| A Call to Clarify Child Protection Law (Part 1 of 2)
By Jodi Furness1
Reasonable Efforts has been the guiding standard of child protection law for longer than any of the currently involved children have been alive, but do the adults involved really know what reasonable efforts means? Since 1980, parents, social workers, guardians, judges and child protection attorneys2 have been held to a federal standard of reasonableness in regards to the efforts extended to families and children in the child protection system. At that time the efforts were intended to prevent placement and reunify families. In 1997 the Adoption and Safe Families Act3 (ASFA) extended the mandate requiring reasonable efforts to include achieving timely permanency for children for whom reunification is not a viable alternative.4
Although all fifty states are guided by the same legislation, there is no clear national consensus regarding the definition of reasonable efforts in child protection cases beyond the requirement of case plans and scheduled reviews and hearings. ASFA, like the Child Welfare Act of 1980,5 also failed to articulate a precise federal standard for the required reasonable efforts. In an attempt to remedy the confusion of prior legislation with ASFA, Congress formally added the condition that “the child’s health and safety should be the paramount concern” in determining whether reasonable efforts have been made.6 What has resulted is a virtual cornucopia of interpretations that not only vary by state, but also by case. In 1978 the Maryland Court of Appeals was not alone in lamenting that, “[t]here can be very little constructive or useful precedent on the subject of custody determination, because each case must depend upon its unique fact pattern.”7 This articulation of a case-by-case approach has continued throughout the nation in post-ASFA decisions.
Courts nationwide have pointed out that reasonable efforts should be common sense; offered in relation to a court-ordered plan; peculiar to circumstances; real, genuine assistance; or sometimes a denial of services altogether. Judicially accepted reasonable efforts are not necessarily ideal, perfect, all-encompassing, or Herculean. While those are excellent characteristics to help measure the reasonableness of services/programming after they have been offered, practitioners still lack prescriptive direction as to which services should be offered under various circumstances and which services would simply be futile and fail to meet a reasonableness determination.
In light of the uncertainty of this area of law, it is important for all players to prioritize the needs of the child(ren). With that in mind, how can child protection attorneys, in their role as agency representation, best serve the needs of children when faced with cases involving not only children, but also parents, family, foster-parents, judges, other attorneys, agency representatives, and countless service providers?
As is true for other lawyers, the child protection attorney should be guided by national and state standards. The ABA Rules of Professional Conduct should be consulted for general guidance where specific jurisdictional rules for child protection attorneys are lacking. Additionally, the ABA has promulgated Standards of Practice for child welfare attorneys representing the child.8 The principles articulated in the commentary to those standards indicate a child-centered policy that may also help to guide the child protection attorney.
As further assistance, the Children’s Bureau of the Department of Health and Human Services has published excellent guidelines for agency representation.9 By incorporating observations from the commentary accompanying the Children’s Bureau Guidelines, the following five suggestions intend to steer the practice of both novice and experienced child protection attorneys in a child-focused direction.
- Know your stuff. As an attorney your trade is law, so be sure to know and understand child protection proceedings. Keep to the federal or state-mandated timelines – avoid legal delays that are unnecessary from the child’s standpoint. Appreciate not only the ASFA requirements but also the nuance of your state laws. Remember that some states do a better job of defining and guiding reasonable efforts. For example, Minnesota statutes guide court determinations of what is reasonable under the law by requiring that services provided to families be deemed “(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances.”10 Furthermore, Minnesota courts are required to ensure that “case plans be narrowly tailored to solve the problems that precipitated state intervention.”11 If your state operates under ambiguous legislation, determine legislative intent by examining the history of a particular statute, or check the NCPTC website for legislative examples from other states that may help shepherd your own efforts.
- Be a zealous advocate for your client. Be clear about who your client is and be sure that you are arguing the position of the client, not just what appears best to you. Child protection attorneys typically represent the state agency assigned with the care of dependent and neglected children. In that position, advocating for the child welfare agency or department’s position to terminate rights, despite a personal hesitation to terminate, is recognition of your role as an attorney as well as validation of the experience and expertise of the agency/department which made the decision to pursue termination. Being a good advocate also means that you need to be thoroughly prepared to present your case. Be well-versed not only in presenting expert witnesses for the department but also in combating expert witnesses and the evidence put on by other parties.12
- Speak the client’s language. Agency players possess a different background, and just as they adapt to the legal jargon of these cases, so too should the child protection attorney accommodate the client and be able to converse in the language of the case. To do this effectively the attorney should understand the social and psychological dynamics of child protection situations. Become versed in child development. Communicate with members of the agency you represent and get to know what they do and understand the limitations of their positions. Have a working knowledge of the services provided – try to understand not simply what each service is on paper as part of a case plan, but how each service has worked in other situations in your community – keeping in mind the case-by-case approach. By having a thorough understanding of the dynamics of child welfare cases, the players and their positions, as well as the offered and available services, the child protection attorney will be better able to illustrate to the court the reasonable efforts provided by the agency.
- Recognize local trends. Take note of what services have been judicially sanctioned as reasonable in other cases in your jurisdiction. Be able to provide advice when a case situation is complicated in the eyes of the agency, e.g. multiple efforts have been extended but the assigned judge is either new or unpredictable with respect to findings of reasonableness. A well-prepared child protection attorney may recognize a pattern of efforts that have been consistently deemed reasonable across a spectrum of fact scenarios and thereby advise against any proposed continuance or delay. Similarly, a well-versed child protection attorney may be able to recommend continued efforts based on past decisions from similar facts. NCPTC has collected cases from around the nation in an effort to uncover possible reasonable efforts trends.13
- Take advantage of resources. The ABA Standards of Practice14 call upon judges involved in child-related matters to play an active role in training the attorneys who work in child abuse and neglect cases.15 Be attuned and willing to attend such local training for child protection professionals. Remember that the National Child Protection Training Center (NCPTC) is available as a resource for any issue encountered by child protection attorneys. The NCPTC website contains state statutes on child protection, reasonable efforts state case law summaries and information on training opportunities offered through the American Prosecutors Research Institute. NCPTC staff are available for technical assistance by phone (507-457-2890) or email (ncptc@ndaa-apri.org).
Conclusion
Though the meaning of reasonable efforts may not be crystalline, the need to strengthen our child protection system has never been more clear. In the words of the late U.S. Senator Paul Wellstone, “[w]hen historians write about American politics over the past several decades, the ultimate indictment will be of the ways in which we have abandoned children and devalued the work of adults who take care of children.”16 ASFA reminds us of the need to competently and comprehensively address child welfare. By requiring reasonable efforts, ASFA ensures that the needs of abused and neglected children are not abandoned. It is now time for child protection attorneys to place value on our work as well as the work of allied professionals by pushing for clarification of child protection law through court decisions and legislation. Let it be that the history written by the children we serve today reflects a nation where each state places the needs of children above politics and truly values our reasonable efforts.
Staff Attorney, National Child Protection Training Center. The author thanks Andrea Domeyer, Tiffany Evansen, Lyndsay Haller, and Emily Stenhoff for their invaluable research assistance and dedication to children.
For the purposes of this article the term child protection attorney is used to indicate the attorney representing the child welfare agency or department.
Pub. L. No. 105-89, 111 Stat. 2115 (1997).
See Adoption and Safe Families Act of 1997 (302).
Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified as amended in scattered sections of 42 U.S.C.).
42 U.S.C. §671(a)(15)(A)(1997).
Montgomery County Dept. of Soc. Serv. v. Sanders, 381 A.2d 1154, 1163 (Md. 1978).
ABA Center on Children and the Law, American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases, http://www.abanet.org/child/rep-duties.html (Last visited July 6, 2004).
U.S. Department of Health and Human Services, Administration for Children & Families: Children’s Bureau, Factsheets/Publications: Guidelines for Agency Representation, http://www.acf.dhhs.gov/programs/cb/publications/adopt02/02adpt7.htm#guidar (Last visited June 8, 2004).
M.S.A. §260.012 (c)(1)-(6).
Will L. Crossley, Defining Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation, 12 B.U. Pub. Int. L.J. 259, 298 (2003).
NCPTC maintains files on prosecution as well as defense experts. For information or assistance contact NCPTC at 507-457-2890 or ncptc@ndaa-apri.org.
To view cases from your state please visit the Reasonable Efforts Case Summaries link on the NCPTC website.
ABA Center on Children and the Law, American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases, http://www.abanet.org/child/rep-duties.html
The goal of better trained attorneys is certainly commendable; however, such a responsibility upon child welfare judges may be ill-placed. A recent survey of 2,241 dependency court judges indicated that 49% of judges enter this area with little or no training in child abuse or neglect cases. View from the Bench: Obstacles to Safety & Permanency for Children in Foster Care (July 2004) This survey was conducted by the Children & Family Research Center, School of Social Work, University of Illinois, Urbana-Champaign and is available on line at www.fosteringresults.org.
Paul Wellstone, The Conscience of a Liberal, 73, Univ. of Minn. Press 2001. |
