Reasonable Efforts

Author: The Administration for Children and Families
Reprinted From:
Children's Bureau Website


INTRODUCTION

"Reasonable efforts" requirements were introduced into child welfare proceedings by the Federal Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272 (AACWA). Since the enactment of AACWA, reasonable efforts has been a core concept in American child welfare and practice. The Federal Adoption and Safe Families Act of 1997, Public Law 105-89 (ASFA), maintained but refined this concept. ASFA provides that:

  1. reasonable efforts shall be made to preserve and reunify families

    1. prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and
    2. to make it possible for a child to safely return to the child's home;
  2. if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child. [42 U.S.C. 671(a)(15).]

Federal law previously required States to make reasonable efforts to prevent placement and reunify families. It now also requires reasonable efforts to secure a new permanent family when it is not possible either to prevent placement or reunify the family.

These Guidelines are intended to assist States in implementing the procedural aspects of reasonable efforts requirements. Further, they are designed to help States identify and clarify what core services might be appropriate to assure meaningful rehabilitation services for a dysfunctional family and what services are appropriate to assure permanent placement of children unable to safely return home.

Requirements for case plans, administrative reviews, and permanency hearings support the reasonable efforts requirements.

The Federal requirement for reasonable efforts has three major prongs. First, children's health and safety must be the paramount concern in providing and reviewing reasonable efforts. [42 U.S.C. 671(a)(15)(A).] Second, the State agency must make reasonable efforts to preserve families before placing a child in foster care. These efforts are designed to prevent or eliminate the need for removing the child from his or her home and to make it possible for a child to safely return to his or her home. [42 U.S.C. 671(a)(15)(B).] Note, however, that the court may determine that reasonable efforts are not required in certain cases, as explained below. [42 U.S.C. 671(a)(15)(D).] Third, when the child's return home is no longer the appropriate plan, reasonable efforts are required to arrange and stabilize a new permanent home for the child. [42 U.S.C. 671(a)(15)(C).]

The following Guidelines are designed primarily to help States establish criteria and procedures for deciding what services (reasonable efforts) they should provide to preserve or reunify families. For children who are not going to be reunified with their birth families, the Guidelines are designed to help States establish criteria and procedures for making reasonable efforts to find alternative permanent homes. The Guidelines recommend strengthening the courts' oversight both of agency case-by-case efforts to preserve and reunify the family and agency efforts to achieve alternative permanent homes. State laws concerning reasonable efforts must respect parental rights; accommodate children's need for timely, safe, and permanent homes; and observe basic fairness and due process of law.

This chapter provides an overview of the reasonable efforts doctrine, but not all guidelines concerning reasonable efforts appear here. Certain provisions concerning judicial oversight of reasonable efforts within specific stages of the court process appear in Chapter IV, Court Process. Chapter VI, Termination of Parental Rights, includes a discussion of when agencies must prove that they have provided appropriate services to preserve the family, as part of the grounds for termination.

GUIDELINES AND COMMENTARY

  1. Require Reasonable Efforts: We recommend that State law require the court to determine whether the State has made reasonable efforts to prevent placement, reunify the family, or secure a new permanent home for the child.

Commentary

The reasonable efforts provision was established to limit unnecessary and inappropriate removal of children from their families and to expedite safe reunification of children through the provision of services. Although long an element of Federal law governing eligibility for Federal funds, the reasonable efforts requirement is not always incorporated into existing State law and procedure. The doctrine of reasonable efforts has become a core concept in American child welfare law and practice and should be reflected in State, as well as Federal, law.

  1. Convene State-Specific Study Commission: We recommend that as part of developing criteria and procedures for a State reasonable efforts policy, States should convene a commission of their most knowledgeable people.

Commentary

States should develop criteria for reasonable efforts, a comprehensive catalogue of available services, and administrative and judicial policies to define and operationalize the reasonable efforts requirements. Federal law sets out a policy of reasonable efforts to preserve families, reunify families or find an alternative permanent placement for a child who cannot be reunified with his or her birth family. However, current Federal law allows the States to establish criteria and procedures for implementing a policy that defines reasonable efforts. Federal law also specifies circumstances in which the State may not be required to make reasonable efforts.

What "core services" should a State make available to (a) families in crisis and (b) children in need of a new permanent home? How can the State assure that needed services are provided promptly to prevent placement, reunify families, and find permanent homes for those children not returning to their birth families? By what process should a State decide whether or not to provide reunification services? Under what limited circumstances should the State immediately seek new permanent homes for children without first seeking to rehabilitate the parents? The process should be timely and fair both to children and parents.

State agency policies or regulations should clearly define the agency's obligations to make reasonable efforts to reunify the family. Clarifying these obligations gives the judge a more objective basis to determine whether reasonable efforts have been made and helps child welfare agencies know what is expected of them. State legislatures or agencies could ensure appropriate service delivery by clearly identifying a core of services generally needed by families of abused and neglected children. Once identified, the State legislature or agency could prioritize services by their effectiveness and their costs. The agency would then decide which of those services they could provide promptly to families with children in foster care. Legislatures could require State or local agencies to both develop and deliver this core of services. For example, a core of services might include, among others, substance abuse treatment, time limited counseling services, and in-home intensive services. Such services might also include limited flexible funds that could meet immediate material needs of families. (See M. Hardin, Establishing a Core of Services to Preserve Families Subject to State Intervention: A Blueprint for Statutory and Regulatory Action, 1992; G. Diane Dodson & M. Hardin, On-Time Services to Preserve Families: A Guide for Child Protection Agency Administrators and Policymakers, 1997; Report: Reasonable Efforts Advisory Panel Meeting, National Resource Center for Legal and Court Issues, ABA Center on Children and the Law and the National Child Welfare Resource Center for Organizational Improvement, University of Southern Maine, 1995.)

Though agencies need flexibility to determine the appropriate treatment techniques applicable to an individual family, many agency clients always need certain services. An organized set of these frequently needed services, available in sufficient quantities, will help avoid service delays that hinder timely attainment of permanent homes for children.

Identifying the core of services available for reasonable efforts and designing the criteria and process for determining how the State is to make reasonable efforts is a complex and difficult task. To address these profound issues, States should enlist the assistance of their most knowledgeable people to carefully study the characteristics and needs of children who most often end up in long-term foster care in their State and the needs of the families of those children. One approach is to convene work groups including a range of key experts and stakeholders, to schedule regular meetings of the group, and to plan for that process to culminate in recommended agency policy, draft legislation, and court rules. Such work groups should take into account and not duplicate the State's judicial self-assessment.

Most States have recently conducted careful self-assessments of their courts' performance in child abuse and neglect cases, including the courts' oversight of reasonable efforts. Taking into account the results of the self-assessment, a new State study commission can focus on improving and organizing the delivery of services, implementing the new ASFA requirements, and improving coordination between service providers and the courts.

  1. Child's Health and Safety Paramount: We recommend that State law require that, in the implementation of reasonable efforts, the child's health and safety be the paramount concern.

Commentary

Federal law does not require agencies to make efforts to prevent placement or reunify families where such efforts will endanger a child's health and safety. Federal law states that: "in determining reasonable efforts to be made with respect to a child and in making such efforts, the child's health and safety shall be the paramount concern." [ASFA, 101(a), 42 U.S.C. 671(a)(15)(A).] In addition, reasonable efforts to preserve the family are not required if a court finds that the parent has committed certain serious criminal acts against the child or against another child of the parent, which may jeopardize the child's health or safety. [ASFA, 101(a), 42 U.S.C. 671(a)(15)(D).] Finally, even if none of those specific circumstances applies, courts may exercise their discretion, in individual cases, to protect the health and safety of children. [ASFA, 101(d), 42 U.S.C. 678.] Thus, courts and agencies are not required to make reasonable efforts to preserve and reunify families if such efforts would not be possible without endangering a child's health and safety.

States' obligations to make "reasonable efforts" have sometimes been misinterpreted to require the endangerment of children for the sake of family preservation or reunification. To eliminate such misinterpretations, ASFA makes clear that efforts to prevent removal or to reunify a family are not required when such efforts would endanger a child.

State law should also specify that services are not required when such services might endanger a child's health and safety. State law should make it clear that agencies can respond flexibly in emergencies and when situations suddenly change. Further, it should be clear that when an agency takes such a step it will be considered to have made "reasonable efforts" to prevent placement or reunify the family. Sometimes temporary denials or cessation of services are reasonable.

State law can also make it clear to agencies and courts that service plans should not present undue risks to children. Agencies should not propose and courts should not approve services to prevent placement if those services would place a child in serious danger. Agencies should not persist in providing reunification services where doing so would be harmful or dangerous to the child, and courts should not approve the continuation of such services.

While an agency might not safely be able to prevent removal, it may be able to provide services that will permit a child's early safe return home. When an agency must stop a particular reunification service, other services might be helpful.

  1. Reasonable Efforts to Preserve and Reunify Families: We recommend that State law require that, in determining whether the State has made reasonable efforts to prevent placement and reunify the family, courts consider whether services to the family have been accessible, available, and appropriate. In evaluating the accessibility, availability and appropriateness of services, State law should require the court to consider the following:

    1. Dangers to the child and the family problems precipitating those dangers;
    2. Whether the agency has selected services specifically relevant to the family's problems and needs;
    3. Whether caseworkers have diligently arranged those services;
    4. Whether appropriate services have been available to the family on a timely basis; and
    5. The results of those interventions.

Commentary

Federal law requires judicial findings that agencies have made reasonable efforts to prevent the need to remove a child from home or to make it possible for a child to return home safely. [42 U.S.C. 671(a)(15), 672(a)(1).] State law can assure compliance with Federal program requirements for foster care and implement the reasonable efforts policy more efficiently if it adopts a procedure and substantive criteria in its own statutes or court rules. The court must determine whether reasonable efforts were made at the time a child is removed from home.

To define the meaning of the reasonable efforts obligation, it is helpful to break the obligation into its different elements. The first part of an agency's and court's obligations concerning reasonable efforts is to clarify the reasons for State intervention. That is, before determining whether an agency has made reasonable efforts to prevent the need to remove a child from home or to return the child home, a court must first clarify the danger to the child that required State intervention and document the problems precipitating the danger. Without knowing exactly what dangers prevent a child's immediate return home and what family problems create or maintain a dangerous situation for the child, the court cannot determine whether the agency's efforts to rehabilitate the family were reasonable.

Second, having identified the dangers and problems precipitating State intervention, the court must decide whether the services proposed by the agency are customized to the individual needs and strengths of the family and relevant to the problems requiring placement of the child. To decide if services are relevant, a judge might take into account other services the agency might have offered or possible interim caregiving. In other words, if some other form of available help to the family would have been far more likely to succeed, a judge might determine that there had not been reasonable efforts.

Third, the court must decide whether the agency caseworkers were reasonably diligent in implementing the agency's case plan for the family and the child. Agencies might adopt their own regulations specifying what concrete steps by caseworkers would constitute reasonable casework to rehabilitate a family. For example, the regulations might include the following:

  • Caseworkers must closely consult with parents to develop a case plan (using a language translator if necessary) which elicits and takes into account their views concerning services, to make sure the services match their schedules, and to periodically determine whether parents feel that the services are helping.
  • Caseworkers must oversee each service provider, explaining to the provider what each service is supposed to accomplish for the family and child, sending a copy of the case plan to the provider, and setting a timetable for each service. The caseworker is responsible for ensuring that the provider adheres to the case plan by checking up periodically with the provider to guarantee that the service is being provided as agreed and that parents are participating.
  • Caseworkers must ensure that parents and children have access to services, including arranging for children to be present, when appropriate, and making sure that parents have practical means of transportation, taking into account the resources available to parents.
  • Caseworkers must periodically visit children and parents in person as required by agency regulations or policy.
  • Caseworkers must arrange for parent-child and sibling visitation.

Fourth, the court must decide whether appropriate services were actually available and delivered on a timely basis to help the family. While it is sometimes difficult for judges to determine whether or not public agencies have been "reasonable" in developing and providing services for families, such a determination is possible. For example, if the child welfare agency has a specific list of services that an agency provides to families, a judge could determine what services on the list were relevant to the family's problems and whether such services were provided to the family on a timely basis.

  1. Reasonable Efforts to Finalize Placement: We recommend that, in determining whether the State has made reasonable efforts to make and finalize a new permanent home for the child (in cases where reunification is no longer the child's exclusive permanency plan), State law instruct courts to consider whether services to achieve that goal have been accessible, available, and appropriate. In evaluating the accessibility, availability and appropriateness of services, the law should require the court to take into account the following:

    1. Whether the agency has identified an appropriate strategy to make and finalize a new permanent placement for the child;
    2. Whether there has been diligent arrangement for the provision of those services; and
    3. Whether adequate and appropriate services have been available on a timely basis.

Commentary

Reasonable efforts to make and finalize a new permanent placement for a child who cannot be reunified with his or her birth family can be broken down into three basic issues. The first issue is whether the agency has identified an appropriate strategy to make and finalize a permanent home. For example, if the child has complex special needs, a judge might ask several questions. Has the agency selected a good specialized placement agency to find an adoptive home and is it offering adequate adoption subsidy and medical assistance protections? Does the agency plan to list the child with appropriate adoption exchanges? Has the agency explored all available families consistent with MEPA? (See generally, J. Hollinger, A Guide to the Multiethnic Placement Act of 1994, as Amended by the Interethnic Adoption Provisions of 1996, ABA 1998.)

The second issue for the judge is whether there has been diligent follow-through to provide those services. For example, a judge might ask the following questions. Has the agency taken timely steps to list the child with appropriate registries? Has the agency diligently searched for potential new parents? Has the agency fully explored whether relatives or foster parents are interested in adopting the child? Has the agency screened and tentatively selected potential new parents? Has the agency taken timely steps to complete home studies? Has the agency counseled and prepared the child for adoption? Has the agency proceeded to prepare adoption assistance agreements (where applicable)? Has the agency arranged for post-adoption services?

The third issue is whether adequate and appropriate services exist to place and stabilize the child in a new permanent home. For example, a judge might ask several questions. Has the agency explored the interest of relatives and foster parents in adopting the child? Is there an available adoption placement agency with specialized skills helpful to this child and a good track record? Does the State adoption agency permit adoption subsidy terms that will provide sufficient and secure services to the child to improve the odds of a stable placement? Does the public adoption agency promise other post-adoption services, as necessary to stabilize the placement?

  1. Reasonable Efforts Include Concurrent Planning: We recommend that State law indicate that reasonable efforts may include concurrent efforts both to reunify a family and to ensure that an adoptive or other alternative permanent home will be available if needed by the child.

Commentary

Concurrent planning means working to reunify a family while, at the same time, planning for the possibility that reunification will not succeed. In circumstances where the probability of successful reunification is unlikely, concurrent planning can benefit the child by reducing the length of time that the child is in a temporary placement. For example, an agency might seek out foster parents or potential adoptive parents who will be willing to adopt the child should reunification efforts fail. ASFA explicitly authorizes this practice by providing that "reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts [to preserve the family]." [42 U.S.C. 671(a)(15)(F).]

  1. Criteria for Not Requiring Reunification Services: Reasonable efforts to prevent removal of a child or to reunify a family are required in most cases. We recommend, however, that State law specify that the State is not required to provide reunification services if there is a judicial finding that the child cannot be safely returned home within a reasonable time, even if reunification services are provided. This is shown by parental behavior that includes one or more of the following:

    1. The parent committed murder or voluntary manslaughter, or conspiracy to murder another child of the parent, or committed a felony assault that resulted in serious bodily injury to the child or another child of the parent.
    2. The parent aided or abetted, solicited, attempted, or conspired to commit such a murder or voluntary manslaughter.
    3. The parent committed, solicited, aided and abetted, or engaged in a conspiracy to commit other specified crimes against children.
    4. The parents' rights to the child's sibling were previously involuntarily terminated.
    5. The parent abandoned a child for [30], [60], [90] or more days and the identity of the parent is unknown and cannot be ascertained despite diligent efforts to do so.
    6. The parent's abuse or neglect of the child, a sibling, or other child in the household was so extreme or repeated that any plan to return this child home would present an unacceptable risk. Factors the court might consider in determining the extent of risk include:

      • The seriousness of the injury or harm to the child or risk of injury or harm associated with the abuse or neglect;
      • Whether the abuse or neglect was the result of a parental character disorder or compulsion unlikely to change (e.g., as shown by extreme cruelty or sexual abuse); and
      • The frequency, number, and severity of incidents of abuse or neglect.
    7. The child's parent makes an informed and voluntary decision not to receive services or assistance to prevent removal or reunify the family.

Commentary

Federal law provides that States are not required to make reasonable efforts to preserve or reunify a family in all cases, although State agencies and courts are permitted to extend prevention and reunification services to families even in circumstances where Federal law would not require it.

Most of the above criteria for not requiring reunification services are consistent with existing Federal law. Criteria a through c paraphrase CAPTA or ASFA, and criterion d directly reflects the ASFA exception to the obligation to provide reunification services. Similarly, while the language of criteria e and f was supplied by the Expert Group, it reflects or stands in place of ASFA language, particularly the language related to aggravated circumstances. Criterion g, however, was added by the Expert Group to the criteria already established by Federal law.

The above criteria presume it is highly unlikely that the child can be placed with the parent within a reasonable time even if services are provided to reunify the family. That is, when one or more of the criteria specified in this Guideline apply in an individual case, it is unlikely that reunification services can succeed within a reasonable time.

Under Federal law, States are not required to make reasonable efforts to preserve the family in all cases. ASFA, ?101, 42 U.S.C. 671(a)(15)(D) provides that:

[R]easonable efforts [to prevent the need for placement and to reunify the family] shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that--
  1. (i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse);
  2. (ii) the parent has--

    1. (I) committed murder (which would have been an offense under section 1111(a) of title 18, United States Code, if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;
    2. (II) committed voluntary manslaughter (which would have been an offense under section 1112(a) of title 18, United States Code, if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;
    3. (III) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or
    4. (IV) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or
  3. (iii) the parental rights of the parent to a sibling have been terminated involuntarily.

Thus, ASFA sets forth certain limited circumstances in which reasonable efforts to prevent removal and reunify the family are not required. These include the commission of certain specified crimes, as set forth above and that parental rights concerning a sibling have previously been terminated. Beyond the mandatory circumstances, ASFA allows States to further define "aggravated circumstances."

Federal law requires a number of the circumstances listed in these Guidelines. Criteria a and b are based on crimes specified by ASFA and the Federal Child Abuse Prevention and Treatment Act (CAPTA), in which "reasonable efforts" are not required. [ASFA, 101, 42 U.S.C. ?671(a)(15)(D)(ii); CAPTA, ?107, 42 U.S.C. 5106a(b)(2)(a)(xii).] Criterion c invites States to add additional serious crimes, not specified by ASFA, as criteria for not requiring reunification services. Among other things, these might include crimes committed against children other than the child in question or the child's siblings. In particular, it might include crimes committed against another child residing in the child's household.

Criterion d, based on termination of parental rights to a sibling, is specifically required by ASFA as an exception to the obligation to provide reunification services. Some States think this ground is too broad and have elected to define it more narrowly. One way of doing this is to require that the States have made diligent efforts to rehabilitate the family in the case of a prior termination of parental rights.

Criterion e deals primarily with abandoned infants. ASFA and CAPTA require expedited termination of parental rights for abandoned infants. [ASFA, 103(a)(3), 42 U.S.C. ?675(5)(E); CAPTA, 107, 42 U.S.C. ?5106a(b)(2)(a)(xi)(I).] Since expedited termination is required for abandoned infants, it is also logical to include these as criteria for not requiring reunification services.

Criterion f includes cases in which returning the child home would be an unacceptable risk even if a parent appeared to improve as the result of reunification services. In these cases, there typically is a combination of factors demonstrating the extreme risk to the child. Among these factors are the severity of the harm or threat to the child, the number and frequency of incidents of abuse and neglect, and the particularly cruel or compulsive nature of the parent's acts. The Expert Work Group preferred paragraph f to the language identifying specific examples of "aggravated circumstances" that appears in ASFA (i.e., "sexual abuse, torture, or chronic abuse").

Criterion g involves the situation in which a parent chooses not to participate in services to try to preserve the family and not to accept other assistance. Rather than assuming that parents want to work toward family reunification, agencies should help the parents decide whether this is their goal. Of course, it is essential that the parent is properly counseled and the parent's decision is fully informed.

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Additional Questions and Circumstances that States May Want to Consider

A major area of controversy among the Expert Work Group was the relationship between those circumstances in which reasonable efforts are not required and the grounds for termination of parental rights under State law. At issue was whether the criteria for not requiring reasonable efforts should be the same as certain grounds for the termination of parental rights. States need to consider and carefully debate this area.

The majority of the group thought that the two legal questions (to deny reasonable efforts or to terminate parental rights) were separate and should have their own criteria. A minority felt that certain grounds for the termination of parental rights i.e., most of those termination grounds that do not require reasonable efforts should be criteria for denying reasonable efforts. Whether or not there is a link between grounds for termination and criteria for not requiring reasonable efforts, the State needs to make certain that parents who can benefit from services will actually receive them and that parents' rights to due process are fully honored.

An additional area of controversy among the Expert Work Group related to additions to the criteria listed above. Several additional suggestions received some support within the Expert Work Group but were opposed by the majority. States considering such possible additions should approach them with caution, allowing thorough debate concerning their practical implications. The legislature should be convinced that any criteria it enacts for not requiring reasonable efforts will apply only in situations where reunification services clearly cannot help parents improve within a reasonable time. The following are the additional minority suggestions:

  1. The parent had minimal contact or communication with the child for the previous three months for a child under three or for the previous six months for a child three or older, although the parent had the ability and opportunity to maintain such contact.

    This involves cases of abandonment and extreme parental disinterest in which parents can be identified and located. Compare criterion e, above.

  2. An unmarried father of an infant less than one year old has failed to visit the child, establish paternity, or provide financial support within 30 days after becoming aware of the child's birth; or did not attempt to seek custody within 30 days after becoming aware that the child was placed into foster care, although the father was informed of the opportunity to seek custody.

    This deals with cases in which an unmarried father fails to come forward and either assume responsibility or assert paternity within a short time after a child's birth. The majority of the Expert Work Group was concerned about the strictness of the time requirements imposed on the unmarried father.

  3. The child or a sibling was previously removed from home, returned home, and subsequently reabused or reneglected although, before the most recent incident, the agency had made appropriate and diligent efforts to preserve the family. In addition, the underlying causes of the episode of abuse or neglect following the child's return were similar to the causes of the abuse or neglect occurring before the child was removed from home.

    This deals with cases in which the agency has already made reasonable efforts to preserve the family, but in response to maltreatment of the child's sibling or in connection with a much earlier incident involving the same child.

  4. The parent is addicted to drugs or alcohol, causing the parent to abuse or neglect the child, and prior to the child welfare agency's involvement, the parent has repeatedly refused or failed to complete drug or alcohol treatment.

    This deals with the situation where, prior to child welfare agency involvement, the parent has already repeatedly refused or failed substance abuse treatment. The idea behind this suggestion is that if other agencies have already made their repeated best efforts to help, there is nothing more that the child welfare agency can do. The majority view is that when a parent is first threatened with loss of rights to a child, this often provides a new and more powerful motivation for the parent to stop or control the substance abuse.

  5. The parent has an emotional or mental incapacity so severe that the parent cannot care for the child, taking into account the particular needs and condition of the child. There is no known course of treatment that can prepare the parent to care adequately for the child.

    This deals with the situation in which a parent abuses or neglects the child due to a mental or emotional incapacity and the incapacity is so severe that there is no known treatment that can make it possible for the particular child to be returned home within a reasonable time. The idea behind this ground is that if mental health agencies have already made their repeated best efforts to help and the prognosis is poor, there is nothing more that the child welfare agency can do to prepare the parent to care for the particular child. The majority view is that psychiatry and psychology are not exact sciences and that there is danger of inaccurate diagnoses.

  6. The child's parent has made no arrangements for the care of the child and the parent will be imprisoned for at least two years if the child is under three, three years if the child is under six, and four years if the child is six or older.

    This would excuse the agency from making reasonable efforts to preserve the family where the parent has not made appropriate arrangements for care of the child (e.g., with relatives) and the parent will serve a long term of imprisonment, taking into account the age and needs of the child. The idea behind paragraph 5 is that, where the child is facing a long stay in foster care, the needs of the child for a permanent placement take precedence over parental rights. The majority noted that paragraph 6 includes situations in which there is not history of abuse or neglect prior to imprisonment and emphasized that, in many cases, the parent-child relationship can be preserved through ongoing visits and contacts while the parent remains in prison.

  1. Procedure for Determining Whether There Have Been Reasonable Efforts to Preserve the Family or to Finalize a New Permanent Home: We recommend that State law require that:

    1. The agency should submit a sworn statement prior to any judicial hearing in which the court is to determine whether there have been reasonable efforts to prevent placement, reunify the family, or make and finalize a new permanent home for the child. This statement, which should be submitted to the court and the parties at least 5 days in advance of the hearing, should describe the reasonable efforts made by the agency or the rationale for not making such efforts.
    2. Following the hearing, the court will determine whether or not the agency made reasonable efforts and enter brief findings describing the efforts.

Commentary

To ensure careful judicial deliberation concerning reasonable efforts, it is important to design a process which takes into account the agency's capacity to prepare substantive material in a timely manner and the time the court needs for review and deliberation. A report from the agency, submitted well in advance of the hearing, allows the parties to consider carefully whether reasonable efforts were made. If appropriate, it also allows them to introduce other evidence. A sworn statement helps ensure the accuracy of the report. This recommendation also appears in the Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases. (The Resource Guidelines were first published by the National Council of Juvenile and Family Court Judges (NCJFCJ) in 1995 and have been endorsed by NCJFCJ, the American Bar Association, and the Conference of Chief Justices.)*Equally important is a careful thought process by the judge. The preparation of findings helps ensure thorough judicial deliberations. The findings also provide an authoritative record concerning the agency's efforts. This record can be invaluable in later hearings, including hearings on whether to return the child home or whether to terminate parental rights.

Much of the content of this Guideline is also covered in Chapter IV, Court Process, in the discussion of disposition, review, and post-termination of parental rights review hearings.

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