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 . . .
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Everybody needs what I’m selling!
To Achieve Better Outcomes the “Reasonable
Efforts” Finding Must Be Based on Evidence and
Must Contain Specific Findings!
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A better practice . . .
. . . Demanding effective Advocacy
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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.
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“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)
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“Reasonable Efforts”
findings required:
• When return home is
inconsistent with the
permanency plan,
reasonable efforts
shall be made to
finalize the
permanency plan
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Federal Requirement . . .
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
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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
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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 outof-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.
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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.
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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
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•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
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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
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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
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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.
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7.200.1 Child Welfare Services
A. Reasonable efforts shall be made to
prevent placement . . .
B. Appropriate
and Culturally
competent
services . . .
shall be
provided . . .
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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 . . .
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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
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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
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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
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A six factor test . . . Minn. Stat. Ann. §
260.012(a)
Services constituting Reasonable Efforts
must:
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
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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
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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?
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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
14%
Became teen mother
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
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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.
April 17, 2014
Defending Childhood
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“Jurigenic Harm” – The inadvertent
and unintended adverse effect on a
child or family resulting from
interventions designed to protect.
April 17, 2014
Defending Childhood
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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.
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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?
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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
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Are we stuck in a rut?
April 17, 2014
Defending Childhood
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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?
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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
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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.
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So, why is it so important?
•It gets results!
•Children and families get the services
they need and deserve!
It changes
your local
culture
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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?
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An
Important
Resource . . .
http://www.ncjfcj.org/resource-library/publications/reasonable-effortsjudicial-perspective
"The Child's Name is Today" . . . Gabriela Mistral
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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.
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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?
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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?
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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.
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Wraparound Services . . .
A teenager with mental
health problems could
remain at home if
wraparound services
were put in place.
The County Attorney objects
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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.
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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”
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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:
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•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 . . .
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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.
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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?
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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.
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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
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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?
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Small Adjustments . . .
Vision
There
Progress
Discomfort
Here
Incremental
The best time to plant a tree is 20 years ago . . .
The second best time is today . . .
Chinese Proverb
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