Let’s give children and families what they need instead of what we got!

Hon. J. Robert Lowenbach Senior Judge Child Trauma Fellow Colorado D&N Judicial Institute July 29, 2015

The “Reasonable Efforts” Mantra . . . 2

Everybody needs what I’m selling!

To Achieve Better Outcomes the “Reasonable Efforts” Finding Must Be Based on Evidence and Must Contain Specific Findings! 3

A better practice . . . . . . Demanding effective Advocacy

4

The Adoption Assistance and Child Welfare Act of 1980 introduced the “Reasonable Efforts” requirement.

The Adoption and Safe Families Act of 1997 (ASFA) refined the requirement. 5

“Reasonable Efforts” findings required: • • Prior to placement Reasonable Efforts must be made to prevent removal, and to make it possible for the child to safely return to the home At each hearing thereafter while the child remains out of the home (with some exceptions) 6

“Reasonable Efforts” findings required: • When return home is inconsistent with the permanency plan, reasonable efforts shall be made to finalize the permanency plan 7

Federal Requirement . . .

l Finding re: whether the agency has made “Reasonable Efforts” to prevent or eliminate the need for placement must be made at: • Emergency hearing • Every review hearing • Permanency Planning hearing 8

Finding re: whether the agency has made “Reasonable Efforts” to finalize the child’s permanency plan must be made at any hearing subsequent to its establishment 9

Colorado’s Response . . .

C.R.S. § 19-1-103(89) – ‘Reasonable efforts’ means the exercise of diligence and care for children who are in out-of-home placement or are at imminent risk of out of-home placement . . . Services provided by a county or city agency in accordance with § 19-3-208, are deemed to meet the reasonable effort standard described in this subsection .

Nothing in this subsection (89) shall be construed to

10

C.R.S. § 19-1-103(89) –Services provided by a county or city agency in accordance with § 19-3-208, are deemed to meet the reasonable effort standard described in this subsection .

Nothing in this subsection (89) shall be construed to conflict with federal law.

11

C.R.S. § 19-3-208(2)(a) Services – county required to provide . . . Goals: • Promote immediate health, safety and well-being of children • Reduce the risk of future maltreatment and protect siblings • Avoid the unnecessary placement of children 12

• Facilitate the speedy reunification of children with parents, where appropriate • Ensure placement is neither delayed or denied on the basis of race, etc. • Promote the best interest of the child 13

C.R.S. § 19-3-208(2)(b) The following services shall be available and provided where deemed necessary and appropriate . . . • Screening, assessments, and individual case plans • Home-based family and crisis counseling • Information and referral services • Visitation services 14

C.R.S. § 19-3-208(2)(d) The following services shall be available based upon the ability to increase federal funding or other moneys appropriated for services: Transportation In-home homemaker Mental health services Drug & Alcohol trx Home-based services Placement alternatives Family preservation Child Care Diagnostic Health care After care Family Counseling Preventive financial 15

Colorado’s Regulatory Response 2 C.C.R. 2509 (Volume 7) http://www.colorado.gov/apps/cdhs/rral/rulesRegs.jsf

 7.200.1 Child Welfare Services A. Children and youth shall have the right to be raised in an environment free from abuse or neglect preferably by their families of origin by providing reasonable efforts to maintain the family unit through the provision of in-home services.

16

7.200.1 Child Welfare Services A. Reasonable efforts shall be made to prevent placement . . .

B. Appropriate and Culturally competent services . . . shall be provided . . . 17

7.200.1 Child Welfare Services D. Children . . . have the right to a diligent search . . . for extended family members . . . E. Considerations of the child’s age, culture, language, religion and other needs shall guide . . . F. Case planning shall involve the parents . . . G. Child Welfare Services shall be provided in collaboration with other community agencies . . . 18

Compare . . .

California – Reasonable Efforts shall be guided by child’s health and safety . . .

Hawaii – Agency must use “[e]very reasonable opportunity” for reunification . . .

Kentucky – Must exercise ordinary diligence and care to utilize all preventive and reunification services available to the community . . .

"The Child's Name is Today" . . . Gabriela Mistral 19

Wyoming –

“Reasonable efforts determinations shall include whether or not services to the family have been accessible, available and appropriate.” Nevada – The court must “[e]valuate the evidence and make findings based on whether a reasonable person would conclude that reasonable efforts were made.” Colorado – Responsibility “to provide, purchase, or develop the supportive and rehabilitative services” required to prevent placement or achieve reunification . . . To use “diligence and care” . . .

"The Child's Name is Today" . . . Gabriela Mistral 20

The Child Welfare Information Gateway . . . Reasonable Efforts are . . . “accessible, available and culturally

appropriate services

that are designed to improve the capacity of families to provide safe and stable homes for their children…” "The Child's Name is Today" . . . Gabriela Mistral 21

A six factor test . . . Minn. Stat. Ann. § 260.012(a must: ) Services constituting Reasonable Efforts 1. Take into account child

safety

; 2. Meet the child and family’s

needs

; 3. Complement the family’s

culture

; 4. Remain

available and accessible

to the family;

5. Continue consistently

and in a

timely

manner; and, 6. Be

realistic

under the circumstances 22

Reasonable efforts litigation: A little practice . . . • At a shelter care hearing the attorney for the mother asks the court to order a social worker to be present in the home 12 hours a day. She says that will permit the child to safely remain at home. • The County Attorney objects 23

Reasonable efforts . . . What are the arguments?

• For Parents: these services are necessary to prevent removal of the child. • For Agency: these services cost too much. The Agency has an obligation to the entire community and not just to a few families. Does it matter for how long the CW is expected to be in the home for 12 hours? 24

Comparing Children Placed in Foster Care with Those who Remain at Home Cases where professionals disagreed on whether the children should be placed (no easy cases) Family Foster Intact Placement Arrested at least once Became teen mother 14% 33% Held a job at least 3 mos 33% 44% 56% 20% Source: J. Doyle, Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 2007 25

Intervention in the lives of children

“Iatrogenic harm” – The inadvertent and unintended adverse effect or complication of a condition resulting from medical treatment or advice designed to remediate pain or illness.

26 April 17, 2014 Defending Childhood

“Jurigenic Harm” – The inadvertent and unintended adverse effect on a child or family resulting from interventions designed to protect. April 17, 2014 Defending Childhood 27

Determining “Reasonable Efforts” . . . • At a review hearing, the mother’s attorney asks the court to order the department to provide transportation so the mother can visit her children.

• The agency replies that its budget has run out and it won’t have bus passes until the end of the month.

28

Being an “Agent of Accountability” What tools does the court system have to encourage and facilitate change in the child welfare system?

• One of the most important is the Reasonable Efforts finding.

• Whose responsibility is it to enforce the rules?

29

Why should the court be involved in governing what the agency does?

Because Congress said so!

To assure the child protection/welfare agency is accountable to their statutory duties To assure that children and families are provided with the tools to succeed The key in fulfilling the Court’s responsibility is to make specific findings and hold the Department to its burden 30

Are we stuck in a rut?

April 17, 2014 Defending Childhood 31

Are Reasonable Efforts defined in the same way in all communities? Is there is a minimum level of services that every agency in every location, whether urban or rural must provide?

32

The “Art” of making a “Reasonable Effort” Finding . . . • A “NO REASONABLE EFFORTS” finding means the Department has less money to serve children and families Recognize that the court does not want to cost the agency money that is needed to serve families 33

The “Art” of making a “No Reasonable Effort” Finding . . . But . . . • Accountability is essential!

The finding is a recognition that the agency has not done its job, and has not provided the services and supports that it should have under the circumstances of the particular case.

34

So, why is it so important?

• It gets results!

• Children and families get the services they need and deserve!

It changes your local culture 35

Determining the “Reasonable Efforts issue . . . Is it the role of the judge to rubber stamp what the agency recommends?

Is it the role of the judge to rubber stamp what the district attorney in a criminal prosecution recommends?

36

An Important Resource . . .

http://www.ncjfcj.org/resource-library/publications/reasonable-efforts judicial-perspective "The Child's Name is Today" . . . Gabriela Mistral 37

Reasonable Efforts Litigation . . .

• An attorney for a teenage mother asks the court to order the agency to place the mother in a foster home that will accept both mother and baby. • The County Attorney objects by arguing that no such homes are available. 38

Determining “Reasonable Efforts . . . • At the dispositional hearing, the caseworker writes in the report that the father and no relatives have been located.

• What questions do you want to ask? 39

Determining “Reasonable Efforts” . . . At the dispositional hearing the caseworker submits a report with a service plan. Are there any questions you would like to ask the caseworker and the parties about that plan?

40

The Case Plan . . .

Case planning shall involve the parents so that relevant services can be provided to permit timely rehabilitation and reunification.

Volume 7 7.200.2 E.

41

Wraparound Services . . . A teenager with mental health problems could remain at home if wraparound services were put in place. The County Attorney objects 42

Common sense and compassion Consider: Keeping the child in the home will maintain her connections to the community, parents, siblings, school, therapist, etc. Consider: DHS is responsible for making “reasonable efforts” under statute and regulation to prevent the need for placement.

43

Common sense and compassion Consider: The wraparound services are likely more cost effective than placement.

Consider: This child is entitled to receive what she needs, not just “what we got” 44

Visitation . . . After three children are removed from the home of the parents because of the abuse of meth the DHS caseworker recommends visits of once per week. RPC suggests “reasonable efforts” call for more time: 45

• Volume 7.304.64 D. Visitation . . . shall increase in frequency and duration as the goal of reuniting the family is approached. • Children have a need to maintain connections with parents and other family members. • Research supports the significance of parent-child visitation as a predictor of family reunification . . . 46

Visitation . . . After three children are removed from the home of the parents because of the abuse of methamphetamines and the mother subsequently tests hot for meth, the County Attorney and GAL argue that there be no contact by the mother with the children until the mother has two clean UA’s in a row. 47

A prospective adoptive mother comes before the court at a review hearing and asks why the adoption has not been completed?

• The agency says that it is overwhelmed with the volume of work and that home studies take a long time.

What findings do you make?

48

Reasonable Efforts Leadership . . . Make the agency aware that if “A” does not happen by a specific date, the court will make a “no reasonable efforts” finding. Continue the case for a week to give the agency an opportunity to take the action. 49

Reasonable Efforts Leadership . . . Judge Leonard Edwards calls this “The Art of a No Reasonable Efforts Finding” • Described in “Improving Implementation of P.L. 96-272” Available on Judge Edwards’ website: http//judgeleonardedwards.com 50

So . . . To what extent do you believe you have a responsibility to help improve the child protection system? Will requiring the attorneys to consistently make reasonable efforts arguments and the court making specific findings improve the system ? 51

Small Adjustments . . .

Discomfort Here Incremental Progress Visio n There

The best time to plant a tree is 20 years ago . . .

The second best time is today . . .

Chinese Proverb 53