It's Time To Follow The Law And Take Reasonable Efforts Seriously

It’s Time to Follow the Law and Take Reasonable Efforts Seriously

David Kelly

Special Assistant to the Associate Commissioner of the Children’s Bureau

A caseworker driving a child four hours--one way-- to visit his mother on a weekly basis.  The child welfare agency putting a family up in a hotel for two days and hiring a professional cleaning service to return a home to a habitable condition.  A children’s attorney refusing to give up on finding a family connection for a severely disabled young man, even though he requires a residential treatment setting.  A judge understanding the treatment and recovery process and insisting a parent receive the support they need.  These are all solid examples of reasonable efforts to prevent removal or finalize a permanency plan recently provided by an audience of child welfare legal professionals.  In total, a dozen or so strong responses to the straightforward question, what are the best examples of reasonable efforts that you have seen made?  The question was posed to an audience of approximately 700.  There were twelve examples of reasonable efforts in a room of 700 participants from around the country.

Sure, this scarcity could be partially attributable to a reluctance of folks to speak up publicly-- asking for audience participation during a conference plenary is an unusual request.  But it could also be something more serious.  It could be that reasonable efforts have become a hollow finding, one made to comply with federal requirements and maintain funding as opposed to a legal finding to protect the integrity of the parent child relationship, advance the best interest and well-being of children, and prevent the trauma of unnecessary family separation. 

I allege no malicious intent by any of the dedicated professionals in our field, but do submit that when we fail to take reasonable efforts seriously, we do real harm to children and families.   Maybe we’ve become too comfortable with the way the system typically operates, or perhaps accepted that nothing more or better can be done.  I suspect for some it reflects a reticence to rock the boat by making a no reasonable efforts argument or finding, perhaps even a general trust that the child welfare system will keep the child safe for now and it’s best to avoid risk.  But that overlooks the fact that foster care has always been intended as a placement of absolute last resort and that family separation inflicts psychological and emotional harm to children and parents. 

The problem is exacerbated by our infatuation with the latest and greatest thing - we have issues de jour, a growing number of specialty courts, and checklists and bench cards abound.     To be fair, many of these efforts have brought value and helped infuse more knowledge into the courtroom and field. But collectively we take our eye off the ball, over and over again.  The conversation never lingers on reasonable efforts in a substantive way, and our attention shifts. 

In nearly two decades of work with courts and attorneys around the country, including direct practice, court observation, case file reviews, focus groups, and stakeholder interviews, I have yet to see compelling evidence that the statutory tools of reasonable efforts are being used as the law intended.  Growing numbers of children entering care, continued challenges around parent engagement, and a national struggle to improve permanency outcomes for children in care all offer evidence of complacent legal practice and compliance-oriented findings.

The irony is that, if used meaningfully, the law provides an incredibly powerful tool for keeping families together and preventing trauma to children-- a judicial determination that reasonable efforts were made to prevent removals.  Where out-of-home placement is necessary, reasonable efforts determinations to finalize the permanency plan are the second critical tool for expediting reunification or other safe permanency options and minimizing trauma to parents and children.

Making sure a child sees his or her parents regularly, refusing to separate a family over a “dirty house” case, and ensuring that case plans are designed to support parents struggling with substance misuse should represent the floor of reasonable efforts, not the ceiling.  If we are serious about strengthening families, preventing unnecessary trauma to children and parents, taking on implicit bias, reducing disproportionate placement of children from highly vulnerable families and communities into foster care, and no longer mistaking poverty for maltreatment, we must take reasonable efforts to prevent removal and reasonable efforts to finalize the permanency seriously and treat each with the urgency and substance that the law requires.