How 'Reasonable Efforts' Leads to Emotional and Legal Permanence

• Author: Bob FriendKelly Beck
• Pages: 249-287

HOW “REASONABLE EFFORTS” LEADS TO EMOTIONAL AND LEGAL PERMANENCE BOB FRIEND AND KELLY BECK “Hidden within the landmark legislation were two words that, over the years, would come to summarize the expectations of the law, typify its vagueness, and predict its controversy—‘reasonable efforts.’” 1 I. ! A BOUT THE A UTHORS The authors of this article, Bob Friend, LCSW, and Kelly Beck, JD, collectively have over sixty years of experience working with children, youth, and families. 2 They have each spent the majority of their professional careers dedicated to learning, training, coaching, and inspiring “permanency.” 3 For the last six years, they have worked together at the National Institute of Permanent Family Connectedness (NIPFC) 4 to train and coach professionals in child welfare agencies, court systems, and other partner agencies on how to reduce the time youth spend in care, increase Copyright © 2016, Bob Friend & Kelly Beck. 1 Wendy Whiting Blome, Reasonable Efforts, Unreasonable Effects: A Retrospective Analysis of the “Reasonable Efforts” Clause in the Adoption Assistance and Child Welfare Act of 1980 , 23 J. SOC. & SOC. WELFARE 133, 134 (1996). See also 42 U.S.C. § 671(a)(15)(B)(i)–(ii) (2012) (“[R]easonable efforts shall be made to preserve and reunify familes—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 . . . .”). 2 See Trainer and Staff Bios , NAT’L INST. FOR PERMANENT FAM. CONNECTEDNESS, http://www.familyfinding.org/trainings/trainer-bios.html [https://perma.cc/JF25-4H74]. 3 See More About Family Finding , NAT’L INST. FOR PERMANENT FAM. CONNECTEDNESS, http://www.familyfinding.org/moreaboutfamilyfinding.html [https://perma.cc/QS3T-3YF9] (“Although physical legal permanence is an explicit outcome for most cases, Family Finding defines permanency as a state of permanent belonging, which includes knowledge of personal history and identity, as well as a range of involved and supportive adults rather than just one legal resource.”); NRCPFC Web-based Practice Toolkits , NAT’L RESOURCE CTR. FOR PERMANENCY & FAM. CONNECTIONS, http://www.nrcpfc.org/projects-and-products.html [https://perma.cc/MCD5-L2UY]. 4 See generally NIPFC, NAT’L INST. FOR PERMANENT FAM. CONNECTEDNESS, http://familyfinding.org [https://perma.cc/A5VN-H65H]. 250 CAPITAL UNIVERSITY LAW REVIEW [45:249 permanency outcomes, and involve “family” 5 early and often in permanency planning. 6 Both Bob and Kelly have witnessed, first hand, how child welfare systems 7 have come together in an effort to create better outcomes for the families and youth they serve. 8 They have witnessed how one person can affect a child’s travel through the child welfare system by being relentless in the quest for permanency. 9 It is with great pleasure and pride that the authors submit this article to all professionals who work within the child welfare system. It is their hope that this article will be informative and inspirational for those professionals as well as others newly introduced to or aspiring to work within the child welfare system. II. ! I NTRODUCTION This article intends to holistically review the opportunities and actions of the entire child welfare system in order to improve the experience and outcomes of the children and families it was intended to serve. More specifically, the authors will weave together the leadership and oversight provided by courts via reasonable efforts findings with the innovative practices that child welfare agencies, advocates, and partners can take in between hearings to advance and secure the safety, permanence, and well-being of the children, parents, family members, and communities they serve. 10 5 As used throughout this article, the term “family” includes all biological family members, important connections for children and youth, non-related extended family members, and others. As used in Indian Child Welfare Act (ICWA) matters, “family” also includes “extended family member[s].” 25 U.S.C. § 1903 (2012). 6 See generally NIPFC Trainings , NAT’L INST. FOR PERMANENT FAM. CONNECTEDNESS, http://www.familyfinding.org/trainings/trainings_NIPFC.html [https://perma.cc/A3R3-EPW9]. 7 “Child welfare systems” refer to child welfare agencies, judicial officers, court personnel, attorneys, court appointed special advocates (CASA), service providers, parents, and children. See How the Child Welfare System Works (Fact Sheet) , COMPREHENSIVE YOUTH SERVICES FRESNO (May 8, 2012), http://cysfresno.org/how-the-child-welfare-system-works-fact-sheet [https://perma.cc/7R6M-HN24]. 8 The authors have worked with communities in Pennsylvania, Virginia, Wisconsin, and California among others. These communities have brought together their legal, child welfare, probation, service providers, and foster family agencies to develop Family Finding and Engagement strategies. See Children’s Home Society of North Carolina, York County Family Finding Conference , VIMEO (2013), https://vimeo.com/64070556 [https://perma.cc/T6DG-3PTA]. 9 Based upon personal accounts shared by attendees during field trainings conducted by both authors. 10 CHILD WELFARE INFO. GATEWAY, How the Child Welfare System Works 1 (Feb. 2013), https://www.childwelfare.gov/pubpdfs/cpswork.pdf [https://perma.cc/H7C8-LD8G]. 2017] REASONABLE EFFORTS 251 The article will begin by reviewing some of the history of the reasonable efforts requirements and further clarify the true intent of this enabling legislation, 11 followed by discussion of how the child welfare system has often missed the opportunities contained within the vague definition of the requirements. 12 The authors will then outline how the court can ensure that the “efforts” presented include the identification, engagement, and involvement of family members. 13 The article will further describe the types of efforts or innovative child welfare practices that have been created to improve relationships with youth, parents, and family members by increasing their trust in and promoting their partnership with the child welfare system. 14 These practices are designed to resolve the safety issues that prevent children from leaving foster care, while attending to the loneliness and lack of permanency options for many children in care. The proposed “reasonable efforts” methodology (hereinafter methodology) presented in this article focuses on what can be accomplished between each of the hearings where a reasonable efforts finding is required, so that the child or youth is moving closer to being connected with and raised within a committed, supportive, permanent family. 15 Viewing the time between hearings as an opportunity to implement evidence-based and promising family engagement strategies will allow the court to more effectively review all efforts employed to create a pathway home for each child or youth. Finally, the article will detail the responsibilities and opportunities for key child welfare system participants to contribute to the identification, engagement, and involvement of family members in the matters concerning their kin. 16 Their activities toward this goal should be presented to the court as evidence of reasonable efforts. A. ! Clarifying Reasonable Efforts 17 In 1980, Congress passed the Adoption Assistance and Child Welfare Act (The Act). 18 The Act sought to address several issues that Congress 11 See infra Sections II.A, II.B. 12 See infra Sections II.C, II.D. 13 See infra Sections II.D, II.E. 14 See infra Section II.E, Part III. 15 See infra Part III. 16 See infra Part IV. 17 In ICWA matters, the term “active efforts” is used to describe remedial services, rehabilitative programs, and preventive measures. See 25 U.S.C. § 1912(d) (2012). 18 Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified in scattered sections of 42 U.S.C.). 252 CAPITAL UNIVERSITY LAW REVIEW [45:249 deemed to be lacking in the child welfare system. 19 Some of the important issues addressed by the Act were: the unnecessary placement of children into the care of the state; 20 children languishing in care; 21 the challenges in achieving permanency for children; 22 and the lack of essential due process afforded to the parents in state intervention matters. 23 The due process standards outlined therein included the use of fundamental fairness in a planned and reasonable manner to further the goals of child permanency and effective judicial oversight. 24 Courts were now required to find that the state 25 had employed reasonable efforts at different critical stages of the child welfare proceedings in order to maximize permanency options for children. 26 This legislation marked the first time that the federal government sought to define the role and responsibilities of the state. 27 It was also the first time that the courts were charged with determining whether the public child welfare agency (hereinafter agency) had provided services or “efforts” that would meet the needs of the child, while also monitoring the time that children were spending in care. 28 19 See, e.g. , J. Leonard P. Edwards, Achieving Timely Permanency in Child Protection Courts: The Importance of Frontloading the Court Process , 58 JUV. & FAM. CT. J. 1, 2 (2007); Alice C. Shotton, Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years Later , 26 CAL. W. L. REV. 223, 223–24 (1990). 20 Edwards, supra note 19, at 1–3; Shotton, supra note 19, at 223–24. 21 Edwards, supra note 19, at 2. 22 Id . 23 Id. 24 J. Leonard Edwards, Reasonable Efforts: A Judicial Perspective , JUDGES’ PAGE NEWSL. 5, 5 (Oct. 2007), http://www.casaforchildren.org/atf/cf/%7B9928CF18-EDE9-4AEB-9B1B-3FAA416A6C7B%7D/0710_reasonable_efforts_in_the_dependency_court_issue_0119.pdf [https://perma.cc/LQ25-J26L]. 25 “ State child welfare agencies” are defined as: State agencies that are mandated to respond to reports...