Chapter 6 Achieving the Client's Objectives to Shorten Foster Care Stays and Reunify the Family: Advocating for Supportive Placements, Appropriate Services, Parenting and Visiting Time, and Leveraging Opportunities for Advocacy at Conferences and Meetings Outside the Court Process
Library | Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.) |
CHAPTER 6 Achieving the Client's Objectives to Shorten Foster Care Stays and Reunify the Family: Advocating for Supportive Placements, Appropriate Services, Parenting and Visiting Time, and Leveraging Opportunities for Advocacy at Conferences and Meetings Outside the Court Process
Center for Family Representation*
6.01 Advancing the Client's Goals Beyond Defending the Petition
Respondents in neglect or dependency proceedings commonly have multiple objectives that go well beyond defending the allegations against them. Many recognize their need for help and, at least temporarily, that they cannot parent their children in the way they would hope. Especially when children are ordered into foster care, the parents' goals commonly include remaining meaningfully involved in their children's lives even when they are not in their custody, securing services they feel are helpful, and ensuring that they will not find themselves in family court again. In these situations, parents deserve a particular kind of representation in addition to the traditional one that investigates the legal and factual claims to identify the strongest basis for defeating the Petition. They deserve a set of professionals who will work closely with them throughout the process.
--------
Notes:
[*] Richard Barinbaum, Jillian Cohen, Michele Cortese, Payal Dalal, Elizabeth Fassler, Maura Keating, Jennifer Miller, Sandy Rosin, and Christine Zielinski
This chapter, written by several of the staff at the Center for Family Representation in New York City (CFR), describes what we have learned from our interdisciplinary practice. Three things, in particular, stand out:
A. Parents' attorneys need to develop creative legal and advocacy strategies to pursue their clients' objectives that are not exclusively allegation-based. Usually, they can formulate these strategies by relying on statutes, regulations, and policy directives issued by state and city child welfare agencies.
B. When parents' attorneys defend the allegations and focus on these additional objectives, they often help parents engage with the child welfare and family court systems in a way that proves productive for the families. It helps the parents stay better engaged with their attorneys and it allows the "system" to view them more fairly. Their cases progress more quickly, and they often achieve shorter time frames to reunification and even total avoidance of the removal of their children from their care.
C. When children return home more quickly and parents can access meaningful resources, attorneys often achieve litigation settlements that are more favorable than initially offered by the child welfare agency. Additionally, parents are less likely to have a repeat case.
Since 2007, we have been tracking the results of our work. From that year on, the median time the children of CFR's clients have been in foster care is just over 4.5 months; this compares with a New York City median of 11.5 months before CFR began its high-volume practice of representing indigent respondents. Thirty-seven percent of the children of CFR's clients returned home within six months compared to 28 percent statewide; 52 percent returned home within one year compared to 43 percent statewide. Eight percent of our client's children reentered care at one point, compared to 15 percent statewide. CFR annually achieves an average dismissal rate of 33 percent compared to 11 percent before we began our high volume practice. The majority of these dismissals are on consent, without an adjudication of neglect (referred to as "adjournments in contemplation of dismissal" in New York State), and as a result of the family's stability over time.
This chapter will focus on advocacy strategies that practitioners can pursue both in and out of court. It will stress the importance of (i) ensuring that when a child is initially placed, the foster parent (or other alternative custodian) is supportive of the child's attachment to the parent; (ii) advocating that parents whose children are in foster care can visit often and for as long as possible, with as little supervision as possible; (iii) ensuring that these visits progress over time and are organized around activities that mimic family life; (iv) leveraging every opportunity to advocate at out-of-court conferences for the parent based on his or her multiple objectives; and (v) ensuring that recommended services are based on the parent's strengths, abilities, and needs, and are not duplicative, formulaic, or otherwise inappropriate.
6.02 Using Administrative Regulations and Policies to Help the Client, Paying Careful Attention to All That Is Being Done by the Child Welfare Agency
Attorneys and all members of the parent representation team (e.g., social workers and parent advocates) need to become well versed in the administrative rules and regulations and the official policies of the child welfare agency. These less-studied regulations can be invaluable tools when advocating for services, supportive placements, and better visits for a parent. Judges and agency case planners want to be confident they have the authority to grant applications and requests made by parents, especially when they may be rare in local practice. Although it may be daunting to cut a path through often dense regulations, being able to cite them as a source for the authority to secure something a parent wants will make it more likely that the decision maker agrees to abide by the request, which, in turn, will reap rewards for clients. Administrative regulations and policies of child welfare agencies address a broad set of areas that are of great importance to parents in dependency cases, including visiting, placement, housing benefits, and preventive services.
Regulations typically detail the obligations that government agencies owe to families and set forth not only the duties of foster care and child protective agencies in executing the law, but also the source of the money for them to do so. Whether in an oral application or written motion in court, or at an out-of-court conference, explicit reference to regulations by parents' attorneys and advocates supports a legal architecture for arguments regarding placement, visiting, services, conferences, and other areas of critical importance in dependency matters. It also often leads to a deeper understanding of particular issues. There is no substitute for knowing, for example, what the Agency's legal obligations toward the parent are when parents need suitable housing. Attorneys and advocates should be creative with all regulations a jurisdiction has to offer and should research the extent to which regulations are considered to have the force and effect of law in their particular state.
Although administrative directives, memos, policies, and guidelines do not have the force of law, they represent the state or local social services district's interpretation of best practices and legal obligations, and they can be as useful and persuasive as statutes and regulations in convincing a judge or a caseworker to move on an application. Such policies can be found on many state and county social service department websites, and cover an array of topics such as visiting, working with parenting youth, consenting to the administration of medication, assisting parents and children with mental health diagnoses, and housing subsidies.
Regulations and administrative directives narrow the broad statutory concepts, such as "reasonable efforts" from the federal Adoption and Safe Families Act (ASFA) and "diligent efforts" or "preventive services" from state statutes. These concepts are generally defined not only as services that may prevent entry or reentry into foster care but also that minimize time in foster care. Although they commonly expand on what a social services district or agency has the authority to do rather than what it must do, these regulations and directives provide the means by which an attorney or advocate may develop and fine-tune case theory regarding litigation or in seeking orders for a client's benefit. For instance, regulations regarding the provision of therapy as a preventive service may help an attorney formulate a case theory regarding what constitutes "reasonable efforts" by the Agency to advance a permanency goal of return to parent. They may further assist in determining what evidence is needed to support applications made in court or at a conference, for preparation for the examination of witnesses, and for the writing of an affirmation or affidavit. Applying regulations and guidelines to advocate at agency conferences is not so different than in court. Despite a local district's efforts to train its many actors, conference participants may not have a detailed understanding of their authority or obligations, and many case planners are open to diplomatically presented arguments regarding the complicated legal construct in which they operate.
In crafting applications and queries based on regulations, administrative directives, policies, guidelines, and memos, parents' attorneys and advocates should bear the following in mind:
1. Start with the "reasonable efforts" language in ASFA and the sections of the local dependency statutes. Under most circumstances, "best interests of the child" language can be included. Also look to statutes in the jurisdiction that give the court broad authority to fashion remedies or direct social services officials to take action to promote the family's interests....
2. Argue that the act contemplated by the regulation is a reasonable effort that the Agency must make toward the statutory goal. For example, regulations may support a parent's preference for his or her children to be placed with their godparent rather than a relative due to the godparent's proximity to the children's afterschool program, and if this program is one in which the child would continue upon return, pursuing the placement should be deemed a necessary
To continue reading
Request your trial