REASONABLE EFFORTS AND COURT

IMPROVEMENT

All-Sites Meeting

National Quality Improvement Center-

Collaborative Community Court Teams

Newport Beach

JULY 11, 2019

1

REASONABLE EFFORTS

• Judge Leonard Edwards (ret.)

• Consultant, Mentor Judge

• Center for Families, Children & the Courts

• 455 Golden Gate Avenue, 6th floor

• San Francisco, CA 94102

• judgeleonardedwards@gmail.com

• Judgeleonardedwards.com

2

USING THE REASONABLE EFFORTS

TOOL TO ACHIEVE BETTER

OUTCOMES

3

Why do you work in the Child Welfare

System?

4

You want to improve outcomes for

children and their families.

5

REASONABLE EFFORTS

• Have you noticed that the federal Human

Services agency has started emphasizing

reasonable efforts?

That is about 40 years since the law was

passed.

• They want more specificity in the court

records about the reasonable efforts findings.

6

REASONABLE EFFORTS

• “For the child welfare system to become one

that respects the integrity of the parent-child

relationship and seeks to minimize trauma,

attorneys must use the tools the law provides

and judges must make meaningful judicial

determinations.”

7

REASONABLE EFFORTS

• “Advocating vigorously for reasonable efforts

to be made to prevent removal when that is the

situation.”

8

REASONABLE EFFORTS

• “When removal is necessary, advocating that

reasonable efforts be made to finalize

permanency plans and, when not made,

advocating for a no reasonable efforts

finding.”

• Jerry Milner, Associate Commissioner

Children’s Bureau and David Kelly Special

Assistant to Court Improvement, U.S. HHS.9

REASONABLE EFFORTS

• “When we fail to take reasonable efforts

seriously, we do real harm to children and

families.”

– Excerpted from “It’s Time to Follow the Law

and Take Reasonable Efforts Seriously” by

David Kelly, Special Assistant to the Associate

Commissioner of the Children’s Bureau

BUILDING BETTER COURT SYSTEMS

Are we removing too many children from their

families?

Is the work we do about rescuing children or

supporting families?

11

BUILDING BETTER COURT SYSTEMS

The word now from the Children’s Bureau and

Congress is preventing removal.

12

REASONABLE EFFORTS

• What tools does the court system have to

encourage and facilitate change in the child

welfare system?

• One of the most important is the Reasonable

Efforts finding.

13

II. REASONABLE EFFORTS: THE

LAW

The Adoption Assistance and Child Welfare Act

of 1980 (AACWA)

The Adoption and Safe Families Act (ASFA) of

1997

14

REASONABLE EFFORTS: THE

LAW

The State Plan

Federal Funding of Foster Care

Monitoring the State and Local Welfare Agency

15

REASONABLE EFFORTS: THE

LAW

Judges must make and record certain findings:

“Contrary to the Welfare of the Child”

“Reasonable Efforts to Prevent Removal”

“Reasonable Efforts to Facilitate Reunification”

“Reasonable Efforts to Finalize Alternate

Permanency Plans”

16

REASONABLE EFFORTS: THE

LAW

• What does reasonable efforts mean?

17

REASONABLE EFFORTS

• Reasonable Efforts is a Term of Art.

• There is no fast and firm definition.

• It is the amount of services or social worker effort that the law requires depending on the problem and the resources within the community.

18

REASONABLE EFFORTS

• Essentially the court is telling the agency (and

the world) whether the agency has done its job

and completed its responsibility towards the

clients it serves and its promise to the federal

government to use the federal money to serve

children and families.

19

REASONABLE EFFORTS

• What may be “reasonable” in one community

may not be in another.

For example, compare the services available in

Los Angeles County to those available in a rural

county.

20

REASONABLE EFFORTS

• The Juvenile Court must make reasonable efforts findings at 3 critical points in every foster care case.

• 1. Within 60 days after removal

• 2. At the disposition if the child is removed from the home.

• 3. After a permanent plan has been set.

21

REASONABLE EFFORTS

• There is another finding the court can make.

• “NO REASONABLE EFFORTS”

• This means that the agency has not done its

job, and has not provided the services and

supports that it should under the circumstances

of the particular case.

22

REASONABLE EFFORTS

• A Finding of “No Reasonable Efforts” has

substantial consequences for the agency and

for the state.

• It means that the agency will not receive

federal money for its work on that case.

• That is one reason the “reasonable efforts”

finding is such a powerful tool.

23

REASONABLE EFFORTS

• It does NOT mean that the child must be

returned to the parent.

24

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• I. SITUATIONS

• A 3 year-old child was removed from her

mother’ care on an emergency basis because

the mother was found passed out due to

alcohol use and the child was wandering alone

in the street.

25

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• At the shelter care hearing the attorney for the

mother asks you to order a social worker to be

on call for the child 12 hours a day. She says

that will permit the child safely to remain at

home with the mother. The social worker will

be able to ensure that the mother will not abuse

alcohol.

26

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• How Will You Rule?

27

REASONABLE EFFORTS:

EXAMPLES

• For Parents: these services are necessary to

prevent removal of the child.

• For Agency: these services cost too much. The

Agency has an obligation to the entire

community and not just to a few families. The

request, therefore, is unreasonable.

28

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• Is it the job of the agency to provide services

to prevent removal of a child?

• Yes! This is the first mandate of the federal

law: Provide Reasonable Effort to Prevent

Removal.

29

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• Removing a child from parental care is more

traumatic than arresting a defendant.

We must pay more attention to the initial

hearings in juvenile dependency cases.

30

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• But putting a social worker in the home is not

a viable solution.

What can the legal system do with parents with

substance use disorders who neglect their

children?

31

REASONABLE EFFORTS AND

COURT IMPROVEMENT

Courts are reactive.

We don’t do prevention.

Cases come to us after something has

happened to a child.

32

REASONABLE EFFORTS AND

COURT IMPROVEMENT

Perhaps we can prevent the next crisis.

That is one of the strengths of Family Drug

Treatment Courts.

33

REASONABLE EFFORTS AND

COURT IMPROVEMENT

How about a pre-filing referral to a family

drug treatment court?

How about placing the mother with the

child in treatment environment?

34

REASONABLE EFFORTS AND

COURT IMPROVEMENT

The Family First legislation will support

placement costs of a mother and child in an

approved residential family-based substance-

abuse treatment facility. The facility must be

licensed. The placement could last for up to 12

months. There is no income test for admission.

We need to take advantage of this opportunity.

35

REASONABLE EFFORTS AND

COURT IMPROVEMENT

The Family First legislation also has identified

three best practices for the treatment of parents

with substance abuse issues/disorders:

(1)Families Facing the Future

(2)Methadone Maintenance Therapy

(3)Motivational Interviewing

36

REASONABLE EFFORTS AND

COURT IMPROVEMENT

Whether these best practices will be approved

as treatments the federal government will

support economically depends on the decision of

the Clearinghouse.

They are now under review.

37

REASONABLE EFFORTS AND

COURT IMPROVEMENT

HYPOTHETICAL SITUATION

A 13 year-old child has threatened suicide

several times. The parents do not know what to

do. They called the social services agency for

help and the social worker removed the child on

an emergency basis

38

REASONABLE EFFORTS AND

COURT IMPROVEMENT

At the shelter care hearing the social

worker recommends placement in a psychiatric

hospital.

Do you have any other suggestions about

the best plan for this child?

39

REASONABLE EFFORTS AND

COURT IMPROVEMENT

The child could remain at home with

wraparound services.

What is wraparound?

40

REASONABLE EFFORTS AND

COURT IMPROVEMENT

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

180499

.

41

WRAPAROUND SERVICES

• Wraparound differs from many service delivery

strategies, in that it provides a comprehensive,

holistic, youth and family-driven way of responding

when children or youth experience serious mental

health or behavioral challenges. Wraparound puts the

child or youth and family at the center. With support

from a team of professionals and natural supports, the

family’s ideas and perspectives about what they need

and what will be helpful drive all of the work in

Wraparound.

42

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• At a shelter care hearing the social worker

recommends that the court remove the children

because the mother is homeless.

• Is this a reasonable efforts issue?

43

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• The social worker must provide temporary

shelter.

44

REASONABLE EFFORTS AND

COURT IMPROVEMENT

Same for Poverty – Poverty by itself is not a

sufficient basis for removal.

45

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• The states of Washington, Rhode Island,

Pennsylvania and New York have appellate

cases affirming this statement.

• California has a statute.

• See Reasonable Efforts: A Judicial

Perspective, at pp 38-40.

46

That’s this

book.

47

REASONABLE EFFORTS AND

COURT IMPROVEMENT

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

you to order the department to provide

transportation so that the mother can visit her

children.

• The agency replies that it does not have the

resources to do so.

• Is this a reasonable efforts issue?

48

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• After a removal, how important is visitation?

49

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• See Edwards, Reasonable Efforts: A Judicial

Perspective at pp, 41-47.

50

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• What is the typical visitation order from a

court between children and their parents once

the children have been removed by the court?

51

REASONABLE EFFORTS AND

COURT IMPROVEMENT

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

increase the amount of visitation and the

quality of visitation, check out my article:

• Judicial Oversight of Family Visitation in

Child Reunification Cases.

• Download at Judgeleonardedwards.com (or

email me)52

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• And if you want the most comprehensive

discussion regarding visitation (family time),

read Family Time Practice Guide: A Guide to

Providing Appropriate Family Time for

Children in Foster Care, May 2017, A Project

of the Georgia Supreme Court Committee for

Children and the J4C Court Improvement

Initiative.

53

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• Two recent appellate cases affirm the

importance of visitation:

• 1. In the Matter of R.J.F.,

• 2019 WL 2098687 (Supreme Court of

Montana)

• 2. Donald W. v. Dep't of Child Safety, 2019

Ariz. App. LEXIS 495, 2019 WL 2181154

54

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• At a permanency planning hearing the social

worker recommends that the youth remain in a

group home where she has been for 2 years.

• Is that a Reasonable Efforts Issue?

55

REASONABLE EFFORTS AND

COURT IMPROVEMENT

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

court must determine what efforts have been

made by the children’s services agency and/or

probation to place a child in a home-like

setting.

• This is the Preventing Sex Trafficking and

Strengthening Families Act of 2014

56

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• If the plan is APPLA, (Another Planned

Permanency Living Arrangement), the plan

shall contain:

• (1) Documentation of intensive, ongoing,

unsuccessful efforts for family placement;

• (2) Redetermination of appropriateness of

placement at each permanency hearing.

57

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• The court must make a determination

explaining why APPLA is the best permanency

plan AND provide compelling reasons why it

continues to not be in the best interests of the

child to (1) return home, (2) be placed for

adoption, (3) be placed with a legal guardian

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

58

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• BTW…How do you record whether

reasonable efforts have been provided?

(1) check a box

(2) write “reasonable efforts have been

offered”

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

finding.

59

REASONABLE EFFORTS AND

COURT IMPROVEMENT

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

point where they see their function in

determining whether congregate care is

appropriate for a child or not to be,

• ‘Where do I check the box?’”

• Jerry Milner, Children’s Bureau

60

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• The Family First Act (2018) continues the

efforts of the federal government to reduce the

number of children placed in congregate care.

61

REASONABLE EFFORTS:

EXAMPLES

A child is removed from a mother’s custody after

the social worker discovers that the mother has

been the victim of repeated domestic violence

and that the child has been exposed to that

violence.

• Is there a reasonable efforts issue in this case?

62

63

REASONABLE EFFORTS

• Check out

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

• AND

Nicholson v Scoppetta, 820 N.E.2d 840 (2004)

pp 51-56 Reasonable Efforts: A Judicial

Perspective

64

REASONABLE EFFORTS

Take-Aways:

1. This is an example of the first federal

mandate: Providing reasonable efforts to

prevent removal.

2. It is important to appoint attorneys early

enough so they can prepare for the shelter care

hearing.

3. The judge can issue a temporary restraining

order sua sponte.

65

REASONABLE EFFORTS

Take-Aways:

4. Circumstances can change quickly after a

removal. The court must be ready to respond

to changed circumstances.

5. If there are no attorneys or unprepared

attorneys, it is up to the judge to ask questions

of the social worker.

66

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• Removing a child from parental care is more

traumatic than arresting a defendant.

We must pay more attention to the initial

hearings in juvenile dependency cases.

67

REASONABLE EFFORTS

• There are almost no findings of “no reasonable

efforts to prevent removal” in the appellate

case law.

• When litigated, the issue always arises in a

termination of parental rights hearing.

68

REASONABLE EFFORTS

If there is an emergency removal of a child from

parental care, are reasonable efforts required?

69

REASONABLE EFFORTS

No – in an emergency, there is no time to provide

reasonable efforts.

Then, what happens to the social worker’s

obligation to prevent removal?

70

REASONABLE EFFORTS

It continues until the dispositional hearing or 60

days – whichever occurs first.

The emergency removal was only temporary

under the law. It was not a placement.

Reasonable Efforts is a continuing obligation

until the time the court orders a placement.

71

REASONABLE EFFORTS

I mentioned relative preference in the video.

Is relative placement preferable to foster care?

72

REASONABLE EFFORTS

YES!

73

REASONABLE EFFORTS

Studies show that children in relative care have a

more stable placement, are likely to remain in

their same school, and experience less trauma

that children placed in foster care or

congregate care.

Congregate care is the least beneficial

placement for the child.

74

REASONABLE EFFORTS

What percentage of children removed from home

are placed with relatives in the United States?

What percentage of children removed from home

are placed with relatives in California?

75

REASONABLE EFFORTS

UNITED STATES = 32%

CALIFORNIA = 32%

76

REASONABLE EFFORTS

How long does it take to place a child with a

relative?

Consider background checks, fitness of the

house, resources to support the relative.

If there is a criminal conviction of a household

member, how long does it take to secure a

waiver?

77

REASONABLE EFFORTS

An experiment in Los Angeles involves 10 of

their regions (out of 20)

Using upfront family finding, over the past

year they have placed 84% of children

removed from home into relative care.

In many cases on the same day.

78

REASONABLE EFFORTS

In Allegheny County (Pittsburgh), the

placement rate with relatives is about 65%.

See the articles I have made available to you

and those written on my webpage

Judgeleonardedwards.com

79

REASONABLE EFFORTS

Relative placement is also preferred by the law.

80

REASONABLE EFFORTS

• On relative preference, notice, and

engagement, see

• Fostering Connections to Success and

Increasing Adoptions Act of 2008 (PL 110-

351)

81

REASONABLE EFFORTS

• P.L. 110-351; Section 103:

• Within 30 days after the child is removed from

his or her parents’ custody, Fostering

Connections requires state agencies to exercise

due diligence to identify and provide notice to

all adult grandparents and other adult relatives

of a child (including any other adult relatives

suggested by the parents).

82

REASONABLE EFFORTS

• Working with your welfare director, I believe

you can increase that percentage significantly.

After all, there will never be enough foster

homes.

83

REASONABLE EFFORTS

• At the dispositional hearing, the social worker

writes in her report that she has not located the

father or any relatives.

• Is that an issue that the court should examine?

• Could that be a “reasonable efforts” issue?

84

REASONABLE EFFORTS

• How do you find fathers in your state?

• How do you find relatives?

• What questions do you ask social workers

when they can’t find either?

85

REASONABLE EFFORTS

• Do you use Kinship Navigator tools?

• Do you use Family Finding?

86

Reasonable Efforts

• The child has been removed because of

parental neglect. The caretaking parent is

Native American and has a serious substance

abuse problem. The social worker’s report

indicates that she offered services to the parent

in order to meet the ‘reasonable efforts’

requirement.

• What is the issue here?

87

Reasonable Efforts

• The court must determine whether these

services meet the “Active Efforts” requirement

of the Indian Child Welfare Act (ICWA).

56

Reasonable Efforts

• Discussion and analysis of Active Efforts

• See Chapter V – Reasonable Efforts: A

Judicial Perspective.

• Pages 25-28.

89

REASONABLE EFFORTS

• But the best definition of Active Efforts comes

from the recently published Bureau of Indian

Affairs Guidelines.

• Go to Bureau of Indian Affairs Regulations -

2016.

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

(2007)

90

91

REASONABLE EFFORTS

• Visitation is critical in social worker efforts to

help reunify a family after a removal.

• This is the second obligation in the federal

law:

• Reasonable efforts to reunify the family.

92

REASONABLE EFFORTS

• Do you think it reasonable for a social worker

to hand a parent a list of programs that the

parent must locate and complete?

• Is this complying with reasonable efforts?

93

REASONABLE EFFORTS

• A child is removed from her mother because

the mother is mentally ill. Is this a reasonable

efforts issue?

94

REASONABLE EFFORTS

• The child protection system must deal with

mentally disabled parents.

• These cases are separated, state by state, in

Reasonable Efforts: A Judicial Perspective.

95

REASONABLE EFFORTS

• Numerous cases around the country stand for

the proposition that the state has an obligation

to provide reasonable services to mentally or

intellectually challenged parents.

• Reasonable Efforts: A Judicial Perspective at

pages 56-60.

96

REASONABLE EFFORTS

• And there must be a nexus (a connection)

between the mental disability and child safety

and well-being.

• Reasonable Efforts: A Judicial Perspective at

pages 56-60.

97

REASONABLE EFFORTS

• And this is true for substance abuse also.

• See the section from my book entitled

“Substance Abuse”.

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

this proposition.

98

99

REASONABLE EFFORTS:

EXAMPLES

• A prospective adoptive mother comes before

the court at a review hearing and asks why the

adoption has not been completed?

• The agency says that it is too busy and that

home studies take a long time.

• Is this an issue deserving a “no reasonable

efforts” discussion and possible finding?

100

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• This video is an example of the third

reasonable efforts mandate: To ensure that a

child reaches a permanent home as soon as

possible.

What is a permanent home?

101

REASONABLE EFFORTS AND

COURT IMPROVEMENT

• Parents, relatives, adoption, guardianship.

• Not foster care or congregate care.

• Reasonable Efforts to finalize alternate

permanency plans. 42 U.S.C. § 671(a)(15)(C);

45 CFR §1356.21(b)(2)

102

REASONABLE EFFORTS:

EXAMPLES

• The Adoptions and Safe Family Act (ASFA)

requires the agency to use reasonable efforts to

secure a permanent home for the child.

• Reasonable Efforts to Finalize alternate

permanency plans. 42 U.S.C. § 671(a)(15)(C);

45 CFP §1356.21(b)(2)

103

REASONABLE EFFORTS:

EXAMPLES

• Your homework:

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

adoption after a termination of parental rights.

• (2) Find out how the department conducts a

home study and how long it takes.

104

REASONABLE EFFORTS

• If the court made a “no reasonable efforts” finding in one of these cases, would the agency lose money?

• Then why should the judge make such a ruling when the agency (and the state) will have less resources?

• Shouldn’t the judge just go along with the state and find that what the agency provides is reasonable?

105

REASONABLE EFFORTS

• Is it the role of the judge to rubber stamp

what the agency recommends?

• Is it the role of the judge to rubber stamp

what the district attorney in a criminal

prosecution recommends?

106

REASONABLE EFFORTS

• How might you suggest that the court use

the “no reasonable efforts” finding

strategically?

107

REASONABLE EFFORTS

• I suggest a strategic use of the No Reasonable

Efforts finding.

• Tell the agency you are about to make such a

finding, but then continue the case for a week

or two to give the agency an opportunity to

take action.

108

REASONABLE EFFORTS

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

109

BUILDING BETTER COURT SYSTEMS

Once you and your colleagues let members of

your court system know that you are paying

careful attention to the reasonable efforts issue,

practice will improve and children and families

will be better served.

110

Another

Important

Resource .

. .

111

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

Chinese Proverb

112"The Child's Name is Today" . . .

Gabriela Mistral

CONTACT INFORMATION

• Hon. Leonard Edwards (ret.)

• California Judicial Council

• 455 Golden Gate Ave, 6th floor

• San Francisco, California 94102

• judgeleonardedwards@gmail.com

• Leonard.Edwards@jud.ca.gov

• Judgeleonardedwards.com

• (415) 865-8820113