REASONABLE EFFORTS AND COURT
IMPROVEMENT
TEXAS CASA
MARCH 12, 2014
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REASONABLE EFFORTS AND COURT
IMPROVEMENT
JUDGE LEN EDWARDS (RET.)
MENTOR JUDGE
CENTER FOR FAMILIES, CHILDREN AND
THE COURTS
ADMINISTRATIVE OFFICE OF THE
COURTS
SAN FRANCISCO, CA 94102
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REASONABLE EFFORTS AND COURT
IMPROVEMENT
EMAIL:
Judgeleonardedwards@gmail.com
WEB PAGE:
Judgeleonardedwards.com
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REASONABLE EFFORTS AND COURT
IMPROVEMENT - OUTLINE
I. OVERVIEW OF COURT IMPROVEMENT
II. REASONABLE EFFORTS: THE LAW
III. SOME EXAMPLES
IV. TEXAS PRACTICE
V. HOW CAN WE IMPROVE?
VI. QUESTIONS/COMMENTS
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National Media Coverage
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Never has the media been so interested in
foster care.
Newspapers, books and Television, in
particular, have made foster care a major
topic.
Antwone Fisher (Finding Fish) helped out.
As did Hope’s Boy by Andrew Bridge and
Three Little Words by Ashley Courter.
Also a The Boy Who Was Raised in A Cage
by Bruce Perry.
II. REASONABLE EFFORTS
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.
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II. REASONABLE EFFORTS: THE
LAW
The Adoption Assistance and Child Welfare Act
of 1980 (AACWA)
The Adoption and Safe Families Act (ASFA) of
1997
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II. REASONABLE EFFORTS: THE
LAW
The State Plan
Federal Funding of Foster Care
Monitoring the State and Local Welfare Agency
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II. REASONABLE EFFORTS: THE
LAW
A Judge must make and record certain findings
in Child Abuse & Neglect cases:
(1) “Contrary to the Welfare of the Child”
(2) “Reasonable Efforts to Prevent Removal”
(3) “Reasonable Efforts to Facilitate
Reunification”
(4) “Reasonable Efforts to Finalize Alternate
Permanency Plans”
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II. REASONABLE EFFORTS: THE
LAW
What does reasonable efforts mean?
What does reasonable efforts have to do with
court improvement?
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REASONABLE EFFORTS
Reasonable Efforts is the legal finding by which
the court reviews the actions of the child
protection/welfare agency to determine
whether they are fulfilling their statutory
duties.
The Reasonable Efforts finding is the most
powerful tool the court has to monitor the
actions of the agency.
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REASONABLE EFFORTS
Essentially the court is telling the agency
(and the world) whether the agency has done
its job and completed its responsibility
towards the clients it serves and its promise
to the federal government to use the federal
money to serve children and families.
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REASONABLE EFFORTS
REASONABLE EFFORTS IS A TERM OF
ART.
THERE IS NO FAST AND FIRM
DEFINITION.
IT IS THE AMOUNT OF SERVICES OR
SOCIAL WORKER EFFORT THAT THE
LAW REQUIRES DEPENDING ON THE
PROBLEM AND THE RESOURCES WITHIN
THE COMMUNITY.
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REASONABLE EFFORTS
Texas Family Code § 262.001 – “In
determining the reasonable efforts that are
required to be made with respect to
preventing or eliminating the need to remove
a child from the child’s home or to make it
possible to return a child to the child’s home,
the child’s health and safety are the
paramount concerns.”
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REASONABLE EFFORTS
WHAT MAY BE “REASONABLE” IN ONE
COMMUNITY MAY NOT BE IN ANOTHER.
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REASONABLE EFFORTS
FEDERAL LAW REQUIRES THAT THE
JUVENILE COURT MAKE THREE KINDS
OF REASONABLE EFFORTS FINDINGS IN
EVERY FOSTER CARE CASE.
1. Shortly after removal of the child.
The court must determine whether the
agency provided reasonable efforts to
prevent removal of the child.
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REASONABLE EFFORTS
2. During the case to determine if the
agency is providing reasonable efforts to
facilitate reunification.
In Texas, this determination is made at the
adversary hearing.
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REASONABLE EFFORTS
(3) After a permanency plan for the child has
been set.
In Texas this will take place about 6 months
into the case – about 4 months after a
permanency plan has been established by
the court.
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REASONABLE EFFORTS
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There is another finding the court can make.
“NO REASONABLE EFFORTS”
This means that the agency has not done its
job, and has not provided the services and
supports that it should under the
circumstances of the particular case at that
particular time in the case.
The finding can be modified as the case
progresses.
REASONABLE EFFORTS
A Finding of “No Reasonable Efforts” has
substantial consequences for the agency and
for the state.
If the finding is that the agency did not make
reasonable efforts to prevent removal, the
state will not receive any federal money for
the placement of that child.
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REASONABLE EFFORTS
If the “no reasonable efforts” finding is made
later in the case, it can be cured by the
agency if they address their failure.
In either situation, the “no reasonable efforts”
finding is a powerful tool, one that the agency
takes very seriously.
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III. REASONABLE EFFORTS:
EXAMPLES
SO HOW DOES IT WORK?
CASE #1: An attorney asks the court to order
24/7 in-home support services for an at risk
family to ensure protection for the children.
The agency replies: This is an unreasonable
expenditure of services OR that the agency
has no service provider who that can provide
this service.
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III. REASONABLE EFFORTS:
EXAMPLES
How would you rule?
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REASONABLE EFFORTS:
EXAMPLES
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.
The request, therefore, is unreasonable.
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REASONABLE EFFORTS:
EXAMPLES
WOULD YOUR RULING DEPEND ON HOW
LONG SUCH SERVICES WOULD HAVE TO
BE PROVIDED?
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REASONABLE EFFORTS:
EXAMPLES
If the court ruled that the service must be
provided, must the agency comply with the
court order?
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REASONABLE EFFORTS:
EXAMPLES
If the judge orders the services, the agency
may appeal the issue to the appellate court.
This has happened in several states with
different results.
The appellate court would have the last word
on what is reasonable in each situation.
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REASONABLE EFFORTS:
EXAMPLES
#2 – An attorney argues that a mother has
been unable to visit her child because the
department has not provided transportation
and she is poor and has none.
Is this a denial of reasonable efforts?
What are the arguments for each side?
Your ruling?
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REASONABLE EFFORTS:
EXAMPLES
#3 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. Would the agency’s failure to do
this be the basis for a “no reasonable efforts”
finding?
What are the arguments?
YOUR RULING?
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REASONABLE EFFORTS:
EXAMPLES
#4 – The attorney/gal for a child asks that the
court order Wraparound Services to make it
possible for a child with mental health
problems to remain at home with her family.
The agency argues that these services are
too expensive.
What is wraparound? Is it a basic service?
YOUR RULING?
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REASONABLE EFFORTS:
EXAMPLES
#5 – 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 too busy and that
home studies take a long time.
Is this an issue deserving a “no reasonable
efforts” discussion and possible finding?
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REASONABLE EFFORTS:
EXAMPLES
#6 – A child is removed from a mother’s
custody after the social worker discovers that
the mother has been the victim of repeated
domestic violence and that the child has
been exposed to that violence.
Is there a reasonable efforts issue in this
case?
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REASONABLE EFFORTS
If the court made a “no reasonable efforts”
finding in one of these cases, would the
agency lose money?
Then why should the judge make such a
ruling when the agency (and the state) will
have less resources?
Shouldn’t the judge just go along with the
state and find that what the agency provides
is reasonable?
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REASONABLE EFFORTS
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?
These are arguments that the attorneys
should be making to the judge.
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REASONABLE EFFORTS
I suggest a strategic use of the No
Reasonable Efforts finding.
The judge might tell the agency that the
judge is about to make such a finding, but
then the judge continues the case for a week
to give the agency an opportunity to take
action.
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REASONABLE EFFORTS
I call this “The Art of a No Reasonable Efforts
Finding”
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REASONABLE EFFORTS
In my research I find that attorneys rarely
bring up the “reasonable efforts” issue.
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REASONABLE EFFORTS
I believe that attorneys and judges should be
attempting to improve the child protection
system at every opportunity.
Raising the reasonable efforts issue may
improve the system for all clients.
It also will be addressing the reason for the
federal and state legislation: holding the
children’s services agency accountable.
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IV. TEXAS PRACTICE
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THE EX PARTE HEARING
THE ADVERSARY HEARING
STATUS HEARINGS, FIRST
PERMANENCY HEARING, AND
SUBSEQUENT PERMANENCY HEARINGS
RETURN HOME/TERMINATION OF
PARENTAL RIGHTS, GUARDIANSHIP,
LONG TERM FOSTER OR RELATIVE
CARE
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IV. TEXAS PRACTICE
ACCORDING TO TEXAS APPELLATE
DECISIONS MOST REASONABLE
EFFORTS ISSUES ARISE AT THE
TERMINATION OF PARENTAL RIGHTS
HEARING.
AND THIS IS TOO LATE!
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IV. TEXAS PRACTICE
THE REASONABLE EFFORTS ISSUE
SHOULD BE ADDRESSED EARLY AND
OFTEN.
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IV. TEXAS PRACTICE
AT THE EMERGENCY HEARING – THE
COURT MUST DETERMINE WHETHER
THE AGENCY MADE REASONABLE
EFFORTS TO PREVENT REMOVAL.
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IV. TEXAS PRACTICE
FAMILY CODE § 262.201 requires that
within two weeks of removal, the court shall
hold an adversary hearing, and : “shall order
the return of the child…unless the court
finds…
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IV. TEXAS PRACTICE
(1) there was a danger to the physical health
or safety of the child;
(2) the urgent need for protection required
the immediate removal of the child; and
(3) reasonable efforts have been made to
enable the child to return home, but there is
a substantial risk of a continuing danger if the
child is returned home.”
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IV. TEXAS PRACTICE
§ 263.202 concerns status hearings and
states that the court shall review the service
plan that the department or other agency
filed…for reasonableness, accuracy, and
compliance with requirements of court orders
and make findings as to whether…
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IV. TEXAS PRACTICE
“a plan that has the goal of returning the child
to the child’s parents adequately ensures
that reasonable efforts are made to enable
the child’s parents to provide a safe
environment for the child.”
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IV. TEXAS PRACTICE
However Texas cases do not specifically
address whether trial courts have properly
certified that the state made reasonable
efforts consistent with these sections.
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IV. TEXAS PRACTICE
There is no requirement in Texas law for a
court to address “reasonable efforts” in a
termination of rights hearing unless the
hearing is proceeding under a “constructive
abandonment” theory.
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IV. TEXAS PRACTICE
Edwards v Texas Dep’t of Protective and
Regulatory Services, 946 S.W.2d 130, 139
(1997): “We find no requirement, either in the
Family Code or in case law, that adequate
reunification efforts be proven before
termination is appropriate.”
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IV. TEXAS PRACTICE
One research article concluded that in the
majority of Texas jurisdictions there is:
+ A lack of urgency to find permanent homes
for these children
+ A lack of accountability and preparedness
for these children’s well-being.
+ A lack of clear roles for the legal
participants
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IV. TEXAS PRACTICE
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+ A sense that the children themselves do
not need to be heard or that their presence in
the courtroom would be harmful to them.
+ A void in the courtroom of individuals who
really know the child, and
+ a lack of communication and coordination
among the stakeholders, and in some cases,
a systemic discord between two or more of
them.
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IV. TEXAS PRACTICE
That same report states:
“If a child has a CASA, the CASA usually is
the only person who truly knows the child
and knows how the child is really doing.”
THE CONCLUSION: EVERY CHILD
SHOULD HAVE A CASA!
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V. HOW CAN WE IMPROVE?
I understand that CASA volunteers may not
be involved at this late stage of the case.
That is unfortunate.
CASA’s should be in court every time a
child’s case appears until it is dismissed.
Who else is going to remind the judge that
the child needs permanency?
Possibly the Child’s Attorney/GAL.
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V. BUILDING BETTER COURT
SYSTEMS
Court Improvement starts with an attitude.
The attitude is that we can work together to
improve the way that the system operates.
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BUILDING BETTER COURT SYSTEMS
WHAT IS NEEDED?
We have to make these children and families a
priority.
That means more time and energy spent on
their outcomes.
More meaningful (longer) hearings.
The presence of children in the court.
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BUILDING BETTER COURT SYSTEMS
+ Higher quality attorneys who are well
compensated
+ Representation throughout a case, not just
for one or two hearings.
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BUILDING BETTER COURT SYSTEMS
+ Making certain that the agency is doing its
job correctly by carefully reviewing the
reasonable efforts requirements.
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BUILDING BETTER COURT SYSTEMS
It means having dedicated, experienced, and
well-paid attorneys representing all parties.
It means having a strong CASA program.
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CONTACT INFORMATION
Hon. Leonard Edwards (ret.)
California Administrative Office of the Courts
San Francisco, California
judgeleonardedwards@gmail.com
Judgeleonardedwards.com
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