MAKING REASONABLE EFFORTS:  A Permanent Home for Every Child  DEVELOPED WITH SUPPORT FROM THE EDNA MCCONNELL CLARK FOUNDATION  Photography: Marlene Desautels and Ralph Granich Design: i4 Design/ Sausalito, CA Copyright © 2000 Youth Law Center All rights reserved.  If you want to PRINT this report, see the ORIGINAL PDF version (Adobe PDF format  Size- 917K)

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INTRODUCTION 

In 1980, Congress passed the Adoption Assistance and Child Welfare Act. ¹ The Adoption Assistance Act requires, in part, that states receiving federal monies under the Act make "reasonable efforts" to prevent the removal of children from their homes and, whenever possible, to reunify children placed in foster care with their families. 

In 1997, Congress passed the Adoption and Safe Families Act (ASFA), ² which modifies the reasonable efforts requirement by allowing exceptions to the requirement in certain situations and by using the same term - reasonable efforts - to describe a new child welfare agency requirement to find permanent homes for children.

"Reasonable efforts" has been one of the most hotly debated and confusing issues in the field of child welfare over the past two decades. This handbook explains what reasonable efforts are as we move out of the 1990s. It describes both the old and the new reasonable efforts requirements in detail, and outlines specific actions that should be taken by attorneys, judges, and child welfare agencies to ensure that the letter and spirit of the laws are met.

The Adoption Assistance Act contains no detailed definition of "reasonable efforts." The Act makes clear, however, that reasonable efforts to prevent placement or to reunify a family must be made in each case, for every child receiving federally funded foster care maintenance payments under Title IV-E of the Social Security Act. ³ The federal regulations implementing the Act also require that mandatory case plans for each child in federally funded or state-supervised ⁴ foster care specify the services that have been provided to prevent placement or facilitate reunification. ⁵

Establishing the required services programs and making the appropriate reasonable efforts in each case are the responsibilities of the state child welfare agency designated as the "single state agency" pursuant to the Adoption Assistance Act. ⁶ Most states have enacted statutes implementing the federal requirements or similarly mandating reasonable efforts to prevent foster care placements. 

ASFA retains the 1980 reasonable efforts language, but amends it to clarify that a child's safety is paramount and provides exceptions to the reasonable efforts requirement. Reasonable efforts are not required if a court determines that one of the three exceptions exist. These are:

° if the parent has subjected the child to "aggravated circumstances," as defined by each state; ⁷

° if the parent has committed murder ⁸ or voluntary manslaughter of another of their children, or felony assault ⁹ that results in serious bodily harm of any of their children; or

° if the parent's rights to a sibling of the child have been terminated. ¹⁰

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ASFA adds two other requirements to the reasonable efforts provisions. First, reasonable efforts must be made to find permanent homes for children for whom reunification is not the permanent plan, including children for whom reunification services have been terminated and children for whom reunification was never ordered in the first place. ¹¹ Second, ASFA allows concurrent planning, in which family reunification and adoption planning are pursued at the same time. ¹² The child's case plan must document the specific recruitment efforts and other steps the agency has taken to achieve permanence for the child. ¹³

In developing working definitions of "reasonable efforts," each state agency should bear in mind the underlying purpose of the requirements of the Adoption Assistance Act and ASFA. These laws are intended to ensure that:

° no child is placed in foster care who can be protected in his or her own home;

° when removal is necessary, reunification always be attempted unless the juvenile court has determined that no reunification efforts need be made; and

° children who are unable to return to their families are placed in adoptive homes or with legal guardians so that they do not languish in foster care.

The principle of maintaining families and avoiding separation is clearly expressed in child welfare standards and literature. Services to maintain children in their own homes have been called "the first line of defense" in child welfare. The goal of maintaining families has been the central espoused goal in child welfare. This goal is grounded in the belief that the best place for children is in their own homes cared for by their own parents. It is also consistent with the constitutional right of family integrity, recognized consistently by the U. S. Supreme Court and other federal and state courts. This right allows parents to raise their children free of state intervention, unless a compelling reason -associated with the safety or welfare of the child - justifies intervention. ¹⁴

At the same time, however, some in the child welfare community (and in Congress) had come to believe that the reasonable efforts requirement as written in the Adoption Assistance Act meant that child welfare agencies returned children to unsafe homes, and this sentiment was one of the factors that led to the new reasonable efforts requirements of ASFA. States now have a duty to ensure that children do not languish in foster care when reunification efforts either fail or are not ordered in the first place. To achieve this goal as expeditiously as possible, ASFA allows exceptions to the original reasonable efforts requirement, and creates a new definition of the requirement, specifically allowing child welfare agencies to make reasonable efforts to place a child for adoption or with a legal guardian at the same time as they make efforts to reunify families. ¹⁵ 

While the old and new definitions of "reasonable efforts" refer to potentially conflicting actions, the consequences for states are clear. Each state should establish programs of preventive and reunification services sufficiently

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comprehensive and flexible to enable the state to respond to children at imminent risk of removal from their homes - by determining whether services would enable children to remain safely at home, and, if so, by providing those services. At the same time, states should establish programs aimed at facilitating adoptions or legal guardianships for those children who cannot return home. 

This publication updates an earlier work written collaboratively by the National Council of Juvenile and Family Court Judges, the Child Welfare League of America, the Youth Law Center, and the National Center for Youth Law with support from the Edna McConnell Clark Foundation. The original publication, entitled "Making Reasonable Efforts: Steps for Keeping Families Together," described the reasonable efforts requirement of the Adoption Assistance Act. It provided guidelines for attorneys, judges, and social services personnel to assist them in defining, providing, and enforcing reasonable efforts to enable children to remain safely at home or to rejoin their families if possible. The authors of the original publication were Carole Shauffer and Alice Shotton of the Youth Law Center; Abigail English and Alice Bussiere of the National Center for Youth Law; Robert Praksti of the National Council of Juvenile and Family Court Judges, and Betsy Cole of the Child Welfare League of America.

This updated handbook incorporates many of the guidelines in the original publication with minor changes, and provides new guidelines that correspond to the changes in federal law. Most of these changes reflect the emphasis on protecting children's safety and finding permanent homes for all children, including those who cannot safely return to their families of origin. The primary author of the updated publication is Alice Shotton with assistance from Shannan Wilber and Mamie Yee at the Youth Law Center. Thanks go to Eleanor Bush at the Juvenile Law Center; and Christine Bailey and Mary Mentaberry at the National Council of Juvenile and Family Court Judges for their valuable input. We also appreciate the continued support of the Edna McConnell Clark Foundation and their dedication to improving the lives of children and their families. 

The handbook has three parts: Guidelines for Attorneys, Guidelines for Judges, and Guidelines for Child Welfare Agencies. In each section, the guidelines are indicated in bold type. Discussion of the principles follows each guideline. In order to make effective use of these guidelines and commentary, readers should be familiar not only with their own section, but also with the Guidelines for other parties. We urge attorneys, judges, and agency personnel to implement these guidelines in an effort to ensure that every child has a stable, caring, and supportive family for life.

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ENDNOTES 

1. Public Law (P. L.) 96-272 (enacted June 17, 1980) repealed the old foster care provisions of Title IV-A of the Social Security Act, added a new Title IV-E (Foster Care and Adoption Assistance), and amended Title IV-B (Child Welfare Services) of the Social Security Act. 42 U. S. C. Sections 620 et seq. and Sections 670 et seq.
2. Public Law 105-89; 42 U. S. C. Sections 671( a)( 15) and 675 (5)( C)( E).
3. 42 U. S. C. Section 671( a)( 15).
4. Case plan requirements apply to more than just Title IV-E eligible children. Children in state-supervised foster care who are not IV-E eligible are also included.
5. 45 C. F. R. Section1356.21( d)( 4).
6. 42 U. S. C. Section 671( a)( 2).
7. In defining such circumstances, Congress suggested states include the following: torture, abandonment, chronic abuse, and sexual abuse. 42 U. S. C. Section 671 (a)( 15)( D)( i).
8. The exceptions also include aiding, abetting, attempting, conspiring, or soliciting the crime of murder or voluntary manslaughter. 42 U. S. C. Section 671( a)( 15)( D)( ii)( III).
9. The felony assault must cause "serious bodily injury." 42 U. S. C. Section 671( a)( 15)( D)( ii)( IV).
10. 42 U. S. C. Sections 671( a)( 15)( A) and (D).
11. 42 U. S. C. Sections 671( a)( 15)( C) and (E).
12. 42 U. S. C. Section 671( a)( 15)( F).
13. 42 U. S. C. Section 675( 1)( E).
14. See, e. g., Santosky v. Kramer, 455 U. S. 745 (1982); Stanley v. Illinois, 405 U. S. 645 (1972).
15. At least one state, California, has passed legislation clarifying that providing services to achieve legal permanence for a child concurrently with reunification services cannot be deemed a failure to provide reasonable services. California Welfare and Institutions Code Sections 366.21( e)( 3), (f)( 3) and (g)( 3)( C) and 366.22( a)( 3).

SUMMARY OF GUIDELINES FOR ATTORNEYS

RESPONSIBILITIES OF ALL ATTORNEYS

1. Responsibilities Prior to Representing a Client in a Dependency Case 

Prior to any involvement in a dependency case, all attorneys should be familiar with the following:

a. The causes of and available treatment for child abuse and neglect.

b. Child development principles, particularly the importance of attachment and bonding and the effects of parental separation on young children.

c. The child welfare and family preservation services available in the community and the problems the services are designed to address. Absent specific documentation as to why they are not needed, at least the following services should be available: 

1. family preservation services;
2. generic family-based services; 
3. cash payments for emergency needs/ ongoing financial support;
4. services to meet basic needs such as food, clothing, and housing;
5. services to address specific problems: 

• respite care 
• child care evaluation and treatment for substance abuse/ chemical addiction 
• parenting training 
• life skills training/ household management; and 

6. facilitative services such as visitation and transportation.

d. The structure and function of the child welfare agency and court systems, services for which the agency will routinely pay, and services for which the agency either cannot or will not pay.

e. Experts who can consult with attorneys and/ or testify on the reasonableness of agency efforts to maintain the child in the home.

2. Responsibilities After Undertaking Representation of a Client in a Dependency Case

After accepting a case, an attorney should:

a. Interview the client.
Interview the client to determine what involvement, if any, the agency had with the parent or child prior to child's removal from the home, and what services the client believes would have been helpful in avoiding the placement.

b. Investigate the child's removal from the home.
Become familiar with the circumstances under which the child was taken from the

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parent's custody. Attorneys should know the history of the family's prior contacts with the agency, who made the decision to remove the child, and the basis for removal, including: 

1. the specific behavior or circumstances that put the child at risk of harm and
justified removal; 

2. how family problems are causing or contributing to the risk; and

3. services the agency has provided and will provide for the family to alleviate or diminish the risk and what alternatives, including in-home services and placement with relatives, were considered prior to removal.

c. Investigate reunification efforts.
If the child has been removed from the home, determine what contacts the agency has had with the parents and the child since the removal, and what efforts it has made to reunify the family.

d. Investigate efforts to achieve permanency for children.
Attorneys for both agencies and children should ensure that agencies make reasonable efforts to timely place children in permanent placements, including:

1. ensuring permanency hearings are timely held; 

2. identifying appropriate cases for concurrent planning;

3. timely filing petitions to terminate parental rights; and 

4. making specific recruitment efforts to find adoptive homes for children, including timely adoption studies of both the child and potential adoptive family, and the prompt pursuit of adoption assistance funds for special needs children.

e. Investigate involvement of outside agencies.
Determine whether other agencies have been involved in the case and interview representatives of these agencies.

f. Interview the agency social worker and review the agency's file.
Make arrangements with the agency attorney to talk directly with the social work-er involved in the case and review the agency's file to ensure it has complied with its own procedures and regulations.

ADDITIONAL RESPONSIBILITIES OF ATTORNEYS FOR PARENTS OR CHILDREN

1. Determine the Client s Goals and Concerns About Placement
Explain to the client the possible results of the shelter care hearing and the psychological and legal consequences of removing the child from the home, and elicit the client's view of the placement and ultimate goals at the hearing.

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2. Interview the Agency Social Worker
Communicate with the agency social worker and review agency records to obtain more information about the case, including services provided or requested by the family prior to the child's removal and the social worker s plan for reunification (services to be provided, visitation arrangements, and projected date of child's return) .

3. Determine the child's Ability to Return Home
By asking the client and consulting with experts, determine what services should be provided to allow the child to return home. Determine whether these services are available in the community and can be provided by the agency.

4. Require the Agency to Present Evidence of Reasonable Efforts
Require the agency to present evidence on the record of all efforts made or attempted to keep the child in the home.

5. Ensure that Witnesses attend the Hearing
Ensure that individuals are subpoenaed and attend the hearing who have had co tact with the family and can testify either to the efforts the agency made to keep child in the home, or the services that should have been provided but were not.

6. Present Evidence on Reasonable Efforts
Present evidence on the reasonableness or unreasonableness of the agency's efforts, and on alternative efforts that could have been made.

7. Obtain Court Orders for Specific Services
Where possible, request that the court order that specific services, including visitation, be provided.

8. Ensure that Settlement of the Case Is Incorporated in the Case Plan

ADDITIONAL RESPONSIBILITIES OF AGENCY ATTORNEYS

1. Protect the child's Interests
Ensure that the agency complies with the Guidelines for Agencies as outlined in this document and, as a regular practice, makes reasonable efforts to keep children in their homes, returns them to their homes as soon as possible, and follows timely procedures to achieve permanency for them.

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2. Meet the Obligation to Prove the Case
Accept the obligation to prove that the agency made reasonable efforts, by presenting evidence of efforts made to keep the child in the home, that these efforts were reasonable, and that additional efforts would not have prevented removal.

3. Represent only the Agency, Not the Child
Take direction from and represent only the agency and refuse to represent the child, on the grounds that such dual representation is a conflict of interest.

4. Interview the Agency Social Worker
Talk with the worker assigned to the case and review agency records for:

a. Information about the case;

b. The services provided or requested by the family prior to the child's removal;

c. The plans for reunification, including services to be provided, arrangements for visits, and the projected date of the child's return home; and

d. In appropriate cases, information about timely procedures to achieve a permanent placement for the child.

5. Provide Agency Records to Attorneys for Other Parties
Make agency records available to attorneys for other parties to the fullest extent possible.

6. Ensure that Witnesses attend the Hearing
Ensure that individuals are subpoenaed and attend the hearing who have had contact with the family and can testify to the efforts the agency made to keep the child in the home.

7. Inform the Court about available Community Services
Inform the court about services available in the community or services required by the state social services plan, whether or not they were used in the particular case. If not used, explain why using these services was not feasible. Also inform the court about services not available in the community that could remedy the family's problems and the agency's efforts to obtain these services.

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GUIDELINES FOR ATTORNEYS

Even with the 1997 ASFA changes, the reasonable efforts requirement gives attorneys for children and parents a strong tool for enforcing their clients' rights to services and to family integrity. It offers agency attorneys a guide by which to determine if the agency is fulfilling its responsibilities, and a tool to assure that frivolous cases are not brought to the juvenile court. 

ASFA also gives agency attorneys a pivotal role in bringing to the court's attention those cases in which reasonable efforts need not be made or should be terminated. The agency and children's attorneys also must focus on the question of whether the case requires the agency to concurrently provide reasonable efforts to reunify a family and to place a child for adoption or with a legal guardian.

This section is written primarily for attorneys in dependency proceedings. ¹ Courts may also use lay investigators and advocates, like Court Appointed Special Advocates (CASA) or guardian ad litem (GAL) programs to investigate cases, develop a plan, and/ or represent the child's best interests. CASAs and GALs should be aware of these guidelines and use them to serve the child's best interests. Training materials for CASA and GAL programs are available from the National Council of Juvenile and Family Court Judges and from the National CASA Association.

This handbook outlines guidelines for attorneys to use in presenting a case on reasonable efforts to the juvenile court. These guidelines do not represent an exhaustive discussion of adequate representation of clients in dependency proceedings. They focus only on reasonable efforts to prevent removal of a child from his or her family, to permit reunification of a child with his or her family, and to find a permanent home for every child.

Attorneys may want to consult national resource centers for advice on how to proceed in litigation of this nature. Among groups that may be able to provide assistance are the Youth Law Center, the National Center for Youth Law, the Children's Defense Fund, the ABA Center on Children and the Law, and the National Council of Juvenile and Family Court Judges. Addresses and telephone numbers for these organizations are found in the resource list following the guidelines.

RESPONSIBILITIES OF ALL ATTORNEYS

1. Responsibilities Prior to Representing a Client in a Dependency Case
Representing clients in dependency cases requires expertise not usually acquired in the general practice of law. Because of the short time periods between the initial detention of a child and the shelter care hearing, ² and between the shelter care hearing and adjudication, attorneys cannot gain the expertise necessary to adequately represent clients after accepting a case.

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Therefore, prior to accepting a dependency case, attorneys must have sufficient background information to practice competently in the area.

Prior to any involvement in a dependency case, all attorneys should be familiar with the following:

a. The causes of and available treatment for child abuse and neglect.

b. Child development principles, particularly the importance of attachment and bonding and the effects of parental separation on young children.

c. The child welfare and family preservation services available in the community and the problems the services are designed to address. Absent specific documentation as to why they are not needed, at least the following services should be available: 

1. family preservation services;

2. generic family-based services;

3. cash payments for emergency needs/ ongoing financial support;

4. services to meet basic needs such as food, clothing, and housing; 

5. services to address specific problems:

• respite care child care
• evaluation and treatment for substance abuse/ chemical addiction 
• parenting training
• life skills training/ household management; and 

6. facilitative services such as visitation and transportation.

Learning about services available in the community is an ongoing process, and few attorneys or social workers are aware of every service that exists. At minimum, attorneys should be familiar with the major service providers and those services that address the most common problems faced by families who need help caring for their children. (These services are more fully described in the Guidelines for Agencies.) Attorneys should also be aware of needed services not routinely available in their community and should know how to obtain them. Finally, attorneys should be familiar with the potential range of services. Too frequently, attorneys think of services in terms of traditional programs like counseling or parenting training. In particular, programs of intensive home-based services are available in many parts of the country. Some agencies also provide direct benefits, like housing, utilities payments, and income maintenance, which, although not considered traditional child welfare services, can be extremely effective in resolving a client's problem.

d. The structure and function of the child welfare agency and court systems, services for which the agency will routinely pay, and services for which the agency either cannot or will not pay.

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Every state is required by the Adoption Assistance and Child Welfare Act to provide the federal government with a list of services available to prevent the removal of children from their homes. ³ This list is a public document and every attorney practicing in this field should have a copy. In addition, local child welfare agencies may provide or pay for services not listed in the plan. These services should be described in the agency's child welfare manual or regulations, which may also prohibit an agency from paying for certain services. Attorneys should obtain copies of local regulations and manuals as well as those from the state.

e. Experts who can consult with attorneys and/ or testify on the reasonableness of agency efforts to maintain the child in the home.

Professionals in social service agencies and schools of social work, psychology, criminal justice and child development at local colleges and universities, are potential sources for expert consultation on solutions to clients' problems. Some experts may be willing to testify or submit reports to the court. Ideally, attorneys should develop a relationship with at least one expert in child

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welfare who can help obtain additional expert advice when necessary. When representing children covered by the Indian Child Welfare Act, contact with experts on tribal child rearing practices is essential. Attorneys may also find professional social welfare literature helpful in understanding the appropriate use of preventive and reunification services, and services to achieve permanence for children in foster care.

2. Responsibilities After Undertaking Representation of a Client in a Dependency Case

After accepting a case, an attorney should:

a. Interview the client.
Interview the client to determine what involvement, if any, the agency had with the parent or child prior to child's removal from the home, and what services the client believes would have been helpful in avoiding the placement. 

The client interview should not be the sole basis for determining what efforts have been made to reunify a family. Agency records should also reflect any services that were provided and attorneys must review the records. However, it is critical for the attorney to obtain the client's perspective on agency contacts and services provided. A client's perception may differ from the social worker's. Agency records may be inaccurate or reflect services that were only considered rather than those actually offered to the client. The client interview is also important in determining whether available services were clearly and adequately explained to the client. Frequently, parents see themselves as passive recipients of services rather than as a part of the process of determining what services are necessary to resolve the problem. Attorneys can assist them in taking a more active role in the process and representing their own views. Attorneys should help clients obtain not only services deemed necessary by experts, but also those that the family considers essential to its survival.

Many child welfare agencies designate particular workers who do not have direct involvement with the cases to appear in juvenile court. These workers are familiar with a case only through the social worker's notes. An attorney cannot adequately represent the agency or act in the child's best interests without interviewing the worker who has direct responsibility for the family. Thus, attorneys should seek out the worker actually involved with the case to determine what efforts have been made, and whether additional efforts were possible, to avoid the trauma to the child of removal and the expense to the agency of foster care.

b. Investigate the child's removal from the home.
Become familiar with the circumstances under which the child was taken from the parent s custody. Attorneys should know the history of the family's prior contacts

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with the agency, who made the decision to remove the child, and the basis for removal, including:

1. the specific behavior or circumstances that put the child at risk of harm and justified removal;

2. how family problems are causing or contributing to the risk; and 

3. services the agency has provided and will provide for the family to alleviate or diminish the risk and what alternatives, including in-home services and placement with relatives, were considered prior to removal.

The circumstances surrounding removal vary from case to case. In some, the child's removal occurs during the family's initial contact with the agency; in others, the family has a long history of agency contacts, and removal is the agency's last resort in its efforts to protect the child. Agency practice also varies from jurisdiction to jurisdiction and from case to case. In some jurisdictions, agency social workers participate both in the decision to remove and in the actual removal. In others, law enforcement is authorized to remove a child from home without consulting the agency. In these cases, the agency may be notified only after a child is taken to shelter care. 

If law enforcement alone makes the decision to remove a child, no efforts will be made to avoid placement. Most law enforcement agencies do not have the resources and/ or training to make these efforts. It is better practice for law enforcement to investigate jointly with the child welfare agency so removal does not occur without the agency's advice and approval. If the agency was not involved, the attorney must determine whether any services could have been used to maintain the child in the home. If, on the other hand, the child welfare agency has been involved and offered some services, the attorney must determine whether those services were adequate and appropriate.

In some cases, immediate removal from the home is necessary because law enforcement is unable to contact the child welfare agency, or because of the emergency nature of the situation. In that case, the attorney should review the case to determine whether reasonable efforts were made to reunify the child after the emergency removal but prior to the shelter care hearing. 

Attorneys must be aware of prior contacts between the agency and the family. These can be identified by conversations with the family (if the attorney represents a family member) or the social worker, and a review of agency records. If there has been extensive prior involvement, a written case plan in the record should reflect the reason for the decision to remove the child. All parties and their attorneys are entitled to a copy of the case plan. The attorney should review the case plan to make sure the family was informed that removal would be a consequence of failure to cooperate with the case plan.

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c. Investigate reunification efforts.
If the child has been removed from the home, determine what contacts the agency has had with the parents and the child since the removal, and what efforts it has made to reunify the family.

An attorney is frequently assigned to a case on the day of the shelter care hearing. Depending on state law, local practice, and the court's schedule, this hearing may occur anywhere from one to five days after the child has been removed. During this initial period, the agency should have made efforts to reunify the family. 

Examples of reunification services are provided above and in the Guidelines for Agencies. They usually include, at a minimum, visitation and communication between the child and the parent. They may also include efforts to find an alternative living arrangement to foster care, including the home of a relative or neighbor. Reunification services should also include emergency services - such as homemaker services, child or respite care, and family counseling - that enable families to keep the child at home, where appropriate. The attorney should determine which, if any, of these services has been offered and review the relevant guidelines to determine whether the agency is in compliance with the reasonable efforts requirement. 

The attorney for the parent or child should be prepared to bring to the court's attention the failure to provide reasonable services and to request a court order that the services be provided. Agency attorneys should urge the agency to provide these services both in the individual case and on a wider basis.

d. Investigate efforts to achieve permanency for children.
Attorneys for both agencies and children should ensure that agencies make reasonable efforts to timely place children in permanent placements, including:

1. ensuring permanency hearings are timely held;

2. identifying appropriate cases for concurrent planning;

3. timely filing petitions to terminate parental rights; and 

4. making specific recruitment efforts to find adoptive homes for children, including timely adoption studies of both the child and potential adoptive family, and the prompt pursuit of adoption assistance funds for special needs children.

ASFA requires the court to hold a permanency hearing if a child has been in foster care for 12 months, ⁴ or within 30 days after it determines that reasonable efforts to reunify are not required. ⁵ At the permanency hearing, the court must determine whether a child will be returned home and if so, when; placed for adoption, with the state filing a petition to terminate parental rights; referred for legal guardianship; or placed in "another planned

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permanent living arrangement." Courts must also ensure that agencies make reasonable efforts to place a child in a timely manner in accordance with the child's permanency plan. ⁶ 

As part of these reasonable efforts, the agency or children's attorney should play a role in focusing the agency on those cases that should be selected for concurrent planning. While concurrent planning is new to some agencies, in others it has been agency practice for many years. Principles of concurrent planning include: 

° advising parents from the beginning of a case about the possibility of their rights to their children being permanently terminated if they fail to comply with their case plan;

° placing siblings in the same foster home at the time of initial placement;

° increasing recruitment of foster/ adoptive parents;

° training foster parents to act as mentors for the parents and encouraging a relationship between them;

° placing children on adoption exchanges sooner than has been the agency's practice; and

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° documenting steps to locate permanent homes for the child. These steps should include ensuring necessary reports are done in a timely manner. These reports might include a child's adoption evaluation, home studies of potential adoptive parents, and assessment of a child's qualification for adoption subsidies.

ASFA also requires an agency to file a petition to terminate parental rights when a child of any age has been in the care of the state for 15 months out of the most recent 22 months. ⁷ These months are counted from the date of the first judicial finding of abuse or neglect or 60 days after the child's removal from the home, whichever is earlier, even if there is no adjudication. ⁸ Lengthy continuances may not be in the clients' interests. A termination petition must also be filed when a court determines that a child has been abandoned, or that the parent has committed murder or voluntary manslaughter of another of their children, or a felony assault resulting in serious bodily injury of any of the parent's children. ⁹ 

The legislation sets out three exceptions to the filing of these termination petitions. These include when the child is in a relative's care; if the child's case plan contains a compelling reason why filing the petition is not in the child's best interests; and if the agency has not provided the child's family the services deemed necessary to return the child safely home. ¹⁰

e. Investigate involvement of outside agencies.
Determine whether other agencies have been involved in the case and interview representatives of these agencies.

Attorneys often erroneously assume the public child welfare agency is the only agency involved with the family. Unfortunately, the agency may make the same assumption. In many cases, a family has been involved with other public and/ or private social service agencies, either through referral from the public agency or on its own initiative. The attorney should find out which other agencies are involved with the family, the reason for their involvement, and the nature of that involvement. The attorney should interview representatives of agencies who have worked with the family. When the attorney represents a parent, he or she can obtain a release of confidential information from the parent in order to interview agency representatives. Attorneys representing children are often entitled to receive this information by virtue of their court appointment. The testimony of these agency representatives may assist the court in making reasonable efforts determinations. At a minimum, an attorney should attempt to obtain their reports and, if they are favorable, to introduce them as evidence that reasonable efforts were or were not made.

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f. Interview the agency social worker and review the agency's file.
Make arrangements with the agency attorney to talk directly with the social worker involved in the case and review the agency's file to ensure it has complied with its own procedures and regulations.

Because the agency has the burden to show the court that it has made reason-able efforts, it should maintain adequate records to demonstrate its compliance with both its own regulations and accepted social work standards. All attorneys should review the agency's records prior to the hearing to determine whether the agency has specifically identified the client's problem and made efforts to provide services to alleviate that problem.

For more information on appropriate agency record keeping, see Guidelines for Agencies and the Child Welfare League's standards for child welfare services.

ADDITIONAL RESPONSIBILITIES OF ATTORNEYS FOR PARENTS OR CHILDREN

In addition to the responsibilities for all attorneys in dependency proceedings, attorneys for parents or children have additional responsibilities related to the particular vulnerabilities of their clients. These special responsibilities are outlined below, and supplement, but do not replace, the general responsibilities of all attorneys.

Representing children poses special challenges. Some children are too young to express a position to their attorney. Others have strong opinions about being placed in foster care. There is some disagreement over the role of the child's attorney in judicial proceedings when the child is old enough to express an opinion. One position is that the attorney should advocate for the child's best interests, regardless of what the child says. The other is that the attorney should represent the child as one would represent any other client and advocate for the position the child expresses.

These guidelines do not adopt either position. In many jurisdictions, both a guardian ad litem and an attorney are appointed in the same dependency case. A guardian ad litem is responsible for acting in the child's best interests. This frees the attorney to represent the child's position. In either case, the attorney should explain clearly to the child what is at stake in the proceedings, help the child understand the proceedings, and make an effort to determine what the child wants. The attorney should then consider all relevant factors, including the child's best interests, when formulating a position.

Attorneys for children also should be aware of the differences between a child's and an adult's perception of time. Matters must progress quickly in juvenile court for them to be meaningful for children. For very young children, a matter of

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a few days or weeks is an extended period. A matter of months or years can be the equivalent of half a lifetime. The attorney must, therefore, attempt to achieve a quick resolution. Thus, in addition to carrying out the general responsibilities of attorneys listed above, attorneys for parents or children should:

1. Determine the Client s Goals and Concerns About Placement
Explain to the client the possible results of the shelter care hearing and the psychological and legal consequences of removing the child from the home, and elicit the client's view of the placement and ultimate goals at the hearing.

An attorney should not assume that the parent or child wants immediate, unconditional reunification. The attorney should begin the interview with the client in a nondirective way, permitting the client to express an honest opinion on the appropriateness of reunification. The attorney should also inform the client about services that may make reunification possible. These services include not only traditional services, but also financial assistance. A client who is not aware of available services may wrongly conclude reunification is impossible. 

At the same time, the client must be aware of the very short time frames for reunification that may exist in the client's jurisdiction. While ASFA decreases the reunification period from 18 months to only 12 months, some states have decreased it even further. For example, in California, parents of children under age three on the date of initial removal receive only six months of family reunification services. ¹¹ The attorney should fully explain the reasonable efforts requirement and determine which services the client believes are necessary, prior to taking a position on the client's behalf. The attorney must explain to the client the consequences of removing a child at a shelter care hearing. The client should know the removal in itself may be harmful to the child and that what starts as a temporary removal may become permanent.

2. Interview the Agency Social Worker
Communicate with the agency social worker and review agency records to obtain more information about the case, including services provided or requested by the family prior to the child's removal and the social worker s plan for reunification ( services to be provided, visitation arrangements, and projected date of child's return) .

3. Determine the Child's Ability to Return Home
By asking the client and consulting with experts, determine what services should be provided to allow the child to return home. Determine whether these services are available in the community and can be provided by the agency.

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The family is often best able to explain the problems that must be addressed by services. However, the family may lack sophistication about the kinds of services or arrangements available to permit a child to stay at home. An attorney should consult with social welfare experts about services that would permit reunification while guaranteeing the child's safety.

4. Require the Agency to Present Evidence of Reasonable Efforts
Require the agency to present evidence on the record of all efforts made or attempted to keep the child in the home.

The agency must prove that efforts were made. An attorney who is challenging the detention decision should require the submission of direct evidence of reasonable efforts.

5. Ensure that Witnesses attend the Hearing
Ensure that individuals are subpoenaed and attend the hearing who have had co tact with the family and can testify either to the efforts the agency made to keep the child in the home, or the services that should have been provided but were not.

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This may require the attorney to request a brief continuance of the hearing, particularly if the attorney is appointed on the day of the hearing. In most cases, all the information presented at a shelter care hearing is in the agency's control. Without outside information, the attorney must rely on the accuracy of both the facts and conclusions contained in the agency's reports. In many cases, family and community perceptions of the agency's actions vary from the agency's. 

The attorney must provide the court with a basis for finding that reasonable efforts have not been made. The brief delay in time, discussed more fully under Guidelines for Judges, may result in a slightly extended detention, but may enable the attorney to present a case that will ultimately gain the child's release.

6. Present Evidence on Reasonable Efforts
Present evidence on the reasonableness or unreasonableness of the agency's efforts, and on alternative efforts that could have been made.

Evidence may consist of expert testimony, a demonstration of the agency's failure to follow the Guidelines for Agencies, or citations from social work literature and case law demonstrating that other means short of removal exist for remedying a family's problem. In most cases, clients in dependency proceedings are either indigent or lack sufficient funds to pay for appearances by experts. The attorney should ask the court to pay for the use of experts. The attorney should also consider subpoenaing agency administrators to determine whether the agency's regulations and plan for provision of services are reasonable and sufficient. In many situations, the social worker will admit that a service would be helpful, but claim that agency regulations do not allow the service to be provided. The attorney should not hesitate to call the director of the agency to testify on the reason for these regulations.

7. Obtain Court Orders for Specific Services
Where possible, request that the court order that specific services, including visitation, be provided.

The reasonable efforts provision of the federal law requires a court to order that reasonable efforts be made to reunify a family. However, in some jurisdictions, a court has no authority to order specific services. In those jurisdictions, the attorney should ask the court to make a general order that the agency make reasonable efforts to reunify the family. 

In jurisdictions where a court can order specific services, the attorney should ask the court to order those services that the client has requested and that experts have agreed are appropriate. Particularly in those jurisdictions

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where the court order serves as the basis for the case plan, the court should specifically list those services.

The attorney should make sure that the court-ordered plan is not so specific as to eliminate flexibility. For example, if visitation is ordered for a specific day of the week and the client is unable to visit on that day, the agency should be able to reschedule visitation. On the other hand, the agency should not be able arbitrarily to change the basic terms and conditions of the visitation plan. 

Visitation is one of the most essential reunification services. Attorneys for the parents or child should request a specific minimal visitation order if the court has jurisdiction to issue such an order. The visitation order should set out the conditions, location, and frequency of visitation. This provides both parent and child with a guarantee of continued contact and an understanding of their responsibilities in maintaining that contact. Visits should also be used to involve parent in activities such as a child's medical appointments, meetings with a child's teachers, or family therapy. For young children, whenever possible, visits should provide parents the opportunity for hands-on care of the child such as feeding, bathing, or putting the child to bed.

8. Ensure that Settlement of the Case Is Incorporated in the Case Plan

In many cases, shelter care or dispositional hearings are resolved by negotiation either directly between the family and agency or between the parties and their attorneys. Such resolution should be specifically set out in the court order. If a family has agreed to the child's continued placement, provided that certain services are available, these services should be specifically listed in the court order. In all cases, the order should specify who is responsible for attaining services and by what time. Specificity in the order is important because a new social worker may be assigned after the shelter care hearing. In many agencies, one worker is assigned to the case before placement and another after placement. Public agencies also undergo personnel shifts and reorganizations that alter workers' assignments. The court order binds the agency to providing the services on which the initial placement was conditioned.

ADDITIONAL RESPONSIBILITIES OF AGENCY ATTORNEYS

The agency attorney's ethical obligations include a responsibility to the general public and to the welfare of the child whom the agency is attempting to assist.

This duty is particularly clear when the attorney is an employee of the district attorney's or county counsel's office. The attorney should help the social worker focus on the best interests of the child and comply with federal law requiring not

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only that out-of-home placement be a last resort, but also that a child's health and safety be the paramount concern whether the child is in his own home or in foster care. ¹² In addition to carrying out the general responsibilities of attorneys listed above, attorneys representing a child welfare agency seeking to obtain custody of a child should:

1. Protect the Child's Interests
Ensure that the agency complies with the Guidelines for Agencies as outlined in this document and, as a regular practice, makes reasonable efforts to keep children in their homes, returns them to their homes as soon as possible, and follows timely procedures to achieve permanency for them.

Agency attorneys are responsible not only for representing the agency, but also for serving the ends of justice and protecting children. Therefore, attorneys should require the agency to comply with its responsibilities to its clients and the public and to provide adequate services to children in its care. Meeting the reasonable efforts requirement in practice is one of these responsibilities.

2. Meet the Obligation to Prove the Case
Accept the obligation to prove that the agency made reasonable efforts, by presenting evidence of efforts made to keep the child in the home, that these efforts were reasonable, and that additional efforts would not have prevented removal.

When the state seeks to remove a child from his or her home and to interfere with the constitutionally protected interests in family integrity, the agency attorney must show the necessity of the agency's actions. The agency attorney must present specific evidence that the agency attempted to provide the family with appropriate services designed to keep the child in the home. To fulfill this obligation, the attorney should require the agency to document the specific problems that resulted in removal, the services short of removal that the agency considered to remedy these problems, the services that were actually offered to the family, and the reason that these services were either refused or unsuccessful. The attorney should demonstrate, either by documentary evidence or oral testimony, why the service was an appropriate response to the problem.

3. Represent only the Agency, Not the Child
Take direction from and represent only the agency and refuse to represent the child, on the grounds that such dual representation is a conflict of interest.

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In dependency proceedings, all parties believe they are advocating for the child's best interests. However, acting in the child's best interests and acting as the child's legal representative are different matters. It is common practice in many juvenile courts for the agency attorney to represent both the agency and the child. This dual representation poses an ethical problem for the attorney because of the many areas of potential conflict of interest. For example, the agency may want the child to remain in foster care, while the child expresses a strong desire to return home. The court should, therefore, appoint a separate attorney for the child in these proceedings. If the court refuses, the attorney must declare a conflict and refuse to represent both the agency and the child. ¹⁴

4. Interview the Agency Social Worker
Talk with the worker assigned to the case and review agency records for:

a. Information about the case;

b. The services provided or requested by the family prior to the child's removal;

c. The plans for reunification, including services to be provided, arrangements for visits, and the projected date of the child's return home; and

d. In appropriate cases, information about timely procedures to achieve a permanent placement for a child.

The attorney must know what services were provided in the past and the worker's plans for future services and the reunification of the family. The development of a good plan is just the first step. The attorney must monitor the plan's implementation to be sure all parties comply with it.

On the other hand, even if the plan is court ordered, the agency can improve services to a family when conditions change. For example, a family may become ready for reunification more quickly than was foreseeable at the initial hearing. In that case, the agency should provide all necessary reunification services. If necessary, the attorney should schedule a hearing to modify the plan. 

If a court determines that reasonable efforts to preserve or reunify a family are not required, the agency attorney should ensure the agency is prepared for permanency hearings within 30 days after the court decides that reasonable efforts are not required. The agency attorney also should ensure that agencies make reasonable efforts to place a child in a timely manner in accordance with the child's permanency plan. ¹⁵

At the permanency hearing, the agency attorney should ensure that the court has sufficient information to decide whether a child will be returned home, and if so, when; placed for adoption with the state filing a termination of parental rights petition; referred for legal guardianship; or placed in

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"another planned permanent living arrangement." ¹⁶ 

The agency attorney must also make sure that the agency files a petition to terminate parental rights when a child of any age has been in the care of the state for 15 months out of the most recent 22 months. ¹⁷ These months are counted from the date of the first judicial finding of abuse or neglect or 60 days after the child's removal from the home, whichever is earlier. ¹⁸ 

A termination petition must also be filed when a court determines that a child has been abandoned, or the parent has committed murder or voluntary manslaughter of another of their children, or a felony assault resulting in serious bodily injury to any of the parent's children. ¹⁹

Federal law allows exceptions to the filing of these termination petitions when the child is in a relative's care; the child's case plan contains a compelling reason why filing the petition is not in the child's best interests; or the agency has not provided the child's family the services deemed necessary to return the child safely home. ²⁰

5. Provide Agency Records to Attorneys for Other Parties
Make agency records available to attorneys for other parties to the fullest extent possible.

The child's interests are best served when all parties have full information about the agency's evaluation of the family and its response to that evaluation. This allows all attorneys to make a reasoned decision about the child's best interests and the possibility of reunification. The agency attorney has an obligation to share agency records with attorneys for the private parties involved. 

In many instances, agencies are reluctant to share their records with clients because of concerns that the information contained in them will be damaging to the family or the child. For example, confidential communications made by a child to a worker should not be shared with the parents. These guidelines recommend that attorneys for all private parties have access to these records with the understanding they will not reveal information to clients if doing so may be damaging to the child or other family members. ²¹

6. Ensure that Witnesses attend the Hearing
Ensure that individuals are subpoenaed and attend the hearing who have had co tact with the family and can testify to the efforts the agency made to keep the child in the home.

7. Inform the Court bout available Community Services
Inform the court about services available in the community or services required by the state social services plan, ²² whether or not they were used in the particular case. If not

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used, explain why using these services was not feasible. Also inform the court about services not available in the community that could remedy the family's problems and
the agency's efforts to obtain these services.

The agency attorney must be an active advocate for the agency. As the individual with greatest access to agency records, the agency attorney is best qualified to inform the court about services available in the community and services necessary to the family but which the agency cannot provide. This may enable the court to order provision of these services from other funds or to request help from outside agencies in obtaining these services. It will also enable the court to assist the agency in developing new programs to better serve the community. The agency attorney can also act as a liaison between the agency and the community and media to advocate for improved community child protection.

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ENDNOTES

1. The term dependency is used here to refer to all proceedings in which allegations are made that a child is in need of care, supervision, or placement because of parental abuse or failure to adequately care for or protect the child.
2. The name for this initial custody hearing, at which the court must decide if the child remains at home pending a determination of whether the child is a court dependent, varies from state to state. In some states, it is known as a detention hearing, in others a custody hearing. For purposes of these guidelines, it is referred to as a shelter care hearing.
3. 42 U. S. C. Section 622( b)( 5).
4. 42 U. S. C. Section 675( 5)( C).
5. 42 U. S. C. Section 671( a)( 15)( E)( i).
6. 42 U. S. C. Sections 671( a)( 15)( E)( ii) and 675( 5)( C).
7. 42 U. S. C. Section 675( 5)( E).
8. 42 U. S. C. Section 675( 5)( F).
9. 42 U. S. C. Section 675( 5)( E).
10. 42 U. S. C. Section 675( 5)( E).
11. California Welfare and Institutions Code Section 361.5 (a)( 2).
12. 42 U. S. C. Section 671( a)( 15)( A).
13. See, e. g., Stanley v. Illinois, 405 U. S. 645 (1972); Santosky v. Kramer, 455 U. S. 745 (1982).
14. See In re Patricia E. (1984) 206 Cal. Rptr. 684.
15. 42 U. S. C. Section 671( a)( 15)( E).
16. 42 U. S. C. Section 675( 5)( C).
17. 42 U. S. C. Section 675( 5)( E).
18. 42 U. S. C. Section 675( 5)( F).
19. 42 U. S. C. Section 675( 5)( E).
20. 42 U. S. C. Section 675( 5)( E).
21. See Smith v. Edmiston, 431 F. Supp. 941 (W. D. Tenn. 1977).
22. Adoption Assistance and Child Welfare Act, 42 U. S. C. Sections 620 et seq., requires states receiving funds under this Act to develop plans listing the services that are available in various areas of the state. 42 U. S. C. Section 622( b)( 5).

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SUMMARY OF GUIDELINES FOR JUDGES

MONITORING SOCIAL AND LEGAL SERVICES TO CHILDREN AND FAMILIES

1. Know what child welfare and family preservation services are available in the community and what problems they can address.

Absent specific documentation as to why they are not needed, at least the following services should be available:

a. family preservation services;
b. generic family-based services;
c. cash payments for emergency needs/ ongoing financial support;
d. services to meet basic needs such as food, clothing, and housing;
e. services to address specific problems respite care child care counseling/ psychotherapy
parenting training life skills training/ household management; and
f. facilitative services such as visitation and transportation.

2. Meet regularly with child welfare representatives and participants in the juvenile court process.

3. Understand child development principles, particularly the importance of attachment and bonding and the effects of parental separation on young children.

4. Encourage the child welfare agency to prevent unnecessary removal of children by providing services to protect them in their homes.

5. Encourage the development of agreements between law enforcement and the child welfare agency so that law enforcement officers do not remove children from their homes without prior coordination with the agency.

6. Know the child welfare agency's record of providing preventive and reunification services, as well as its rules and regulations, and monitor the agency's compliance with the reasonable efforts requirements.

7. Ensure that the child welfare agency is aware that failure to make reasonable efforts will result in a failure to receive federal reimbursement.

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8. Be familiar with the agency's policies to implement concurrent planning and achieve permanency.

9. Establish a mandatory training program for attorneys representing parents and children.

10. Maintain a list of experts who can evaluate the reasonableness of services provided to keep a child in the home and on any harm that a child will experience if removed from the home or continued in out-of-home placement.

MAKING REASONABLE EFFORTS DETERMINATIONS

1. Permit all parties to review the child welfare agency's records to ensure a full and fair hearing on the merits.

2. Require the agency to prove that it made reasonable efforts and find the agency did so only if the evidence presented at the hearing is sufficient to satisfy the agency's obligation.

3. Permit any party to present testimony on the issue of reasonable efforts.

4. Grant brief continuances to allow attorneys for the parent or child to obtain evidence on reasonable efforts when appropriate and necessary. However, delays from continuances can be detrimental to the child, and they should be minimized by assuring that attorneys are appointed and receive agency reports sufficiently in advance of the hearing to permit a full investigation.

5. If the child can return home safely, with or without giving supportive services to the family, order that the child be returned home. If the child cannot return home but could have been maintained in the home if services had been provided earlier, state in the court order that reasonable efforts were not made.

6. If the child is ordered home, order provision of family maintenance services to keep the child safe.
7. If the court finds that a child must be removed, it should permit a full hearing on the reunification plan and order appropriate reunification services.

8. Ensure in appropriate cases that permanency hearings are timely held, agencies make reasonable efforts to timely place children in permanent placements, and agencies timely file petitions to terminate parental rights.

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9. If the court finds that reasonable efforts have not been made, it should hold the agency accountable for its performance. For example, the court can:

• subpoena agency witnesses to testify about the agency's failure to make reasonable efforts
• allow the agency a brief continuance to show why a negative finding should not be made
• order the agency not to seek reimbursement for the cost of the child's care
• order the agency to develop specific services and file appropriate documents where necessary
• issue orders to show cause or co tempt orders
• submit reports on noncompliance to state or federal agencies

10. The court should request that the agency provide, on an ongoing basis, at least the following data:

• the number of families provided preventive services
• the number of families provided reunification services
• the number of children kept at home with preventive services
• the number of children placed in foster care and their length of stay
• the number of children returned home with family reunification services
• the number of children placed in long-term foster care and their length of stay
• the number of children placed for guardianship/ adoption and the number of guardianship/ adoption failures
• the number of children awaiting permanent placement after permanency hearings

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GUIDELINES FOR JUDGES

Federal law requires that child welfare agencies make reasonable efforts to prevent the removal of a child from his or her home, to reunify families when it is necessary to remove a child, and to find permanent homes for children who will not return to their families. The reasonable efforts requirement is designed to ensure the safety of children, prevent the unnecessary disruption of families, and ensure that every child has a permanent home.

To enforce the reasonable efforts provisions of the Adoption Assistance Act, the juvenile court must determine, in each case where federal reimbursement is sought, whether the agency has made the required reasonable efforts. ¹ In addition, when Indian children are involved, the court must determine that "active efforts have been made to provide remedial services and rehabilitative programs to the family, and that these efforts have been unsuccessful." ² The juvenile court judge must determine whether reasonable or active efforts have been made at the shelter care, ³ dispositional, ⁴ permanency, and review hearing stages.

The reasonable efforts determination is only one component of the effort to achieve permanence for a child. Therefore, these guidelines are not an exhaustive discussion of all efforts that the juvenile court can or should make toward family preservation, reunification or permanency for a child. However, following these guidelines is an important step toward ensuring the agency's responsiveness to the needs of families in crisis.

MONITORING SOCIAL AND LEGAL SERVICES TO CHILDREN AND FAMILIES

In many jurisdictions, the juvenile court is, by statute or community practice, responsible for overseeing the provision of services to dependent and delinquent children in its jurisdiction. In every jurisdiction, the juvenile court has the social and moral responsibility to ensure that children under its care receive adequate services. The recommendations that follow are directed at the role of the court in administering its own functions effectively and providing leadership on child welfare issues. 

The juvenile court, as part of its general responsibility to ensure adequate care for children under its jurisdiction, should:

1. Know what child welfare and family preservation services are available in the community and what problems they can address.

Absent specific documentation as to why they are not needed, at least the following services should be available:

a. family preservation services;

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b. generic family-based services;

c. cash payments for emergency needs/ ongoing financial support;

d. services to meet basic needs such as food, clothing, and housing;

e. services to address specific problems: 

• respite care 
• child care 
• evaluation and treatment for substance abuse/ chemical addiction
• counseling/ psychotherapy 
• parenting training
• life skills training/ household management; and

f. facilitative services such as visitation and transportation.

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Information about available services is necessary for the court to exercise its jurisdiction over individual cases and to improve services to all children in its jurisdiction. To determine whether reasonable efforts have been made in a specific case, the court must be aware of appropriate services that could have been provided to the family and are readily available in the community. In addition, to determine whether children in its jurisdiction are adequately served by the local child welfare agency, the court must know what services the community provides, the quality of those services, and the services lacking in the community.

2. Meet regularly with child welfare representatives and participants in the juvenile court process.

Judges should be in close communication with the director and other representatives in the child welfare agency, the administrators of legal offices, court administration and other participants in the juvenile court process. Regular meetings provide an opportunity to resolve ongoing problems, introduce new rules or policies, and discuss emerging child welfare issues, including new cases and legislation.

3. Understand child development principles, particularly the importance of attachment and bonding and the effects of parental separation on young children.

In order to protect the interests of children and to understand the impact of the court's decisions on children, judges should be well-versed in basic child development principles. Training on child development is not typically part of traditional legal education, and is often not part of specialized training for juvenile court bench officers either. Judges can provide the necessary leadership to ensure that bench officers, as well as other participants in the court process, receive training related to the developmental needs and capacities of children at various ages. The reference list included as an appendix to this handbook includes citations to child development texts.

4. Encourage the child welfare agency to prevent unnecessary removal of children by providing services to protect them in their homes.

State and federal laws and good social work practice require that all efforts to keep a child safely in the home be exhausted prior to removal. Social welfare literature highlights the harm to children of unnecessary separation from their families and home communities. The court, as an advocate for children in its jurisdiction, should encourage the child welfare agency to use available services prior to removing children from their homes. The court can do this through reasonable efforts rulings in individual cases, and by meeting with agency

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representatives to encourage them to meet these requirements. 

Juvenile courts have an important role to fill as educators of individuals appearing before them. Child welfare agencies are particularly responsive to the court's awareness of deficiencies in their practice. In addition, the court can help agencies obtain necessary services and funds.

5. Encourage the development of agreements between law enforcement and the child welfare agency so that law enforcement officers do not remove children from their homes without prior coordination with the agency.

If law enforcement officers alone decide to remove a child from his or her home, efforts to keep the child in the home will not be made because most law enforcement agencies do not have the resources or training to make reasonable efforts. Instead, law enforcement officers should investigate cases jointly with the child welfare agency so that removal does not occur without the agency's advice and approval.

6. Know the child welfare agency's record of providing preventive and reunification services, as well as its rules and regulations, and monitor the agency's compliance with the reasonable efforts requirements.

Monitoring may best be accomplished by maintaining records of the outcomes of the court's determinations on the reasonable efforts requirement. For example, a court may keep statistics on the number of cases in which the requirement was met and the number of cases in which it was not met. These statistics will show where the agency's strengths and weaknesses lie, and enable both the court and the agency to improve services to families. The court may also ask for regular reports from the agency and other organizations or agencies that monitor compliance with state or federal law.

If the court notices an ongoing problem in providing services to families, it should ask the agency to seek out other services and to report to the court on their availability. The court might also ask the agency to report on an annual basis the percentage and number of children placed in foster care and remaining in in-home supervision; the percentage and number of children placed for adoption or guardianship, the number returned home and the number remaining in foster care; and the percentage of the agency's budget spent on family maintenance or reunification services and on residential placements.

7. Ensure that the child welfare agency is aware that failure to make reasonable efforts will result in a failure to receive federal reimbursement.

Under federal law, an agency cannot be reimbursed for the cost of a child's out-of-home care unless the reasonable efforts requirement is met. ⁵ The

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agency should know that the court is aware of and will enforce this requirement.

8. Be familiar with the agency's policies to implement concurrent planning and to achieve permanency.

ASFA requires agencies to make reasonable efforts to assist children in achieving a permanent living situation in a timely manner. The 1997 changes also permit agencies to work towards permanency concurrently with work toward reunification.

9. Establish a mandatory training program for attorneys representing parents and children.

Many attorneys practicing in juvenile court have no prior experience. These attorneys may not be aware of standards of practice either for juvenile court personnel or for the child welfare agency. Further, they may not be familiar with child development issues or with the importance of the statutory requirements designed to protect children. For these reasons, specialized training for attorneys who practice in juvenile court is essential. Unfortunately, since most law schools offer little or no course work on juvenile law and procedure, this training must be provided by the juvenile court itself.

The court should offer additional training for attorneys who represent children. Since these clients are often unable to speak for themselves, their attorneys must be aware of children's special needs and of techniques for communicating with them. Specialized training also clarifies the unique role of the attorney for the child. 

Some juvenile courts also establish standards of representation in dependency court which may be incorporated into local court rules. These standards often require specified training for attorneys representing parties in dependency cases, and incorporate local court policy on procedural and substantive issues unique to dependency practice.

10. Maintain a list of experts who can evaluate the reasonableness of services provided to keep a child in the home and on any harm that a child will experience if removed from the home or continued in out-of-home placement.

The court should identify individuals trained in child welfare practice who can serve as consultants to the court or to attorneys on the appropriateness of certain services. Community agency workers as well as teachers at local schools, colleges, and universities are potential sources of such expertise. 

The court should use these experts in two ways. First, the court can call upon them to serve as neutral experts to resolve conflicts between the parties. Second, the court should refer inexperienced attorneys, particularly

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attorneys for children, to these experts for assistance in determining the best interests of their clients. The court should be prepared to reimburse the experts for their time in assisting indigent clients or children.

MAKING REASONABLE EFFORTS DETERMINATIONS

A reasonable efforts determination is required whenever a court decides that a child should be placed or remain  outside the home. Under federal law, federal reimbursement for a foster care placement may not be made unless the court finds that the agency has met the reasonable efforts requirement. The court's finding should be specific and should include information about the problems faced by the family, efforts that were made to maintain the child in the home and alleviate the problems, whether the efforts made were reasonable, and the reasons why they were unsuccessful. ⁶

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The court should determine whether the agency has made reasonable efforts to keep the child at home at the earliest point of court involvement and at each subsequent court hearing. Hearings include the initial shelter care hearing, the dispositional hearing, and all review hearings, including the permanency hearings. Under federal law, reviews must be conducted either by the agency or by the court every six months while a child is in placement. A hearing to develop a permanent plan must be conducted by the court within 12 months of the time the child entered foster care. ⁷ Courts should also review cases whenever the child's situation changes and substantial modifications of the case plan are necessary.

In conducting hearings on whether children should be removed from their home or remain outside their homes, the court should:

1. Permit all parties to review the child welfare agency's records to ensure a full and fair hearing on the merits.

To adequately represent their clients, attorneys for parents and children must have all the information the agency possesses as soon as possible. The court should prohibit disclosures to clients of information that could be harmful to them. 

The court should enforce the agency's obligation to provide timely reports to the parties prior to hearing. However, if the agency's records have not been available to the attorney representing the parents or the child before the day of the hearing, the court should consider a brief continuance, as discussed later in this section, to enable the attorney to review the records fully. ⁸

2. Require the agency to prove that it made reasonable efforts and find the agency did so only if the evidence presented at the hearing is sufficient to satisfy the agency's obligation.

The reasonable efforts finding is as important an element of the case as a finding on abuse or neglect. The court should therefore require the agency to present evidence on which it can base its determination. It should not accept the agency's unsupported assertion that reasonable efforts have been made.
The court should conduct a full hearing on the question of reasonable efforts and allow attorneys for parents and children to cross-examine agency witnesses on efforts that have been made to keep the child in the home.

3. Permit any party to present testimony on the issue of reasonable efforts.

A full and fair hearing requires that all parties be permitted to present evidence on every material aspect of the case, including the reasonable efforts determination. As noted above, this may require the court to appoint experts to assist attorneys for both the parents and the children.

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Attorneys for children must be full participants in shelter care hearings, since the child's interests may not be the same as those of either the agency or the parent. Children should be allowed to present evidence and, if they desire, to speak on their own behalf.

4. Grant brief continuances to allow attorneys for the parent or child to obtain evidence on reasonable efforts when appropriate and necessary. However, delays from continuances can be detrimental to the child, and they should be minimized by assuring that attorneys are appointed and receive agency reports sufficiently in advance of the hearing to permit a full investigation.

Because of the brief time between when the child is taken into custody and the shelter care hearing, attorneys often are appointed on the day of the shelter care hearing and first meet their clients at the hearing. This practice places parents and children at a great disadvantage in presenting evidence, particularly on an issue as complex as whether reasonable efforts to keep the child in the home have been made. Attorneys for very young children may not be able to determine what the child wants or what is in the child's best interests without additional time to obtain the assistance of a psychologist or social worker. Courts should appoint attorneys for children and parents as early in the process as possible. However, when attorneys are not given adequate time to prepare, the court should grant brief continuances to permit them to do so. 

The same considerations do not apply to the agency attorney, since the agency should have in its possession all evidence necessary to demonstrate that it has made reasonable efforts. Continuances requested by the agency should not be allowed without the agreement of all parties. 

Continuances should be brief, since the child will, in most cases, remain out of the home during the delay. A continuance of two court days should allow ample time for the attorney to obtain expert assistance without subjecting the child to unnecessary detention. Continuances at dispositional or review hearings should be granted only under extraordinary circumstances, since attorneys should have had adequate time to review the records and contact clients and witnesses.

5. If the child can return home safely, with or without giving supportive services to the family, order that the child be returned home. If the child cannot return home but could have been maintained in the home if services had been provided earlier, state in the court order that reasonable efforts were not made.

If, by providing reasonable services, an agency could safely return a child to the home, the child should be returned home and the agency ordered to provide preventive services. Where state law permits, the court should consider not only ordering the provision of services if the child returns home, but also 

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imposing conditions on the family. For example, in sexual abuse cases, the court can order that the alleged perpetrator be removed from the home pending the final resolution of the matter. Similarly, when the agency alleges that children have been left unsupervised, the court can require a worker to supervise the home to make sure the situation does not recur. The safety of the child should always be the court's primary concern.

In some cases, the child cannot be returned home safely, although reasonable efforts made earlier would have avoided the need for removal. In these situations, the court should order continued detention of the child but note in the court order that reasonable efforts to keep the child in the home were not made. This procedure protects the child but penalizes the agency for failure to comply by preventing it from seeking federal reimbursement for the child's care.

6. If the child is ordered home, order provision of family maintenance services to keep the child safe.

If a child is returned home, the court should order provision of all the services necessary to ensure his or her safety. This not only benefits the child, but also diminishes the probability of future removal.

7. If the court finds that a child must be removed, it should permit a full hearing on the reunification plan and order appropriate reunification services.

Federal law requires reasonable efforts to reunify the parent and child. If the court determines that reasonable efforts to maintain the family have failed and that the child should remain out of the home, it should order the agency to provide services aimed at reunifying the family. To do so, the court should know what services the family needs. 

In some jurisdictions, the court does not have the authority to order the agency to provide specific services. In these jurisdictions, the court should state in its order that the agency will provide appropriate reunification services.

In jurisdictions where the court can order specific services, it should list those services it finds to be appropriate. In particular, the court should make a specific visitation order. This order should include a visitation schedule that can be expanded at the discretion of the social worker. The order should also specify the time for visitation, the location of visitation, necessary transportation arrangements, and any specific restrictions on visitation that the court requires or will permit. If visitation is limited in any way or is totally denied, the reason for this limitation or denial should be specifically set out, and the court should specify conditions under which this arrangement can be modified.

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8. Ensure in appropriate cases that permanency hearings are timely held, agencies make reasonable efforts to timely place children in permanent placements, and agencies timely file petitions to terminate parental rights.

ASFA requires the court to hold a permanency hearing within 30 days after it determines reasonable efforts to reunify are not required. At the permanency hearing, the court must determine whether a child will be returned home (and if so, when); placed for adoption with the state filing a termination of parental rights petition; referred for legal guardianship; or placed in "another planned permanent living arrangement." ⁹ Courts must also ensure that agencies make reasonable efforts to place a child in a timely manner in accordance with the child's permanency plan. ¹⁰

ASFA also requires an agency to file a petition to terminate parental rights when a child of any age has been in the care of the state for 15 months out of the most recent 22 months. ¹¹ These months are counted from the date of the first judicial finding of abuse or neglect, or 60 days after the child's removal from the home, whichever is earlier. ¹² This time will run even if there has been no adjudication. A termination petition must also be filed when a court had determined that a child has been abandoned, or that the parent has committed murder or voluntary manslaughter of another of their children, or felony assault that results in serious bodily harm of any of their children. ¹³ 

The legislation establishes exceptions to the requirement that termination petitions be filed when the child is in a relative's care; the child's case plan contains a compelling reason why filing the petition is not in the child's best interests; or the agency has not provided the child's family the services deemed necessary to return the child safely home. ¹⁴

9. If the court finds that reasonable efforts have not been made, it should hold the agency accountable for its performance. For example, the court can: 

• subpoena agency witnesses to testify about the agency's failure to make reasonable efforts
• allow the agency a brief continuance to show why a negative finding should not be made 
• order the agency not to seek reimbursement for the cost of the child's care
• order the agency to develop specific services and file appropriate documents where necessary
• issue orders to show cause or contempt orders
• submit reports on noncompliance to state or federal agencies

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The court must exercise control over cases in its jurisdiction and require the agency to provide the services to which the child or family is entitled. In cases in which reunification is not the case plan, the court must ensure that the agency complies with its mandate to place children in permanent homes in a timely manner. 

In some cases, workers are prohibited by the agency's regulations or policy from providing a service that would permit the child to remain in the home. In these situations, the court should not hesitate to require the agency's administrative personnel to attend a hearing to demonstrate why provision of the service is not possible. In addition, the court, in its role as an advocate for children, should require the agency to develop an adequate plan for the provision of these services or placements and to function in a way that provides maximum protection for children.

The court should be especially vigilant for problems that arise in providing direct benefits, such as payment of utilities, rent, or income maintenance, to clients. The court should require the agency to identify alternate sources of funding for some of these programs, such as Medicaid or school programs. The court should emphasize to the agency the high financial and psychological costs of maintaining a child in out-of-home care, compared to the minimal cost of paying the family's initial rent, security deposit, or utility bill.

The court should use its power under federal law to require the agency to provide services that are not routinely available or to forgo federal reimbursement for the cost of placement.

10. The court should request that the agency provide, on an ongoing basis, at least the following data:

° the number of families provided preventive services
° the number of families provided reunification services
° the number of children kept at home with preventive services
° the number of children placed in foster care and their length of stay
° the number of children returned home with family reunification services
° the number of children placed in long-term foster care and their length of stay
° the number of children placed for guardianship/ adoption and the number of guardianship/ adoption failures
° the number of children awaiting permanent placement after permanency hearings

In order to monitor the agency's compliance with the reasonable efforts requirement, the court needs data concerning the types of services provided to

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families and the resulting status of children under its jurisdiction. Thus, the court should request data on child welfare practices from the agency. Alternatively, or in addition, the data should be provided to the local social services commission, juvenile justice advisory board, or other supervisory bodies, as appropriate.

Federal law requires states, as a condition of receiving increased funding under Title IV-B of the Social Security Act, to establish and maintain a foster care information system, including certain demographic information about children in foster care. ¹⁵ Other data gathering efforts should be coordinated with this system.

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ENDNOTES

1. P. L. 96-272, 42 U. S. C. Sections 670 et seq.
2. 25 U. S. C. Section 1912( d).
3. The name for this initial custody hearing, at which the court must decide if the child remains at home pending a determination of whether the child is a court dependent, varies from state to state. In some states it is known as a detention hearing, in others a custody hearing. For purposes of these guidelines, it is referred to as a shelter care hearing.
4. At a dispositional hearing, a judge must decide where a child will be placed after the court has taken jurisdiction over the child. The name of this hearing also varies from state to state. For purposes of these guidelines, it is referred to as a dispositional hearing.
5. 42 U. S. C. Sections 671( a)( 15) and 672( a)( 1).
6. See, e. g., Indiana Code Section 31-6-4-6( e).
7. A child is considered to have entered foster care on the earlier of two dates: the date of the first judicial finding of abuse or neglect, or the date 60 days after the date on which the child was removed from the home. 42 U. S. C. 675( 5)( F).
8. See Smith v. Edmiston, 431 F. Supp. 941 (W. D. Tenn. 1977).
9. 42 U. S. C. Section 675( 5)( C).
10. 42 U. S. C. Section 671( a)( 15)( E).
11. 42 U. S. C. Section 675( 5)( E).
12. 42 U. S. C. Section 675( 5)( F).
13. Id.
14. Id.
15. 42 U. S. C. Section 622( b)( 10)( B).

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GUIDELINES FOR CHILD WELFARE AGENCIES

ESTABLISHING PROGRAMS OF PREVENTIVE, REUNIFICATION, AND PERMANENCY SERVICES

1. Assess the Need for Services
The agency should determine the need for preventive, reunification, and permanency services on a statewide, regional, and local basis, so that programs may be designed and requests to the legislature may be tailored to meet the actual need for services. As part of the assessment process, the agency should describe, as accurately as possible, who it is serving and why.

2. Develop a Comprehensive Plan for Preventive and Reunification Services to achieve Permanency
Each agency should develop a comprehensive plan that specifies how the services identified in the needs assessment, or otherwise identified in individual cases, will be funded and delivered. This plan should emphasize the provision of early, highly intensive services as the method most likely to promote family maintenance.

a. The plan should provide for all identified services to be made available, either: 

1. directly by the public child welfare agency;

2. through cooperative arrangements with other public agencies; or 

3. by a private agency under co tract with the public agency.

b. The agency should include in its plan sufficient and timely funding of necessary services.

3. Provide All Required Preventive and Reunification Services and Services to achieve Permanency

The agency should provide all services specifically required by state law, as well as any service identified in the needs assessment and comprehensive plan.

Services that should be included in effective preventive and reunification programs may be categorized as family preservation services, generic family-based or family-centered services, cash payments, noncash services to meet basic needs, noncash services to address specific problems, facilitative services, and permanency services. Absent specific documentation as to why they are not needed, at least the following services should be available:

a. Intensive family preservation services and generic family-based/ family-centered services.
b. Cash payments.
c. Noncash services to meet basic needs and address specific problems.

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• food and clothing 
• housing
• respite care 
• child care
• evaluation and treatment for substance abuse/ chemical addiction
• counseling/ psychotherapy
• parenting training 
• life skills training/ household management

d. Facilitative services: 

1. visitation
2. transportation.

e. Permanency services.

4. Structure Service Delivery to Keep Families Together

Each agency should structure its service delivery system to enhance the likelihood that preventive services will be provided to those who need and can benefit from them, families will be maintained, and children who can safely return home will be reunified with their families.

a. Workers are available by phone and in person 24 hours a day.
b. Contact between workers and families is not limited to business hours on weekdays.
c. Most contacts occur in the family home or in a setting comfortable for the family at times of day when they would be most helpful.
d. Services are provided immediately and most intensively during family crises.
e. Services are provided as the result of a joint agreement between the agency and parent and other concerned parties, including the child, foster parent, relatives, and community service providers.

5. Conduct Training

Each agency should establish ongoing training for its workers who are responsible for families with children at risk of removal or placed out of the home. This training should be provided both to supervisory and direct service staff. The training should cover at least the following:

a. The content of the agency's written guidelines on reasonable efforts and achieving permanency.
b. The scope of reasonable efforts and permanency requirements under state and federal law.

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c. Procedures and criteria for identifying emergencies that absolutely necessitate removing a child before providing any services.
d. Procedures and criteria for assessing families need for preventive and reunification services.
e. The availability of specific services in the community, including eligibility criteria, payment requirements, and referral procedures.
f. Methods for direct delivery of family-centered or home-based services.
g. Procedures for implementing concurrent planning, and the availability of services designed to achieve permanency.
h. The juvenile or family court s procedures for making the reasonable efforts determination, and for conducting permanency hearings.

6. Establish Appropriate Eligibility Criteria for Services

The agency should establish eligibility criteria for its preventive and reunification services and services to achieve permanency that include at least the following:

a. Preventive services are available to any family whose children have come to the attention of the agency as being abused or neglected or at risk of abuse or neglect, unless either: 

1. the agency has determined, in accord with state law and its own written guidelines, that removal prior to providing services is necessary to protect the child; or
2. a court has determined that the child should be removed.

b. Reunification services are available to any family whose children have been placed in foster care unless a court determines that the family should not receive any reunification services at all or that all reunification services should be discontinued.

c. Preventive and reunification services are available without charge for any family found eligible according to the above criteria.

d. Services to achieve permanency are available for those children determined by a court to be unable to return safely home or for whom the agency is undertaking concurrent planning.

e. Priority for the most intensive services goes to families for whom the risk of removal of their children is most imminent, or whose children are returning home from foster care.

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7. Develop Written Guidelines, Procedures, and Protocols

The agency should develop its own written guidelines, procedures, and protocols on reasonable efforts, covering each stage of its interaction with the family. These materials should be provided to every worker and should clearly articulate at least the following:

a. Criteria for determining when to remove a child without provision of preventive services.
b. Procedures to determine what services would allow a child to remain in, or return to, his or her family.
c. Procedures to document services offered to a family and the family's response.
d. Criteria for determining an appropriate visitation schedule.
e. Procedures for involving parents and children of appropriate ages in the development of case plans.
f. Procedures for implementing concurrent planning in appropriate cases.
g. Criteria for terminating efforts to reunify a family.
h. Criteria for ensuring timely permanency hearings are held and appropriate findings made.
i. Criteria for determining when the agency should file termination of parental rights petitions.

MAKING REASONABLE EFFORTS IN EACH CASE

1. Make Good Faith Efforts to Prevent Removal

When a child first comes to the attention of an agency as a potentially abused or neglected child, and it appears to the agency that the child may have to be removed for his or her safety, the agency worker should ask, before removing the child, whether there is any assistance, in the form of cash payments, services in lieu of cash, or social support services, that would likely allow the child to remain safely at home. If so, the agency should either provide the assistance or meet a substantial burden of justifying
why it cannot do so.

In deciding whether to remove a child rather than keep the child at home with services, and in deciding what services to provide, the worker should do at the least the following:

a. Assess the family situation to determine the likelihood of protecting the child effectively in the home. The worker should identify the specific problems, if any,

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that place the child at imminent risk of serious harm.

b. Determine whether any available services might effectively address the family's or child's specific problems.

c. Consider alternative ways of addressing the family's needs short of removal that would allow the child to be safe when the services regularly provided by the agency appear unlikely to meet the family's needs or have inappropriately long waiting lists.

d. Inform the family about available services that might address the family or child's problems.

e. Offer the family those services that the agency considers most likely to address the problems creating the risk of the child's removal.

f. Give the family an opportunity to request other services not offered by the agency that the family believes might mitigate the risk of removal.

g. Provide a means for the child or family to seek review of the agency's failure to provide services that the family believes would eliminate the need for the child's removal.

2. Make Good Faith Efforts to Reunify the Family

In making good faith efforts to reunify a family, the agency should follow the same principles set forth above for preventing removal.

The agency's reunification efforts should include at least the following additional steps:

a. Develop an appropriate case plan.
b. Establish an appropriate visitation schedule and other measures to ensure visits are facilitated and actually occur.

3. Make Good Faith Efforts to achieve Permanency for Children

Ensure in appropriate cases that permanency hearings are timely held; petitions to terminate parental rights are timely filed; and reasonable efforts are made to timely place children in permanent placements.

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GUIDELINES FOR CHILD WELFARE AGENCIES

Federal law requires that child welfare agencies make reasonable efforts to prevent the removal of a child from his or her home, to reunify families when it is necessary to remove a child, and to find permanent homes for children who will not return to their families. The reasonable efforts requirement is designed to ensure the safety of children, prevent the unnecessary disruption of families, and ensure that every child has a permanent home.

To implement the reasonable efforts requirement, child welfare agencies must develop a broad range of preventive, reunification and permanency services, and ensure that these services are accessible to children and families. Moreover, agencies must make reasonable efforts to prevent placement, reunify families, and achieve legal permanency for children in each case. 

Making reasonable efforts is only one part of serving children and families in the child welfare system. Therefore, these guidelines are not an exhaustive discussion of all efforts that the child welfare agency can or should make toward family preservation, reunification or permanency for a child. However, following these guidelines is an important step toward ensuring the agency's responsiveness to the needs of families in crisis.

ESTABLISHING PROGRAMS OF PREVENTIVE, REUNIFICATION, AND PERMANENCY SERVICES

For a child welfare agency ¹ to make reasonable efforts to keep children in their homes, it must establish appropriate programs of preventive and reunification services to meet the needs of families whose children would otherwise be placed in foster care. At the same time, the agency must also establish service programs to assist children in achieving legal permanency. To establish and maintain effective service programs, each agency should:

1. Assess the Need for Services

The agency should determine the need for preventive, reunification, and permanency services on a statewide, regional, and local basis, so that programs may be designed and requests to the legislature may be tailored to meet the actual need for services. As part of the assessment process, the agency should describe, as accurately as possible, who it is serving and why.

The purpose of the needs assessment should be to establish the extent to which existing services are used, the problems or issues that are not addressed by existing services, and the types of services not currently available.

Determining the need for services involves a variety of formal and informal techniques. The agency should review all available data about the use of existing programs. It should also survey its workers to determine which

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services might have prevented removal or increased a child's opportunity for an earlier permanent placement in different categories of cases. Workers and supervisors should compile information, including recommendations from agency consultants, experts and outside agencies, concerning the nature of problems that necessitate removal and services that have been helpful in over-coming these problems and facilitating family maintenance.

The needs of children and families may change or evolve over time, causing a shift in the the types of services required. Therefore, agencies should conduct the assessment process on a regular, ongoing basis. The agency also should compile information about its progress in achieving earlier permanent placements for children, including the specific recruitment efforts made, the timeliness of adoption studies of both the child and potential adoptive families, and the prompt pursuit of adoption assistance funds for special needs children.²

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2. Develop a Comprehensive Plan for Preventive and Reunification Services to achieve Permanency

Each agency should develop a comprehensive plan that specifies how the services identified in the needs assessment, or otherwise identified in individual cases, will be funded and delivered. This plan should emphasize the provision of early, highly intensive services as the method most likely to promote family maintenance.

The Adoption Assistance Act requires each state agency to develop and submit a child welfare services plan under Title IV-B of the Social Security Act. ³ ASFA uses the term "time-limited reunification services" and defines these to include:

1. individual, group, and family counseling; 
2. inpatient, residential, or outpatient substance abuse treatment;
3. mental health services; 
4. services to address domestic violence;
5. temporary child care and therapeutic services to families, including crisis nurseries; and
6. transportation to above services. ⁴

To the extent that agencies fail to discharge their obligations to make reasonable efforts or provide preventive services to keep families together, they may be ordered by the court to develop and implement a plan consistent with their statutory and constitutional obligations. ⁵

a. The plan should provide for all identified services to be made available, either: 

1. directly by the public child welfare agency;
2. through cooperative arrangements with other public agencies; or 
3. by a private agency under contract with the public agency.

When the child welfare agency uses the services of other public agencies to meet its reasonable efforts responsibilities, it should not simply refer families to other agencies and assume that its obligations have been met. Unless responsibility for a case has clearly been delegated to another agency and a mechanism for accountability has been established, the referring agency should retain responsibility for the case and for ensuring the family receives appropriate services.

b. The agency should include in its plan sufficient and timely funding of necessary services.

A primary source of federal funding available to the states for preventive and reunification services is the appropriation under Title IV-B of the Social Security Act. In fiscal year 1999, this appropriation is $275 million, in fiscal year 2000, $295 million and in fiscal year 2001, $305 million. ⁶ Federal law

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establishes certain fiscal incentives to encourage states to implement the reasonable efforts and permanency mandates.

First, federal funding of foster care maintenance payments for individual children is available only in cases where there has been a judicial determination that reasonable efforts to prevent placement or to reunify the family have been made. ⁷

Second, states are eligible for federal adoption incentive payments if they increase the number of foster child and special needs adoptions over the base number of adoptions for that fiscal year. ⁸

3. Provide All Required Preventive and Reunification Services and Services to achieve Permanency

The agency should provide all services specifically required by state law, as well as any service identified in the needs assessment and comprehensive plan.

Services that should be included in effective preventive and reunification programs may be categorized as family preservation services, generic family-based or family-centered services, cash payments, noncash services to meet basic needs, noncash services to address specific problems, facilitative services, and permanency services.

This grouping of services includes some, such as cash payments, generally not considered "preventive" or "reunification" services. However, to the extent that any services contribute to preventing the removal of children from their homes or to facilitating their reunification with their families, they should be included within the scope of what is required to implement the "reasonable efforts" mandate.

Absent specific documentation as to why they are not needed, at least the following services should be available:

a. Intensive family preservation services and generic family-based/ family-centered services.

The provision of highly intensive services to families, usually in their own homes, for relatively brief periods of time, can be an alternative to the traditional agency casework model of placement prevention. The purpose of these intensive services is to avert the crisis, or improve the family situation, that creates imminent risk of the child's removal, and to enable the family to establish a situation that will permit the child to remain at home.

These programs include an assessment of the family's entire "ecological" context, flexibility in the timing of service provision, coordination of services from the family home rather than from the agency, and a focus on the family's strengths to promote independence and self-sufficiency. Often these

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programs involve sending a worker into the home many hours a week. Services referred to as "family-based" or "family-centered" involve principles similar to family preservation services, although they may not be as intensive. The term might, for example, describe anything from a single home visit to full "family preservation" services.

b. Cash payments.
A family's financial needs play a part in the majority of cases involving a child's removal from the home. Cash payments to meet both emergency and ongoing needs are critical services for these families.

c. Noncash services to meet basic needs and address specific problems. food and clothing

• housing 
• respite care
• child care 
• evaluation and treatment for substance abuse/ chemical addiction
• counseling/ psychotherapy
• parenting training
• life skills training/ household management

d. Facilitative services:
The term "facilitative" is used here to describe visitation and transportation services because, without them, other services may be ineffective in preventing placement or promoting reunification.

1. visitation
Visitation has been recognized as critically important in facilitating reunification of children who have been placed in foster care, whether on an emergency or long-term basis. Frequency of visitation has been found to correlate closely with the likelihood of a child returning home. The diligence with which a parent visits is also often looked to as an indicator of whether or not a child should be returned home.

2. transportation.
When services are geographically inaccessible they will not be useful to the family in preventing placement or facilitating reunification. Therefore, it is appropriate for the agency to provide or arrange necessary transportation to ensure that the services it offers have the maximum effect. Federal law specifically includes transportation in its definition of "time-limited family reunification services." ⁹ 

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e. Permanency services.
Services to achieve permanency for children should include increased recruitment efforts of adoptive parents; use of cross-jurisdictional resources where necessary; placement of children on adoption exchanges early; preparation of timely adoption studies of both the child and potential adoptive family; and prompt pursuit of adoption assistance funds for special needs children. Under ASFA, the federal government may provide technical assistance to assist states and local communities to increase the number of adoptions or other permanent placements for children in foster care. The technical assistance may include: 

(1) development of best practice guidelines for expediting parental rights terminations; 

(2) concurrent planning models; 

(3) development of specialized units/ expertise to move children toward adoption; 

(4) development 

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of risk assessment tools to facilitate early identification of children who will be at risk of harm if returned home; 

(5) models to encourage fast tracking of children under one year of age into preadoptive placements; and 

(6) development of programs placing children into preadoptive homes whose parents' rights have not yet been terminated. ¹⁰

4. Structure Service Delivery to Keep Families Together
Each agency should structure its service delivery system to enhance the likelihood that preventive services will be provided to those who need and can benefit from them, families will be maintained, and children who can safely return home will be reunified with their families.

Many experts recommend that services be structured and delivered in a manner that recognizes parental autonomy to the extent possible, consistent with the safety of the child, and that does not make the parent dependent on the agency. However, there may be circumstances in which a family needs ongoing services - financial, social, or other - to care adequately for their child at home. When a satisfactory situation exists in the home with the provision of such services and when the cost of providing the services on an ongoing basis is not prohibitive, some degree of dependence associated with long-term service delivery is acceptable.

At a minimum, the agency should ensure the following:

a. Workers are available by phone and in person 24 hours a day.
In many communities, nighttime calls to protective services result in police, and not social workers, responding. This contributes to the likelihood a child will be removed rather than kept in the home, because the police are not in a position to provide, or arrange for, preventive services. Thus, 24-hour availability of social workers is a particularly impo