of the Permanency Planning Hearing ...... 79

C. Agreements by the Parties ...... 80 D. Who Should be Present ...... 80 77 E. Key Decisions the Court Should Make at the Permanency Planning Hearing .. 80

F. Submission of Reports to the Court..... 82

G. The Court’s Written Findings of Fact and Conclusions of Law at the Permanency Planning Hearing ...... 83

H. Conclusion...... 84

I. Resource Guideline ...... 84

J. Permanency Planning Hearing Checklist ...... 85

K. Endnotes...... 86 VII. Permanency Planning Hearings

A. Introduction Permanency planning hearings are a foster care. Without effective perma- special type of post-dispositional pro- nency planning hearings, children are ceeding designed to reach a decision allowed to remain in care for years with concerning the permanent placement of a nominal goal of “return home.” a child. Unlike review hearings, which involve routine oversight of case Maintaining the distinction progress, permanency planning hear- between review hearings and ings represent a deadline within which permanency planning hearings the final direction of the case is to be determined. is a key to achieving permanency Federal law distinguishes between re- for foster children. view hearings and permanency planning hearings.1 As previously noted, At the permanency planning hearing, federal law requires six-month reviews the judge should decide whether a child to be conducted by either a court or an is to be permanently returned home. In “administrative body.” Federal law also most cases, either the child should be requires permanency planning hear- temporarily returned home by the time ings within 18 months and “periodically of the permanency planning hearing or thereafter” to determine the future sta- efforts to return the child home should tus of each child in substitute place- cease. In some cases, however, where ment. a family has made substantial progress While courts need not be involved in prior to the permanency planning hear- six-month reviews, federal law requires ing the judge may authorize return permanency planning hearings to be home within a short time after the hear- conducted by either a court or an ad- ing. Otherwise, there should be no con- ministrative body appointed or ap- tinuing goal of family reunification. proved by a court.2 The permanency When the decision at the permanency planning hearing is to determine the planning hearing is not to send the child 78 child’s permanent placement and must home, the court should systematically provide procedural protections for the choose among permanent alternatives parents and child. As a practical mat- for the child. In particular, the court ter, to ensure a timely permanent place- should carefully consider relatively se- ment decision and effective procedural cure permanent options before approv- protections to parents and children, ing others. For example, the court only courts should conduct permanency should consider the possibility of adop- planning hearings. tion before accepting a lower priority Maintaining the distinction between option such as extended foster care or review hearings and permanency plan- long-term custody. ning hearings is a key to achieving per- The court record should reflect and manency for foster children. An essen- reinforce the systematic nature of the tial part of this distinction is the funda- judge’s decision. To assist the court in mental difference in the purposes of the making its decision and to assist other two types of hearing. A review hearing parties to prepare, the petition or report is to fine tune, correct, adjust, and up- submitted by the child welfare agency date the case plan; a permanency plan- should systematically discuss possible ning hearing is to decide upon a per- permanent options for the child. Like- manent placement for the child. A re- wise, in its written findings of fact and view hearing is to oversee case conclusions of law, the court should progress; a permanency planning hear- identify a new permanent placement ing is to make a definitive long-term goal for the child and specify concrete, decision. In courts where these differ- time-limited steps to achieve the goal. ences are not recognized, “permanency Stricter requirements should apply to planning” hearings have often become permanency planning hearings as op- no more than routine extensions of fos- posed to routine review hearings, but ter care. When permanency planning courts should make permanent deci- hearings are seen as routine review sions for children as soon as possible. hearings, they fail to prevent prolonged In cases where the evidence is over- VII. Permanency Planning Hearings

whelming at the very beginning of the after a child is placed in foster care, the case that the family cannot be rehabili- first post-dispositional hearing should tated, the court must forego the goal of be a permanency planning hearing family reunification and move to ap- rather than a review hearing. For ex- prove an alternate permanent place- ample, if there is no post-dispositional ment for the child. judicial oversight until 12-18 months In many cases, it is appropriate to after placement, the function of routine schedule permanency planning hear- review may have been left to the agency ings well before statutory deadlines. or some other entity such as a citizen Statutory deadlines for permanency foster care review board. It is too late planning hearings should be seen as for the court to correct and fine tune the maximum rather than standard times. agency’s case plan for the purpose of For example, in a case where both par- achieving long-term reunification of the ents are persistently uncooperative in family. The family has already been spite of diligent agency efforts to help separated for an extended period. The them, and there has been no discern- court should decide whether or not the ible progress within eight months of child is to be returned home and, if not, placement, an early permanency plan- what other permanent placement op- ning hearing is appropriate. In many tion will be secured. cases, a permanency planning hearing When the child welfare agency does is appropriate even sooner. little to assist the family prior to the permanency planning hearing, permanency planning hearings should not be In cases where the evidence allowed to function as ordinary review is overwhelming at the very hearings. Rather, the court should in- beginning of the case that the stitute frequent review hearings and, family cannot be rehabilitated, when necessary, compel timely agency the court must forego the goal of action to help the family while it is still family reunification and move to practical. 79 approve an alternate permanent While federal law contemplates per- placement for the child. manency planning hearings where definite decisions are made concerning the future status of children, federal au- In jurisdictions where review hear- thorities have not yet interpreted or en- ings are held frequently, the focus of forced the law to require such decisions. review hearings should gradually be- These guidelines call for permanency come more like that of permanency planning hearings that are not routine planning hearings as the case proceeds. reviews. Courts need to hold perma- As the case advances, the judge should nency planning hearings not primarily increasingly focus on specific tasks to because they are mandated by federal be accomplished and deadlines for their law, but because they are necessary to completion. The judge should make it protect children from drifting in foster clear what progress is expected and the care. times within which such progress must occur. Each hearing should move the B. Timing of the Permanency case forward as much as is possible. Planning Hearing Finally, at some point no later than the Timetables for permanency planning deadline set by statute or court rule, the hearings are governed by both federal judge should schedule a permanency and state statutes. As indicated above, planning hearing. At the permanency federal law specifies that the perma- planning hearing, the judge should nency planning hearing must occur make the decision whether or not the within 18 months of placement and pe- child is to go home and, if not, what le- riodically thereafter.3 Some state stat- gal permanent placement will be sought utes require earlier permanency plan- for the child. ning hearings and many courts often In states where post-dispositional exceed statutory deadlines. hearings are infrequent and begin long Permanency planning hearings VII. Permanency Planning Hearings

should take place, at the very minimum, D. Who Should Be Present at least annually. This assures that the crucial decision concerning whether a Persons who should always child should return home is not unduly be present at the permanency delayed. Social science research on planning hearing: children in foster care has shown that family reunification becomes less likely • Judge or judicial officer the longer a child remains in foster care. • Age-appropriate children Early studies show a particularly signifi- • Parents whose rights have not cant drop in the likelihood of reunifica- been terminated, including tion between the first and second years putative fathers in foster care.4 More recent research • Relatives with legal standing or shows the critical time period may be other custodial adults even earlier.5 • Assigned caseworker If the goal of family reunification is not • Agency attorney to be abandoned by default, one year • Attorney for parents (separate should be considered a maximum time attorneys if conflict warrants) for the first hearing designed to make a • Legal advocate for the child long-term placement decision. For and/or GAL/CASA younger children whose emotional re- • Court reporter or suitable lationships are likely to break down technology quickly after separation, a shorter time • Security personnel is essential. Persons whose presence C. Agreements by the Parties may also be needed at the If the parties wish to submit a com- permanency planning hearing: prehensive agreement in lieu of a permanency planning hearing, the court • Extended family members should not accept such an agreement • Foster parents 80 unless it thoroughly questions the par- • Prospective adoptive parents ties concerning the terms of the agree- • Judicial case management staff ment. When the parties have reached • Service providers agreement at a permanency planning • Adult or juvenile probation or hearing but the agreement is not com- parole officer plete, the hearing should be adjourned • Other witnesses for a short time (e.g., for one day) and the parties should be given time to work With regard to service providers, rela- out the issues and present them as pro- tives, custodial adults such as foster posed agreed findings. parents, and persons working at residential facilities, their presence is probably required only if they may play a role in the permanent plan for the child or their testimony is required on a contested matter.

E. Key Decisions the Court Should Make at the Perma- nency Planning Hearing Court decisions at a permanency planning hearing need to be more specific, final, and definitive than at a review hearing. A permanency planning hearing should encompass a systematic examination of each child’s options. If the decision is that a child is not to be returned home or placed for adoption, VII. Permanency Planning Hearings the court should first have carefully con- to federal “adoption assistance” benefits sidered and rejected these most perma- after adoption.6 nent and high priority options. For each option selected, the court should deter- The custody of the child will be mine how it is to be implemented. The transferred to an individual or following options are discussed in or- couple on a permanent basis. der of preference and priority. The next permanency planning option is to transfer custody of the child to an The child is to be returned home individual or couple on a permanent on a specific date. basis. This might be done when a child When a firm decision is made to re- cannot be safely returned home and in- unite a family, the court should set a date stead must be permanently placed with certain for reunification and should ap- a relative or other responsible adult. A prove a plan to ease the transition. This court considering this option should plan typically should include a sched- also have determined why the child can- ule for phased-in increases in parental not return home, should not be adopted, visiting. When a definite decision is and should set forth a transitional plan made to return a child home, it is not if the placement is not immediate. enough to simply state that family re- In most states, transferring custody is unification is the goal and to list some a means of accomplishing two things tasks and timetables. The original case without termination of parental rights: plan should already have included these (a) ending the supervisory role of the and been revised at periodic reviews. agency and the juvenile court; and (b) granting permanent care and control of The child will be legally freed a child to a caretaker other than a par- for adoption. ent. Under this arrangement, a parent If a child cannot be safely returned may continue to have the obligation to home at the permanency planning hear- provide child support, have the right to ing, consideration should be given to visit and communicate with the child, termination of parental rights to legally and to return to court to seek custody 81 free the child for adoption. The perma- at some future time. nency planning hearing may elicit a decision on whether a termination of The child will remain in foster care parental rights proceeding should be on a permanent or long-term basis. initiated, or, if a termination petition has Long-term or permanent foster care been filed and the parties have received can include placements with foster proper notice, whether the case may families, residential placements, and in- actually proceed to termination. stitutional placements. If the court de- In deciding whether adoption may be cides that a child is to be in long-term the most appropriate placement, the or permanent foster care, the court court should consider the possibility of should also determine why the child adoption by foster parents with whom cannot be returned home or placed ei- the child already has emotional ties. ther for adoption or in permanent cus- Adoption by members of the child’s ex- tody with an individual or couple. Long- tended family should also be consid- term foster care is a relatively imperma- ered. nent solution for children, both as a Another key factor in determining practical matter and in terms of the le- whether a child should be adopted is the gal protections connected to the child’s availability of adoption subsidy benefits caretakers. Permanent or long-term fos- that are sufficient to assist the adoptive ter care should be selected only when parents and meet the child’s special higher priority options are demonstra- needs. Adoption subsidy sufficient to bly impractical. help pay for a child’s care and treatment Although not desirable in most cases, can make it possible for a child to leave long-term foster care may be the only foster care without risking extreme fi- expedient option in three common situ- nancial hardship on the adoptive par- ations. Sometimes a child must remain ents. Many foster children are entitled with a foster parent on a permanent VII. Permanency Planning Hearings

basis because adoption is not appropri- specified amount of time, while others ate. In this situation, the court should impose procedural barriers to long- specify that this is to be a permanent term foster care. Such statutes can be a arrangement. A court order can dis- helpful means to reinforce the purpose courage subsequent revocation of this of permanency planning hearings. In understanding by either the foster par- other states, however, there are cur- ents or the court. rently no serious statutory barriers to A second type of situation is that the extending foster care for many years, child cannot function in a family setting. yet still maintaining a goal of reunifica- In this case, the court should identify the tion. In such states, permanency plan- reasons for long-term foster care out- ning hearings must be tightened side a family (such as in a group home through court rules and procedures. or institution). The court should also state the estimated length of the place- F. Submission of Reports ment and, when possible, should ap- to the Court prove a plan to help the child become A permanency planning hearing able to function in a family setting. should be initiated through a petition A third situation necessitating long- and accompanied by a detailed state- term care is as part of a transitional liv- ment of facts. The statement of facts ing situation to prepare a young person may be set forth in the petition itself, in for adulthood. The court should set an accompanying affidavit, or in a re- forth why a transitional living situation port. The purpose of an agency report is needed. The court should examine or petition for a permanency planning why long-term foster care is the most hearing is to help the judge reach a de- appropriate way of preparing the young cision and to help the parties to prepare person for adulthood and maintaining for the hearing. A report or petition for family ties after the young person has a permanency planning hearing should further matured. specify the relief being sought and ad- Advanced age alone does not make a dress the same issues that the judge 82 child “unadoptable.” Judges making needs to determine. The report should permanency planning decisions need to also examine the reasons for excluding avoid consigning a child to permanent higher priority options and set forth a foster care simply because that child has plan to carry out the placement deci- reached a certain chronological age. sion.

Foster care will be extended for a When the report or petition specific time, with a continued requests that a child be returned goal of family reunification. home on a date certain, it should This option is the least definite and set forth: should be permitted only as a last resort, when all other options are unwork- • How the conditions or circum- able. Before approving extended fos- stances leading to the removal of the ter care with a short-term goal of reuni- child have been corrected; fication, the court should make the fol- • The frequency of recent visitation lowing determinations: (a) the parent and its impact on the child; and has made marked progress toward re- • A plan for the child’s safe return unification; (b) the parent has main- home and follow-up supervision tained a close and positive relationship after family reunification. with the child; and (c) the child is likely to return home in the near future but it When the report requests is premature to set an exact date for re- termination of parental rights, turn. Courts should go through a thor- it should set forth: ough evaluation of the facts to avoid repeated decisions to leave children in • Facts and circumstances support- care with a goal of reunification. ing the grounds for termination; and Some states do not allow indefinite ex- • A plan to place the child for tensions of foster care with a goal of adoption. reunification after the passage of a VII. Permanency Planning Hearings

When a custody award to an When long-term foster care in individual or couple is proposed, connection with independent living the report should set forth: arrangements is proposed, the report should set forth: • Facts and circumstances refuting the grounds for termination of parental • Facts and circumstances refuting rights (demonstrating the fitness of the the grounds for termination of parental parents) or showing that although the rights (demonstrating the fitness of the child cannot be placed with parents, ter- parents) or showing that although the mination is not in the best interests of child cannot be placed with parents, ter- the child; mination is not in the best interests of • Facts and circumstances demon- the child; strating the appropriateness of the in- • Facts and circumstances explaining dividual or couple to serve as perma- why continued custody or permanent nent caretaker of the child; and foster care is not appropriate at the • A plan to ensure the stability of the same time that independent living ser- placement. vices are being provided; and • A plan to prepare the child for in- When permanent foster care with dependent living and for visitation be- a specific family is proposed, the tween the child, parents and siblings. report should set forth: When an extension of foster care • Facts and circumstances refuting for a time certain is proposed the grounds for termination of parental with a goal of reunification, the rights (demonstrating the fitness of the report should set forth: parents) or showing that although the child cannot be placed with parents, ter- • Facts and circumstances showing mination is not in the best interests of that the parents and child have a strong the child; and positive relationship, parents have • Facts and circumstances explaining made substantial progress toward the 83 why custody is not practical or appro- child’s return home, and return home priate; is likely within the next six months; • Facts and circumstances demon- • Facts and circumstances showing strating the appropriateness of the fos- why it is too early to specify a time cer- ter parents and the foster parents’ com- tain for reunification; and mitment to permanently caring for the • A plan to achieve reunification child; and within six months. • A plan to ensure the stability of the placement. G. The Court’s Written Find- ings of Fact and Conclusions When long-term foster care is of Law at the Permanency proposed because the child cannot Planning Hearing function in a family setting, the As previously noted, the issues to be report should set forth: addressed in the agency’s report to be submitted in advance of the perma- • Facts and circumstances leading to nency planning hearing should also be that conclusion; and addressed in the court’s written findings • A plan to prepare the child to live of fact and conclusions of law. Specific in a family setting at the earliest possible written findings after the permanency time and for visitation with parents and planning hearing are needed to both siblings. ensure prompt implementation of the court’s decision and to provide documentation for further proceedings. As in other stages of the proceedings, the burden of preparing findings can be sharply reduced by requiring the VII. Permanency Planning Hearings

agency petition to examine the same is- care or under agency supervision for a sues as those to be addressed in the substantial period of time. Regularly court’s order and findings. scheduled review hearings should continue until either the child is placed at H. Conclusion home free of agency supervision, cus- Subsequent review and permanency tody is awarded to an individual couple, planning hearings are required when the child is placed for adoption, or the children are to remain either in foster child reaches his or her majority.

I. Resource Guideline

It is recommended that 60 minutes be allocated for each permanency planning hearing.

Hearing Activity Time Estimate

1. Introductory Remarks 2 Minutes • introduction of parties • advisement of rights • explanation of the proceeding

2. Adequacy of Notice and Service of Process Issues 3 Minutes

3. Progress Toward Permanency 15 Minutes • reunification • adoption/termination of parental rights • independent living/long term foster care 84 • guardianship • temporary custody extension

4. Reasonable Efforts Finding 10 Minutes

5. Permanency Plan Decision 15 Minutes • permanency decision • time frames for achieving permanency • activities and services needed to achieve permanent plan

6. Troubleshooting and Negotiations Between Parties 10 Minutes • case transfer between social workers

7. Issuance of Orders and Scheduling of Next Hearing 5 Minutes • preparation and distribution of orders to all parties prior to adjournment

Time Allocation 60 Minutes VII. Permanency Planning Hearings

J. Permanency Planning Hearing Checklist the judge needs to determine. • Examine the reasons for Persons who should always be present excluding higher priority options. at the permanency planning hearing: • Set forth a plan to carry out the placement decision. • Judge or judicial officer • Age-appropriate children When the report or petition requests • Parents whose rights have not that a child be returned home on a been terminated, including date certain, it should set forth: putative fathers • Relatives with legal standing or • How the conditions or circum- other custodial adults stances leading to the removal of • Assigned caseworker the child have been corrected; • Agency attorney • The frequency of recent visitation • Attorney for parents (separate and its impact on the child; and attorneys if conflict warrants) • A plan for the child’s safe return • Legal advocate for the child and/ home and follow-up supervision or GAL/CASA after family reunification. • Court reporter or suitable technology • Security personnel When the report or petition requests termination of parental Persons whose presence may also be rights, it should set forth: needed at the permanency planning hearing: • Facts and circumstances supporting the grounds for • Extended family members termination; and • Foster parents • A plan to place the child for • Prospective adoptive parents adoption. • Judicial case management staff 85 • Service providers When a custody award to an • Adult or juvenile probation or individual or couple is proposed, parole officer the report should set forth: • Other witnesses • Facts and circumstances refuting Key decisions the court should make the grounds for termination of at the permanency planning hearing: parental rights (demonstrating the fitness of the parents) or • The child is to be returned home showing that although the child on a specific date. cannot be placed with parents, • The child will be legally freed for termination is not in the best adoption. interests of the child; • The custody of the child will be • Facts and circumstances transferred to an individual or demonstrating the appropriate- couple on a permanent basis. ness of the individual or couple to • The child will remain in foster care serve as permanent caretaker of on a permanent or long-term the child; and basis. • A plan to ensure the stability of • Foster care will be extended for a the placement. specific time, with a continued goal of family reunification. When permanent foster care with a specific family is proposed, the Submission of reports to the court. report should set forth: A report for a permanency planning hearing should: • Facts and circumstances refuting the grounds for termination of • Specify the relief being sought parental rights (demonstrating and address the same issues that the fitness of the parents) or VII. Permanency Planning Hearings

showing that although the child that the parents and child have a cannot be placed with parents, strong and positive relationship; termination is not in the best parents have made substantial interests of the child; progress toward the child’s return • Facts and circumstances home, and return home is likely explaining why custody is not within the next six months; practical or appropriate; • Facts and circumstances showing • Facts and circumstances why it is too early to specify a time demonstrating the appropriateness certain for reunification; and of the foster parents and the foster • A plan to achieve reunification parents’ commitment to perma- within six months. nently caring for the child; and • A plan to ensure the stability of the The court’s written findings of fact placement. and conclusions of law at the permanency planning hearing should: When long-term foster care is proposed because the child cannot • Be prepared within a reasonable function in a family setting, the report time after the permanency planning should set forth: hearing; • Be written in easily understandable • Facts and circumstances leading to language so that parents and all that conclusion; and parties fully understand the court’s • A plan to prepare the child to live order; in a family setting at the earliest • Provide documentation for further possible time and for visitation proceedings; with parents and siblings. • Address the same issues as those to be addressed in the report discussed When long-term foster care in above; and connection with independent living • Set date and time of next hearing, if 86 arrangements is proposed, the report needed. should set forth: K. Endnotes • Facts and circumstances refuting 1. For the sake of clarity, the term “permanency plan- the grounds for termination of ning hearing” is used here rather than the nomencla- ture “dispositional hearing,” which appears in the fed- parental rights (demonstrating the eral Adoption Assistance and Child Welfare Act. 42 fitness of the parents) or showing USC §675(5)(C). “Permanency planning hearing” more clearly expresses the characteristics of the federally that although the child cannot be mandated hearing than the term used in the federal placed with parents, termination is law. As commonly used in state statutes, a “dispositional hearing” is a hearing that follows shortly after not in the best interests of the adjudication and determines the temporary custody child; and placement of a child. By contrast, the purpose of the hearing required by 42 USC §675(5)(C) is to deter- • Facts and circumstances mine the permanent legal status of the child. The hear- explaining why continued custody ing required by 42 USC §675(5)(C) ordinarily occurs long after the hearing generally referred to as the dis- or permanent foster care is not position hearing. Therefore, it is referred to as the per- appropriate at the same time that manency planning hearing. independent living services are 2. See 42 USC §§ 675(5)(B), 675(5)(C), 675(6). being provided; and 3. See 42 USC § 675(5)(C). • A plan to prepare the child for independent living and for visita- 4. See, e.g., H. Maas and R. Engler, Children in Need of Parents (New York: Columbia University Press, tion between the child, parents 1959); Jenkins, Duration of Foster Care: Some Relevant and siblings. Antecedent Variables, 46 Child Welfare 450, 451 (Wash- ington, D.C.: Child Welfare League of America 1967); David Fanshell, The Exit of Children from Foster Care: When an extension of foster care An Interim Report, 50 Child Welfare 63, 67 (1971). for a time certain is proposed with a 5. See reference materials compiled by Chapin Hall goal of reunification, the report Center for Children, Nonlegal Benchbook (Chicago: University of Chicago 1993). should set forth: 6. See 42 USC §§673. • Facts and circumstances showing VIII. TERMINATION OF PARENTAL RIGHTS HEARINGS TERMINATION OF PARENTAL RIGHTS HEARINGS TABLE OF CONTENTS

VIII. Termination of Parental Rights Hearings

A. Introduction ...... 88

B. Petition and Notice ...... 89

C. Voluntary Relinquishment of Parental Rights ...... 90

D. Pretrial Proceedings ...... 91 1. Case Flow Management ...... 91 2. Appointment of Counsel ...... 92 3. Discovery ...... 93 4. Pretrial Conferences and Meetings ... 93 5. Submission of Reports to the Court .. 93

E. Timing of the Termination Hearing ..... 94 87 F. Who Should be Present ...... 94

G. Key Decisions the Court Should Make at Termination of Parental Rights Hearing .... 95

H. The Court’s Written Findings of Fact and Conclusions of Law at the Termination of Parental Rights Hearing ...... 95

I. Post-Termination Placement Plan and Judicial Monitoring ...... 95

J. Conclusion ...... 97

K. Resource Guideline ...... 98

L. Termination of Parental Rights Hearing Checklist ...... 99

M. Endnotes ...... 99 VIII. Termination of Parental Rights Hearings

A. Introduction Termination of parental rights cases tute home. The preferred placement arising from child abuse and neglect are for most children who cannot return among the most difficult and challeng- home is adoption. Many children, ing a judge can face. Termination pro- however, remain in foster care long af- ceedings must be conducted with great ter findings of the impossibility of fam- care and with full procedural protec- ily reunification. The longer children tions to parents and children. The com- wait, the more difficult it becomes to plaint or petition must provide fair no- find permanent homes, and the more tice of the grounds for termination. It likely that they will suffer serious emo- must be served in a time and manner tional and psychological harm. allowing for adequate preparation and Delaying or deferring termination of legal representation. parental rights decisions can create Termination eliminates parental serious problems. Time frames and rights to visit, communicate, and obtain continuances that seem reasonable to information about the child. After ter- adults and appropriate in other circum- mination, parents no longer are entitled stances are unacceptable when a child’s to notice of future court proceedings right to permanence is at stake. De- concerning the child and effectively are lays often mean missed opportunities denied further opportunity to regain and consequences with devastating custody. As a general rule, termination effects on the life of a child. When ter- of parental rights ends the duty to pro- mination decisions are deferred or de- vide child support, at least prospec- layed, a child’s emotional problems tively. may worsen and the child may become more difficult to place. ...if the (termination) decision is Reasonable timetables must be im- mistaken, the child may needlessly posed for termination of parental rights be deprived of the chance to cases. Courts must be actively involved in managing the pace of the litigation, 88 return home, to keep in contact and take active steps to identify and with the parents, and to have eliminate unnecessary delay. lifelong relationships with mem- When parents cannot or will not be bers of the extended family. rehabilitated, the child urgently requires a timely decision and the provi- While the phrase “termination of pa- sion of a permanent and secure new rental rights” is the most common us- home. Timely decisions in termination age, other terms are used in many of parental rights cases (assuming that states. Among the most common are they are also fair and correct) are ulti- “severance,” “guardianship with the mately more humane to parents and power to consent to adoption” (typically children than decisions that are repeat- granted to the child welfare agency), edly delayed. and “permanent commitment” of the child. Delaying or deferring termination Not only are parents’ rights at stake of parental rights decisions can in a termination proceeding, but whatever ruling the court makes can involve create serious problems. serious risks to the child as well. There are risks to the child in terminating pa- The timeliness necessary in termina- rental rights because, if the decision is tion of parental rights cases at the trial mistaken, the child may needlessly be level is also of great significance at the deprived of the chance to return home, appellate level. The appellate court to keep in contact with the parents, and should give priority to appeals of abuse to have lifelong relationships with mem- and neglect and termination of paren- bers of the extended family. tal rights cases, and should establish On the other hand, failure to termi- and administer an accelerated schedule nate parental rights may deprive a child in each case to include the completion of the chance for a permanent substi- of the record, briefing, oral argument VIII. Termination of Parental Rights Hearings

and decision. Appellate courts should abuse or neglect is serious enough to understand that speedy decisions are require the removal of a child from uniquely important to abused and ne- home, there is a possibility that the glected children who are without per- problems necessitating removal will not manent, stable families. be curable within a reasonable period Initiation of termination of parental of time, and it will be necessary for the rights proceedings is appropriate in child to be adopted. There is an even some cases when a child is first placed greater possibility that a case will result into foster care. This should occur if, at in termination of parental rights when the time of placement, there is strong intensive, in-home services cannot evidence that a child will never be able safely be provided or are attempted but to safely be placed with parents and that fail to prevent removal. adoption is in the child’s best interests. Termination of parental rights pro- B. Petition and Notice ceedings represent the most serious of responses to child abuse or neglect. Ter- 1. Petition mination of parental rights is not appro- As with an abuse or neglect petition, priate in cases in which intensive, in- a termination of parental rights petition home services or rehabilitative mea- must be complete and definite, and pro- sures can be safely attempted and re- vide fair notice to the parties. However, sults assessed within a reasonable pe- termination of parental rights petitions riod of time, but termination of paren- are different from neglect and abuse tal rights may be the only appropriate petitions. A neglect or abuse petition response in cases in which services can- may describe a few incidents of neglect not be safely provided or prove unsuc- or abuse within a short period of time. cessful. A termination petition often includes The outcome of a termination of pa- information spanning a much wider rental rights case depends heavily on range of issues and longer period of earlier stages of the court process. First, time. Termination petitions typically 89 whether the parties were properly no- address issues such as agency efforts to tified and advised of their rights at ear- work with parents; parents’ cooperation lier stages of the case and findings of with the agency; parents’ condition, behavior, progress, and improvements Termination of parental rights after adjudication; and the effects of fos- should not be a rare occurrence ter placement on the child. in juvenile or family court even A termination of parental rights peti- though it is rare in the population tion may allege facts in summary form because of the breadth of material at is- as a whole. sue, but there must be sufficient detail to clarify petitioners’ legal and factual reasonable efforts to reunite the family, theory of the case. Allegations must be can affect the outcome of the case. Sec- sufficiently precise to give the parties ond, judicial notice may be taken of notice of the issues at stake. The court what occurred in earlier stages of the should require that the petition cite the case. Third, prior court proceedings can statutory grounds relied upon and pro- provide important evidence such as in- vide a summary of facts in support of court admissions by parents and in- each statutory ground. structions made to the parents by the judge. In some states, all evidence from 2. Notice and Summons prior stages of the process may be taken Summons and notice requirements into account in the termination of pa- for termination of parental rights pro- rental rights decision. ceedings are similar to those for adju- Termination of parental rights should dication, with one significant difference. not be a rare occurrence in juvenile or Efforts required to identify or locate family court even though it is rare in the parents, and constructive notice in ter- population as a whole. Whenever child mination, should be stricter than for adjudication. VIII. Termination of Parental Rights Hearings

When only one parent receives actual ties whenever they are not present at notice prior to an adjudication, efforts earlier stages of litigation, there are far to locate the other parent can continue fewer situations in which it is necessary after adjudication and the second par- to conduct an extensive search after the ent may be able to enter the litigation filing of a termination of parental rights when located. In contrast, the finality petition. of termination proceedings makes subsequent notice and involvement of the C. Voluntary Relinquishment parties impossible. Defects in notice can of Parental Rights invalidate a termination of parental The seriousness of termination of pa- rights and disrupt a child’s permanent rental rights and the importance of placement. Consequently, there must avoiding collateral attacks on the de- be personal service on parties whenever cree, make it important to ensure that possible, and, when it is not possible, any consent to termination is voluntary there must be full compliance with the and informed. If the court already has requirements of constructive service jurisdiction, it is advisable to take the under state law. voluntary relinquishment in court. When agencies do not conduct effec- Judges should take the time to make tive searches for missing parties, termi- sure that parents understand the con- nation proceedings can be substantially sequences of termination, their right to and needlessly delayed. Courts should a trial, and to counsel, and the availabil- specify all steps to be taken to locate ity of less drastic legal alternatives. missing parents and should dictate times within which these steps are to be Judges should take the time to completed. This can be accomplished make sure that parents under- by monitoring individual cases, setting stand the consequences of termi- guidelines and rules, and training attorneys and agency staff. nation, their right to a trial, and to Child welfare agencies can improve counsel, and the availability of 90 searches for missing parents by: devel- less drastic legal alternatives. oping improved standard search affida- vits; developing a set of form letters ask- Voluntary relinquishment of parental ing for information about the location rights is a very difficult step. It may be of missing persons; assigning skilled awkward for parents to admit their in- clerical personnel to assist with ability to care for their own children and searches; obtaining the assistance of discouraging to lose contact with their each state’s Parent Locator Service or children. If state law permits written local child support enforcement office; relinquishments without parents’ pres- and arranging with departments of ence in court, the judge should thor- motor vehicles and other government oughly question agency witnesses re- entities for on-the-spot computer garding whether the consent was vol- checks and immediate replies to tele- untary and knowledgeable. The judge phone requests from child welfare should determine whether there has agencies. Judges can encourage such been compliance with all state require- improvements and inter-agency coop- ments regarding written, voluntary re- eration. linquishment of parental rights. The It is particularly important to stream- judge should also inquire whether par- line notice by publication. Some state ents were thoroughly advised of and statutes or court rules shorten the time understood the consequences of termi- period for publication by requiring no- nation of parental rights, the possible tice to be published only on one occa- less drastic alternatives, and their right sion and shortening the response time. to trial and representation by counsel. Judges can help reduce or eliminate If a parent has not signed a relinquish- notice-related delays by making sure ment of parental rights and has failed that all parties are notified early in the to appear at the termination proceed- court process. When judges insist on ing, the judge must determine whether serious efforts to locate and notify par- the parent has been afforded proper VIII. Termination of Parental Rights Hearings

notice. If the parent received the peti- custody of the child. When this occurs, tion, the judge should inquire whether the case may need to “start over,” while the parent was informed of the right to the agency tries to assist the court-appointed counsel. noncustodial parent to gain custody of the child. D. Pretrial Proceedings When a noncustodial parent receives notice early, it is possible to make deci- 1. Case Flow Management sions concerning the status of both par- Serious delays in termination of pa- ents at the same time. For this reason, rental rights proceedings are endemic if prosecutors or agency attorneys can- in courts throughout the nation, and not be relied upon to provide timely abused and neglected children are notice to noncustodial parents and to harmed by this systemic delay. One of arrange early determinations of pater- the greatest causes of delay is the trans- nity, the judge and court staff must in- fer of termination of parental rights sist that they occur. cases among courts and judges. Delay Front-end delays in the court process can best be avoided if: a) the same court also can delay initiation of termination with jurisdiction over abuse and neglect proceedings. When adjudication and matters retains jurisdiction over the disposition are delayed, it often takes same cases which proceed to termina- longer for termination to be initiated. In tion of parental rights; and b) the same many states, grounds for termination of judge hearing earlier stages of the pro- parental rights require a specific elapse ceeding hears the termination case. of time after the adjudication or dispo- Efficient management by judges and sition hearing (e.g., failure to improve administrators, combined with ad- within one year after the court has made equate judicial resources, can eliminate a finding of abuse or neglect) before a many sources of delay in termination of termination of parental rights petition parental rights cases. Termination of may be filed. parental rights cases must be given high Until there has been an adjudication, priority because of the high stakes for a parent may deny having abused or ne- 91 children and parents and the particular glected a child and may therefore de- stresses involved in termination pro- cline to cooperate with the agency. ceedings. When adjudication is contested, agency Continuances in termination cases efforts to aid the family are postponed. drive up court operation costs and A central area of proof in many termi- counsel fees. Because delays in termination of parental rights cases is the nation of parental rights extend sufficiency of agency efforts to help the children’s time in foster care, they ex- family. Until there has been a disposi- tend foster care payments and agency tion hearing, the terms of the case plan administrative costs. Reductions in may be in dispute, blocking agency court delays can greatly reduce expen- work with the family. ditures throughout the executive branch Overcrowded juvenile court calen- of government. dars are another major source of delays in termination of parental rights cases. Continuances in termination cases Contested termination cases take longer drive up court operation costs than other hearings and it may be difficult to allocate sufficient time to allow and counsel fees. them to occur without interruption. A relatively high proportion of termina- Many delays in termination proceed- tion cases are contested compared to ings are related to procedural failures other types of hearings. early in the court process, such as fail- Contested termination trials too often ure to notify missing parents in the early are scheduled without sufficient time to stages of proceedings and failure to allow them to be completed without in- determine paternity. Noncustodial par- terruption. As a result, cases are often ents and putative fathers can delay a continued on the day of trial and trials termination proceeding by requesting occur on “non-consecutive court days.” VIII. Termination of Parental Rights Hearings

For example, a single trial may begin time. The pretrial hearing can then with a half-day hearing, be continued serve as a full pretrial conference and for six weeks, take another day, and then the date of the trial can be set. Assum- be continued for another six weeks. In ing that service of process and discov- some courts, termination trials are of- ery are complete by the time of the 30- ten spread out over months. day hearing, the trial should be set Non-consecutive court days occur within another 30 days. when some courts “double book,” or set more cases for trial than it is possible to If unacceptable delays persist, try on one day because the court be- courts need to hold meetings lieves many parties will settle. The need for this practice can be avoided by more from time to time to identify and effective pre-trial proceedings. discuss specific causes of delay. Court staff also may be in the habit of scheduling termination of parental If service of process or discovery have rights cases before there is a large not been completed by the 30-day pre- enough block of time on the calendar. trial hearing (e.g., because constructive Because most juvenile court hearings service is required), the judge should set are short, only very small blocks of time a reasonable timetable for the comple- are usually allocated, rendering completion of service and discovery and set a tion of termination cases impossible. second pretrial hearing for a later date. When not enough judges are available, At the second pretrial hearing, the ter- court staff prefer to begin the trial rather mination trial can be set within 30 days than setting the trial ahead many thereafter. months in the future, when the first It is important for the court to moni- large block of time is available. tor compliance with the timetables. Steps must be taken to eliminate non- Courts should keep statistics on the ex- consecutive court days. First, there tent to which individual judges are suc- must be enough judges assigned to cessful in adhering to the timetables. If 92 abuse and neglect cases to allow time unacceptable delays persist, courts need to complete trials. Second, courts must to hold meetings from time to time to insist that trials begin on schedule. identify and discuss specific causes of Third, there must be no “double book- delay. ing” of cases. Fourth, substantial blocks Many courts face repeated requests of time must be left open for contested for continuances or exception to time re- hearings. Fifth, attorneys must hold quirements in termination cases. In ter- early settlement discussions and inform mination (as in all stages of abuse and the court in advance of matters which neglect cases), courts must establish remain contested and how long a hear- strict criteria for granting continuances ing should take. and procedures for discouraging them.1 Advance calendar call can inform the court whether a trial must be delayed 2. Appointment of Counsel and help the court estimate the trial Timely appointment of counsel for in- length. Calendar call can be conducted digent parents can avoid serious delay either in court or via telephone. Calen- in termination of parental rights cases. dar call might occur, for example, two Appointments should occur immedi- weeks before the trial and then one day ately after a termination of parental before trial. If a trial must be taken off rights petition is filed, and attorneys the schedule, the time usually can be should be required to contact their cli- reallocated to emergency matters. ents in a timely fashion. Judges con- One helpful means of reducing delays sidering a parents’ attorney’s request for is to set standard timetables for each a continuance or cancellation of a court stage of termination of parental rights date should carefully consider the im- cases. Pretrial hearings might be ex- pact of the proposed delay on the child’s pected to take place within 30 days af- well-being. ter the filing of the termination petition. One way to avoid delays is to continue In most cases, service of process and the involvement of the same attorney discovery should be completed by that who represented the parent earlier. VIII. Termination of Parental Rights Hearings

Parents’ attorneys who have stayed in If serious discovery delays are fre- contact with their clients, and who have quent in termination cases, courts can periodically monitored their clients’ speed discovery by establishing special progress, know more about the case rules and guidelines. Courts can rou- and can provide better representation tinely require child welfare agencies to at a termination hearing. make their files available shortly after Delays can also be avoided when termination petitions are filed. Most there are special circumstances requir- discovery in termination of parental ing the appointment of a new attorney rights cases focuses on the child wel- for a termination of parental rights case. fare agency case file, which contains First, when an attorney is appointed, the most documents needed by defense court can inform the attorney when the counsel. Courts can also speed discov- initial hearing (such as the pretrial hear- ery by shortening the time period ing) is to take place. If the attorney is within which the parties must respond not available, someone else can be ap- to discovery requests. pointed. Second, attorneys can be appointed Most discovery...focuses on the when a case is filed and instructed to child welfare agency case file, make immediate efforts to contact their which contains most documents clients. Early appointments usually needed by defense counsel. work out because most parents either are indigent and qualify for court-appointed counsel or agree to retain the Attorneys should be expected to attorney initially appointed to represent quickly bring any discovery disputes to them. the attention of the court. An early pre- Third, parents can be summoned to a trial hearing is often a good point at hearing to take place within a few days which to consider discovery disputes. after they receive notice of the case. Similarly, parties who need to take Counsel can be appointed at this hear- depositions to prepare for termination ing. Counsel should be present before cases should do so under tight but rea- 93 the hearing to discuss the case with the sonable deadlines. Unless there are parents. special reasons for delay, the court Fourth, parents can be given the name might require the parties to complete of their attorney the first time they re- depositions prior to the pretrial hearing. ceive notice of the termination proceedings and the first time they contact the 4. Pretrial Conferences and Meetings court. If the attorney has not yet been Pretrial conferences and meetings can identified, a court employee can arrange be used to check delays in the appoint- for the appointment of parents’ coun- ment of counsel, ensure early notice to sel. parties, and expedite discovery. They Parents who are respondents in ter- can also resolve evidentiary issues prior mination of parental rights cases may to trial. be poor, uneducated, emotionally dis- Pretrial conferences might be con- turbed, drug or other substance-abus- vened on an ad hoc basis or might be ing, incarcerated, or homeless. Special required for every case depending upon efforts are required to ensure that they the needs of the particular court. One are put into contact with their attorneys approach might be to require a pretrial at the earliest possible stage of court conference whenever a trial is delayed proceedings. beyond a specified number of days. Where contested termination trials rou- 3. Discovery tinely begin more than 60 days after the Discovery is not usually a significant filing of the petition, pretrial confer- source of delay in termination cases in ences may be necessary to identify and many courts. For example, when the correct delays. same attorneys have represented the parties at earlier stages of the proceed- 5. Submission of Reports to the Court ings, little new discovery should be Court reports in termination cases needed. help the judge and the parties determine VIII. Termination of Parental Rights Hearings

what is the best plan for the child after mitted to the parties after the judge de- the decision has already been made that termines that the grounds have been the child needs a permanent new home. met. These might include reports from: the child welfare agency; legal advocate for E. Timing of the the child; GAL/CASA; or parties to the Termination Hearing case. Court reports may address why Courts should announce and enforce termination of parental rights is prefer- timetables for the commencement and able, for example, to transferring cus- completion of termination of parental tody to a foster parent or relative. Court rights hearings. In most cases, 60 days reports may also offer recommendations is adequate to prepare for a termination concerning how a permanent plan for of parental rights hearing. Therefore, the child is to be achieved, including termination trials should be set within who should be responsible for placing 60 days after completion of service of the child for adoption. process. Delays are unavoidable in cer- In some states, the judge decides tain circumstances, such as when depo- whether the grounds for termination sitions must be taken in other states or have been proved (e.g., parent aban- parties or attorneys are ill at the time of doned child or failed to improve in spite trial. The reasons for any exceptions of agency efforts) and at the same time should appear in the court record.2 decides whether termination is in the best interests of the child. In states F. Who Should Be Present where the rules of evidence apply, these reports may be inadmissible because Persons who should always be they typically include hearsay and other present at the termination of inadmissible evidence. parental rights hearing: In other states, the judge’s ruling concerning grounds for termination is sepa- • Judge or judicial officer rate from the determination of whether • Parents, including putative 94 termination is in the best interests of the fathers child. In these states, agency reports • Assigned caseworker may be both legally admissible and help- • Agency attorney ful. Assuming that the rules of evidence • Attorney for parents (separate do not apply to the best interests deter- attorneys if conflict warrants) mination, the report can serve a func- • Legal advocate for the child and/ tion comparable to that of a predisposi- or GAL/CASA tion or pre-review report. The report • Court reporter or suitable can help the judge to consider termina- technology tion along with other alternatives for the • Security personnel child and can propose a case plan designed to meet the needs of the child The following are persons after termination. Such a report should whose presence may also be not, of course, be presented to the judge needed at the termination of until after the decision that grounds for parental rights hearing: termination apply. Pre-termination reports should be sent • Age-appropriate children whose to the parties well in advance of the testimony is required judge’s receipt of the report. If decisions • Judicial case management staff on termination grounds and best inter- • Law enforcement officers ests are made in quick succession, the • Service providers report should be submitted to the par- • Adult or juvenile probation or ties well in advance of the trial. This parole officer gives the parties the opportunity to pre- • Other witnesses pare a response to the report and to suggest alternatives. On the other hand, if there are two hearings that occur on separate days, the report might be sub- VIII. Termination of Parental Rights Hearings

G. Key Decisions the If termination of parental rights is Court Should Make at the granted, the court must decide to whom Termination of Parental to award custody of the child. In some Rights Hearing states this would be the child welfare agency, since this agency either ar- • Whether the statutory grounds ranges adoptions or contracts with pri- for termination of parental rights vate adoption agencies. In other states, have been satisfied. the judge may have a choice among In deciding whether a child can safely public and private agencies with which be returned home, the judge applies a child might be placed for adoption. specific statutory grounds dealing with the behavior and condition of the par- H. The Court’s Written Findings ent. Typical grounds include extreme of Fact and Conclusions of Law parental disinterest in the child (e.g., de- The court should prepare findings sertion or abandonment), parental fail- whether or not termination of parental ure to improve in spite of reasonable ef- rights is granted. These findings should forts by the agency to help, parental in- address whether the grounds for termi- ability to care for the child (e.g., mental nation were satisfied and, if so, whether or emotional incapacity and uncontrol- termination was in the best interests of lable substance dependency), pro- the child. Because a large proportion longed imprisonment of the parent, ex- of contested termination cases are ap- treme or repeated abuse of the child, pealed, findings must be sufficient for and (in a few states) return of an abused the purpose of appellate review. or neglected child would be harmful be- Delays in preparing findings are still cause of the special circumstances or another common source of delay in ter- condition of the child. mination of parental rights cases. The preparation of findings can be acceler- • Whether termination is in the ated when judges orally summarize evi- best interests of the child. dence at the close of the hearing, have In deciding whether termination is in a transcript prepared, and then edit and 95 the best interests of the child, courts supplement the transcript. typically consider what alternatives to Preparation of well-written findings at termination are available and whether adjudication, disposition, review, and they can provide a better permanent permanency planning hearings also can home for the child. It is evident in child help to accelerate preparation of find- development research and appellate ings at termination. Written instruc- court decisions that an adoptive family tions by the court to the family at early does not have to be identified in order stages of the case, for example, can help for a child to be ‘adoptable.’ Judges the judge evaluate allegations of paren- who have terminated parental rights tal failure to improve following earlier must take personal responsibility for neglect or abuse. post-termination placement planning and judicial monitoring of case files I. Post-Termination Placement within the agency. Possible alternatives Plan and Judicial Monitoring to termination of parental rights include adoption with parental visits (available 1. Post-Termination Placement Plan in some states), custody of the child by A post-termination placement plan an adult or couple, court-ordered long- should promptly be prepared and sub- term foster care, or continued foster mitted to the court following termina- care. There are critical differences be- tion of parental rights. The court should tween these options. In choosing expect placement plans which set forth among them, the judge must consider a strategy and timetable for the child’s available financial assistance, continu- early permanent placement. Submis- ing involvement of the child welfare sion of such plans is needed because, agency, continuation of juvenile court without judicial oversight, children can oversight, and the legal security of the remain for years in foster care after be- new permanent caretaker.3 ing legally freed for adoption. Because VIII. Termination of Parental Rights Hearings

the case may be transferred to a differ- to case review after termination of pa- ent branch of the agency, it is important rental rights. But there are some im- that the judge who hears the termina- portant differences. Most obviously, the tion of parental rights petition contin- parents are no longer parties after ter- ues to be responsible for the case mination of parental rights. This makes through the adoption. it particularly important that the child A placement plan should include the have effective, independent representa- following: steps the agency will take to tion. locate and evaluate adoptive parents; A special set of issues applies in post- adoption exchanges where the agency termination review. The purpose of the will list the child; and proposed adop- review is to make sure that all possible tion subsidies. The agency should be is being done to place the child for adop- expected to use all appropriate re- tion, to initiate the adoption process, sources to assure the adoption, not un- and to make sure the needs of the child reasonably excluding any categories of are meanwhile being met. people as adoptive parents based upon Judges must be familiar with basic as- age, marital status, or race. pects of the adoption process to effec- Depending on state law, there are tively perform their review function at three possible stages at which a post- this stage. They must have a basic un- termination placement plan might be derstanding of the steps agencies fol- considered by the court. First, the plan low in recruiting adoptive parents, in- might be considered at the same hear- cluding the use of adoption registries. ing in which the court determines Judges should know something about whether the grounds for the termina- the special difficulties in placing differ- tion of parental rights have been met. ent categories of children. They should In this case, there needs to be at least a be familiar with agency policy on who pause in the hearing to permit the judge is eligible to adopt. They must be fa- to review the plan. The parties should miliar with agency policies concerning have received the plan well in advance adoption by relatives and foster parents. 96 of the hearing. When children have special needs, a Second, the plan might be considered major concern at post-termination re- at the separate hearing where, subse- views should be whether an appropri- quent to determining that the grounds ate adoption subsidy is available to pro- were proved, the court considers spective adoptive parents. The lack of whether termination is in the best in- an adoption subsidy can be a barrier to terests of the child and, if so, who should placement and can lead to later adop- have custody. In this case, the plan must tion disruption. For example, the place- be submitted to the parties well in ad- ment of children with expensive medi- vance of the disposition hearing and cal conditions, handicapped children, could be submitted to the judge any children in sibling groups, older chil- time after the decision to terminate pa- dren, and minority children may be very rental rights. difficult without proper financial sup- Third, the placement plan might be port for adoptive parents. submitted and considered after a final Inadequate subsidies can make chil- order terminating parental rights. In ei- dren hard to place or lead to later adop- ther case, the plan should be submitted tion disruption. For example, an inad- to the parties well in advance of the equate subsidy may cause real hardship hearing in which the plan is to be con- when a parent must give up work to sidered. care for a handicapped child. Failure to pay for critical services may impel the 2. Judicial Monitoring parents to attempt to relinquish the There should be periodic review to as- child. Not only may unexpected costs sure that reasonable efforts continue to financially destroy adoptive parents, but be made to place the child following the adoptive parents may feel compelled to termination of parental rights. Many of place the child into foster care in order the previously discussed guidelines in to obtain needed services. Examples of Chapter VI Review Hearings also apply services that may need to be subsidized VIII. Termination of Parental Rights Hearings are psychiatric care (even if such care the time children spend in foster care; is not currently required), special ser- and facilitate permanency planning for vices and medical care for the handi- children, potentially speeding progress capped (Medicaid may not be enough), toward adoption or other permanent and post-adoption counseling for adop- placement. tive parents of difficult children. Enough time must be set aside for the Accordingly, judges should have ac- completion of careful and complete con- cess to and be aware of basic eligibility tested termination hearings. Each court criteria and available benefits. They must determine the typical range in should also be aware that for eligible length of contested hearings and estab- children subsidy is an entitlement un- lish a calendar to accommodate such der federal law and the law of most hearings without the need for routine states. postponements and delays. Courts must require that all necessary partici- J. Conclusion pants be present and on time. In deter- Timely, careful and complete termina- mining the number of judges and in tion of parental rights hearings can organizing the court calendar, the court avoid mistakes with potentially tragic must calculate both the frequency of consequences to children and families; contested hearings and their average spare children and families from ex- length. tended periods of uncertainty; shorten

97 VIII. Termination of Parental Rights Hearings

K. Resource Guideline

It is recommended that a minimum of 60 minutes be allocated for each termination of parental rights hearing.

Hearing Activity Time Estimate

1. Introductory Remarks 2 Minutes • introduction of parties • advisement of rights • explanation of the proceeding

2. Adequacy of Notice and Service of Process Issues 3 Minutes

3. Case Status/Activity Update 10 Minutes • services provided to the family • continuing barriers to case plan progress • grounds for termination of parental rights

4. Discussion of Why Termination of Parental Rights is in the Best Interests of the Child 15 Minutes • what alternatives to termination are available • adequacy of the post-termination placement plan

5. Reasonable Efforts Finding 10 Minutes

6. Troubleshooting and Negotiations Between Parties 10 Minutes • detailed explanations of the significance of the hearing 988876 to the parents • time for the judge to ensure that surrender decisions are those of the parents (if applicable) • final visit arrangements • respect for emotional outbursts in surrender situations

7. Issuance of Orders and Scheduling of Next Hearing 10 Minutes • issue finding regarding termination including whether grounds for termination were satisfied and, if so, whether termination was in the best interests of the child • oral summary of evidence if entry is not completed and provided to all parties at the hearing

Minimum Time Allocation 60 Minutes VIII. Termination of Parental Rights Hearings

L. Termination of Parental M. Endnotes Rights Hearing Checklist 1. See Case Flow Management guidelines in Chapter II GENERAL ISSUES, Section C. Persons who should always be 2. See Case Flow Management guidelines in Chapter present at the termination of parental II GENERAL ISSUES, Section C. rights hearing: 3. See Mark Hardin, “Legal Placement Options to Achieve Permanence for Children in Foster Care,” • Judge or judicial officer Foster Children in the Courts, 128 (Boston: • Parents, including putative fathers Butterworth Legal Publishers, 1983). • Assigned caseworker • Agency attorney • Attorney for parents (separate attorneys if conflict warrants) • Legal advocate for the child and/ or GAL/CASA • Court reporter or suitable technology • Security personnel

The following are persons whose presence may also be needed at the termination of parental rights hearing:

• Age-appropriate children whose testimony is required • Judicial case management staff • Law enforcement officers • Service providers • Adult or juvenile probation or parole officer 99 • Other witnesses

Key decisions the court should make at the termination of parental rights hearing:

• Whether the statutory grounds for termination of parental rights have been satisfied. • Whether termination is in the best interests of the child.

The court’s written findings of fact and conclusions of law at the termination of parental rights hearing should:

• Indicate whether or not termination of parental rights is granted. • Address whether the grounds for termination were satisfied and, if so, whether termination was in the best interests of the child. • Be sufficient for the purpose of appellate review. • Set schedule for subsequent judicial review. 100 IX. ADOPTION HEARINGS

ADOPTION HEARINGS TABLE OF CONTENTS

IX. Adoption Hearings

A. Introduction ...... 102

B. Adoption Hearings...... 102

C. Who Should be Present ...... 102 Persons Who Should Always Be Present at the Uncontested Adoption Hearing ...... 102 Persons Who Should Always 101 Be Present at the Contested Adoption Hearing ...... 103 Persons Whose Presence May Also Be Needed at the Contested Adoption Hearing ...... 103 The Court’s Written Findings of Fact and Conclusions of Law at the Adoption Hearing ... 103

D. Conclusion...... 104

E. Resource Guideline ...... 104

F. Adoption Hearing Checklist ...... 105 IX. Adoption Hearings

A. Introduction Adoption creates the status of parent have been fully advised of all the neces- and child between individuals who are sary services and special circumstances not each other’s biological parent or of the child, revisit the adequacy of child. A judicial decree of adoption adoption subsidy and otherwise make builds a new legal relationship between sure that needed services and assistance a child and the members of the child’s will be available after the adoption; and adoptive family, and causes the child to (f) resolve conflicts. The same court become, for all purposes, the child of the which terminated parental rights adoptive parents. In child abuse and should handle adoption proceedings in neglect cases, adoption is recognized by order to most effectively perform these federal and state laws as the most per- functions. manent form of out-of-home placement, Contested adoption hearings may be and is the preferred result for children required when persons other than the who cannot be returned home. petitioner, such as relatives or past caretakers of the child, intervene and seek It is the preferred practice for the to adopt the child. In many states, rules same court which handled termi- of intervention are liberal in adoption nation of parental rights cases to proceedings. Contested hearings may also handle adoption proceedings also occur if the agency with custody of the child believes that the placement in the same case. was in error and opposes the adoption. When an adoption is contested, it is Adoption makes possible the place- critical that issues be resolved in a ment of children without safe or perma- timely fashion. The impact of delays in nent living situations with adoptive par- contested adoption proceedings may be ents who are willing to assume all pa- compared to delays in termination of rental rights and responsibilities. Lon- parental rights. gitudinal research has confirmed the When an adoption petition is to be ap- 102 value of adoption, and proven that the proved, a significant part of the judge’s occurrence of sometimes problematic function becomes ceremonial. The adoptive relationships are outweighed adoption is an important milestone for by the generally positive, long-term con- parent and child, and the courtroom sequences of adoption. ceremony can be an important event in The court has authority to proceed their lives. with adoption when parental rights have been terminated. It is the preferred C. Who Should Be Present practice for the same court which handled termination of parental rights Persons Who Should Always cases to also handle adoption proceed- Be Present at the Uncontested ings in the same case. Adoption Hearing:

B. Adoption Hearings • Judge or judicial officer The judge’s key functions when hear- • Adoptive parents ing an adoption petition for a child in • Assigned caseworker foster care are to: (a) ascertain that ei- • Legal advocate for the child ther parental rights have been voluntar- and/or GAL/CASA ily relinquished or that parental rights • Court reporter or suitable have been terminated and the appeal technology process is over; (b) make sure that all • The child other required consents to adoption are provided; (c) review home studies or At a final adoption hearing, the cer- court-ordered reports; (d) make sure emonial aspects of the adoption cer- adoptive parents understand that adop- emony are important to the child as well tion is permanent and irreversible; (e) as the parents. Even where an infant is confirm in cases involving children with being adopted, the infant should be special needs, that adoptive parents present. The child’s presence may also IX. Adoption Hearings be required in jurisdictions where chil- adoption subsidy or post-adoption ser- dren of a certain age are statutorily re- vices. quired to consent in the presence of the judge. The judge should make sure the The Court’s Written Findings of adopting parents understand the legal Fact and Conclusions of Law at the ramifications of the adoption and that Adoption Hearing all legal documents are in place to grant At uncontested adoption hearings, the adoption. the court should determine whether all of the necessary consents to adoption Persons Who Should have been provided. This includes the Always Be Present At the consent of the agency with custody of Contested Adoption Hearing: the child, the consent of the child (if the child is old enough that consent is re- • Judge or judicial officer quired under state law), and, in some • Prospective adoptive parents cases, the consent of parents whose • Assigned caseworker rights have not been terminated. • Agency attorney In some states, when there has been • Legal advocate for the child no prior termination of parental rights, and/or GAL/CASA parental consent to adoption must oc- • Parties contesting the adoption cur in the presence of the judge. In • Attorneys for all parties other states, a signed voluntary relin- • Court reporter or suitable quishment of parental rights is suffi- technology cient. If written voluntary relinquish- • Security personnel ments are permitted, the judge should conduct a thorough inquiry concerning Persons Whose Presence the conditions and circumstances under May Also Be Needed At the which the consent was taken. Contested Adoption Hearing: The purpose of this inquiry is to determine whether the consent was vol- 103 • The child untary and informed and that all alter- • Judicial case management staff natives to adoption were explained. By • Other witnesses making sure that any consents are valid, the judge reduces the likelihood of a later collateral attack of the adoption The child decree. The child may need to be present for The court should be satisfied that the several reasons. Depending upon the child is doing well in the adoptive home child’s age, his or her consent may be and that the adoptive parents have required by law, there may be a ques- made a clear and knowledgeable com- tion about consent, or state law may mitment to care for the child on a per- require the child to consent in the pres- manent basis. If a home study is re- ence of the judge. In contested proceed- quired, the court should review it care- ings, children may be called upon to fully and, if necessary, question its au- testify. thor. The court should determine that the Judicial case management staff adoptive parents fully understand the Members of the judicial staff may be legal and financial consequences of required to complete administrative adoption. The judge should review with tasks regarding the adoption hearing the parents and agency the need for and process. sufficiency of any adoption subsidy arrangements. Other witnesses At contested adoption hearings, the Witnesses may be called upon to tes- court presides over a trial to determine tify about the qualifications of the con- whether the adoption should be tending parties in a contested adoption. granted. A contested adoption hearing Other frequent witnesses may include must be conducted with procedural fair- agency personnel who can explain ness, including notice to the parties and IX. Adoption Hearings

the opportunity to be represented by should explain, in a dignified manner, counsel. the significance of the adoption. The As with adjudication and the termi- judge should then elicit mutual prom- nation of parental rights hearings, the ises of commitment from parents and court must make special efforts to en- age-appropriate children. At the con- sure that the matter is concluded with- clusion of the brief ceremony, some out undue delay. Principles of case flow courts arrange for the taking of photo- management must be applied to the graphs to commemorate the occasion. contested adoption. Typical sources of In contested adoption cases, enough delay include untimely completion of time must be set aside for the comple- home studies, requests for delays by tion of careful and complete hearings. counsel, and overcrowded court dock- Each court must determine the typical ets. range in length of contested hearings and establish a calendar to accommo- D. Conclusion date such hearings without the need for At final adoption hearings, where the routine postponements and delays. court is to issue the decree, the judge Courts must require that all necessary should take special care to make the participants be present and on time. In adoption both a solemn ceremony and determining the number of judges and a celebration. Adoption is an event of in organizing the court calendar, the great importance in the lives of adop- court must calculate both the frequency tive parents and children, and ceremony of contested hearings and their average can help to seal the mutual commitment length. between parent and child. The judge

E. Resource Guideline

It is recommended that a minimum of 30 minutes be allocated 104 for each adoption hearing. IX. Adoption Hearings

F. Adoption Hearing • Thoroughly describe the Checklist conditions and circumstances under which parental consent to Persons who should always be adoption was obtained. When present at the uncontested there has been no prior adoption hearing: termination of parental rights in some states, parental consent • Judge or judicial officer must occur in the presence of the • Adoptive parents judge. Other states require a • Assigned caseworker signed voluntary relinquishment • Legal advocate for the child of parental rights. and/or GAL/CASA • Determine whether the consent • Court reporter or suitable was voluntary and informed and technology that all alternatives to adoption • The child were explained. • Determine that the child is doing Persons who should always well in the adoptive home and be present at the contested that the adoptive parents have adoption hearing: made a clear and knowledgeable commitment to care for the child • Judge or judicial officer on a permanent basis. • Prospective adoptive parents • Determine that the adoptive • Assigned caseworker parents fully understand the legal • Agency attorney and financial consequences of • Legal advocate for the child adoption. Review with the and/or GAL/CASA parents and agency the need for • Parties contesting the and sufficiency of any adoption adoption subsidy arrangements. • Attorneys for all parties • At contested adoption hearings, • Court reporter or suitable determine whether the adoption 105 technology should be granted. A contested • Security personnel adoption hearing must be conducted with procedural Persons whose presence may fairness, including notice to the also be needed at the contested parties and the opportunity to be adoption hearing: represented by counsel. • Conclude the proceeding without • The child undue delay, applying principles • Judicial case management of case flow management. staff • Other witnesses

The court’s written findings of fact and conclusions of law at the adoption hearing should:

• Determine whether all of the necessary consents to adoption have been provided, including the consent of the agency with custody of the child, the consent of the child (if the child is old enough that consent is required under state law), and, in some cases, the consent of parents whose rights have not been terminated. 106 MASTER CHECKLISTS

Preliminary Protective Filing the petition: Hearing Checklist • A sworn petition or complaint Persons who should always be should be filed at or prior to the present at the preliminary time of the preliminary protective protective hearing: hearing. • The petition should be complete • Judge or judicial officer and accurate. • Parents whose rights have not been terminated, including puta- Key decisions the court should tive fathers make at the preliminary protective • Relatives with legal standing or hearing: other custodial adults • Assigned caseworker • Should the child bereturned home • Agency attorney immediately or kept in foster care • Attorney for parents (separate prior to trial? attorneys if conflict warrants) • What services will allow the child • Legal advocate for the child and/or to remain safely at home? GAL/CASA • Will the parties voluntarily agree • Court reporter or suitable technology to participate in such services? • Security personnel • Has the agency made reasonable efforts to avoid protective place- Persons whose presence may also ment of the child? be needed at the preliminary • Are responsible relatives or other protective hearing: responsible adults available? • Is the placement proposed by the • Age-appropriate children agency the least disruptive and • Extended family members most family-like setting that meets • Adoptive parents the needs of the child? 107 • Judicial case management staff • Will implementation of the service • Law enforcement officers plan and the child’s continued • Service providers well-being be monitored on an • Adult or juvenile probation or ongoing basis by a GAL/CASA? parole officer • Are restraining orders, or orders • Other witnesses expelling an allegedly abusive parent from the home Courts can make sure that parties appropriate? and key witnesses are present by: • Are orders needed for examinations, evaluations, or immediate • Requiring quick and diligent services? notification efforts by the agency; • What are the terms and conditions • Requiring both oral and written for parental visitation? notification in language under- • What consideration has been standable to each party and given to financial support of the witness; child? • Requiring notice to include reason for removal, purpose of hearing, Additional activities at the availability of legal assistance; preliminary protective hearing: • Requiring caseworkers to encourage attendance of parents and • Reviewing notice to missing other parties. parties and relatives; • Serving the parties with a copy of the petition; Master Checklists

• Advising parties of their rights; If child is placed outside • Accepting admissions to the home: allegations of abuse or neglect. • Describe who is to have custody Submission of reports to the court: and where child is to be placed; • Specify why continuation of • The court should require submis- child in the home would be sion of agency and/or law enforce- contrary to the child’s welfare ment reports at least one hour (as required to be eligible for prior to the preliminary protective federal matching funds); hearing. • Specify whether reasonable efforts • Reports to the court should have been made to prevent describe all circumstances of placement (including a brief removal, any allegations of abuse description of what services, if or neglect, and all efforts made to any, were provided and why try to ensure safety and prevent placement is necessary); need for removal. • Specify the terms of visitation.

The court’s written findings Whether or not the child is of fact and conclusions of law returned home: at the preliminary protective hearing should: • Provide further directions to the parties such as those govern- Be written in easily understanding future parental conduct and able language which allows the any agency services to the parents and all parties to fully child and parent agreed upon understand the court’s order. prior to adjudication. 108 • Set date and time of next hearing. Resource Guideline

It is recommended that 60 minutes be allocated for each preliminary protective hearing. Master Checklists

Adjudication Hearing Checklist cation hearing, the judge may need to make additional temporary decisions at Persons who should always be the conclusion of adjudication. present at the adjudication hearing: For example, the judge may need to:

• Judge or judicial officer • Determine where the child is to be • Parents whose rights have not been placed prior to disposition hearing; terminated, including putative • Order further testing or evaluation fathers of the child or parents in prepara- • Relatives with legal standing or tion for the disposition hearing; other custodial adults • Make sure that the agency is, in • Assigned caseworker preparation for disposition, taking • Agency attorney prompt steps to evaluate • Attorney for parents (separate relatives as possible caretakers, attorneys if conflict warrants) including relatives from outside • Legal advocate for the child the area; and/or GAL/CASA • Order the alleged perpetrator to • Court reporter or suitable technology stay out of the family home and • Security personnel have no contacts with the child; • Direct the agency to continue its Persons whose presence may efforts to notify noncustodial also be needed at the adjudication parents, including unwed fathers; hearing: and • When the child is to be in foster • Age-appropriate children care prior to disposition, set terms • Extended family members for visitation, support, and other • Adoptive parents intra-family communication • Judicial case management staff including both parent-child and • Law enforcement officers sibling visits. 109 • Service providers • Other witnesses The court’s written findings of fact and conclusions of law at Key decisions the court should the adjudication hearing should: make at the adjudication hearing: • Accurately reflect the reasons for • Which allegations of the petition state intervention. have been proved or admitted, • Provide sufficiently detailed if any; information to justify agency and • Whether there is a legal basis for court choices for treatment and continued court and agency services. intervention; • Provide a defensible basis for • Whether reasonable efforts have refusing to return a child home or been made to prevent the need for terminating parental rights if placement or to safely reunify the parents fail to improve. family. • Be written in easily understandable language so that all parties Additional decisions at the know how the court’s findings adjudication hearing: relate to subsequent case planning. • Set date and time of next hearing, If the disposition hearing will not oc- if needed. cur within a short time after the adjudi-

Resource Guideline It is recommended that a minimum of 30 minutes be allocated for each adjudication hearing. 110 Master Checklists

Disposition Hearing When the agency recommends Checklist foster placement, an affidavit of reasonable efforts should be Persons who should always be submitted. The following are present at the disposition hearing: some additional key elements of the affidavit: • Judge or judicial officer • Parents whose rights have not been • A description of the efforts made by terminated, including putative the agency to avoid the need for fathers placement and an explanation why • Relatives with legal standing or they were not successful; other custodial adults • An explanation of why the child • Assigned caseworker cannot be protected from the • Agency attorney identified problems in the home • Attorney for parents (separate even if services are provided to the attorneys if conflict warrants) child and family; and • Legal advocate for the child • Identification of relatives and and/or GAL/CASA friends who have been contacted • Court reporter or suitable technology about providing a placement for the • Security personnel child.

Persons whose presence may also be Other information that should needed at the disposition hearing: be included either in the affidavit of reasonable efforts or an • Age-appropriate children accompanying court report is: • Extended family members • Adoptive parents • A description of the placement and • Judicial case management staff where it is located; • Law enforcement officers • Proposed arrangements for visitation; 111 • Service providers • Placement of the child’s siblings • Adult or juvenile probation or and, if they are to be apart, parole officer proposed arrangements for • Other witnesses visitation; • An appropriate long-term plan for Submission of reports the child’s future; and to the court. Predisposition • Proposed child support. reports should include: Key decisions the court should • A statement of family changes make at the disposition hearing: needed to correct the problems necessitating state intervention, • What is the appropriate statutory with timetables for accomplishing disposition of the case and long- them; term plan for the child? • A description of services to be • Where should the child be placed? provided to assist the family; and • Does the agency-proposed case • A description of actions to be taken plan reasonably address the by parents to correct the identified problems and needs of child and problems. parent? • Has the agency made reasonable efforts to eliminate the need for placement or prevent the need for placement? • What, if any, child support should be ordered? • When will the case be reviewed? Master Checklists

The court’s written findings • Determine whether there is a plan of fact and conclusions of law at for monitoring the implementa- the disposition hearing should: tion of the service plan and assuming the child’s continued • Determine the legal disposition of well-being? Is a GAL/CASA the case, including the custody of available to do this? the child, based upon the statutory • When placement or services are options provided under state law. ordered that were not agreed • State the long-term plan for the upon by the parties, specify the child (e.g., maintenance of the evidence or legal basis upon child in the home of a parent, which the order is made. reunification with a parent or • Specify whether reasonable relative, permanent placement of efforts have been made to prevent child with a relative, placement of or eliminate the need for the child in a permanent adoptive placement. home.) • Specify the terms of parental • When applicable, specify why visitation. continuation of child in the home • Specify parental responsibilities would be contrary to the child’s for child support. welfare. • Be written in easily understand- • Where charged with this able language so that parents and responsibility under state law and all parties fully understand the based upon evidence before the court’s order. court, approve, disapprove or • Set date and time of next hearing, modify the agency’s proposed if needed. case plan.

112 Resource Guideline

It is recommended that a minimum of 30 minutes be allocated for each disposition hearing. Master Checklists

Review Hearing Checklist • Whether the child is in an appropriate placement which Persons who should always be adequately meets all physical, present at the review hearing: emotional and educational needs. • Whether the terms of visitation • Judge or judicial officer need to be modified. • Parents whose rights have not • Whether terms of child support been terminated, including need to be set or adjusted. putative fathers • Whether any additional court • Age-appropriate children orders need to be made to move • Relatives with legal standing or the case toward successful other custodial adults completion. • Foster parents • What time frame should be set • Assigned caseworker forth as goals to achieve reunifica- • Agency attorney tion or other permanent plan for • Attorney for parents (separate each child. attorneys if conflict warrants) • Legal advocate for the child Submission of reports and/or GAL/CASA to the court: • Court reporter or suitable technology Pre-Review Report • Security personnel Pre-review reports by the child welfare agency and the GAL/CASA Persons whose presence may also can serve the same purpose as predis- be needed at the review hearing: position reports. Pre-review reports should include: • Extended family members • Adoptive parents • A statement of family changes • Judicial case management staff needed to correct the problems 113 • Service providers necessitating state intervention, • Adult or juvenile probation or with timetables for accomplishing parole officer them; • Other witnesses • A description of services to be • School officials provided to assist the family; and • A description of actions to be Key decisions the court should taken by parents to correct the make at the review hearing: identified problems.

• Whether there is a need for Affidavit of Reasonable Efforts continued placement of a child. When the agency recommends • Whether the court-approved, continued foster placement, an affida- long-term permanent plan for the vit of reasonable efforts should be child remains the best plan for the submitted. The following are some child. key elements of the affidavit: • Whether the agency is making • A description of the efforts made reasonable efforts to rehabilitate by the agency to reunify the family the family and eliminate the need since the last disposition or review for placement of a child. hearing and an explanation why • Whether services set forth in the those efforts were not successful; case plan and the responsibilities • An explanation why the child of the parties need to be clarified cannot presently be protected or modified due to the availability from the identified problems in of additional information or the home even if services are changed circumstances. provided to the child and family. Master Checklists

The court’s written findings • Set forth orders for the agency to of fact and conclusions of law make additional efforts necessary at the review hearing should: to meet the needs of the family and move the case toward • Set forth findings as to why the completion; children are in need of continued • Be written in easily understand- placement outside the parents’ able language which allows the home or continued court supervi- parents and all parties to fully sion, including the specific risks to understand what action they must the child; take to have their children • Set forth findings as to whether returned to their care; and why family reunification and • Approve proposed changes in the an end to court supervision case plan and set forth any court- continues to be the long-term case ordered modifications needed as a goal; result of information presented at • Set forth findings as to whether the review; the agency has made reasonable • Identify an expected date for final efforts to eliminate the need for reunification or other permanent placement, with specific findings plan for the child; as to what actions the agency is • Make any other orders necessary taking; to resolve the problems that are • Set forth detailed findings of fact preventing reunification or the and conclusions of law as to completion of another permanent whether the parents are in compli- plan for the child; and ance with the case plan and • Set date and time of next hearing, identify specifically what further if needed. actions the parents need to 114 complete; Resource Guideline

It is recommended that 30 minutes be allocated for each review hearing. Master Checklists

Permanency Planning Hear- Submission of reports ing Checklist to the court. A report for a permanency planning hearing should: Persons who should always be present at the permanency planning • Specify the relief being sought hearing: and address the same issues that the judge needs to determine. • Judge or judicial officer • Examine the reasons for • Age-appropriate children excluding higher priority options. • Parents whose rights have not • Set forth a plan to carry out the been terminated, including placement decision. putative fathers • Relatives with legal standing or When the report or petition requests other custodial adults that a child be returned home on a • Assigned caseworker date certain, it should set forth: • Agency attorney • Attorney for parents (separate • How the conditions or circum- attorneys if conflict warrants) stances leading to the removal of • Legal advocate for the child and/ the child have been corrected; or GAL/CASA • The frequency of recent visitation • Court reporter or suitable technology and its impact on the child; and • Security personnel • A plan for the child’s safe return home and follow-up supervision Persons whose presence may also be after family reunification. needed at the permanency planning hearing: When the report requests termination of parental rights, it should set forth: • Extended family members • Foster parents • Facts and circumstances 115 • Prospective adoptive parents supporting the grounds for • Judicial case management staff termination; and • Service providers • A plan to place the child for • Adult or juvenile probation or adoption. parole officer • Other witnesses When a custody award to an individual or couple is proposed, Key decisions the court should make the report should set forth: at the permanency planning hearing: • Facts and circumstances refuting • The child is to be returned home the grounds for termination of on a specific date. parental rights (demonstrating • The child will be legally freed for the fitness of the parents) or adoption. showing that although the child • The custody of the child will be cannot be placed with parents, transferred to an individual or termination is not in the best couple on a permanent basis. interests of the child; • The child will remain in foster care • Facts and circumstances on a permanent or long-term demonstrating the appropriate- basis. ness of the individual or couple to • Foster care will be extended for a serve as permanent caretaker of specific time, with a continued the child; and goal of family reunification. • A plan to ensure the stability of the placement. Master Checklists

When permanent foster care with a • Facts and circumstances specific family is proposed, the report explaining why continued custody should set forth: or permanent foster care is not appropriate at the same time that • Facts and circumstances refuting independent living services are the grounds for termination of being provided; and parental rights (demonstrating • A plan to prepare the child for the fitness of the parents) or independent living and for visita- showing that although the child tion between the child, parents cannot be placed with parents, and siblings. termination is not in the best interests of the child; When an extension of foster care • Facts and circumstances for a time certain is proposed with a explaining why custody is not goal of reunification, the report practical or appropriate; should set forth: • Facts and circumstances demonstrating the appropriate- • Facts and circumstances showing ness of the foster parents and the that the parents and child have a foster parents’ commitment to strong and positive relationship, permanently caring for the child; parents have made substantial and progress toward the child’s return • A plan to ensure the stability of home, and return home is likely the placement. within the next six months. • Facts and circumstances showing When long-term foster care is why it is too early to specify a time proposed because the child cannot certain for reunification. function in a family setting, the report • A plan to achieve reunification 116 should set forth: within six months. • Facts and circumstances leading The court’s written findings of fact to that conclusion; and and conclusions of law at the perma- • A plan to prepare the child to live nency planning hearing should: in a family setting at the earliest possible time and for visitation • Be prepared within a reasonable with parents and siblings. time after the permanency planning hearing; When long-term foster care in • Be written in easily understandable connection with independent living language so that parents and all arrangements is proposed, the report parties fully understand the court’s should set forth: order; • Provide documentation for further • Facts and circumstances refuting proceedings; the grounds for termination of • Address the same issues as those to parental rights (demonstrating the be addressed in the report dis- fitness of the parents) or showing cussed above; and that although the child cannot be • Set date and time of next hearing, if placed with parents, termination is needed. not in the best interests of the child;

Resource Guideline

It is recommended that 60 minutes be allocated for each permanency planning hearing. Master Checklists

Termination of Parental Key decisions the court should make Rights Hearing Checklist at the termination of parental rights hearing: Persons who should always be present at the termination of parental • Whether the statutory grounds for rights hearing: termination of parental rights have been satisfied. • Judge or judicial officer • Whether termination is in the best • Parents, including putative fathers interests of the child. • Assigned caseworker • Agency attorney The court’s written findings of • Attorney for parents (separate fact and conclusions of law at the attorneys if conflict warrants) termination of parental rights • Legal advocate for the child and/ hearing should: or GAL/CASA • Court reporter or suitable technology • Indicate whether or not termina- • Security personnel tion of parental rights is granted. • Address whether the grounds for The following are persons termination were satisfied and, if whose presence may also be so, whether termination was in the needed at the termination of best interests of the child. parental rights hearing: • Be sufficient for the purpose of appellate review. • Age-appropriate children whose • Set schedule for subsequent testimony is required judicial review. • Judicial case management staff • Law enforcement officers • Service providers • Adult or juvenile probation or parole officer 117 • Other witnesses

Resource Guideline

It is recommended that a minimum of 60 minutes be allocated for each termination of parental rights hearing. 118 Master Checklists

Adoption Hearing Checklist the consent of the agency with custody of the child, the consent Persons who should always be of the child (if the child is old present at the uncontested enough that consent is required adoption hearing: under state law), and, in some cases, the consent of parents • Judge or judicial officer whose rights have not been • Adoptive parents terminated. • Assigned caseworker • Thoroughly describe the • Legal advocate for the child conditions and circumstances and/or GAL/CASA under which parental consent to • Court reporter or suitable adoption was obtained. When technology there has been no prior • The child termination of parental rights in some states, parental consent Persons who should always must occur in the presence of the be present at the contested judge. Other states require a adoption hearing: signed voluntary relinquishment of parental rights. • Judge or judicial officer • Determine whether the consent • Prospective adoptive parents was voluntary and informed and • Assigned caseworker that all alternatives to adoption • Agency attorney were explained. • Legal advocate for the child • Determine that the child is doing and/or GAL/CASA well in the adoptive home and • Parties contesting the that the adoptive parents have adoption made a clear and knowledgeable • Attorneys for all parties commitment to care for the child • Court reporter or suitable on a permanent basis. 119 technology • Determine that the adoptive • Security personnel parents fully understand the legal and financial consequences of Persons whose presence may adoption. Review with the also be needed at the contested parents and agency the need for adoption hearing: and sufficiency of any adoption subsidy arrangements. • The child • At contested adoption hearings, • Judicial case management determine whether the adoption staff should be granted. A contested • Other witnesses adoption hearing must be conducted with procedural The court’s written findings fairness, including notice to the of fact and conclusions of law at parties and the opportunity to be the adoption hearing should: represented by counsel. • Conclude the proceeding without • Determine whether all of the undue delay, applying principles necessary consents to adoption of case flow management. have been provided, including

Resource Guideline

It is recommended that a minimum of 30 minutes be allocated for each adoption hearing. 120 GLOSSARY

______Adjudication hearing - In child wel- Child neglect - To fail to give proper fare proceedings, the trial stage at attention to a child; to deprive a child; which the court determines whether to allow a lapse in care and supervi- allegations of dependency, abuse or sion that causes or threatens to cause neglect concerning a child are sustained lasting harm to a child. by the evidence and, if so, are legally ______sufficient to support state intervention Court Appointed Special Advocate on behalf of the child; provides the ba- (CASA) - A specially screened and sis for state intervention into a family, trained volunteer, appointed by the as opposed to the disposition hearing court, who conducts an independent which concerns the nature of such in- investigation of child abuse, neglect, tervention; in some states, adjudication or other dependency matters, and sub- hearings are referred to as ‘jurisdic- mits a formal report proffering advi- tional’ or ‘fact-finding’ hearings. sory recommendations as to the best ______interests of a child. In some jurisdic- Adoptive parent - The adult person tions, volunteers without formal legal with whom a relationship is legally es- training, such as CASAs, are ap- tablished to a child not biologically re- pointed to represent abused and ne- lated. Under the adoptive relationship, glected children, serving in the capac- the child becomes the heir and is en- ity of a Guardian ad Litem. See Guard- titled to all other privileges belonging ian ad Litem. to a natural child of the adoptive par- ______ent. Dependent child - A young person ______subject to the jurisdiction of the court Adoption hearing - Judicial proceed- because of child abuse or neglect. ing in which a relationship is legally es- ______tablished between adult individual(s) Direct calendaring - An administra- and a child not biologically related. tive scheduling system used by courts 121 ______in which child abuse and neglect cases Case flow management - Administra- involving a single family are assigned tive and judicial processes designed to to a single judge or judicial officer at reduce delays in litigation; processes the time the case is first filed, and for which assist the court in monitoring the duration of government involve- child welfare agencies to make sure de- ment with a specific family. The ini- pendency cases are moved diligently tially-assigned judge conducts all sub- and decisively toward completion. sequent hearings, conferences and tri- ______als. Child abuse - To hurt or injure a child ______by maltreatment. As defined by statutes Disposition hearing - The stage of in the majority of states, generally lim- the juvenile court process in which, ited to maltreatment that causes or after finding that a child is within ju- threatens to cause lasting harm to a risdiction of the court, the court deter- child. mines who shall have custody and con- ______trol of a child; elicits judicial decision Child custody - Legal authority to de- as to whether to continue out-of-home termine the care, supervision, and dis- placement or to remove a child from cipline of a child; when assigned to an home. individual or couple, includes physical ______care and supervision. Includes guard- Diversion programs - Community- ianship of the person of a minor such based services designed to prevent the as may be awarded by a probate court. necessity of child abuse, neglect or other dependency matters coming before the court. Glossary ______Formal mediation - Structured nego- is awarded by the probate court. There- tiations involving parents, social service fore, appointing a guardian for a foster agencies, and independent, third-party child may require the action of two representatives involved in reaching courts: the court hearing the abuse or joint solutions in matters before the neglect (e.g., the juvenile or family court. court) and the probate court. ______Foster care - Temporary residential Judicial officer - Person who serves in care provided to a minor child placed an appointive capacity at the pleasure pursuant to a neglect or dependency of an appointing judge, and whose de- hearing; can include care by a non-bio- cisions are subject to review by that logical foster family, group care, resi- judge; referred to in some jurisdictions dential care, or institutional care. as associate judges; magistrates; refer- ______ees; special masters; hearing officers; Foster Care Review Board (FCRB) - commissioners. A panel of screened and trained volun- ______teers preferably appointed by juvenile Judicially supervised settlement or family courts to: regularly review conference - A judicially-mandated cases of children in substitute place- meeting at which the judge is present, ment such as foster care; examine ef- which involves all attorneys and parties forts to identify a permanent placement to a proceeding. The meeting typically for each child; and proffer advisory rec- occurs at a fixed time and place at least ommendations to the court. 10 days before a trial, and provides iden- ______tification of issues to be tried, experts Foster family care - A form of foster to be called, necessary reports, and wit- care involving placement of a child with ness availability. a non-biological family that is approved ______and supervised by the state. Judge - One who conducts or presides over a court of justice and resolves con- 122 ______troversies between parties. In the fore- Guardian ad litem - 1. In certain de- going text, the term also encompasses pendency matters, a person with formal persons serving in an appointive capac- legal training appointed by a judge to ity whose decisions are subject to re- represent the best interests of an alleg- view by a judge, including associate edly abused or neglected child; differs judges, magistrates, referees, special from the legal advocate for the child masters, hearing officers, and commis- who specifically represents the child’s sioners. wishes before the court. See Legal ad- ______vocate for the child. 2. A recruited, Legal advocate for the child - In cer- screened and trained citizen volunteer tain dependency matters, a person with without formal legal training, appointed formal legal training appointed by a ju- by a judge to represent the best inter- venile or family court to specifically rep- ests of an allegedly abused or neglected resent the wishes of an allegedly abused child. See Court Appointed Special or neglected child under the court’s ju- Advocate (CASA). risdiction; differs from a Guardian ad ______litem appointed to represent the best Guardianship - A legally established interests of a child before the court. See relationship between a child and adult Guardian ad litem. who is appointed to protect the child’s best interests and to provide the child’s ______care, welfare, education, discipline, Long-term foster care - Extended maintenance and support. Where residential care provided to a minor guardianship is awarded to an indi- child placed pursuant to a neglect or de- vidual or couple, it includes the right to pendency hearing; can include care by physical possession of the child. In a non-biological foster family, group many states, guardianship of this type care, residential care, or institutional care. Glossary ______Master calendaring - An administra- Reasonable efforts - Public Law 96- tive scheduling system used by courts 272, the Adoption Assistance and Child in which child abuse and neglect cases Welfare Act of 1980 requires that “rea- may be reassigned to different judges sonable efforts” be made to prevent or at different stages of the case. eliminate the need for removal of a de- ______pendent, neglected, or abused child Mediation - Process by which a neu- from the child’s home and to reunify the tral mediator assists all of the parties in family if the child is removed. The rea- voluntarily reaching a consensual sonable efforts requirement of the fed- agreement about issues at hand; a pro- eral law is designed to ensure that fami- cess of facilitated communication be- lies are provided with services to pre- tween parties designed to resolve issues vent their disruption and to respond to and agree upon a plan of action. the problems of unnecessary disruption ______of families and foster care drift. To en- Motion - An application to a court made force this provision, the juvenile court in reference to a pending action, ad- must determine, in each case where fed- dressed to a matter within the discre- eral reimbursement is sought, whether tion of a judge. the agency has made the required rea- ______sonable efforts. (42 U.S.C. 671(a)(15), Permanency planning hearing - A 672(a)(1).) special type of post-dispositional pro- ______ceeding designed to reach a decision Residential care - A form of foster care concerning the permanent placement of involving placement in group or con- a child; the time of the hearing repre- gregate care. sents a deadline within which the final ______direction of a case is to be determined. Review hearing - Court proceedings ______which take place after disposition in Petition/pleading - A formal written which the court comprehensively re- request or ‘prayer’ for a certain thing to views the status of a case, examines be done. progress made by the parties since the 123 ______conclusion of the disposition hearing, Preliminary protective hearing - The provides for correction and revision of first court hearing in a juvenile abuse the case plan, and makes sure that cases or neglect case, referred to in some ju- progress and children spend as short a risdictions as a ‘shelter care hearing,’ time as possible in temporary place- ‘detention hearing,’ ‘emergency re- ment. moval hearing,’ or ‘temporary custody ______hearing’; occurs either immediately be- Stipulation - An agreement, admission, fore or immediately after child is re- or concession made by parties in judi- moved from home on an emergency cial proceedings or by their attorneys, basis; may be preceded by an ex parte relating to business before the court. order directing placement of the child; ______in extreme emergency cases may con- Termination of parental rights hear- stitute the first judicial review of a child ing - A formal proceeding usually placed without prior court approval. sought by a state agency at the conclu- ______sion of dependency proceedings, in Pre-trial settlement conference - A which severance of all legal ties be- meeting of attorneys and parties to a tween child and parents is sought proceeding held for the purpose of against the will of one or both parents, reaching a negotiated settlement involv- and in which the burden of proof must ing joint solutions. be by clear and convincing evidence; ______the most heavily litigated and appealed Putative father - The alleged or sup- stage of dependency proceedings; also posed male parent; the person alleged referred to in some states as a ‘sever- to have fathered a child whose parent- ance,’ ‘guardianship with the power to age is at issue. consent to adoption,’ ‘permanent commitment,’ ‘permanent neglect,’ or ‘modification’ hearing. Glossary ______Voluntary agreement for care - Ar- rangement with a public child protection agency for the temporary placement of a child into foster care, entered into prior to court involvement, and typically used in cases in which short- term placement is necessary for a defined purpose such as when a parent enters in-patient hospital care; a method of immediately placing child in foster care with parental consent prior to initiating court involvement, thereby avoiding the need to petition the court for emergency removal.

Excerpted, in part, from Glossary of Se- lected Legal Terms for Juvenile Justice Personnel (1988), and Integrated Glos- sary of Normal Child Sexuality and Child Sexual Abuse Terms for Juvenile Justice Professionals (1987), National Council of Juvenile and Family Court Judges, 124 Reno, Nevada. APPENDIX A

TIME RESOURCE CALCULATIONS TO IMPLEMENT RESOURCE GUIDELINES TABLE OF CONTENTS

Appendix A

A. Introduction ...... 126

B. How Were the Estimates Derived? .... 126 1. Configuration of Cases ...... 126 2. Individual Hearing Time 125 Requirements ...... 127 Figure 1...... 128 3. Expansion Factors...... 127

C. Time Resource Calculations ...... 127 Table 1...... 129

D. How to Use These Calculations ...... 130 Appendix A

A. Introduction The Resource Guidelines described in pered and adjusted by interpretive com- this document represent the accumula- ments from court professionals. Project tion of years of experience by judges staff also adjusted the findings, to a and court personnel involved in cases small degree, when it was clear that of child abuse and neglect. They repre- Ohio law or Hamilton County practice sent a combination of “best practice” as differed in a meaningful way from that well as a reasoned estimate of the re- commonly found in other juvenile sources required to conduct such prac- courts across the country. It is safe to tice. assume that the resulting estimates The guidelines were not developed in form a rational starting point from a vacuum, but resulted instead from the which to determine time resource re- working experience of many courts, quirements consistent with the practice most notably the Hamilton County Ju- implications in this document. The venile Court in Cincinnati, Ohio. reader is cautioned not to use the esti- Throughout the deliberations resulting mates in a wholesale fashion, without in the final document, Hamilton County attempting to customize the analysis to experience was observed, measured the local situation. It is reasonable to and documented to provide a base of use these calculations as a basis for fur- reality for understanding both the need ther examination of the needs of the for good practice and the requirements court in adequately dealing with these necessary to assure it can occur. cases. This technical appendix is intended to guide court administrators and judges 1. Configuration of Cases estimating docket time, judicial time and Figure 1 on page 128 represents a ancillary court staff time necessary to typical case progression pattern for 100 implement the Resource Guidelines. new, hypothetical case filings in Estimates are provided of the annual Hamilton County. The flow chart fol- time requirements for new cases from lows these cases from original case fil- 126 initial disposition through ongoing case ing to initial disposition and through review to post-initial disposition. case closure. As is shown in Figure 1, these 100 cases follow varied paths and B. How Were the Estimates have significantly different life spans. Derived? At the point of initial disposition, there Three major factors affect time and re- are six distinctly different legal statuses source estimates for the handling of into which cases can fall: abuse and neglect cases in the juvenile court. They are: the types of cases pro- • Case Dismissed - no further cessed by the court; the time necessary action is required by the court; at each hearing to attend adequately to • Custody to Relative or Non- matters of importance; and “expansion Relative- the court awards legal factors” such as the degree of case con- custody to either parent or to any tinuation and extensive contests that other relative or non-relative who inflate the resource requirements of the has filed a motion for legal typical case. custody; In deriving estimates for case process- • Protective Supervision - the ing, each of these factors was examined court allows the child to remain in a sample of cases from Hamilton in the home subject to conditions County, Ohio. Data were extracted from set by the court; the management information system, • Temporary Custody - the court and results were interpreted with the temporarily commits the child to help of judicial officers in the court. a public or private childrens’ Project staff also attended and observed services agency and vests a significant number of hearings of vari- custody in that agency; ous case types to determine time re- • Permanent Custody - the court quirements for aspects of each hearing. permanently commits the child to The resulting analysis represents a a public or private childrens’ hybrid of numerical calculations tem- Appendix A

services agency and vests all of the case. In this analysis, the num- parental rights with that agency; ber of each type of hearing was calcu- and lated for each case type. As cases • Long Term Foster Care - the changed legal status, the hearing re- court places the child in long- quirement and frequency was shifted to term foster care with a public or the new status. private agency. This information was merged with estimates of required or recommended In most courts, these initial findings hearing time for each type of hearing at disposition are known. What is of- based on the “good practice” principles ten less well known is the flow and di- in the Resource Guidelines. These two versification that occurs subsequent to calculations were then summed for an the initial disposition. Cases often entire case over its many legal statuses progress to another legal status based and case life. on post-disposition motions or findings Taken as a whole, these calculations at review hearings. It is not uncommon provide a reasonable estimate of the for a case to have multiple legal statuses average hearing time requirements for prior to being closed. each case type over its life, and, in total, For example, in 100 typical cases in for the entire workload of the court for the Hamilton County Juvenile Court, 58 all cases. Using the average length of were initially disposed as cases involv- time a case remained in a legal status, ing temporary custody. Of these, only an average number of post-disposi- 20 actually were closed without, at some tional hearings was also calculated. point, changing to another legal status These latter calculations were used in (protective supervision, permanent cus- deriving annual time requirements per tody, etc.). Similar case complexities are case. evident for cases originating as protective supervision initial dispositions. 3. Expansion Factors The importance of this type of case A final calculation was required to 127 flow analysis is that each of these case correct for atypical case processing oc- types has different resource require- casioned by delays or continuances or ments and time frames. As seen in Fig- by actively contested cases where trials ure 1, the overall case age at closure is far exceed the ‘average’ docket time al- significantly different for each type of located for a hearing. While these in- case. During the life span of each case, stances are in the minority, they do ac- the amount of time and frequency for count for a significant additional re- hearings differ, resulting in different source requirement when they occur. resource requirements. Project staff interviewed court staff, In this analysis, the model of case flow prosecutors and attorneys and relied on depicted in Figure 1 served as the basis hearing observations to assess the im- for deriving estimates. That is, the pact of these ‘expansion factors’. As docket, judicial officer and ancillary might be expected, there were signifi- court staff time requirements assume a cant differences in the chance of, and pattern of case transactions equal to that requirement expansion for various shown in the diagram. While it is dis- types of cases. These factors were in- played, for simplicity, as a “typical 100 cluded in the calculations to provide a cases,” the model was developed using realistic picture of the time require- a much larger sample of cases from ments for all types of cases and contin- Hamilton County over an extended pe- gencies. In Hamilton County the great- riod of time. est ‘expansion requirement’ was the result of trials in permanent custody cases. 2. Individual Hearing Time Requirements C. Time Resource Calculations Each case type requires a series of The analyses described above repre-disposition and post-disposition sulted in a matrix of numbers that was hearings based on legal status and life then recombined to provide an overall Appendix ANew (Original) Figure 1 Complaints N = 100

Initial Disposition of Case

Custody to Case Protective Temporary Permanent Long Term Relative or Dismissed Supervision Custody Custody Foster Care Non-Relative N = 9 N = 18 N = 58 N = 5 N = 3 N = 7 Case Closed Case Closed (51 Days) (51 Days) Child Child Reaches Adopted Age of Majority (or other Termination) (or other Termination) N = 5 N = 3 Custody to Temporary Relative or Case Closed Case Closed Custody Non-Relative N = 4 (588 Days) (746 Days) N = 14 Case Closed (281 Days)

Custody to Protective Permanent Long Term Relative or Supervision Custody Foster Care Non-Relative N = 21 N = 5 N = 12 N = 20 Case Closed

(445 Days) Child Child Reaches 128 Adopted Age of Majority (or other Termination) (or other Termination) N = 5 N = 12 Case Closed Case Closed (1,615 Days) (1,117 Days) Custody to Protection Relative or Supervision Custody to Non-Relative N = 2 Temporary N = 2 Relative or Custody Non-Relative N = 5 Case Closed N = 16 Custody to (657 Days) Relative or Case Closed Non-Relative (645 Days) N = 2 Case Closed Custody to Protective Long Term (857 Days) Relative or Supervision Foster Care Non-Relative N = 2 N = 1 N = 2 Case Closed Flow Chart of 100 New (1,021 Days) Custody to Child Reaches (Original) Case Filings Relative or Age of Majority Non-Relative (or other Termination) (Based on General Case Flow Patterns N = 2 N = 1 in Hamilton County Juvenile Court) Case Closed Case Closed (1,221 Days) (1,693 Days) Appendix A case time requirement estimate. Time of the average time required to bring estimates, presented in Table 1, are di- new cases to an initial disposition, and vided into two distinct phases of case the time required to review and other- processing: pre-initial disposition and wise deal with the average number of post-initial disposition. This distinction post-initial disposition cases that are is made for two reasons. First, the pre- active during the year. To accurately initial disposition requirements for a estimate resource requirements, these case are more similar across case types two entities must be treated separately. than are post-initial disposition require- Table 1 provides resource requirements. That is, the court activity re- ments for Docket Time, Judicial Offic- quired to get a case to initial disposition ers and Court Staff. These three sepa- is relatively similar for all incoming rate estimates were derived from obser- cases. vations and interviews of judicial offic- State law generally sets a time period ers and court staff in handling cases. At within which cases should reach initial the pre-initial disposition phase, for ex- disposition. In Ohio, for example, all ample, 3.9 hours per case of docket time cases are to be initially disposed within are associated with 6.1 hours of judicial 90 days of the filing of the original peti- officer time and 12 hours of court staff tion. At this point in case processing, a time. The judicial officer time estimates second set of time requirements com- in Table 1 include the additional hours mences, limiting the period within required for case preparation and re- which the court and social service view. Court staff time includes the ex- agency must make final determinations tra responsibilities for case preparation, in the case. file administration, scheduling and Second, the total amount of time re- other duties. quired for a court annually is the sum 129 Table 1 Time Requirements to Implement Resource Guidelines

Resource Pre-Initial Post-Initial Category Disposition Disposition

(hours/case) (hours/case)

Docket Time 3.9 3.75

Judicial Officers 6.1 6.6

Other Court Staff 12.0 11.3

The numbers presented in Table 1 represent an “annual estimate” of time requirements for the total caseload configuration presented above. That is, the total, per case time, for reaching initial disposition in new cases, and the review and other court activity, for one year, for all active cases. While Figure 1 indicates that cases continue for longer than a one year period, these numbers were derived to allow for annual planning and resource allocation in the court. Appendix A

D. How to Use These Calculations While deceivingly simple, the data to build resource estimates for im- presented in this section can be of sig- proved practice in dealing with cases of nificant value to a court administrator child abuse and neglect. or judge attempting to understand and plan for the resources necessary to Note: A complete technical report de- implement the guidelines. The “bottom scribing, in detail, the interim calcula- line” figures presented in Table 1 rep- tions and analyses used to derive these resent a series of investigations and data can be obtained from: analyses that combine factors associated with resource allocation. Richard J. Gable To use these calculations in planning, Director of Applied Research the administrator must know (or esti- National Center for Juvenile Justice mate) the potential number of new in- 710 Fifth Avenue, Third Floor coming case filings for dependent cases Pittsburgh, Pennsylvania 15219 in the next year. This number can be reasonably estimated from past activity. Secondly, the average number of active, post-disposition cases must be determined. To assess resources required, the mul- tiplication of new cases by the appropriate number from Table 1, plus the average number of active cases multi- plied by the post-initial disposition figure in Table 1, will provide an estimate of total resources required. So, for example, a court anticipating 130 100 new case filings (100 x 3.9 hours = 390 hours) and with an average active caseload of 200 on-going post-dispositional cases (200 x 3.75 hours = 750 hours) should estimate 1,140 hours of docket time for the dependency workload. Judicial officer and court staff time can be similarly computed. This initial estimate must, however, be tempered by differences in court struc- tures, rules and statutes. Further, the implementation of the guidelines should, if successful, alter the case processing culture of the court itself, thus impacting subsequent years’ estimates. Finally, it is crucial to realize that these calculations were derived largely from a single court with a history of practice similar to that prescribed in the Re- source Guidelines. Peculiarities of Ohio law and procedure as well as the culture of the Hamilton County Juvenile Court are firmly imbedded both in the guidelines themselves and in these calculations. As such, there are limitations to their general application. It is be- lieved, however, that they provide a reasoned and solid foundation upon which APPENDIX B

ALTERNATIVES TO CONTESTED LITIGATION IN CHILD ABUSE AND NEGLECT CASES TABLE OF CONTENTS

Appendix B

A. Pre-trial Settlement Conferences ...... 132 1. Settlement Conferences Conducted by the Parties ...... 132 2. Judicially-Supervised Settlement Conferences ...... 132 131 B. Formal Mediation ...... 133 1. General Information ...... 133 2. Guidelines for Implementing Mediation Programs ...... 135

C. Mediation Checklist ...... 138

D. Endnotes ...... 138 Appendix B

A. Pre-trial Settlement Conferences ing serious problems. Parents involved in determining case outcomes often 1. Settlement Conferences have an increased commitment to the Conducted by the Parties success of case plans. The resulting Child abuse and neglect cases are outcomes not only have a better chance usually resolved without contested of being successfully implemented, but hearings by agreement of the parties. often are achieved at significantly lower Because an outcome reached by agree- costs than litigated outcomes. ment is often superior to an outcome Dependency cases involve numerous reached through litigation, courts parties and attorneys, who often have should encourage settlement without multiple cases in the courthouse. It is contested litigation. more efficient to schedule settlement A key advantage to mandatory pre- conferences in or near the courthouse adjudication and pre-disposition settle- for the convenience of all parties. Settle- ment conferences at which all parties ment conferences should be held at and attorneys must participate is that least 10 days before a scheduled hear- attorneys are better informed about the ing, and conducted in or near the court- case and better able to perform in court. house environment to provide immedi- Mandatory pre-trial settlement confer- ate judicial availability and attention to ences are especially useful in courts any problems which might arise during where many attorneys habitually delay the settlement process. settlement discussion until shortly be- Settlement conferences reduce court fore trial. By compelling attorneys and workloads. Advance scheduling of parties to meet and discuss a case well settlement conferences allows time for in advance of trial, settlement confer- a follow-up conference if significant ences encourage early case preparation progress is made but full agreement not by attorneys. achieved. Advance scheduling allows In child abuse and neglect cases, suc- the court time to organize and readjust 132 cess in accomplishing what is best for case calendaring. Without a timely pre- the child requires ongoing cooperation trial settlement conference, parties are between parents and the agency. Con- more likely to settle just before a trial is tested hearings often create an to begin, disrupting court calendars and adversarial atmosphere that may pre- staff allocations. Settlements achieved vent a cooperative relationship from just prior to trial make it difficult for the developing. After a contested hearing, court to maintain firm trial dates and the parents may be less willing to work adhere to sound principles of case flow with the agency because they feel the management. outcome of the case was imposed upon Immediately or no later than 24 hours them. after completion of a conference, the The process of reaching a negotiated parties should inform the court whether settlement requires that the parties seek a settlement was reached. If no settle- to understand each other’s positions ment was reached, parties should in- and work together to devise solutions. form the court at least one week in ad- Misunderstandings and misperceptions vance of the trial date of the estimated can be corrected. The parties can be court time needed for trial and should encouraged to view themselves less as submit statements concerning agreed adversaries and more as persons who and disputed facts. If the judge sees the have an interest in working together to need for a judicially-supervised pre-trial solve common problems. conference, this can take place prior to Mandatory settlement conferences re- the time set for the trial. quire close cooperation between parents and the social service agency. A 2. Judicially-Supervised negotiated settlement requires parties Settlement Conferences to devise joint solutions. Parties are The parties often will seek to reach more likely to view themselves less as agreements on their own, but courts adversaries and more as allies in solv- may, nevertheless, encourage the settle- Appendix B ment of cases by mandating judicially- structured so that the court is certain supervised conferences. In jurisdictions that any settlement agreements reflect which mandate settlement conferences, the interests of the various parties. courts should require that they take There must be competent representa- place at a fixed time and place at least tion for the petitioner, the parents, and 10 days before the trial. All parties and the child. All parties should be present, attorneys should be required to attend. including age-appropriate children. All settlement proposals should be re- Consideration should be given viewed by the court. The court should to judicially supervised pre-trial be watchful for settlements which do conferences whenever certain not recognize the alleged parental be- circumstances arise. Among havior on which the original petition these are: was brought. Case plans will not address the critical problems that parents • Unexplained case delays; have exhibited if the settlement does not • Disputes concerning discovery; reflect their acknowledgement of the • Service of process remains problems. incomplete after a reasonable time without a satisfactory B. Formal Mediation explanation by the petitioner; • Issues under dispute need; 1. General Information clarification to shorten trial time; The use of mediation in abuse and ne- and glect cases before the juvenile court • Evidentiary or other legal issues should not be confused with commu- must be resolved prior to trial. nity diversion programs that may involve mediation. The use of community Judicially-supervised settlement con- diversion programs in cases of mild ferences are advisable whenever parties abuse or neglect or parent-child con- request a hearing which will take a sub- flicts, may make it possible to protect 133 stantial period of time. Settlement con- children without the need for court in- ferences can be advisable before any volvement. Similarly, petitions may be type of contested hearing such as adju- dismissed or held in abeyance for short dication, disposition, review, or a per- periods in less serious cases to deter- manency planning hearing. Assuming mine whether parental cooperation the case cannot be settled, the purpose with a diversion program is a safe al- of these hearings is for the court to con- ternative to juvenile court involvement. trol to the extent that it can, the legal Community diversion programs can be proceedings that are about to take place. a useful means of avoiding needless To this end, the settlement conference court proceedings. should be able to identify issues to be Mediation in juvenile cases is a dis- tried, experts to be called, necessary tinct alternative characterized by discus- reports, and determine the availability sions and negotiations concerning mat- of each witness to be called. ters before the court. These discussions It is important that the court notify all are facilitated by one or more court-ap- parties that they should complete dis- pointed, neutral, third-party mediators covery without any hearings on the is- and involve all relevant case participants sues. Petitioners should give all infor- and attorneys. Juvenile courts recog- mation relating to a case to the parties nize that the adversarial process in child without the necessity of a court order. abuse and neglect cases can sometimes A standing court order on the discov- break down communications and cre- ery issue may be effective in this regard. ate hostility, divisiveness and rigid po- A successful settlement conference can sition-taking between participants, offer the court the opportunity to ensure most notably the parents and the child that the trial will be well-run, will last protective agency. Mediation in child an anticipated period of time, and will abuse and neglect cases, on the other involve no surprises. hand, is a process which brings all sig- All settlement conferences must be nificant case participants together in a Appendix B

non-adversarial setting. Communica- from factual information; tion is facilitated by neutral but highly- facilitating constructive communi- skilled and experienced mediators, who cation and reduction of acrimony; thoroughly, constructively and hu- creatively intervening to resolve manely attempt to resolve case issues. conflict and provide therapeutic interventions as required and The process should typically appropriate; include the following individuals • Providing various participants at various stages of the with information on the court mediation session: process, child development, family dynamics, and available services; • Mediator(s); preferably one • Reducing the family’s sense of male and one female alienation from the child protec- • Parents whose rights have not tive system and the courts. been terminated, including putative fathers By formalizing the settlement process, • Relatives with legal standing or mediation can often replace contested other custodial adults hearings by resolving cases in a more • Assigned caseworker constructive format than adversarial • Age-appropriate children proceedings. Mediation can replace • Agency attorney hallway negotiations between a few • Attorney for parents (separate parties, entailing partial and incomplete attorneys if conflict warrants) exchanges of information, with formal • Legal advocate for the child sessions involving all relevant parties and/or GAL/CASA and a full exchange of information. The • Service providers active involvement of mediators can • Adult or juvenile probation or protect against imbalances of power parole officer between participants resulting from various levels of skill, experience, pro- 134 Mediation programs assist fessional status or cultural differences. juvenile courts by: Mediation should always focus on preserving the safety and best interests • Facilitating the development of of the children while simultaneously at- early, appropriate and tempting to validate the concerns, comprehensive settlements points of view, feelings, and resources which serve to protect the of all participants, especially family safety and best interests of members. Mediators orient and edu- children; cate family members, clarify issues, fa- • Preserving the dignity and cilitate exchange of current case infor- involvement of family members mation, and creatively intervene to re- and encouraging sensitivity; solve roadblocks to settlement. Media- • Emphasizing family preservation also seeks to leave family members tion and strengthening when- with an experience of having been sig- ever possible, identifying and nificant, respected and understood par- utilizing resources within the ticipants in the court process, and with family first and within the an investment in accepting and comply- community if required; ing with the terms of the resolution and/ • Facilitating a full exchange of or decision of the court. Initial indica- the most current case informa- tions in jurisdictions where mediation tion, clarifying the roles and is used are that mediation is typically responsibilities of each of the viewed by family members as less participants, and encouraging adversarial and more friendly and em- the accountability of family powering than traditional court pro- members and professionals cesses. Existing mediation programs interacting with the family; believe that mediation may help reduce • Separating the personal issues the degree of animosity toward “the sys- and biases of the participants tem” and perhaps allow parents to fo- Appendix B cus more energy on child protection Courts interested in establishing a and other parenting issues.1 mediation program should administer Mediation provides an avenue for re- the program themselves or contract for visiting past conflicts and issues which court-supervised mediation services have created roadblocks to constructive from a private provider. Initial resis- communication and problem-solving. tance and outright opposition can be When such impasses are addressed and minimized if courts invite representa- resolved, or even when they are merely tives from all professions to be affected validated, resistance and defensiveness by mediation to participate in the plan- are often reduced to a degree which ning process. Such involvement of the permits settlement of some or all issues. mediation stakeholders can engender Participants also find that negative pre- strong interdisciplinary support for the conceptions are sometimes significantly program. reduced during mediation discussions, thereby permitting consideration of • Mediators must be highly options formerly ruled out or never con- trained, experienced and skilled sidered. As another benefit of media- professionals, have credibility tion, less resistance may ultimately be with the court and related encountered in holding family members professionals, and be perceived accountable for commitments they have by family members as being made in a mediation process in which neutral and having the best they have been active participants. The interests of the child and family mediation process itself can also serve at heart. as a model for future nonviolent and constructive problem solving and con- Mediators must not only be skilled at flict resolution. conflict resolution and facilitating nego- The use of mediation in abuse and ne- tiations, they must also have a thorough glect cases is an area of increasing in- understanding of the child welfare sys- terest and the subject of a number of tem and juvenile and family court. To recent articles and reports.2 Many ju- help ensure that the agreements formu- 135 venile and family courts are struggling lated are appropriate and in the best to find better ways of handling escalat- interests of children, mediators also ing caseloads. Courts may want to con- should have a thorough understanding sider mediation as a means for reach- of the dynamics of child abuse and ne- ing more productive and constructive glect as they affect individuals and fam- solutions than can be achieved through ily systems, including such issues as formal adversarial proceedings in cer- child development, substance abuse, tain types of cases. Although no single domestic violence, and psychopathol- mediation model exists, research docu- ogy. Whether the mediator’s formal menting several court mediation pro- profession is that of a therapist, attor- grams provides important information ney, social worker or probation officer, on this form of alternative dispute reso- he or she should have significant expe- lution.3 rience in child abuse and neglect cases It must be noted, however, that me- as well as skills in the area of mediation. diation can never substitute for the ap- Mediators should not be current em- propriate training, compensation, ployees of the child protection agency, caseload levels, and the active involve- because such employment would inter- ment of professionals participating in fere with the perception of mediator child abuse and neglect cases. neutrality by family members. Because of the large number of indi- 2. Guidelines for Implementing viduals participating and the gender is- Mediation Programs sues inherent in many child abuse and neglect cases, there are significant ad- • Mediation programs should vantages to male-female co-mediation be court-based or court-supevised teams in which at least one of the me- and have strong judicial and diators is a skilled therapist. This alter- interdisciplinary support. native will not always be available or feasible in some jurisdictions, but courts Appendix B

using such co-mediation teams have Jurisdictional Issues: found they intervene more creatively One widely held point of view is that and productively and facilitate the evo- jurisdictional issues are not appropriate lution of more comprehensive and ap- for mediation for two major reasons. propriate agreements. Mediators who The first is that determining factual al- speak the same language as family legations requires legal knowledge be- members should be used whenever yond the scope of most mediators. The possible. When such resources are un- second is that jurisdictional issues available, interpreters may be used, al- should be determined on the basis of though this is a less preferred and less fact, not negotiation. This point of view effective alternative. Social workers, also recognizes that in all pre-trial sys- therapists, probation officers, and attor- tems, negotiations affect the wording of neys have served as mediators in vari- the petition and the counts to be in- ous courts depending upon the orien- cluded. These concerns are based on tation of a particular mediation pro- the belief that mediators may view gram. Regardless of the model used, agreement as a key indicator of success courts should select credible, knowl- and may encourage pleas or admissions edgeable, experienced, and skilled me- to lesser allegations or charges which diators and provide opportunities for do not reflect the true conditions which on-going training. need to be corrected. Parents might be encouraged to continue to deny the de- • Mediation can be helpful gree of abuse or neglect which actually in resolving dispositional, occurred. This would make it impos- post-dispositional, and some sible to hold parents accountable for jurisdictional issues. complying with a case plan based on allegations made in the initial petition Dispositional Issues: but later dropped in subsequent nego- Child protection mediation programs tiations and never sustained. These con- typically use mediation to resolve a cerns arise from the belief and fear that 136 broad range of dispositional and post- mediators will “deal out” the safety of dispositional issues including, but not children in order to get an agreement. limited to: This concern is less justified in mediation programs where there is a clear • Identifying the family preservation court policy that mediated agreements services required to protect the are to reflect a full and accurate state- child’s safety in the home; ment of jurisdictional facts. The expe- • Other services to be provided by rience of most professionals who par- the agency; ticipate in mediation in such courts sup- • Willingness of the parents to ports the appropriateness of mediating accept services; some jurisdictional issues as long as the • Arrangements for placement or legal representatives for the child, par- supervision of the child; ents, and caseworker are full partici- • Frequency and conditions of pants in the process. The concerns pre- visitation; viously described are substantially alle- • Modification of placement, viated when it is clear that the court ex- visitation, services or court- pects factual, jurisdictional findings; ordered conditions; when legal advocates for all parties ac- • The potential for family tively participate; and when legal advo- reunification; cates ensure that the interests of their • Disputes among professionals clients are not sacrificed to simply ob- about case issues; tain an agreement. • Familial conflicts which are Experience teaches that fact finding interfering with the case plan or can be enhanced when mediators facili- are jeopardizing the safety or best tate a free exchange and examination of interests of the children; jurisdictionally-related information by • The potential for termination of all participants in this less adversarial parental rights. environment. When mediation focuses on the underlying and real concerns of Appendix B the parties and professionals, and when results of mediation, as have been the the court expects factual jurisdictional other participants once mediation was findings, jurisdictional issues can be ordered. resolved without sacrificing the integrity of the child’s safety, the dignity of • Mediation should be confidential. the parents, or the social worker’s concerns and goals for the family. Information shared by participants during mediation should be confiden- • Mediation is appropriate in tial and not subject to discovery, with only a selected number of cases, the exception of any new allegations of but when ordered by the court, abuse or neglect which arise and are participation in mediation subject to mandatory child abuse and programs should be mandatory. neglect reporting laws, or any threats of harm to any individual which must While it is often possible to reach be reported in order to protect the safety agreements through the use of informal of those threatened. Even when there conferences or settlement conferences, is only partial agreement on the issues sometimes, especially in complicated or and a judge must decide the remaining highly conflicted cases, the involvement issues, the substance of the mediation of a trained mediator is needed to as- should not be open for discussion. sist the parties in reaching an appropri- When mediation is unsuccessful, the ate settlement. In some instances, one mediators should not testify against any or more of the parties may request me- party in court and the results should not diation services and the parties can be used in court, including whether in make their own well-considered deter- the mediator’s opinion one party coop- mination regarding whether mediation erated or failed to cooperate. Such a would be helpful. In other cases, when confidentiality requirement is necessary one or more of the participants appears to encourage frank and open discussion recalcitrant or has failed to properly of all relevant issues. consider the issues in dispute, court 137 encouragement and direction may be • Mediated agreements should needed. Judges should be empowered become part of the court record. to require parties to be involved in mediation whenever it appears that media- The court or mediation program must tion might serve a beneficial purpose designate the participant responsible such as the avoidance of contested pro- for recording the terms of any agree- ceedings, reduction of case-interfering ment reached. In some counties it is the conflict, and/or development of more mediator, and in others it is the attor- appropriate and more comprehensive ney representing the child protection settlements. agency. It is preferable that any partial The process of mediation is not in- or complete agreement be signed by all tended to impinge upon any criminal parties and immediately reported to the proceeding. Certain cases are not ap- judge on the record. The judge should propriate for referral to mediation, such carefully review the terms of any sub- as those involving parties not able to mitted agreement and make sure all adequately or fully participate, i.e., par- parties understand and consent to its ties severely mentally ill, developmen- related terms. This ensures the judge tally delayed or mentally retarded, or in is current on case developments, the cases involving serious criminal allega- nature of the agreement is appropriate tions. The court should also have the in the view of the court, and reminds discretion to decline to refer a case to the parties that the judge remains the mediation if the judge believes media- ultimate decision-maker in the case. In tion in that particular case would not the event the judge approves the agree- serve the best interests of the child. ment, it should immediately be entered It should be noted that judges and into the record as a court order consis- commissioners initially reluctant to re- tent with court rules. The court should fer cases to mediation have been con- then designate an appropriate indi- sistently surprised and pleased at the vidual to prepare the relevant written Appendix B

findings of fact and conclusions of law Guidelines for implementing for signature and filing. mediation programs:

• Mediated agreements should be • Mediation programs should be specific and detailed. courtbased or court-supervised and have strong judicial and inter- If mediation is to be confidential, it is disciplinary support. important that mediation agreements • Mediators must be highly trained, be specific and detailed. Because there experienced and skilled profession- is no court record of the substance of als, have credibility with the court mediation discussions, mediated agree- and related professionals, and be ments should set forth the specifics of perceived by family members as what is expected of the parties and the being neutral and having the best factual basis for the agreement. If find- interests of the child and family at ings of fact and conclusions of law are heart. required in the cases settled through • Mediation can be helpful in mediation, their terms should be set resolving dispositional, post-dispo- forth in the agreement. sitional, and some jurisdictional issues. • The availability and utilization of • Mediation is appropriate in only a community resources is essential. selected number of cases, but when ordered by the court, participation Courts must recognize that mediated in mediation programs should be outcomes will be only as effective as the mandatory. community resources available to pro- • Mediation should be confidential. vide needed services to children and • Mediated agreements should families. Judges must work to secure become part of the court record. the professional support and resources • The availability and utilization of necessary to make a mediation program community resources is essential. 138 successful. D. Endnotes C. Mediation Checklist 1. See Santa Clara County, Calif., Family Court Ser- vices memorandum of 12/31/93, regarding 1993 An- nual Report of the Santa Clara County Dependency Persons who should be present Mediation Program, and memorandum of 8/19/94, re- at various stages of the mediation garding preliminary results of Santa Clara County Dependency Court Mediation Parent Survey (Family session: Court Services, Santa Clara County Superior Court, 191 N. First St., San Jose, Calif. 95113).

• Mediator(s); preferably one 2. Publications by Center for Policy Research in Den- male and one female ver, Colorado. See N. Thoeness, “Mediation and the Dependency Court: The Controversy and Three • Parents whose rights have not Courts’ Experiences,” 29 Family and Conciliation been terminated, including Courts Review 246 (1991); Center for Policy Research, “Alternatives to Adjudication in Child Abuse and Ne- putative fathers glect Cases, Final Report of State Justice Institute • Relatives with legal standing or Project SJI-89-03C-022” (1992); N. Thoeness, Center for Policy Research, “A Step in the Right Direction: Child other custodial adults Protection Mediation in the Juvenile Court,” (1993). • Assigned caseworker The use of mediation was approved in minor abuse and neglect cases in the report of a special project of • Age-appropriate children the National Council of Juvenile and Family Court • Agency attorney Judges, “Court-Approved Alternative Dispute Reso- lution: A Better Way to Resolve Minor Delinquency, • Attorney for parents (separate Status Offense and Abuse/Neglect Cases,” (Reno, Nev. attorneys if conflict warrants) National Council of Juvenile and Family Court Judges, • Legal advocate for the child 1989). and/or GAL/CASA 3. See “Alternatives to Adjudication in Child Abuse and Neglect Cases,” Center for Policy Research (1992), • Service providers which documents mediation programs in the juvenile • Adult or juvenile probation or courts of Los Angeles and Orange Counties, Calif., and by the Family Division of the Connecticut Superior parole officer Courts; and field notes of mediation programs in the juvenile courts in Los Angeles and Santa Clara Coun- ties, (Pittsburgh: National Center for Juvenile Justice, 1993). APPENDIX C

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 19802 (“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 propri- 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- utes4 have 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 placement.5 tody. The premises of this paper are that In these court proceedings, the stakes 139 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.6 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.7 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.8 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 agency.9 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 it3 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 Appendix C

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 preserving 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.10 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.11 ten were unnecessarily removed from Second, some social service agencies their parents,17 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,18 and that children judges misunderstand or remain un- not able to return to their parents often aware of their duty to monitor social drifted19 in foster care without a perma- service delivery. Fourth, in many courts nent home.20 Congress 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 140 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.13 Sixth, sure that they will grow into emotion- some judges understand their respon- ally stable, productive adults.22 sibility and are willing to exercise their power, but they record their findings Congress’s response, the Adop- incorrectly. Seventh, in many jurisdiction Assistance and Child Welfare tions court structure impedes imple- Act of 1980, was based upon three mentation of the Act.14 Often a state’s important principles: constitution or state laws create barriers to implementation.15 (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 of juvenile 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 jurisdictions should take to improve compliance with the Act and thereby better serve Appendix C

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 guardianship.30 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 141 each removal case, indicating 72 hours. Thereafter, the status whether the state, in fact, proof 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.29 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 give the Appendix C

courts substantial oversight responsibil- determines that the services offered ity. 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 viding 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. Mor eover, quirement of the federal Act.39 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 action.35 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.”40 The term must be interpreted returned. If, however, the court records by each judicial officer in each case. do not reflect compliance with the 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 provided.36 to provide a home for a teenage mother and her baby, while such a resource may 142 II. 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.37 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.41 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 families.38 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.”42 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 Appendix C are working together more closely as a The District’s dereliction of its responsi- result of the Act.43 bilities to the children in its custody is a However, this same commentator travesty. Although these childr en have concludes that “fully effective imple- committed no wrong, they in effect have mentation has not occurred in many been punished as though they had. parts of the United States.”44 In some 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- terests.52 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 law.”53 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 I 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 120 plus children I will 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 have caseloads, court calendars are crowded, been a lawyer with Child Advocacy for cases are given only a few moments over ten years, have seen caseloads triple each in court, and the entire process is and funding decrease, so that my four slow and cumbersome, with perma- full-time colleagues and myself have re- 143 nency planning hearings46 occurring sponsibility for more than 1100 cases three, four, and five years after initial each.54 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- vices55 prevent unnecessary removal of vents the court from removing a child children. When formal proceedings are from a dangerous home.48 Several 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 child.49 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 provided 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.51 A federal judge hear- timely fashion. ing evidence about the child welfare Examples include Hamilton County, system in the District of Columbia, in- Ohio;56 Sonoma County, California; cluding insufficient numbers of social Jefferson County, Kentucky;57 Santa workers, poor services, and inadequate Clara County, California;58 and Kent automation, concluded: County, Michigan.59 In the face of ris- The court views the evidence in this ing caseloads and the mandates of the case as nothing less than outrageous. federal Act, these counties and others Appendix C

like them throughout the country give rent needed to secure new housing. a clear indication that compliance with The housing assistance is not to be con- the federal law is possible. tinued indefinitely.63 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 DCF’s powers, to Findings of reasonable efforts are protect families from hasty and routine reviewable by appellate courts. These terminations by ensuring that adequate appellate decisions demonstrate that in services have been provided prior to some states reasonable efforts issues are termination. Without the power to thoroughly litigated, but the fact that the remedy inadequacies, this check would issues do not appear in the appellate be illusory.64 decisions in other states may indicate that they are not addressed in the juve- In a Missouri case, the social service nile courts.60 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 unsupervised.65 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, 144 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.61 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.62 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 determination of whether or not the Division of Fam- The rental-subsidy payments are a ily Services made reasonable efforts to stopgap measure designed to enable avoid the need to remove each child a reunifying family with no savings from the home, what reasonable ef- and little or no income to raise the se- forts were, and a detail of the evidence curity deposit and the first few months’ to explain those efforts. 66 Appendix C

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.”67 Services (DSS) which provided for (1) In In re Burns,68 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 (7) moni- terminating mother’s parental rights. It toring of service providers.71 noted that the social service agency had In Martin A. v. Gross,72 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 proof 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- ily Court must ensure meaningful com- portation aid, clinic services, access to pliance with the Child Welfare Act of emergency shelter, cash and goods, all 1980 . . . and the appropriate Delaware of which the state guaranteed by stat- 145 law. . . In doing so, the Family Cour t 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 is state and federal law. This decision was sought primarily on the ground that a affirmed by the appellate court.73 parent has failed, or was unable, to LaShawn v. Dixon,74 brought on behalf plan adequately for a child’s needs, and of children in the District of Columbia if that rather vague criterion is to sur - against the District government, alleged vive constitutional scrutiny, the trial that children and families were not re- court is required to make appropriate ceiving social services guaranteed by findings of fact and conclusion of law 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. W ithout that, dependency system and found it to be no case of this sor t, and all its enor- a dismal failure. The judge’s findings mous consequences, will pass appel- indicated that the juvenile court was not late muster.69 making any meaningful inquiry into services provided by the District’s social In a number of other states, reason- service agency.75 able efforts findings have been re- In Illinois, the case of In re Ashley K viewed by appellate courts.70 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 system.76 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 Appendix C

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.77 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 hearings.83 had been removed.78 6. Whether permanent plans have The effectiveness of impact litigation been put in place in a timely has been seriously limited by the United fashion.84 States Supreme Court decision in Suter v. Artist M,79 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 $2,586,779.85 The 1984-1985 au- audits described infra.80 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 $1,573,013.86 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 146 ings regarding social service delivery. of $229,547.87 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 com- The OIG and the ACF conduct audits in pliance with federal regulations in 319 various states on a regular basis.81 Each out of 805 cases. The majority of errors audit reviews a representative number related to lack of judicial 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.”89 The state amount of federal monies provided to liability in the draft report exceeded the state. The results of the audit are $54,000,000.90 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.91 Other audits have the state to follow the federal law, the produced similar penalties for states federal government will request reim- throughout the country.92 bursement of the Title IV-E monies.82 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.93 An audit of the State of Illinois 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. Appendix C 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,94 but re- dance, moreover, does not guarantee versed in a later Departmental Appeals that those present will take advantage Board ruling.95 of the Act’s training. Often several workshop choices are offered simulta- III. 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.96 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.97 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 particular jurisdiction. 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 147 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 the judges, 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)99 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 conferences.98 Louisville, Kentucky, and by the North- Conference training has its draw- ern California Bay Area Reasonable Ef- Appendix C

forts Project.100 to offer technical assistance to the court Recent federal legislation offers both and staff concerning all aspects of the state social service agencies and court Act’s implementation. To overcome systems the opportunity to improve possible reluctance from judges to par- implementation of the Act.101 The Fam- ticipate, the Judicial Council will intro- ily Preservation and Support Services duce and promote this training. If nec- part of the Omnibus Budget Reconcili- essary, other judges will accompany the ation Act of 1993 provides that each trainers. A unique aspect 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 under fed- parental functioning and protect chil- eral regulations which permit state and dren.”102 One of the goals of this legis- local training for foster care and adop- lation is to enable states to assess and tion assistance under Title IV-E.106 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 money 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 U.S. Department of Health and Hu- 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.103 The grant program’s purpose cial Advocates (CASAs) 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 of ports. the grant program, the state will com- Correct implementation of the Act is plete an assessment describing its per- vitally important to all participants in formance and a plan for improve- dependency cases. If the court fails to 148 ment.104 By taking advantage of this make or incorrectly records the re- 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 them.105 and children and families may suffer California is currently experimenting unnecessarily lengthy or needless sepa- with a training model designed to ad- rations. One means to provide educa- dress deficiencies in 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- Department of Social Services, and the fornia Judicial Council. They will visit County Welfare Directors, this confer- every judicial officer in the state who ence brings 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 ing 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 law. The trainers will explain the ticipated in each conference, bringing federal Act, its philosophy and main both technical assistance and nationally provisions, the necessity for judicial known speakers to enrich the proceed- oversight of social service delivery, and ings. The result has been an improved the ways in which court orders must be child welfare system in which the par- recorded. There will be an opportunity Appendix C ticipants have a better working relation- IV. The Juvenile Court ship with one another,107 a more com- Judge’s Role plete appreciation of the federal law, and Effective implementation of the Act an understanding of each participant’s requires strong leadership from the ju- role.108 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 Act111 and a social service system modify their juvenile 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 statu- 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.109 to give dependency cases sufficient sta- Hopefully, adoption of some of these tus and resources.112 These cases should innovations will persuade judges and ad- be managed by judges, not lesser judi- ministrators to renew their determina- cial officers.113 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 years.114 been for some judges to “rubber stamp” Judicial rotation of judges hearing ju- reasonable efforts on all cases without venile dependency cases, or the move- any meaningful inquiry.110 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.115 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 149 if the social service agency has not deliv- one judge hears a case, each successive ered the required services. Other judges 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 result in poor judicial decisions con- By failing to take the Act seriously and cerning placement of children.116 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 create an even results in better calendar management, greater problem. Ashley 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 service system and court.117 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 to fulfill its responsibili- mandated by the Act, the juvenile court ties.118 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 Appendix C

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.125 Such expo- well served by understaffed juvenile sure can have a deleterious effect upon courts.119 Moreover, 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.120 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.126 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.127 The California Legislature en- standards for attorneys and guardians acted legislation mandating the creation ad litem which require them to partici- of such protocols128 and prohibiting the pate in training on a continuing basis.122 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.129 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.130 Jurisdictions with poli- 150 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,131 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.123 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- necessary for a particular case to remain panied by training and review.124 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 Appendix C 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 years.133 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 placement.134 Many believe teens, neglected children, delivery of social minority, and other special needs chil- services, and timeliness of hearings. dren are unadoptable.135 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 makers refuse to proceed with termination 1. What services are available in the of parental rights unless there is a fam- community? 151 ily identified for the adoption.136 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. How 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.137 Second, many families will not moved them? consider a child who is still in the legal 5. Has 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 paren- 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 from 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 to 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 court has jurisdiction. The public agencies.138 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 Appendix C

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.141 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.139 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 hostile.142 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 de- unreasonable, unfounded and imprac- ciding 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- adoption proceedings should proceed tection and family preservation. promptly. In other cases, per manency Juvenile court judges have also found plans must be developed, and the Court the relationship difficult and unsatisfac- should monitor D.C.F.S.’s progress with tory. Judges complain that juvenile de- the family over a period of time. 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 152 and the need for quick action . . . the learning. When social service agency “child’s sense of time” . . . is r espected.140 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.143 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.144 When there are allegations of equate services include the loss of fed- “child snatching”145 or unwisely return- eral dollars. ing children to abusive parents,146 it 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. Appendix C

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 helpful.147 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.151 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 153 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 nalized.149 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 philosophy case is serious and they move it along in the Social Services Department and expeditiously.153 the Court that children should be with Commissioner Buckley notes that the their biological parents if at all possible, most difficult aspect of this philosophy and the Court should intervene only is helping the public understand that when necessary. We are able to provide removing children is not necessarily the counseling, parenting, respite, teaching best way to deal with issues of parental homemakers, transportation, etc. to abuse and neglect.154 Many people be- families in the Family Maintenance Pro- lieve that abusive parents should be gram. We continue to develop ser vices punished and not given an opportunity in the community to meet the needs of to change their behavior and reunite the families, from drug treatment to an with their children. Based on her expe- innovative program for abusive fami- rience, Commissioner Buckley has lies.150 found that with the use of timely social services most children can be safely returned to their parents.155 Appendix C

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.156 Its success can commitment to completing the legal be attributed to a combination of process within the statutory time prompt, intensive social services and a frame.162 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, By the time a petition is filed, the about half were reunited with their family has been given a wide array of families.157 social services. Those are well docu- The Kent County Juvenile Court has mented. 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 the ful in reuniting with their children, there petitions which are filed result in a ter- is a high likelihood that their parental mination of parental rights and an rights will be terminated and their chil- adoption. All parties agree that social 154 dren will be adopted. The juvenile court services has offered 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 advantage of with 83 in 1993. Of the children freed them.163 for adoption, 85% have a successful adoption within six months. There were Other modifications to the juvenile de- 130 adoptions in 1991 and 173 in 1992.158 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 services 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.159 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.160 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 legislature161 and partly because of improved security, and much more.164 the excellent juvenile court process de- Appendix C

Third, judges should consider adopt- Trainings and seminars offer two pos- ing a calendaring system which in- sibilities. A conference is a third.169 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.165 Court 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.166 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 being the clients for whom they were cre- lieves should be done in each case. The 155 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.167 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.168 give the agency the opportunity to com- Finally, judges and agency adminis- ply with the court’s suggestions. trators should agree to cosponsor 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 Appendix C

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 indicates that 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.,172 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.173 have changed social service practice If the court concludes that a particu- and benefited children and families.170 lar service is reasonable, and the social Another way in which the “no reason- service agency maintains that 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 156 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.174 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.175 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.176 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.171 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.177 The juvenile Appendix C 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.178 As 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 [I]n 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. 179 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 157 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 Appendix C

Author’s Address: 12 Richard P. Kusserow, Barriers to Freeing Chil- Honorable Leonard P. Edwards dren 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, California. The author wishes to islative History (U.S. Congress, Washington D.C.) express thanks to Robert Praksti, Judge William 1980, at 1465. The committee is aware of allega- Jones, Helen Donnelly, Jennifer Williams, and tions that the judicial determination requirement Patricia White for assisting in the preparation of can become a mere pro forma exercise in paper this article. shuffling to obtain federal funding. While this 2 42 U.S.C., § 670 et seq. (1989). could occur in some instances, the committee is 3 As of 1990, only 24 states had enacted imple- unwilling to accept as a general proposition that menting legislation. See Alice Shotton, “Making the judiciaries of the states would so lightly treat Reasonable Efforts in Child Abuse and Neglect a responsibility placed upon them by federal stat- Cases: Ten Years Later,” Cal.West.L.Rev. 223 ute for the protection of children. Id. (1989-1990). Several other states have enacted 14 To ensure implementation of the “reasonable such legislation since then. See, e.g., An Act Rela- efforts” requirement, a state should review its tive to Proceedings Involving Children in Need of statutes to determine whether legislative change Care and Protection, Mass.Rev.Stat. Ch. 303 of the or change in court rules may be helpful or neces- Acts of 1993, (Supp. 1994). sary in assuring the court’s cooperation in rela- 4 See, supra end. 3. tion to the judicial determination requirements 5 42 U.S.C. § 670 (a) (15) (1989). in section 472(a) (1). Policy Announcement (U.S. 6 From 1985 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 1989-1990. 1990 Survey (National Human Development Services) 1984, at 4, 5. Committee on the Prevention of Child Abuse, 15 Two commentators summarize the barriers Chicago) 1990. Another indication is drug use facing judicial oversight: by pregnant women. Deanna S. Gomby and [T]he authority of judges in these matters is often Patricia H. Shiono, “Estimating the Number of limited; they do not have the power to or der the Substance Exposed Infants,” The Future of Chil- agency to provide services to an individual. In dren, 1.1, Spring 1991, at 17-25. Estimates are that some states, the courts will make a positive “rea- from 375,000 to 739,200 babies are born sub- sonable efforts” determination regardless of stance-exposed each year as a result of maternal agency efforts in order to ensure federal funding. 158 drug use. Judges are not trained in matters over which the 7 Hardin reports a 312% increase in child abuse juvenile court has jurisdiction and, because of ro- and neglect case filings in New York between 1984 tation schedules, remain in the assignment for a and 1989, a 292% increase in Michigan between short period of time. Consequently, they do not 1984 and 1988, and a 90% increase in Rhode Is- acquire the experience needed to handle these land between 1982 and 1989. Mark Hardin, Ten sensitive cases. While judges in some localities Years Later: Implementation of Public Law 96-272 make a good faith effort to determine whether by the Courts, (American Bar Association Center adequate services have been offered to the fam- on Children and the Law) 1990. ily, in many localities a positive finding is mer ely a 8 J. Tatara, “Child Substitute Flow Data for FY matter of checking a box on a preprinted form. 1990 and Child Substitute Care Population Care Susan Goodman and Joan Hurley, Reasonable Ef- Trends Since FY 1986 (Revised Estimates),” VCIS forts: Who Decides What’ s Reasonable? (U.S. De- Research Notes (May 3, 1991). partment of Health and Human Services, Wash- 9 42 U.S.C. § 670 (a) (15) (1989). ington, D.C.) 1993, at 8. 10 Michele Ingrassia and John McCormick, “Why 16 42 U.S.C. § 670 et seq. (1989). Leave Children with Bad Parents?” Newsweek, 17 Most mental health authorities agree that chil- April 25, 1994, at 52-56. Heather McDonald, “The dren need stable and continuous care to achieve Ideology of ‘Family Preservation,’” The Public In- normal emotional growth. Disruption in their terest, No. 115, Spring 1994, at 45-60. placements or relationships can harm children 11 Mary Pride, The Child Abuse Industry, and make it more difficult for them to form close (Crossway Books 1986); Richard Wexler, emotional relationships in life. See generally, Wounded Innocents: The Real V ictims 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, “The Techniques of Psychological As- identified in congressional hearings leading up sessment as Applied to Children in Foster Care to the passage of P.L. 96-272 as caught in “foster and Their Families,” Foster Children in the Courts, care drift.” See, Garrison, infra end. 19. That at 550-574 (Mark Hardin, ed. 1983). these children are not adopted and often do re- 18 A major reason for the enactment of legisla- turn home is verified 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 care are 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 McCormick, supra end. 10, at 56. stronger incentives for the use of foster care than The delays in reaching a permanent home once for attempts to provide permanent placements. in foster care are well-documented by Richard P. Adoption Assistance and Child Welfare Act of Kusserow. See, Kusserow, infra end. 12. 1980, Pub. L. No. 96-272, Legislative History (U.S. Appendix C

Congress, Washington, D.C.) 1980, at 1464. gust 3, 1979) (statement of Senator Cranston dur- 19 “Foster care drift” describes the situation of ing Congressional hearings). Note that the dis- children lost in the child welfare system who positional hearing referred to by Senator move from placement to placement without ever Cranston is a hearing which takes place no later achieving permanency. See, Marsha Garrison, than 18 months after the child has been removed “Why Terminate Parental Rights?,” 35 Stan.L.Rev. from the family. It is more commonly referred to 423 (1983). as a permanency planning hearing. The term 20 See, Marylee Allen, et al., “A Guide to the “disposition” usually refers to the hearing which Adoption Assistance and Child Welfare Act of takes place immediately after the court has taken 1980,” Foster Children in the Courts, at 576-577 jurisdiction over the child. See also, H.R. Rep. (Mark Hardin, ed. 1980). No. 136, 96th Cong., 1st Sess. 50 (1979) (remarks 21 See, M. Allen and J. Knitzer, Children Without of Rep. Ullman). Homes (1978); V. Pike, et al., Permanent Planning 32 Id. for Children in Foster Care: A Handbook for So- 33 Social Security Act §§ 472(a) (1) (e) - (g); 42 cial Workers (1977). U.S.C.A. § 672 (a) (1), (e), (f), (g) (West Supp. 1994). 22 See, Goldstein, Solnit and Freud, supra end. 34 In most jurisdictions these safeguards include 17; Michael Wald, “State Intervention on Behalf the right to notice of the proceedings, the right of ‘Neglected’ Children: A Search for Realistic to be represented by counsel, the right to a hear- Standards, 27 Stan.L.Rev. 985 (1983). ing on the issues before the court, and the right 23 Vermont Department of Social and Rehabilita- to appeal the decisions of the court. Social Secu- tive Services v. U.S. Department of Health and Hu- rity Act §§ 427 (a) (2) (B), 471 (a) (15), 471(a) (16), man Services, 798 F.2d 57, United States Depart- 472 (a) (1), 472 (e), and 475 (5). See also, 42 U.S.C. ment 59 (2d Cir. 1986), cert. denied, 479 U.S. 1064 § 675 (5) (C) (1989). (Jan. 27, 1987); Rehearing denied, March 2, 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 their families, by the right to notice, to receive information on making state eligibility for Title IV-B and Title IV- which the agency is basing its proposed plan, and E funds contingent upon the implementation of to have representation. Allen, et al., supra end. certain services and protections for children and 20, at 597. their families. Supra end. at 20 (a) (1989). 35 Child Welfare Act of 1980, P.L. 96-272, Legis- 24 42 U.S.C. § 670 (a) (1989). lative History (U.S. Congress, Washington D.C.) 25 42 U.S.C. §§ 670 and 675 (5) (1989). In order to 1980, at 1465. protect children from being unnecessarily re- A review by a body external to the agency in- moved from their homes and placed in foster creases the likelihood of 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 available to the well-being. Allen, et al., supra end. 20, at 583. 159 child and the family. These services may include, 36 The Secretary shall approve any plan which for example, homemaker services, day care, 24- complies with the 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 (1979). complies with the provisions of subsection (a) of 26 42 U.S.C. § 672 (a) (1) (1989). this section, or that in the administration of the 27 42 U.S.C. § 671 (a) (15) (1989). plan there is a substantial failure to comply with 28 Id. the provisions of the plan, the Secretary shall 29 42 U.S.C. § 675 (5) (A) (1989). notify the state that further payments will not be 30 42 U.S.C. § 675 (5) (B) (1989). See also, State of made to the state under this part, or that such Vermont Department of Social and Rehabilitation payments will be made to the state but reduced Services v. U.S. Department of Health and Human by an amount which the Secretary determines Services, supra end. 23. appropriate, until the Secretary is satisfied that 31 42 U.S.C. § 675 (5) (C) (1989). [T]he provision 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 believe, 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 notification system is that, once a child enters the system and to the state. 42 U.S.C. § 671(b) (1989). remains in it for even a few months, the child is 37 See, Hardin, supra end. 7. likely become “lost” in the system. Yearly judi- 38 42 U.S.C. §§ 670 and 671 (1989). cial reviews of the child’s placement 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 obtained from Robert Praksti, Di- future placement should be. Foster care, with few rector, Permanency Planning Project, National exceptions, should be a temporary placement; Council of Juvenile and Family Court Judges, P.O. unfortunately, under our existing system, tempo- Box 8970, Reno, Nevada 89507. 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 Minnesota Juvenile Code pro- ing a dispositional hearing after a child has been vides: in foster care for a specific period of time should “Reasonable efforts” means the exercise of due assist states in making the difficult, but critical, diligence by the responsible social service agency decisions regarding a foster child’s long-term to use appropriate and available services to meet placement. 123 Cong.Rec. S22684 (daily ed. Au- the needs of the child fr om the child’s family; or Appendix C

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 in Case for Family Preservation, at 8-9 (Edna the community. The social ser vice agency has the McConnell Clark Foundation 1985): burden of demonstrating that it has made r eason- able efforts. Minn. Stat. § 260.012(b) (W est Supp. - They accept only families on the verge of hav- 1992). See also, N.Y. Soc. Ser. § 384-b (8) (f) 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. § 211.183 [West 1984 and Supp. 1994] 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. § 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, 160 “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 (1991); 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.) Jan. 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 1989). 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 (Ill.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 . . . [O]verworked 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 II: Juvenile Justice manency Planning Reform: One Court that (Springfield, Ill.) 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- Appendix C 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 (U.S. 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 Shotton, supra end. 3. Volume 8 National Lawyers Guild, Saltzman and 61 In Interest 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.I. 1990). 81 The 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.Ill., 1990), 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- Title IV-E Foster Care Eligibility in California for ability of federal housing assistance, refer to the the Period October 1, 1988, through September Family Unification Act, 42 U.S.C.A. § 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. § 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 Title 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 (U.S. Department of Health and Human Ser- 161 (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 W., 222 Cal.App.3d 234, 271 of Health and Human Services, Office of Inspec- 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 (1992); 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. 1987), 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 Appendix C

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, §§ 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: Robert state paid this amount to the Federal government. Praksti. Draft Audit, supra end. 81, at 16. 106 CFR Chapter XIII, §§ 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. § 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- 162 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 § 300 et seq. (West Court Judges and the Edna McConnell Clark Supp. 1994); Minn. Stat. §§ 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, § 211.183 (Vernon Supp. 1994); Ohio Rev. Code benchguides, protocols, and articles. Three book- Ann. § 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, supra in the case. Shotton, supra end. 3. In some other end. 55; Protocol for Making Reasonable Efforts jurisdictions the court order forms simply include to Preserve Families in Drug-Related Dependency a preprinted statement that reasonable efforts Cases, (National Council of Juvenile and Family were made, thus making the finding possible Court Judges, Reno) 1992. See, Katharine En- without the judge’s even checking a box. Id., at glish, 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, 2722 Eastlake 111 As of 1990, only about 24 states had passed Avenue East, Suite 220, Seattle, Washington legislation addressing the juvenile court’s reason- 98102. 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- Appendix C 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 § 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 County, 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 protect judges 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, supra 118 Edwards, supra end. 112, at 35. Family court 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. child 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 Called Worst in California, S.F. Chron., problems. March 3, 1994, at 1. No juvenile court has had . . . [M]any (including judges, attorneys and the more publicity, most of it negative, than the Cook public) conclude that the work of the juvenile 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 officers 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- 163 to accomplish the task. The power of the juvenile Times, 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 (2) 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 same judicial 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 Proceed- 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 Ingrassia (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. Appendix C

(4) In conjunction with other 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 1994). 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 a ju- 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 interventions 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 164 Statewide Report on Children’s Services Caseload, outline how such dismissals can take place. See, November, 1992 California Dept. of Social Serv., Cal. Welf. & Inst. Code §§ 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 Illinois where the in Child Abuse Cases,” 27 Santa Clara L. Rev. 2 numbers of abuse and neglect petitions per 1,000 (Spring 1987), 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 Illinois Courts, Illinois) 1, Spring 1993, at 63-64. 1992, cited in Final Report of the Illinois Supreme 136 This conclusion is based upon the author’s Court Special Commission on the Administration conversations with juvenile court judges of Justice, 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) 1993, 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. Bulletin #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 the court. They have trouble accepting that the Social Welfare System and Juvenile Cour t, forth- court can’t act on “I want” or “I feel.” Workers coming in Child Abuse and Neglect. A copy is sometimes wind up resentful of the court because 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 [Caseworkers] have a history of poor relation- Efforts to Preserve Families in Drug-Related De- ships with the court. When it goes to court ev- Appendix C 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 rein 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) (2)]. 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) (2)]. These changes were based upon John Eekelaar, and Topsy Murray, The Protection experience in Michigan that frequent reviews 165 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. 148 The 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 §§ 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- (1992), 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 Appendix C

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 want, and county, you provide it.” system from the perspective of the clients, includ- This then gives the county the leverage to go to ing children, parents, and foster parents. This the Board of Supervisors and say, “This is man- evaluation will be of great assistance in develop- dated; it’s on the books, you 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 Pr om- county and is posted in many courtrooms (a copy ise of Family Preservation, (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 court judge combines 170 Judge William Jones of Mecklenberg County, judicial, administrative, collaborative, and advo- North Carolina (Charlotte) offers another judicial 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 between the failure to provide reasonable efforts 166 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 proceedings were initiated. It was clear to the DFCS worker and Judge Nichols that outpatient treatment 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 placement. 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 been 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,” Southern 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- Appendix C

Superior Court State of California

Santa Clara County Superior Court Building 191 North First Street San Jose, California 95113 (406) 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 167 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 children 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. Appendix C

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 168 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 The National Council of Juvenile and Family Court Judges has been in the forefront of addressing juvenile justice and family law issues since 1937. The NCJFCJ brings together the nation’s jurists to provide direction on the course of juvenile and family law. Through its National College of Juvenile and Family Law, the NCJFCJ serves as the country’s leader in policy development and continuing education opportunities for judges involved with children, youth and families.

NCJFCJ 1994 - 95 OFFICERS

Judge Carmen A. Ferrante Judge Stephen B. Herrell President Second Vice President Superior Court of New Jersey Multnomah County Circuit Court Paterson, New Jersey Portland, Oregon Judge James M. Farris Judge J. Dean Lewis Immediate Past President Third Vice President, Treasurer 317th District Court 15th District Juvenile Beaumont, Texas & Domestic Relations Court Judge David E. Grossmann Fredericksburg, Virginia President Elect Judge Gerald E. Rouse Hamilton County Juvenile Court Secretary 169 Cincinnati, Ohio 21st Judicial District Court Judge Thomas E. Hornsby Columbus, Nebraska First Vice President 15th Judicial Circuit Court Dixon, Illinois

NCJFCJ 1994 - 95 BOARD OF TRUSTEES

Judge Michael J. Anderegg Judge Ernestine S. Gray Marquette County Probate Orleans Parish Juvenile Court & Juvenile Court New Orleans, Louisiana Marquette, Michigan Judge Anthony J. Heckemeyer Judge Leonard P. Edwards 33rd Judicial Circuit Court Santa Clara County Superior Court Benton, Missouri San Jose, California Judge Martin A. Herman Judge Richard J. FitzGerald Gloucester County Superior Court Jefferson County District Court Woodbury, New Jersey Louisville, Kentucky Judge Thomas E. Heydinger Judge William E. Gladstone Huron County Court of Senior Judge Common Pleas Dade County Juvenile Court Norwalk, Ohio Miami, Florida Judge Robert R. Mallard Judge Martha K. Glaze Family Court of South Carolina Clayton County Juvenile Court Charleston, South Carolina Jonesboro, Georgia NCJFCJ 1994 - 95 BOARD OF TRUSTEES

Judge Sharon P. McCully Judge David E. Ramirez 3rd District Juvenile Court Denver District Court Salt Lake City, Utah Denver, Colorado Judge Charles M. McGee Judge Martin Schifff 2nd Judicial District Court St. Louis County Juvenile Court Reno, Nevada Clayton, Missouri Judge Michael W. McPhail Judge Raymond E. Shawcross Forrest County Juvenile Court Rhode Island Family Court Hattiesburg, Mississippi Providence, Rhode Island Judge David B. Mitchell Judge Robert J. Smith Circuit Court of Baltimore City Henrico Juvenile & Domestic Baltimore, Maryland Relations District Court Judge James W. Payne Richmond, Virginia Marion Superior Court, Judge Michael A. Town Juvenile Division Circuit Court of the First Circuit Indianapolis, Indiana Honolulu, Hawaii Judge Frances Pitts Judge Janice Brice Wellington Wayne County Probate Court Juvenile & Domestic Detroit, Michigan Relations Court Judge Gerald E. Radcliffe Manassas, Virginia Common Pleas Court, Judge Paul R. Wohlford Probate and Juvenile Divisions Juvenile Court Chillicothe, Ohio Bristol, Tennessee

170 REPRESENTATIVES TO THE BOARD

Keith Parkhouse Judge Ninian M. Edwards Juvenile Court Services President, NCJFCJ Fund, Inc. Jonesboro, Georgia Kirkwood, Missouri Thomas J. Madden Venable, Baetjer, Howard & Civiletti Washington, D.C.