DO THE RIGHT THING!

1
DO THE RIGHT THING!

• The History and Purpose of the Review

2
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

3
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.  

4
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

5
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 childs ability to form
  close emotional relationships after reaching
  maturity.

6
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

7
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

8
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

9
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

10
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.

11
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 States response

12
Purpose of the Review

• 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

13
Purpose of the Review

• 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 parents viewpoint is
  considered in case planning

14
Purpose of the Review

• 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

15
WARNING!

• Reviews can malfunction as a rubber stamp of the
  State recommendations or produce arbitrary
  decisions based on inadequate information.

16
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.

17
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

18
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.

19
Federal Law

• Social Security Act

20
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
• Childrens Bureau/ACYF

21
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 parents home
• Child Welfare Information Gateway
• Childrens Bureau/ACYF

22
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 childs 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 Gateway
• Childrens Bureau/ACYF

23
Adoption and Safe Families Act of 1997

• Purpose
• To promote the adoption of children in foster
  care
• Child Welfare Information Gateway
• Childrens Bureau/ACYF

24
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
• Child Welfare Information Gateway
• Childrens Bureau/ACYF

25
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 care
• Required 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
• Child Welfare Information Gateway
• Childrens Bureau/ACYF

26
Adoption and Safe Families Act of 1997

• Clarified reasonable efforts
• Emphasized childrens health and safety
• Required States to specify situations when
  services to prevent foster placement and
  reunification of families are not required
• Child Welfare Information Gateway
• Childrens Bureau/ACYF

27
Adoption and Safe Families Act of 1997

• Clarified reasonable efforts
• In determining reasonable efforts, the childs
  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 Gateway
• Childrens Bureau/ACYF

28
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

29
Social Security Act Sec. 471 (a) (15)

• (B) except as provided in subparagraph (D),
  reasonable efforts shall be made to preserve and
  reunify families
• 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
• to make it possible for a child to safely return
  to the child's home

30
Social Security Act Sec. 471 (a) (15)

• (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

31
State Law

• Oregon Revised Statutes

32
ORS 419A.116 (1)

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

33
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

34
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

35
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.

36
ORS 419B.476 (2)

• At a permanency hearing the court shall
• 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

37
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.

38
Reasonable efforts

• A Deeper Look

39
Federal Regulations

• Child Welfare Policy Manual
• Administration for Children and Families

40
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.

41
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?

42
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?

43
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?

44
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.).

45
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

46
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).

47
Oregon Case Law

• The plan must be based on the familys 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.

48
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).

49
Oregon Case Law

• Under 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.

50
Oregon Case Law

• When 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).

51
Oregon Case Law

• DHS has an ongoing obligation to monitor and
  adapt the treatment plan, particularly to respond
  to significant changes in the parents situation
  In 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

52
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.

53
Oregon Case Law

• In 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.

54
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.