Sunday, May 25, 2008

Reasonable Efforts: A Check and Balance or Check the Box?

Reasonable Efforts: A Check and Balance or Check the Box?

What does reasonable efforts really mean in a child welfare case? Is it really an "... important safeguard against inappropriate agency action..." or has this critical element become nothingmore than "... a mere pro forma exercise in paper shuffling to obtain Federal funding..." (S.Rept. No. 336, 96th Cong., 2d Sess. 16 (1980)).

In order to arrive at an accurate analysis of this element, let’s examine the requirements surrounding a judicial determination that reasonable efforts were made prior to the removal of the child from the home. We must also include the other half of this requirement, the requirement mandating a judicial determination that maintaining the child in the family home would be contrary to the welfare of the child. Both of these judicial determinations are required in order for the agency to qualify for federal funding under title IV-E of the social security act. Failure to fulfill either one of these safeguards renders the child ineligible for title IV-E funds for foster care. That represents a powerful incentive for child welfare agencies to operate within strict compliance with reasonable efforts and contrary to the welfare provisions. Footnote

The law and the U.S. Department of Health and Human Services, Agency for Children and Families (ACF) is clear as to the application of these two requirements. First, that the first court order authorizing the removal of the child must include a judicial finding of contrary to the welfare of the child. If the initial removal order is issued prior to the child’s actual removal, the contrary to the welfare of the child judicial finding must be included at that time. The failure to make this finding at the original removal order cannot be retroactively corrected by nunc pro tunc orders, or issued after the initial order authorizing the removal of the child. Furthermore, this judicial determination must be supported by the evidence in the record.

Additionally, the agency must actively make reasonable efforts to keep the child safely in the home before seeking a removal order or before removing the child without a removal order. Reasonable efforts consists of services provided to the family which are intended to prevent the child’s removal from the family home, and to insure his safety while he remains in the home. Such services can include: supervisory day care, respite care, daily caseworker visits to the family home, a reasonable safety plan, one-time housecleaning, grant monies for utilities or rent or to repair unsafe condition in the home, a trip to the food bank or grocery voucher, in-home counseling and education, another family member moving into the home to supervise, removing the offending parent from the home, etc. If these services failed, the agency must prove that the services were appropriate and prove how they failed. If they didn’t offer services, they must prove that those services would not have prevented removal or prove why they weren’t required to provide services. The court is mandated to make a judicial determination concerning reasonable efforts within 60 days. Footnote

If it is not made within this time frame, like the contrary to the welfare requirement, reasonable efforts omissions cannot be corrected.

The assessment of what qualifies as ‘contrary to the welfare’ is subjective. Each party to the case has the legal right to submit their arguments in support of or against this finding. The court has the obligation to hear these challenges. Why? Because contrary to the welfare is not merely a box to be checked based on the unsubstantiated claim of a caseworker. It actually performs the function of satisfying due process protections associated with depriving parents and children of their liberty interests to family association. As such, to treat this as a mere formality and ignore the substance of this powerful requirement is to deny the children and parents due process. This finding can be overturned on appeal if the evidence in the record at the time of the judicial determination does not support a finding of contrary to the welfare. If contrary to the welfare determination is overturned on appeal, it raises the very real possibility that any subsequent adjudication, treatment plan and termination of parental rights ruling can also be invalidated. This would be based on the premise that the child was presumably safe and the parents were presumed fit and the agency acted without legal justification in removing the child in the first place.

Reasonable efforts is less subjective, but no less critical as a due process requirement. Footnote

Because these two requirement are so vital to pre- or post- deprivation due process for both the parents and the children, the court does not have the discretion to issue a judicial finding in favor of contrary to the welfare or reasonable efforts without first examining the evidence supporting that finding.Footnote

Even if the parties are willing to stipulate to those findings, the law mandates that these findings be supported by evidence in the record. Naturally, the parents and children have the right to subject the supporting evidence to adversarial testing, to rebut the evidence and to appeal these critical due process findings. But the scope of the power of reasonable efforts exceeds just the initial removal of the child. Reasonable efforts also applies to reunification of the child with the parents, and to achieving permanency for the child.

In the context of reunification, as soon as the parents can demonstrate that the family home is safe and appropriate for the child, the child must be returned. If there are services which the family can utilize while the child is in the home which will insure the safety of the child, reunification must occur. If it doesn’t, once again, the parents and children can challenge the judicial determination that reasonable efforts to reunify the family were made. They should demand an evidentiary hearing and once again subject the evidence supporting this reasonable efforts determination to adversarial testing. If there is insufficient evidence to support reasonable efforts, the court has the discretion to order the child returned home and the child will be ineligible for title IV-E funds for his entire stay in foster care.

In most jurisdictions, the judicial determination that reasonable efforts were made is a required element in order to terminate parental rights. If reasonable efforts to reunify have not been made, termination of parents rights cannot, as a matter of law, be granted. This makes it critical to challenge every reasonable efforts determination so that it can be raised as an appealable issue if parental rights are terminated.

It is in this manner, that reasonable efforts and contrary to the welfare, act as two powerful checks and balances against unnecessary removal of children from their homes and to insure the speedy reunification of the family. It also proves how utterly critical it is for parent attorneys to demand evidentiary hearings at the initial shelter hearings. This will be their singular opportunity to challenge any pro-forma judicial determinations in favor of contrary to the welfare.

Since the court must make reasonable efforts to reunify determinations at each subsequent hearing, the parents and children have ample opportunity to make the state bear the burden of proving that reasonable efforts were made. Once again, the court cannot responsibly make this judicial determination if the evidence does not support that finding.

As powerful as these two elements are in protecting the liberty interests of both children and parents, it must be noted that most professionals who practice in this area of law have no clue of the significance of these two, simple determinations. ACF has confirmed this in their child welfare manual, “We concluded, based on our review of States' documentation of judicial determinations over the past years, that, in many instances, these important safeguards had become precisely what Congress was concerned that they not become. . .a mere pro forma exercise in paper shuffling to obtain Federal funding. . .” (S. Rept. No. 336, 96th Cong., 2d Sess. 16 (1980)).

Regardless of how carefully the legislature crafts the checks and balances that they determine must be employed in the laws they pass, unless the responsible actors employ those mechanisms, the system of checks and balances will utterly fail to perform their designated functions. For this reason, we are experiencing wholesale failures of the child welfare system.

The first protector of these two checks and balances is the court. Judges have abdicated their solemn duty to be impartial finders of fact and to enforce the law as it has been written and to insure full due process has been afforded to respondent parties and children. They rubber stamp these two judicial determinations as a matter of procedure in every court in our land, without ever reviewing any evidence or even asking for any evidence to support those findings. A judge must anticipate, even expect that any party in any court case will attempt to take procedural or legal shortcuts in their efforts to resolve the dispute in their favor. To validate a due process shortcut in any single case is a profound injustice to the opposing party. To institutionalize those shortcuts on a wholesale basis is abhorrent to the fair and impartial administration of justice. Is it any wonder that the public has lost complete faith in the juvenile court system?

But the judges are not solely to blame for this failure. Respondent parent attorneys and children's attorney are also charged with invoking all available legal remedies and protections on behalf of their clients. Instead, the accepted practice is to appear in court and acquiesce to all child welfare agency demands from the very first hearing, regardless of the parent’s wishes. They will not challenge contrary to the welfare determinations, nor demand that the state bear the burden of proof that keeping the child in the home was contrary to the welfare of the child. Even in the most obvious cases, where the child exhibited no identifiable harm as a result of the parents’ action or inaction, they will refuse to invoke this critical due process tool that has the potential to get over 80% of children returned to their parents at the very first hearing.

Respondent parent and children's attorneys will refuse to utilize reasonable efforts in a similar manner. This is especially detrimental to their clients because the legal ability of the court to terminate parental rights hinges so much on this determination.

The generally accepted legal requirement to remove a child is when a parent fails to provide the minimum amount of care, safety, food, shelter, supervision and education that a child requires. This translates into a parent with a grade of F. The agencies are removing children who are clearly receiving the minimum level of care but, alas, the parents are not perfect. Therefore, the child is at risk of future abuse. When? Who knows? What specific abuse? Not necessary to identify. These parents are probably C- parents.

In universal practice, the child is removed and not returned until the parents can demonstrate to the subjective satisfaction of the caseworker that they have become at least B parents. This translates into a failure to make reasonable efforts. Reasonable efforts to reunify arguably means that if the parents achieve a D- proficiency with regard to providing the minimum level of care, that reunification should occur. The agency can still provide continuing services reasonably designed to increase the proficiency of the parents while the child is in the home.

These parents’ attorneys should be arguing against any reasonable efforts determinations which endorse the threshold for reunification higher than the legally mandated minimum level of care. This is the only way to force the child welfare agencies to comply with reasonable efforts.

At the same time, the agency is declaring they have made reasonable efforts and that maintaining the child in the home was contrary to the welfare of the child. They checked the reasonable efforts box and invoked the words contrary to the welfare of the child, therefore they believe they have fulfilled their statutory mandate.

If one were to examine any juvenile court record, one would be hard pressed to find anything more than that bare form submitted by the agency to substantiate these determinations. The explicit reasons why maintaining the child in the home would be contrary to his welfare are rarely included in their submission to the court. The evidence to support their contrary to the welfare conclusion is also conspicuous by its absence. The reasonable efforts box is checked. Maybe the caseworker offered a safety plan which the parents disagreed with. Maybe she didn’t even do that. Our caseworker has been trained that checking the box satisfies reasonable efforts

Our Judge has been trained that this formality satisfies statutory mandates. He rubber stamps the caseworker recommendations and utters the requisite contrary to the welfare and reasonable efforts incantation. He makes no individualized determination on either of the elements. He has seen no evidence to support the determination. No such evidence has been entered into the record. Procedurally, the form has been satisfied and the agency will seek and obtain federal funding for that child. Substantively. . .who needs substance? They’re protecting a child from his parents!

Mom and dad’s and children's attorneys don’t object. The ritual is complete.

The final factor which contributes to this process devoid of substance, is the character of the judicial proceedings itself. It is not geared toward protecting the rights of children and parents. It is geared toward the hasty disposition of cases, with heavy utilization of prehearing negotiations and deals, and the slashing of expenses. Hearings are conducted informally in order to facilitate these objectives. Consequently, any effort to slow the wheels of justice with examination and deliberation of the merits of any judicial determination is strongly discouraged.

Juvenile court Judges get ugly when contested hearings are demanded. Child welfare agencies characterize parents who demand due process as ‘uncooperative’ and ‘focusing on the wrong issues’ (e.g. their rights) and punitively obstruct reunification in retaliation. Respondent parent attorneys petition to withdraw if instructed by their clients to invoke the legal tools available to them. The entire system is designed to impose obstacles to any attempt to make the state bear the burden of proof as mandated under law before breaking up a family.

Reasonable efforts and contrary to the welfare do not represent a right in and of themselves. You can’t sue if they are improperly applied or ignored. They are carefully crafted safeguards to protect due process. They have the power to deprive the agency of funding and to reunify families, if the judicial determinations are properly challenged in the juvenile court. They constitute appealable issues which address the appropriateness of child welfare agency actions. But as such, they must be challenged when the judicial determinations are issued.

The failure of respondent parent attorneys and children's to demand the legal standards that attach to these determinations are adhered to is nothing less than legal malpractice. The failure of family court judges to insure this process does more than satisfy form over substance is malfeasance.

The agencies who have masterminded this scheme are committing fraud and depriving parents and children of their rights. Nobody loses, except the child who is being protected and his parents.

This article is copyright 2004 Suzanne Shell. You may obtain a copy at

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