DO THE RIGHT THING!

DO THE RIGHT THING!

The History and Purpose of the Review

KEY PRINCIPLESOF THE REVIEW

RESOURCE GUIDELINES -Improving Court Practice in Child Abuse and Neglect Cases

published by the National Council of Juvenile and Family Court Judges

Reno, Nevada

Permanency for Children

Permanent homes, permanency, for children is the fundamental principle behind the Adoption Assistance and Child Welfare Act of 1980.

Statutory provisions designed to achieve permanency are based on several widely accepted principles of child development.

Permanency for Children

Not enough to protect children from immediate harm

Emotional impact of separation must be taken into account

Ensure that children are brought up in stable, permanent families, rather than in temporary and unstable foster placements

Stable Caregivers

Children need secure and uninterrupted emotional relationships with adults who are responsible for their care.

Repeatedly disrupted placements and relationships can interfere with a child’s ability to form close emotional relationships after reaching maturity.

Permanent Family

Foster care, with its inherent instability and impermanence, can impose great stress on a child

Weathering the normal situational changes of childhood in a permanent family enables a child to envision a more secure future

Family Superior to the State Parents are likely to be capable of

making the best, most timely decisions for a child

Decision-making concerning a child in foster care can often be fragmented and inconsistent

Protecting without Removing Preventing unnecessary removal

helps to preserve the constitutional right of families to be free from unwarranted state interference

To prevent unnecessary removal, the state must take strong, affirmative steps to assist families

Federal law requires “reasonable efforts” to prevent the necessity of foster placement

Reunification

Achieving permanent homes for abused and neglected children also includes working toward the reunification of families

States must make reasonable efforts to bring about the safe reunification of children and their families

Reunification Not Feasible

When reunification is not feasible, the search for a new, permanent home for the child supersedes that as a goal

Federal law makes it clear that permanent homes are to be arranged within a reasonable time.

Purpose of the Review

Ensure that cases progress and that children spend as short a time as possible in temporary placement

Keep cases moving toward successful completion

Identify inadequacies in the State’s response


Create incentives for the State to make decisions concerning the permanent status of a child

When the review hearing is challenging and demanding, greater consideration is given

Create a valuable record of the actions of the parents and the State


Helps a case progress by requiring the parties to set timetables, take specific action, and make decisions

Provide a forum for the parents Help assure that a parent’s viewpoint is

considered in case planning


Re-examine long-term case goals and change any which are no longer appropriate

Identify cases in which reunification should not be the goal because a child cannot safely be returned home in a timely fashion

WARNING!

Reviews can malfunction as a rubber stamp of the State recommendations

or produce arbitrary decisions based on

inadequate information.

Issues for Reviews

Case plans failing to clearly specify what each party must do

Case plans which fail to adequately document

Case plans developed solely by State staff, without the collaboration of parents or the child.

Issues for Reviews

When caseloads are high, cases may be neglected

If things are going “smoothly”, appropriate attention may not be paid

Unnecessarily restricting visits, accelerating breakdown of the parent-child relationship

Citizen Reviews

“The best alternative or complement to judicial review is review by panels of judicially appointed citizen volunteers.”

“Members of citizen review panels should be carefully recruited, screened, trained and supervised by court personnel.

“A professional staff person should be present at all panel reviews.”

Federal LawSocial Security Act

Adoption Assistance and Child Welfare Act of 1980

Purpose:To establish a program of adoption

assistance, strengthen the program of foster care assistance for needy and dependent children, and improve the child welfare, social services, and aid to families with dependent children programs

Child Welfare Information Gateway

Children’s Bureau/ACYF

Adoption Assistance and Child Welfare Act of 1980 Required that States make “reasonable efforts’’ to

prevent removal of the child from the home and return those who have been removed as soon as possible

Required participating States to establish reunification and preventive programs for all in foster care

Required the State to place a child in the least restrictive setting and, if the child will benefit, one that is close to the parent’s home



Adoption Assistance and Child Welfare Act of 1980 Required the court or agency to review the status

of a child in any nonpermanent setting every 6 months to determine what is in the best interest of the child, with most emphasis placed on returning the child home as soon as possible

Required the court or administrative body to determine the child’s future status, whether it is a return to parents, adoption, or continued foster care, within 18 months after initial placement into foster care

Child Welfare Information GatewayChildren’s Bureau/ACYF

Adoption and Safe Families Act of 1997 Purpose:

To promote the adoption of children in foster care



Adoption and Safe Families Act of 1997 Promoted adoptions:

Required States to use reasonable efforts to move eligible foster care children towards permanent placements

Promoted adoptions of all special needs children and ensured health coverage for adopted special needs children

Required States to document and report child-specific adoption efforts



Adoption and Safe Families Act of 1997 Required shorter time limits for making

decisions about permanent placements:Required permanency hearings to be held no

later than 12 months after entering foster careRequired States to initiate termination of

parental rights proceedings after the child has been in foster care15 of the previous 22 months, except if not in the best interest of the child, or if the child is in the care of a relative



Adoption and Safe Families Act of 1997 Clarified “reasonable efforts’’:

Emphasized children’s health and safetyRequired States to specify situations when

services to prevent foster placement and reunification of families are not required



Adoption and Safe Families Act of 1997 Clarified “reasonable efforts’’:

In determining reasonable efforts, the child’s health and safety shall be the paramount concern.

If the court determines that reunification is not the permanent plan, the court must determine that reasonable efforts are being made to secure a permanent home for the child.

Child Welfare Information GatewayChildren’s Bureau/ACYF

Social Security Act Sec. 471 (a) (15)

(A) in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child's health and safety shall be the paramount concern;


(B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families—

(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and

(ii) to make it possible for a child to safely return to the child's home;


(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan (including, if appropriate, through an interstate placement) and to complete whatever steps are necessary to finalize the permanent placement of the child;

State LawOregon Revised Statutes

ORS 419A.116 (1)

After reviewing each case, the local citizen review board shall make written findings and recommendations with respect to:

(a) Whether reasonable efforts were made prior to the placement, to prevent or eliminate the need for removal of the child or ward from the home;

ORS 419A.116 (1)

(b) If the case plan at the time of the review is to reunify the family, whether the Department of Human Services has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child or ward to safely return home and whether the parent has made sufficient progress to make it possible for the child or ward to safely return home;

ORS 419A.116 (1)

(c) If the case plan at the time of the review is something other than to reunify the family, whether the department has made reasonable efforts to place the child or ward in a timely manner in accordance with the case plan, including, if appropriate, placement of the child or ward through an interstate placement, and to complete the steps necessary to finalize the permanent placement of the child or ward;

ORS 419B.340 (1)

If the court awards custody to the Department of Human Services, the court shall include in the disposition order a determination whether the department has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to prevent or eliminate the need for removal of the ward from the home.

ORS 419B.476 (2)

At a permanency hearing the court shall:

(a) If the case plan at the time of the hearing is to reunify the family, determine whether the Department of Human Services has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the ward to safely return home…

ORS 419B.476 (2)

(b) If the case plan at the time of the hearing is something other than to reunify the family, determine whether the department has made reasonable efforts to place the ward in a timely manner in accordance with the plan, including, if appropriate, reasonable efforts to place the ward through an interstate placement, and to complete the steps necessary to finalize the permanent placement.

REASONABLE EFFORTS

A Deeper Look

Federal Regulations

Child Welfare Policy Manual

Administration for Children and Families

Definition

Not defined - to do so would be a direct contradiction of the intent of the law.

The statute requires that determinations be made on a case-by-case basis.

Any definition would either limit the courts' ability to make determinations on a case-by-case basis or be so broad as to be ineffective.

Guidelines

In determining whether reasonable efforts were made:(1) Would the child's health or safety have been

compromised had the agency attempted to maintain him or her at home?

(2) Was the service plan customized to the individual needs of the family or was it a standard package of services?

Guidelines

In determining whether reasonable efforts were made:(3) Did the agency provide services to ameliorate

factors present in the child or parent, i.e., physical, emotional, or psychological, that would inhibit a parent's ability to maintain the child safely at home?

(4) Do limitations exist with respect to service availability, including transportation issues? If so, what efforts did the agency undertake to overcome these obstacles?

Guidelines

In determining whether reasonable efforts were made:(5) Are the State agency's activities associated

with making and finalizing an alternate permanent placement consistent with the permanency goal? For example, if the permanency goal is adoption, has the agency filed for termination of parental rights, listed the child on State and national adoption exchanges, or implemented child-specific recruitment activities?

Guidelines

The legislative history makes the point that the required judicial determinations should not become "...a mere pro forma exercise in paper shuffling to obtain Federal funding..." (pg. 4056, 65 Fed. Reg.).

Oregon Case Law

REASONABLE EFFORTS TO REUNIFY IN DEPENDENCY CASES

The Oregon Child Advocacy Project

Professor Leslie J. Harris, Laura Althouse, Farron Lennon and David Sherbo-Huggins

Last updated August 2009

Oregon Case Law

“The type and sufficiency of efforts that the state is required to make and whether the types of actions it requires parents to make are reasonable depends on the particular

circumstances." State ex rel. SOSCF v. Frazier, 152 Or. App. 568, 955 P.2d 272 (1998).

Oregon Case Law

The plan must be based on the family’s needs and its resources to change and must include “the perspective of the ward and family,” ORS 419B.343(1)(b). See also State ex rel. SOSCF v. Hammons, 170 Or. App. 287, 300-02, 12 P.3d 983 (2000) (reasonable efforts must be tailored to the facts of each case). To the extent possible, the family must be allowed to assist in designing the service program. Id.

Oregon Case Law

When DHS has employed a consultant to evaluate the parent, child or both and to make recommendations, it ordinarily should provide the services that the consultant recommends… State ex rel. SOSCF v. Hammons, 170 Or. App. 287, 300-02, 12 P.3d 983 (2000).

Oregon Case Law

[U]nder some circumstances the reasonable efforts obligation may mean that the agency must pay. For example, in State ex rel. SOSCF v. Burke, 164 Or. App. 178, 990 P.2d 922 (1999), the court held that …, the state had to pay for the service.

Oregon Case Law

[W]hen services are provided, parents must be given sufficient time to learn the new skills and correct the problems. The Court of Appeals recently held that a permanency plan should not have been changed from reunification to termination of parental rights because the parents had not been given enough time to implement what they had learned… State ex rel. DHS v. Shugars, 208 Or. App. 694, 717-18, 145 P.3d 354 (2006).

Oregon Case LawDHS has an ongoing obligation to monitor and adapt the treatment plan, particularly to respond to significant changes in the parent’s situation… [I]n State ex rel. Dept. of Human Services v H.S.C., 218 Or. App. 415, 427 n. 2, 180 P.3d 39, 46 (2008):

When fundamental facts relevant to family reunification are significantly different during the assessment period (prior to the permanency hearing) from those that existed when the case plan was formulated and the service agreement was struck, …, it may be necessary to modify the plan and service agreement to reflect those changes in circumstances in order for DHS to satisfy its obligation to make reasonable efforts…

Oregon Case Law

In State ex rel Juv. Dept. v. Williams, 204 Or. App. 496, 130 P.3d 801(2006),… The court observed that DHS is not excused from making reasonable efforts solely because a parent is incarcerated and that what was reasonable for such a parent depended on the circumstances.

Oregon Case Law

[I]n State ex rel. Dept. of Human Services v H.S.C., 218 Or. App. 415, 427, 180 P.3d 39 (2008), the court of appeals reversed a trial court holding that DHS had made reasonable efforts on behalf of a father who was detained by Immigration and Customs Enforcement as an undocumented alien… The court said, “the mere detention of the parent does not excuse the state from making reasonable efforts by inquiry and arranging the services that might be available under the circumstances.”

Oregon Case Law

Reasonable efforts should be evaluated by asking whether the services offered: are designed to solve the problems that caused the court

to find the child dependent; are tailored to the specific strengths and needs of the

family, rather than being standardized; specify appropriate, timely, and effective services that the

agency will provide; afford the parents a reasonable amount of time to adjust

their conduct; and are changed when fundamental facts relevant to family

reunification change, as when a parent is incarcerated, detained, or deported.

DO THE RIGHT THING!

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