Second National Parents’ Attorneys Conference Advocating for Reasonable Efforts in Unreasonable Budgetary Times



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Second National Parents’ Attorneys Conference

Advocating for Reasonable Efforts in Unreasonable Budgetary Times
Amelia Watson, Brett Ballew and Jacob D’Annunzio

Washington State Office of Public Defense

Parents Representation Program

July 13-14, 2011

Washington, DC

Bibliography

Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev. 321 (2005).


Evelyn K. Calogero, Reasonable Efforts to Reunite Families in Child Abuse and Neglect Proceedings: They Aren’t Just for Funding Anymore In re Rood, 763 N.W.2D 587 (MICH. 2009), 12 T.M. Cooley J. Prac. & Clinical L. 25 (2009).
Will L. Crossley, Defining Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation, 12 B.U. Pub. Int. L.J. 259 (2003).
Judge Leonard P. Edwards, Improving implementation of the Federal Adoption Assistance and Child Welfare Act of 1980, 45:3 Juv. & Fam. Ct. J. 3 (1994).
Judge Richard Fitzgerald, Christine Bailey, and Lauren J. Litton, Using Reasonable Efforts Determinations to Improve Systems and Case Practice in Cases Involving Family Violence

and Child Maltreatment, 54:4 Juv. & Fam. Ct. J.97 (2003).
Olivia Golden, Jennifer E. Macomber, and Additional Authors, Paper Series: Intentions and Results: A Look Back at the Adoption and Safe Families Act, Center for the Study of Social Policy and Urban Institute (2009).

Jeanne M. Kaiser, Finding a Reasonable Way to Enforce the Reasonable Efforts Requirement in Child Protection Cases, 7 Rutger's J.L. & Pub. Pol'y 100 (2009).

Judicial Responsibility in a Budget Crisis Environment Policy Statement, National Council of Juvenile and Family Court Judges (2009). Accessed June 1, 2011 on-line at

http://www.ncjfcj.org/images/stories/dept/resolutions/policystatementbluefinal.pdf.
Shawn L. Raymond, Where Are the Reasonable Efforts to Enforce the Reasonable Efforts Requirement?: Monitoring State Compliance Under the Adoption Assistance and Child Welfare Act of 1980, 77 Tex. L. Rev. 1235 (1999).
Making Reasonable Efforts: A Permanent Home for Every Child, Youth Law Center (2000).

Model Questions for Defining Reasonable Efforts, Youth Law Center (Undated).


Reasonable Efforts Fact Pattern for Brainstorming Exercise
Mom-Molly has had substance abuse issues in the past (methamphetamine) but has been clean for 6 months, and she moved to your state 6 years ago. She says she moved from Kentucky because she wanted to get away from the father of her children, Arthur and to get clean. She had been unable to get clean until just recently and has moved around with the kids just one step ahead of Child Protective Services (“CPS”) for the last six years before settling in your state.

Dad-Arthur is the father who lives in Kentucky, hasn’t seen the children for 6 years, Molly has alleged past DV and drug use, but there are no arrests or criminal convictions. Arthur denies DV, admits drug use in the past but has been clean for 4 years. He says he lost contact because mom moved away and didn’t tell her where she was. After he got clean, he has tried to find them, but has been unable to do so. He has a new wife with kids, Bill, Percy, Fred, and George. Paternity never officially established on his kids with Molly, though both parents acknowledge that Arthur is the father to both children.

Children -Ron 10 and Ginny 7. They are very bonded to their mother. Ginny has some delays and behavior issues. Ron is behind in school but takes excellent care of his sister. The Department of Social and Health Services (“Department”) says he is “parentified.”
On a Friday, neighbors reported seeing Ron and Ginny left alone at their house for two days without seeing mom. When SW, Dolores Umbridge, came to investigate, she discovered that the house was dirty, had no electricity, no phone, and the kids reported that their mom left for work on Wednesday and told them she would be back on Thursday. She had no money for day care, so Ron was in charge until she got back. Molly reports that she got a temporary construction job that required her to drive 200 miles away and stay over one night. She knew that she shouldn’t leave the kids alone, but had no day care and needed the money from the job to get the lights turned back on. While there, her car broke down and it took a day for the part to arrive so she could fix the car. There was no way to call the kids and she didn’t know the neighbors because she just moved in.

Molly returned from the job Friday afternoon. Her kids were gone, but she found Umbridge’s card on the door. She immediately contacted Umbridge and went down to the department. There she was served with a summons and notice of hearing for the following Tuesday. A family team decision making meeting was set for Monday. Molly attended and explained her reasons for leaving the kids alone, admitted her old drug history, domestic violence history, and begged for her kids to be returned. She gave them Arthur’s name, but said she did not even know where he lived. Dolores Umbridge asked her to do a UA but Molly refused. Molly knew it would be dirty for marijuana because she went out with one of her coworkers so she would have a place to stay while away from home. She told you she needed something to calm her nerves because she was so worried about her kids. Dolores Umbridge placed the kids in a foster home. Unfortunately, it is a different home for each child.


Shelter Care Hearing:
You represent Mom. What are the reasonable efforts arguments that can be raised?
The judge orders the children to remain in foster care pending trial. He also instructs the department to search for Arthur. He orders supervised visits of one two hour visit per week supervised at the department to be expanded to two monitored visits per week at the local visitation center once it has been determined that the visits are going well. He orders Molly to do UA’s. He also orders the department to offer any services that Molly will agree to engage in prior to trial.
Prior to trial
Molly attends every visit. Molly says the visits seem to go well except that each child misses a couple of visits due to the unavailability of the foster parent to transport the child to the visit, so you ask for visitation to be expanded as ordered by the court. Umbridge refuses saying that they are still unsure about mom and need some more evidence before they will agree that the visits are going well. Umbridge says she is concerned that Molly seems unable to control Ginny’s acting out behaviors and that Molly hasn’t yet had enough visits where both children are present to see if she can handle both kids together.
Molly also agrees to a chemical dependency assessment. She knows that she is going to test positive for marijuana and explains to Umbridge what happened. Umbridge requests the UA right away and sure enough Molly tests positive. Umbridge finally makes a referral for the assessment the week before trial. No other UA’s are requested prior to trial.
Trial and Disposition
Fighting valiantly, you raise reasonable efforts arguments. What are they?

Unfortunately, the court finds the children dependent. The following services are requested by the Department and CASA to correct Molly’s parental deficiencies:

Psychological Evaluation

Mental Health Assessment

Domestic Violence Evaluation

Drug/Alcohol Evaluation

Parenting Classes

Anger Evaluation

Umbridge also recommends visits 2 times per week supervised at local visitation center. Visits are to be changed to monitored pending positive evaluations and services.

Molly has lost her public assistance since she no longer has her children in her care. She will be homeless within the week. Her car still doesn’t work and even if it did, she couldn’t afford the gas. She is very worried that she will not be able to make it to any services, let alone visitation.



What reasonable efforts arguments do you make at the trial/disposition?
What language could you suggest to the Court to encourage the Department to provide services?
The judge agrees with the Department and orders all the services they recommend.
1st Review Hearing
Molly loses state assistance because she no longer has children in home. She starts missing visits due to lack of transportation. She no longer can afford rent and gets evicted. She has a cell phone, but only has limited minutes. She stays in touch with you when she can afford it, but it is difficult. Every time she leaves a message for Umbridge, she gets a message saying Umbridge’s mailbox is full. Several weeks go by and Molly has not been referred for any of her evaluations.
You call Umbridge and she says that the problem is that she cannot get a hold of Molly to set up the appointments. Furthermore, she has not been able to get Molly to do a UA which she expects prior to making any referrals because she wants Molly to demonstrate that she is clean before wasting money on services.
When the visits occur, they go well, but with Molly missing about a third of them, the foster parents report that the kids are acting out before and after the visits. They want visitation reduced.

One week prior to the hearing, Umbridge makes all of the necessary referrals for services. The evaluations are all scheduled during the week following the review hearing.

Do you have any reasonable efforts arguments to raise at the review hearing?
What solutions would you suggest to the Court to encourage the Department to provide services?
2nd review/1st Permanency Planning Hearing
Molly completes her evaluations following the 1st review hearing. Unfortunately, she still continues to miss about a third of her visits. Her psych eval and mental health assessment confirm that she is depressed and has an anxiety disorder which will require DBT therapy. Her chemical dependency provider recommends outpatient treatment. No treatment is recommended for DV or anger. Molly gets started in her services right away.
After 3 months of Molly making progress in her services, Umbridge says the department can no longer pay for her treatment, but due to budget cuts, they can no longer pay for her DBT therapy or parenting classes. This frustrates you, because you have other clients for whom the department is paying for these particular services.
Molly finds a part-time job, but still has no place to live. She cannot come up with enough money for a deposit or rent, and she certainly cannot pay for any services. Since the department will not pay, she gets terminated from her treatment programs a few weeks prior to the Permanency Planning Hearing.

About a 3 weeks prior to the hearing, Arthur finally tracks down Molly and learns that their children are in foster care. There is no evidence that Umbridge did anything to try to find Arthur. He contacts Umbridge immediately and Umbridge agrees to start the paperwork for an ICPC home study.

At the permanency planning hearing, Umbridge recommends that termination of parental rights be pursued. She claims that Molly is not making progress as she has been terminated from her treatment programs and misses about 1/3rd of the visits. Furthermore, Molly cannot provide a stable home because she cannot afford her own place. Because the kids act out, Umbridge asks that the visitation be suspended.
The foster parents for Ginny report that they think they can stabilize Ginny’s behaviors if the visits are suspended and are very willing to adopt her. Ron’s foster parents report an enormous escalation in act out behaviors and do not know how much longer they can agree to his care.

As of the day of the hearing, no request for an ICPC has been completed.


What reasonable efforts arguments on behalf of Molly? Arthur?
What arguments do you have regarding the budget?
What solutions would you suggest to the Court to encourage the Department to provide services?
What would happen with an ICPC request in your state?
Prior to Termination Trial
Molly loses her job and stops visitation. She starts using meth again and looks terrible when you are able to see her. She maintains that she will never agree to relinquish her parental rights and wants you to contest the termination trial.
Paternity gets established on Arthur but it takes 4 months for the test to be arranged and 2 months for the department to report the results. Arthur’s ICPC request is denied due to having only a two bedroom house. He cannot afford a bigger house. He wants to visit his kids in person, but cannot afford to travel. The department refuses to pay. The therapist for the children says that they want to supervise the reintroduction of Arthur in their lives. The department will pay for this but not his travel.

What arguments do you make on behalf of Molly at the term trial? Arthur?




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