Right From the Start, Courts Catalyzing Change in Protective Hearing, 2010

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R ht r m th St rt : Th CCC Pr m r Pr t ct H r B chc r

Brief Authored By:

Nancy B. Miller, Director, Permanency Planning or Children DepartmentCandice L. Maze, J.D., Consultant, National Council o Juvenile and Family Court Judges

Tis echnical Assistance Bulletin is a publication o the Permanency Planning or Children Department o the NationalCouncil o Juvenile and Family Court Judges. Te National Council o Juvenile and Family Court Judges wishes toacknowledge that this material is made possible by Grants No. 2008-C -BX-K012 and 2009-MU-MU-K001 rom theO ce o Juvenile Justice and Delinquency Prevention, O ce o Justice Programs, U.S. Department o Justice. Pointso view or opinions are those o the authors and do not necessarily represent the o cial position or policies o the U.S.Department o Justice, or the National Council o Juvenile and Family Courts Judges.

Reproduction o this publication or non-commercial education and in ormation purposes is encouraged. Reproduction o any part o this publication must include the copyright notice and attribution to: echnical Assistance Bulletin, Right romthe Start: Te CCC Preliminary Protective Hearing Benchcard, A ool or Judicial Decision-Making, published by theNational Council o Juvenile and Family Court Judges, Reno, Nevada. 2010, National Council o Juvenile and Family Court Judges. All Rights Reserved.Honorable Dale R. KochInterim Executive DirectorNational Council o Juvenile and Family Court Judges

Nancy B. MillerDirectorPermanency Planning or Children DepartmentNational Council o Juvenile and Family Court Judges

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A T o o l f o r J u d i c i A l d e c i s i o n - M A k i n g


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introduction

d a & d a a t a c w a s

American children o all races, ethnicities and socioeconomic backgrounds experi-ence abuse, abandonment and neglect. More o ten than not, these children live in

amilies who are under enormous stress due to substance abuse, domestic violence,poor living and educational conditions and parental history o trauma. Te frst threeNational Incidence Studies o Child Abuse and Neglect (re erred to as NIS-1, NIS-2and NIS-3) ound that, regardless o the standard o maltreatment used and adjusting

or poverty, there are no statistically signifcant di erences in the overall occurrencerate or maltreatment between black and white amilies.1 Te NIS-4, reporting 2006data, ound that A rican American children experienced higher rates o maltreatment

than white children in several categories; however, this is due in part to the growing gap between white and black childrens economic well-being.2

Research has demonstrated that children and amilies o color are disproportion-ately represented in the child wel are system.3 In states where there is a large popula-tion o Native Americans, this group can constitute between 15% and 65% o thechildren in oster care.4 Hispanic or Latino children may be signifcantly over-repre-sented based on the locality (e.g., in Santa Clara County, Cali ornia, Latino childrenrepresent 30% o the child population, but 52% o all child wel are cases.5

Children o color experience disparate decision-making in investigation, substantiation, removal, placement in ostercare and fnal permanency determinations. A rican Americans are investigated or child abuse and neglect twice as o ten asCaucasians,6 and A rican American children who are determined to be victims o child abuse are 36% more likely than Cau-casian children to be removed rom their parent(s) and placed in oster care.7 Federal Child and Family Services Review 8 data also show that Caucasian children achieve permanency outcomes at a higher rate than children o color.9 In addition to being more likely to be placed in oster care, A rican American children are less likely to be reunifed with their parents10 and receive

ewer services than Caucasian children.11

1 Hill, R.B. (2006). Synthesis o research on disproportionality in child wel are: An update. Casey Family Programs. See also G.A.O. (2007). A rican Ameri -can children in oster care: Additional HHS assistance needed to help states reduce the proportion in care.GAO-07-816.2 Sedlak, A. J., McPherson, K., & Das, B. (2010).Fourth national incidence study o child abuse and neglect (NIS-4): Supplementary analyses o race di erenchild maltreatment rates in the NIS-4.Washington, DC: U.S. Department o Health and Human Services, Administration or Children and Families.3 Anderson, G. R. (1997). Introduction: Achieving permanency or all children in the child wel are system. In G. R. Anderson, A. Ryan, & B. Leashore(Eds.), Te challenge o permanency planning in a multicultural society (pp. 1-8). New York: Haworth Press, Inc. See also U.S. Department o Health and Hu-man Services (2005). Data Report.4 Miller, O. (2009). Breakthrough Series Collaborative on Reducing Disproportionality and Disparate Outcomes or Children and Families o Color in theChild Wel are System. Casey Family Programs. Seattle: WA. Retrieved at http://www.casey.org/Resources/Publications/pd /BreakthroughSeries_Reduc-ingDisproportionality_process.pd on June 10, 2010.5 Congressional Research Service. Race,Ethnicity and Child Wel are (August, 2005).6 Yaun, J., Hedderson, J., and Curtis, P. (2003). Disproportionate representation o race and ethnicity in child maltreatment investigation and victimization.Children and Youth Services Review , 25, 359-373.7 U.S. Department o Health and Human Services (2005).Data Report 8 Te Child & Family Service Review (CFSR) are a statewide assessment and on-site review by the Department o Health & Human Services, Administra-tion or Children & Families Childrens Bureau. Te state must address a large array o systemic actors that are reviewed by the ederal team o reviewers. Teprocess includes case fle reviews, consumer interviews, stakeholder interviews and state data analysis and review. Te states are measured in the a rea o sa ety,permanency and child and amily well-being. For more in ormation on the CFSR process, visit www.ac .dhhs.gov\programs\cb.9 National Child Wel are Resource Center (2006).Data Report 10 Lu, Y. E., Landsverk, J., Ellis-MacLeod, E., Newton, R., Ganger, W., & Johnson, I. (2004). Race, ethnicity and case outcomes in child protective services.Children and Youth Services Review , 26, 447-461.11 Courtney, M., Barth, R., Berrick, J., Brooks, D., Needell, B., & Park, L. (1996). Race and child wel are services: Past research and uture directions.Child

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Disproportionality and disparity are distinct, complex, and related concepts. Disproportionality is created and perpetuateby disparities.12 Tus, [p]olicies and practices to reduce disproportionality must target the underlying disparities that lead toit.13 Tere are a number o actors that contribute to disparities. Agency practices, court culture, access to and e ectivenesso services, child and amily resources, community resources, law and public policy, social problems, institutional/structuracism and individual bias may all be contributing actors. A one size fts all service array, ound in ar too many commties, belies the act that the same services do not work or every amily. Services that are targeted, culturally appropriate aspecifc must be developed in communities across the country. Every person and part o the child wel are system must engin targeted strategic action to reduce these inequities to improve outcomes or all children and amilies.

t na a c J v a fa c J (ncJfcJ)

c ca a c a i a v14

Te Courts Catalyzing Change: Achieving Equity and Fairness in Foster Care (CCC) initia-

tive was developed by the NCJFCJs Permanency Planning or Children Department in pursuito a Model Court national goal to reduce disproportionality and disparate treatment. Fundedby Casey Family Programs and the U.S. Department o Justice, O ce o Juvenile Justice andDelinquency Prevention (OJJDP), the CCC Initiative builds on the success ul work o the CasBreakthrough Series Collaborative. CCC was developed with input rom the ollowing NCJFCcommittees and workgroups:

Committee on the Disproportionate Representation of Children of Color Tribal Courts Committee Diversity Committee Permanency Planning for Children Department (PPCD) Advisory Committee NCJFCJs Model Court Lead Judges CCC Call to Action WorkgroupTe CCC mission is to create and disseminate judicial tools, policy and practice guidelines,

and associated action plans that court systems can implement to reduce disproportionality anddisparities. Te CCC Initiative, in ormed by existing and newly developed research, will evaluadecision points in the dependency court system, re-evaluate ederal, state, and local policy, marecommendations or changes or improvements, and recommend strategies or court and child wel are systemic change.

Development o the CCC Initiative & PPH Benchcard In September 2007, Casey Family Programs partnered with NCJFCJ to bring together judicia

o cers and other child wel are system stakeholders in a series o leadership and work groupmeetings to create a National Agenda to reduce disproportionality and disparate treatment in the

oster care system. Once developed, the National Agenda was to be implemented in the NCJFCJs Model Court jurisdictio

Wel are , 75, 99-137.12 Gatowski, S., Maze, C., & Miller, N. (Summer 2008). Courts Catalyzing Change: Achieving Equity and Fairness in Foster Care rans orming Examnation into Action. Juvenile and Family Justice ODAY , 16-2013 Ibid.14 Excerpted in part rom Gatowski, S., Maze, C., & Miller, N. (Summer 2008). Courts Catalyzing Change: Achieving Equity and Fairness in Foster Care

rans orming Examination into Action. Juvenile and Family Justice ODAY . 16-20.

Courts Catalyzing Change is

the most signifcant initiative our

Juvenile Court has embarked uponin the last decade. The journey

to understanding how deeply

embedded bias, in all its orms,

is within each o us individually

and within our entire child wel are

system is extraordinarily di fcult.

Reducing the disparities that result

rom this bias is an even more

arduous task. However, both are

incredibly worthwhile and, as our

e orts through Courts Catalyzing

Change are demonstrating, both

an be done. I am a better judge or

my involvement with this initiative.

kewise, our juvenile court system is

becoming more just or all children

and amilies.

HonoRaBle lou TRoSCH

DiSTRiCT CouRT JuDge26TH JuDiCial DiSTRiCTo noRTH CaRolina


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Funded by the OJJDP, Model Courts in 35 jurisdictions across the country are committed to improving courts handling o child abuse and neglect cases and engaging in overall system improvement e orts. Guided by a local Lead Judge, a ModelCourt team comprised o all child wel are system stakeholders works collaboratively to improve court and child wel are sys-tems.

On October 3, 2007, at the OJJDP- unded Model Court All-Sites Con erence in New Orleans, Louisiana, the ModelCourt Lead Judges began initial conversations about the development o the National Agenda. A Judicial Steering Committee was soon appointed and the Courts Catalyzing Change initiative was born. A broad-based Call to Action Workgroup, broughttogether by the NCJFCJ, developed the CCC National Agenda and continues to advise the project as it moves orward. TeNCJFCJ Board o rustees adopted a resolution supporting the CCC initiative, clearly articulating support rom the highestlevels o the organization.

Te Courts Catalyzing Change initiative was launched in the National Councils OJJDP supported Model Court jurisdic-tions. Tese courts have strong, collaborative, problem-solving, system improvement teams already in place. Model Courts

are in a constant state o readiness or change. Tey have worked together over time to create an environment that embracessystem improvement.

Te CCC National Agenda is comprised o fve core components: engaging stakeholders, trans orming judicial practice,utilizing data and research, evaluating policy and law, and impacting the service array or children and amilies in the child wel are system. Each o fve core components o the CCC National Agenda include comprehensive strategies to implementboth on the local and national levels. Components o the National Agenda are implemented locally in the sequence that bestfts each jurisdiction.

Te CCC initiative is guided by core principles: Children and families of color must be an integral part of the planning and problem-solving process at all lev

all stages. Judges as the nal arbiters of justice - must be leaders in their communities on the issue of reducing dispr

and disparity in the child wel are system. Broad-based, multidisciplinary alliances and honest collaboration must be formed to e ectively and comprehensiv

reduce disproportionality and disparate treatment. Reducing racial disproportionality and disparities in the child welfare system must be linked with a broader e

eliminate institutional and structural racism in the child wel are system.Nationally and locally, lead judges, Model Courts and their community partners and stakeholder teams, have been en-

gaged in a multi-layered process to move these principles to action. Model Court teams have worked to bring the community

core components of the ncJfcJ courts cAtAlyzing chAnge nAtionAl AgendA

I. Engage national, state, local and tribal stakeholders, including children and amiliesII. rans orm judicial practiceIII. Participate in policy and law advocacy IV. Examine and employ research, data and promising practicesV. Impact service array and delivery


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into the juvenile court system not through the courtroom doors but rather to meetings,planning sessions and problem-solving e orts. Model Court collaboratives have engagedin training, team/trust-building and awareness-raising to better understand structural andinstitutional racism. Judges have begun to explore how their own belie s and biases canperpetuate inequitable treatment o the children and amilies who appear be ore them ancontribute to disproportionality and disparate treatment.

Te CCC Steering Committee discussed the importance o understanding the many ac-tors that impact judicial decision-making. o that end, training was developed or all ModCourts ocused on:

Understanding and examining implicit bias; Understanding race as a social and legal construct; and Understanding and identifying institutional and structural racism.

Although it is the most di cult issue to explore, NCJFCJ member judges chose to begintheir work to reduce disproportionality and disparities by holding courageous conversationabout race and implicit bias. Clearly, the disproportionate number o children o color incare signals a system imbalance. While many debate whether and why disproportionality exists, NCJFCJ member judges are ocused instead on remedying the disparate treatmentexperienced by children and amilies o color once they enter the oster care system.

NCJFCJ member judges a rmatively decided to begin their CCC work to reduce disproportionality and disparate treatment at the point the child and amily frst appear in court.Conducting a thorough hearing, allowing su cient time to ully explore the need or oscare placement, helps to ensure that oster care is utilized only when it is the only approp

ate option to protect the sa ety o a child.Te CCC Preliminary Protective Hearing (PPH) Benchcard, a practical and concrete judicial tool or use at the frst

hearing, was developed by the Call to Action Workgroup and vetted by the CCC Steering Committee and PPCD AdvisoCommittee. Building on the RESOURCE GUIDELINES: Improving Court Practice in Child Abuse & Neglect Cas15 thePPH Benchcard re ects aspirational best practices or the Preliminary Protective Hearing, one o the most critical stain a child abuse and neglect case.

15 RESOURCE GUIDELINES: Improving Court Practice in Child Abuse & Neglect Cases (1995). National Council o Juvenile and Family Court Judges, RenoNevada.

The Courts Catalyzing Change

initiative is the NCJFCJ taking an

historical leadership role to adminis-

ter justice or all. We are looking at

institutional racism and bias or the

frst time and saying it is nobodys

ault but it is everyones responsibil-

ity. By working together with all o

our stakeholders with intentionality

towards reducing the overrepresen-

tation and disparities o children o

color in our systems, this initiative

provides real hope o change inhow we work with our nations most

vulnerable children and amilies

to provide airness o process and

eliminate barriers that may have

once seemed insurmountable.

HonoRaBle KaTHeRine luCeRoSuPeRviSing JuDge o DePenDenCy CouRT,

SanTa ClaRa CounTy SuPeRioR CouRT

How do we reduce implicit bias in our decision making when it is automatic and pervasive? Developing and

employing checklists at various key decision points (e.g., detention intake) can encourage less biased decisions

by providing an objective ramework to assess your thinking and subsequent decisions. The methodical approach

encouraged by checklists also can serve to reduce cognitive load by introducing more time into the decision

making process.

Marsh, S. (20 09). Te Lens o Implicit Bias. Juvenile & Family Just ice ODAY. Summer, 16-19.


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implementing the ccc nAtionAl AgendA: getting stArted

d v a c ab a v l a g

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b c d st r p r ts d th wh h xp r c d th st r c r s st m.

h a i a a a i a -s a m

Th s m t s pp rt t r th j d c d r t d sc ss th CCC n t a d c mp ts

d r s d str t s. Th s m t ws th s r d w rk t r d c d spr p rt t

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r c / th c r p s w t r m th w rk. it s cr t c mp rt t t s r s st m st k h d rs r

th r d t th s t m t . i p r ts d ch dr wh h xp r c d th s st m br s

mp rt t c t th c rs t . C s d r th c tr b t s th t c b m d b -tr d t p rt-

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f u a f t

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s t b t mpr tc m s. a r bj ct m s r s pr r ss pr m t w p m t s

th t b d sh r xp r c s t ct t th ct th r ps rts.

r c mpr h s d c mp m t th CCC n t a d p s sModel Courts CCC

National Agenda Implementation Guide (2009), n t C c J d m C rt J d s.


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Te Benchcard is built around two types o inquiry: internal and external. Te internal inquiry is set orth in a sel -re ection section containing questions designed to help judges examine potential biases at play that may a ect theirdecisions. Te external inquiry is laid out in both the due process related questions and considerations as well as the actua judicial inquiry o the hearing participants related to specifc salient issues that should be determined at the PPH.


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setting the stAge for A productiVe, thoroughAnd fAir heAring

reflection Questions

What assumptions have I made about the cultural identity, genders, and background of this family What is my understanding of this familys unique culture and circumstances? How is my decision speci c to this child and this family? How has the courts past contact and involvement with this family in uenced (or how might it i

my decision-making process and ndings? What evidence has supported every conclusion I have drawn, and how have I challenged unsuppo

assumptions? Am I convinced that reasonable e orts (or active e orts in ICWA cases) have been made in an

individualized way to match the needs of the family? Am I considering relatives as preferred placement options as long as they can protect the child a

support the permanency plan? Have I placed the child in foster care as a last resort? How have I integrated the parents, children and family members into the hearing process in a w

ensures they have had the opportunity to be heard, respected, and valued? Have I o ered the famchildren the chance to respond to each of the questions from their perspective?

Is this family receiving the same level and tailoring of services as other families? Is the parents uncooperative or negative behavior rationally related to the involvement of the Age

or the Court?


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Re ection questions encourage the judge to pause and think about his or her own decision-making process. Te re ectionquestions in the PPH Benchcard acknowledge that all people, o ten subconsciously and without malice, ascribe a set ostereotypes to people around them. Tese stereotypes naturally help us categorize and organize our world. Many are notharm ul, and many are, especially i they seep into the neutral realm o judicial decision-making.16 It is important not

only or judges, but or all decision-makers in the child wel are system, to acknowledge this implicit bias and to becomore conscious about potential in uences on their decision-making process.

Te re ection questions also support judges in making individually-tailored decisions that consciously consider theunique cultural and amilial context in which each child and amily exist, while applying the same legal standard to all

amilies involved in the dependency court process. Te goal is to understand the cultural contexts o the children andamilies involved in the child wel are system. Te strengths o a particular amily, coupled with those o their cultural

community can be used as supports upon which to build a rehabilitative and supportive plan that promotes stability andpermanence or the child.

Te re ection questions can be used in the manner that is most help ul to each individual judge. Some judges may choose to take a moment prior to each PPH and look through the re ection questions be ore they begin the hearing. Others may use the re ection questions to trigger additional questions they may have o the parties or participants.

16 Banaji, M. R., Bazerman, M. H., & Chugh, D. (2003). How (un)ethical are you?Harvard Business Review , 81(12), 56-64, and Carpenter, S. (2008). Buriedprejudice. Scientifc American Mind , 19, 32-39.

Martha Minow, Harvard Law School [Dean and Jeremiah Smith, Jr. Pro essor o Law] states that modern American

society - and thus the application o the rule o law - must begin with new assumptions based upon an understanding

that there are no cultural norms and everyone should be treated as though everyone is di erent. Minows position

calls or a new set o assumptions in abuse & neglect practice:

Each family is unique

Each family is different in key aspects of their lives

The solutions needed to repair the family or determine whether to break the parent-child relationship forever

must be based upon a clear and care ul understanding o amily di erences and amily uniqueness.

Source: Howze, K.A. (1996). Making Di erences Work: Cultural Context in Abuse and Neglect Practice or Judges and Attorneys . American Bar Association,5-6.

The men and women who serve as attorneys, judges and social workers in abuse and neglect cases bring their total

li e experiences and the assumptions that those experiences create to each case. It is a lo ty goal to expect that attorneys, judges and social workers can set aside assumptions that are based on our perceptions o race, ethnic

background, religion, poverty, substance abuse, literacy, language di erences, gender, age and sexual orientation.

Source: Ventrell, M. and Duquette, D. (Eds.). (2005) Child Wel are Law and Practice: Representing Children, Parents and State Agencies in Abuand Dependency Cases . Brad ord Publishing Co., (8,1).


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w s B p ?

Following the ormat o theRESOURCE GUIDELINES , the frst page o the PPH Benchcard identifes those whoshould be present and be represented at the preliminary protective hearing. Te discussion below is meant to provideinsight into the value o having each party present at the initial removal hearing, as well as additional recommendations orhow best to ensure that they are aware o the hearing and able to participate. While state and ederal laws defne which par-ties are required to receive notice, the list o persons provided in the ollowing pages will provide the court with the mostthorough in ormation on which to base its decisions.

Removing a child rom her home is a monumental decision and one that should not be made lightly or quickly. oo o -ten, these important hearings are conducted in a matter o minutes with ew i any participants other than the caseworkerand perhaps, the parents. Te PPH Benchcard changes the paradigm o the removal hearing and the important decisionsmade at that hearing. It encourages thorough exploration o alternatives to oster care, maintenance o cultural connections

or children and their amilies, and involvement o key individuals in the amily and childs li e in this important early

decision-making process. o have a air, productive, and thorough hearing, judges require accurate, up-to-date in orma-tion. While many o the questions at the initial hearing are o ten answered by an investigator o the initial allegation o child maltreatment, it is critically important or the court to hear the perspective o the amily and those attending thehearing as support or them.

Parents, parents partners, relatives, and any available extended amily are critical to the proceeding. Parents who are incarcerated should be transported to the PPH or permitted to attend by phone or videocon erence. Te child wel are agency should be expected to locate and assess relatives on both the maternaland paternal side o each amily. Tose connected to the child by relationships o the heart can also be strong support-ers and should be encouraged to participate. Relatives and the extended networks o the parents/children are o ten able toprovide support that may prevent removal o the child. When removal is necessary, these biological and social networkso ten o er a sa e placement option that also keeps the child within his community or connected to his amily, as opposedto placement with strangers.

reseArch regArding non-resident fAthers of children in the child welfAre systemindicAtes:

Involvement by non-resident fathers is associated with more reuni cations and fewer adoptions. Higher levels of non-resident father involvement are associated with substantially lower likelihood of later

maltreatment allegations. Highly involved non-resident fathers children exited foster care more quickly. Children who had had contact with a non-custodial parent in the last year were 46% less likely to enter

care.

Source: U.S. Department o Health and Human Services, O ce o the Assistant Secretary or Planning and Evaluation, O ce o Human ServicesPolicy and Administ ration or Children and Families, Admini stration on Children, Youth and Families, Childrens Bureau. (2008). More about thedads: Exploring associations between nonresident ather involvement and child wel are case outcomes. Available at http://www. atherhoodqic .org.


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Diligent searches or all relatives should be standard. Te Fostering Connections Act (PL 110-351) requires due dili-gence to identi y and provide notice to all adult relatives within 30 days o removal.17 A standard court-wide protocol orensuring e ective and thorough diligent searches should be cooperatively implemented. Child protection investigators acaseworkers should be trained on the protocol. Some courts have created diligent search checklists or other amily fntechniques that con orm to state statute.18

ribal representatives or liaisons, cultural or community leaders or liaisons, and/or religious leaders should alwaysbe at the PPH when required and whenever possible i not required. Tey should be engaged as partners in the e ortto fnd community alternatives to oster care. Families should be asked prior to the PPH which o these leaders should binvited to attend. I the Indian Child Wel are Act (ICWA) applies, an ICWA expert or ribal liaison should be involvedat the PPH to testi y and to advise the court and parties. Waiting until the jurisdictional hearing or the ICWA expert to

testi y could result in a child spending months in care without consideration o the higher standard or placement that tICWA requires.

Children should participate in the PPH. Judges should expect that children are brought to court when sa e and appro-priate and i they are not, the court should require that the child wel are agency provide an explanation that connects that childs sa ety and well-being. Tere is evidence to suggest that children who are more knowledgeable about the legasystem - through preparation by attorneys, social workers or caregivers as well as personal experience with the system - less distressed about attending court and value the opportunity to be heard by the judge.19 I not already instituted, courts will need to develop policies and protocols or ensuring that children will have the opportunity to attend the PPH andsubsequent hearings. Judges should expect that substitute caregivers and child wel are agencies will work collaborativeto ensure that children are able to appear in court.20 Courts should seek and participate in specifc training to learn how best to engage children during the hearing process. Te court should care ully weigh whether the child should be presenthroughout the whole hearing or just portions, as well as the extent to which the child should be asked to testi y immediately a ter the removal.

All attorneys and advocates should be present at the PPH. Even though many jurisdictions only appoint counsel at thePPH, developing a process in which each parents attorney is appointed prior and present at the PPH allows or the parento have advice and counsel at the start o the process promoting speedier resolution o key issues that need to be determined at this stage. Although some jurisdictions routinely provide separate counsel or each parent, in those that do not judges should determine rom the onset whether there is a con ict or potential con ict or an attorney to represent both

parents. In cases involving domestic violence, it is critical that separate attorneys be appointed.O equal importance is the legal and/or lay advocate or the child. Ideally, the childs advocate(s) should be involved

the process rom the frst day and should be able to speak with the child prior to the PPH and present that childs perspective or position and a recommendation as to their best interest on removal, placement, visitation, and service/treatmentdecisions. Representation or the child wel are agency, whether by a district attorney representing the agencys position

17 42 U.S.C Section 671(29)18 ChildFocus. (2007). Making relative search happen: A guide to fnding and involving relatives at every stage o the process . Http://www.child ocuspartners.com/toolkits%26guides.htm.19 Quas, J.A., Wallin, A.R., Horwitz, B., Davis, E. & Lyon, . (2009). Maltreated Childrens Understanding o and Emotional Reactions to Dependency Court Involvement. Behavioral Sciences & the Law 27: 9711720See the American Bar Association Center on Children and the Law, Bar-Youth Empowerment Project, National Child Wel are Resource Center on Legal

Judicial Issues. (2008). Judicial Benchcard or Engaging Children & Youth in Court . Available at www.abanet.org.


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when a con ict exists, by an agency attorney or state attorney is also essential.Because the PPH is o ten very upsetting and di cult or parents, supportive individuals who can help the parents

navigate the process such as parent mentors, cultural liaisons, substance abuse coaches, domestic violence advocates, etc.,can help a parent remain engaged during and a ter the PPH. reatment or service providers that have been working withthe amily prior to the courts involvement should be invited to attend the PPH to support the parents and discuss theirprogress. Judges need to inquire about the whereabouts o each o these representatives i they are not present.

p A a a pph

Involving many o the a orementioned individuals in the PPH can be a challenge. Inherent mistrust o the system may keep individuals away rom the court. Court schedules are not particularly conducive to gathering large numbers o peopletogether or an emergency hearing. Schedules are most o ten more convenient or the court than they are or the individu-als who must appear. However, making the court accessible and welcoming is an important part o building public trust

and confdence and allowing amilies the best possible opportunity or involvement in the proceedings. Building relation-ships among the court, the child wel are agency, community leaders and cultural liaisons can assist with promoting atten-dance at the PPH. Implementing time certain calendaring can support broader hearing attendance by avoiding scheduling that may require participants to wait or long periods o time or their hearing to commence. Consideration o alternativescheduling (i.e. night court) may urther assist amilies and their support systems with attendance.

In open courts, all persons present or the hearing should be allowed to enter the courtroom. In courts where theproceedings are closed, judges should make a point o requiring their baili s to invite anyone waiting or a case into thecourtroom unless there is a compelling sa ety reason to the contrary. It is critically important that the judge, and not thebaili , make decisions about who is allowed to enter the courtroom and participate in the hearing. Judges should routinely


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whAt Judges cAn do At the preliminAry protectiVe heAring to ensure thAt the Agency is working to identify And locAte fAthers from the stArt:

Te Fostering Connections Act (PL 110-351) requires due diligence to identi y and provide notice to all adultrelatives within 30 days o removal (42 U.S.C. Section 671(29)). Tis includes non-resident athers and paternalrelatives. Te court should ask what actions the social worker has taken to identi y and locate the ather. Has thesocial worker:

1. Asked the mother about the identity and location of the father?2. Used any search technology such as the child support locator to locate the father?3. Asked the mothers relatives about the father and his relatives?

4. Asked the mother about the identity and location of any of the fathers relatives?5. Used family nding technology to identify the fathers relatives?6. Contacted any of the fathers relatives concerning his location?7. Checked with local jail or state prison representatives to determine whether the father is incarcerat8. Checked with probation or parole authorities to determine if the father is on probation or parole?9. Talked with the child or the childs siblings about contact with the father or fathers relatives?Tese and other questions will in orm the case manager about the thoroughness o the inquiry the court expects

concerning the athers identity and location.[...Te issues discussed.......regarding identi ying, locating, noti ying, and engaging athers are relevant to

incarcerated athers. Te mother may fnally reveal the athers identity, but she may not know i he is incarcerated. With a name, birth date, and possibly other in ormation, the social worker should be able to locate an incarcer-ated ather quickly. Te court should insist that the caseworker contact the alleged ather, in orm him o the legalproceedings, and determine his desires about the child protection proceedings. Te act that he is in jail should notstop the inquiry.

I a case involves domestic violence, the way in which the court makes these inquiries is important so as not tocompel the victim to provide in ormation that may place her in danger.

Source: Edwards, L. (2009). Engaging athers in the child protection process. Juvenile and Family Court Journal , 60(2), 1-29.]

inquire o the amily and child/youth whether there is anyone waiting outside the courtroom.Documentation and/or testimony should be provided by the child wel are agency a rming that parties and witnesses

received both oral and written notice in a language that is understandable to them. Certifed court interpreters should beused where available i a amily is non-English speaking. Under no circumstances should a amily member, party to thcase, or other hearing participant interpret the proceedings or another person in attendance.

Appropriate motions and orders should be entered to ensure that incarcerated parents are transported or PPHs when-ever possible. For parties and key witnesses who are unable to attend in person, telephonic attendance or videocon erenshould be made available.

r v p

While state and ederal law dictate the essential elements o the initial petition, judges can work with the agency to


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require that petitions contain su cient actual and contextual in ormation upon which to base a more thoroughly considered decsion. Judges must also determine whether the petition meets the requirements o state law and whether due process requirementsmet.

Generally, initial petitions must be sworn and the a ant should be present in court or available to the court to answer questionabout the acts contained therein. Clearly stated acts should support any conclusions reached in the petition. Many petitions arevague (the child is in need o the services o the court) or conclusory (the ather reportedly has a substance abuse problem)domestic violence cases, the court should pay particular attention to the language o the petition does it hold the batterer accouable for his violence?21

Judges should insist that proo be o ered at the level the court requires to determine probable cause or any and all allegationin the petition. Te petition should include specifc language that articulates the current threat to the childs sa ety that necessitateremoval. Additionally, the petition should be accompanied by an a davit stating the specifc reasonable or active e orts that havebeen made to prevent removal. It is important that the initial petition is fled prior to the time o the PPH to allow adequate time

or the parents review and consideration.Petitions o ten list allegations only as to the primary caretaker parent. O ten, caseworkers or investigators are concerned that

they do not know enough about the other non-custodial, non-charged parent or guardian at the time the petition is fled. I thatparent or guardian then appears at the hearing, they are sometimes ordered to participate in a series o evaluations to convincechild wel are agency and court that he/she is a ft parent. Judges must ensure that the rights o non-custodial parents or guardianare adequately protected and should care ully consider whether there is a legal basis to deprive a non-custodial parent o placemo their child i no allegations have been fled.

Troughout the PPH Benchcard development process, judges expressed concern regarding how best to handle cases with unin-volved parents who may or may not be appropriate placement resources. Te court and/or agency needs additional in ormation inorder to make that determination. Te majority o judges involved in the creation o the PPH Benchcard believe that a parent hasa right to custody o their child i no allegations are fled. Others strongly believe that the court has the authority to order serviceeven i allegations are not fled. Tis is an important consideration individual judges must make, o ten based on state law.

c h a

Once the judge has confrmed that the a orementioned individuals and representatives were given the opportunity to attend thePPH and is satisfed that due process requirements regarding notice and the elements o the petition have been met, he/she shouldproceed through the questions o the PPH Benchcard. Te questions are grouped by topic area to allow or exibility based on ea judges style and the natural ow o the hearing.

21 Goodmark, L. (2008). Reasonable E orts Checklist or Dependency Cases Involving Domestic Violence . Reno, NV: National Council o Juvenile and Family Court JudgesFamily Violence Department


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k i q , A a ad c s ma

p a p v h a


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determine whether the indiAn child welfAre Act ( icwA)Applies

Te court should require that the applicability o the ICWA be determined be ore proceeding with thepreliminary protective hearing. I the court has reason to believe ICWA applies, the court should proceedaccordingly. If Yes di erent standards apply, refer to the ICWA Checklist. If Yes determine whether there was clear and convincing evidence, including testimony of a qu

expert witness, that continued custody o the child by the parent or Indian custodian is likely to result inserious emotional or physical damage to the child. 25 U.S.C. 1912(e).


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Judges must determine whether the ICWA applies to the case as a threshold inquiry. Meant to sa eguard and protect Idian children, the ICWA was intended to remedy abusive child wel are practices that separated Indian children rom th

amilies in the interest o assimilating them in to the white culture. Because tribal children were removed at outrageousdisproportionate rates (in one state at 20 times the rate o non-Indian children), the ICWA set orth the requirement andstandard that the state engage in active ocused e orts to prevent the removal o Indian children rom their homes and/or termination o parental rights. Te ICWA also recognized that a childs extended amily as well as other tribal amilieshould be considered frst as substitute caregivers or Indian children. Te ICWA also provides or the right o tribes to

actively participate in any state court proceeding involving tribal children.22

Te ICWA applies when the proceedings are child custody proceedings as defned by ICWA 23 and the child is an In-dian child as the ICWA defnes that term.24 Under the ICWA, a child custody proceeding includes:25

Any action where the Indian child is removed from his or her parent or Indian custodian for tempoa home or institution, including guardianship and conservatorship and where parent or custodian cannot have childreturned upon demand but where parental rights have not been terminated;

Termination of parental rights; Pre-adoptive placements; and Adoptive placements.

Te child is considered an Indian child26 pursuant to the ICWA i :

He/she is an unmarried person under the age of 18, and e child is a member of a federally recognized Indian tribe; or e child is the biological child of a member of a federally recognized Indian tribe and the child is-

bership in any ederally recognized Indian tribe.

22 Te fve aspects o the ICWA are based on a summary o Torne, W.A. An overview o the Indian Child Wel are Act (ICWA). Te Judges Page Newslet te National CASA in partnership with the National Council o Juvenile and Family Court Judges. http://www.casa orchildren.org/at /c /{9928CF18-EDE9-4AEB-9B1B-3FAA416A6C7B}/0404_indian_child_wel are_act_issue_0011.pd 23 25 U.S.C. 1903(1)24 25 U.S.C. 1903(4)25 25 U.S.C. 1903(1)(i-iv)26 25 U.S.C. 1903(4)


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excerpt from pph checklist for icwA cAsesk q a :

Is the child under 18, unmarried and: a member o a ederally recognized tribe or eligible or membership in a ederally recognized Indian tribe and the biological child o a member o a ederally

recognized tribe? Was the child in the custody of an Indian custodian prior to the hearing? If child is an Indian child, does the child either reside or is the child domiciled on a reservation or is the chi

a ward of a tribal court, depriving the court of jurisdiction? If the child resides or is domiciled on reservationtemporarily o reservation, the court may order an emergency removal rom the parent or Indian custodian to preventimminent physical damage or harm to the child.

Has the agency mailed proper notice the childs putative father, including father who has acknowledged paternity,even if he has not legally established paternity?

Was proper notice and inquiry mailed to all tribes in which the child may be eligible for membership, includingfamily chart or genogram to facilitate the tribes membership determination?

If the childs tribe is not known at this time, was written notice sent to the U.S. Secretary of the Interior? What e orts, if any have been made by the agency to identify extended family or other tribal members or Indi

families, for placement of the child? Has the agency attempted to create a family chart or genogram solicitingassistance from neighbors, family or members of the Indian community who may be able to o er information?

Is the parent able to read and/or understand English? If not, what e orts have been made to ensure that the punderstands the proceedings and any action the court will order?

k a :

Has the agency madeactive e orts [emphasis added] to identi y responsible extended amily or other tribal membersor Indian families to serve as a placement for the child?

Is it in the best interest of the child to appoint counsel for the child? If the state law makes no provision for the appointment of counsel, has the court noti ed the Secretary upon

appointment of counsel so that reasonable fees and expenses may be appropriated? In assessing whether an individual who meets the placement preferences is an appropriate placement for the child

the agency relied upon the social and cultural standards o the Indian community in which the parent or extendedfamily reside, or with which the parent or extended family maintain social and cultural ties?

What additional e orts need to be made to ensure that the child is placed with extended family or within his/htribal community?

What culturally relevant services will allow the child to remain at home? Will parties voluntarily agree to participate in services? Are restraining orders or orders expelling an allegedly abusive parent from the home appropriate or necessary? Are orders needed for examinations, evaluations, or other immediate services?


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Te court should make a determination about the applicability o the ICWA or every childthat appears be ore the court, and review ICWA applicability at every hearing. Once the ICWAis determined to apply to the child, the court should re er to the PPH checklist or ICWA casethat appears in the Indian Child Wel are Act Checklists or Juvenile and Family Court Judgedeveloped and published in 2003 by the NCJFCJ-PPCD. Most importantly, the court mustapply the actual wording o the ICWA to decide i removal is appropriate. Key written fndingthat the court must make include: Whether, at the time of removal, the child was already a ward of a tribal court

thereby depriving the state court o jurisdiction.27 Whether, at the time of removal, the child was in the custody of an Indian cus Whether active e orts were made prior to removal of the child to provide remed

and rehabilitative programs designed to prevent the breakup o the amily, and whether the

e orts were success ul.28 Whether there was clear and convincing evidence, including testimony of a quali

witness, that continued custody o the child by the parent or Indian custodian is likely toresult in serious emotional or physical damage to the child.29

Whether the parent, Indian custodian, or childs tribe requested an additional 20prepare or the hearing.30

27 25 U.S.C. 1903(6)28 25 U.S.C. 1912(e)29 25 U.S.C. 1912(e)30 25 U.S.C. 1912(a)

Leadership by the court is

essential to ensure ICWA

compliance.Much has been

written in recent years about

the impact to a ected children

i the requirements o the ICWA

are not met, most notably the

signifcant delay in achieving

permanency or these children

as well as the widespread

non-compliance with the

requirement that a qualifed

expert testi y at hearings including the initial

removal hearing.

HonoRaBle Dale R. KoCH,MulTnoMaH CounTy CiRCuiT CouRT,

PoRTlanD, oR


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engAge in An opening discussion with pArents, childrenAnd fAmily memBer s At the Beginning of the he Aring

What language are you most comfortable speaking and reading? Do you understand what this hearing is about? What family members and/or other important people should be involved in this process with us? Do you understand the petition? (review petition with parties)


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One o the key principles o the CCC Initiative is to engage amilies in every court hearing. Judges have a signifcanopportunity to connect with and engage amilies appearing be ore them. O ten re erred to as therapeutic jurisprudencethe judges demeanor, behavior, and interactions with each party, relative, and community member are crucial to theperception o airness in the process.31 In this case, the clich is true the perception o justice is o equal importance as justice itsel .

Te Opening Discussion questions listed on page three o the PPH Benchcard guide the judge through the initialamily engagement process. Tese questions will help the judge determine whether the amily truly understands the

proceedings and the process, and demonstrate openness on the judges part to including the amilys amilial, social, comunity, and cultural support network in the court process. Te opening discussion between the judge and the amily canset the stage or the rest o the proceedings by modeling and promoting cooperation, communication, engagement and strength-based amily-centered approach. Not only does this signal to the amily that they will be treated airly and opit clearly sends the message that those working directly with the amily will be expected to be open and air as well.

considerAtions when engAging fAthers in cAses inVolVing domestic Violence When domestic violence is involved in a child maltreatment case, e orts to engage the ather and extended amily

through Family Group Decision-Making or other collaborative, amily-centered approaches must consider the sa etyand protection o the adult victim (mostly mothers) and the children. Sa eguards rom urther emotional and physiabuse should be identifed and implemented and separate parental engagement strategies should be employed. Te judge should consult with the mother and her domestic violence advocate regarding sa ety concerns and priorities as well as her present and uture needs. Te judge should encourage di erentiated engagement by the caseworker thattakes into consideration the expressed concerns and needs o the children, mother and ather individually.

Judges should be aware o how the abused parent and the perpetrator will present to social workers, court sta , andto judges themselves. On frst glance, the perpetrator may appear to be the better parentcharming, cooperative, andin control o the children. Te abused parent, on the other hand, may seem stressed, depleted, and an inadequate par-ent. Judges should understand, and help others in the dependency system to understand, the techniques used by theperpetrator to undermine the adult victims parenting.32

31 Senjo, S. and Leip, L. (2001). esting therapeutic jurisprudence theory: An empirical assessment o drug court process.Western Criminology Review 3(1)[Online]. Available: ht tp://wcr.sonoma.edu/v3n1/senjo.html.32 Goodmark, L. (2008). Reasonable E orts Checklist or Dependency Cases Involving Domestic Violence . Reno, NV: National Council o Juvenile and Family Court Judges Family Violence Department


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determine whether e ssentiAl due process reQuirementswere met

Who are the childs parents and/or guardians? How was paternity determined? What were the diligent search e orts for all parents? Have e orts to identify and locate fathers been su cient? What has been done? How were the parents noti ed for this hearing?

Was the notice in a language and form understandable to parents and/or guardians? Do the parents understand the allegations? Are the parents entitled to representation? Are there language issues to consider when appointing

attorneys?

Are there issues in the case that are covered by the Americans with Disabilities Act (ADA)?


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Although state law varies, the specifc questions related to due process requirements addressed in this section meet theminimum standards o most, i not all, jurisdictions, as well as the requirements under the Fostering Connections Actregarding notice to relatives and youth engagement.33 Te questions can be addressed to the parents, relatives, caseworker/investigator and others who may be present. o the best o its ability, the court must determine whether the child protec-tion agency has su ciently attempted to identi y, locate, and confrm paternity in every case. I the judge determinesthis has not taken place, additional steps and a time rame or completing these steps should be clearly ordered. Te judgshould conduct a paternity inquiry o any and all parties in the courtroom. Te judge must also assess whether the parent were notifed pursuant to the requirements o state statute, including the right to receive notice in a language and orm tis understandable to them.

Te court should require that critical documents such as the initial petition, notices o hearing, the case plan, etc., arepro essionally translated into the language that the parent is most capable o reading. I a parent is unable to read in anlanguage, the court should instruct the parents counsel to be sure to read all documents to the parent and to ensure that

the parent understands their meaning. Te parents should be asked whether they have any physical or developmentaldisabilities that prevent them rom ully participating in the proceedings. I they do, the Americans with Disabilities A(ADA) may require certain accommodations be made by the court and the child protection agency.

33 P.L. 110-351


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i f the child hAs Been remoVed, determine whether theAgency met the legAl threshold for remoVAl of the child

Has the agency made a prima facie case or probable cause showing that supports the removal of Have the familys cultural background, customs and traditions been taken into account in evaluatin

the event and circumstances that led to the removal? Have the parent(s) cultural or tribal liaison/rother(s) been asked if there is a culturally-based explanation for the allegations in the petition?


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Removing a child rom home, even when there is an imminent sa ety threat, is a li e-altering experience or all invoDespite the very intrusive and high-impact nature o the initial removal decision by child protective services, much abouthis decision is le t to the subjective judgment o the child protective investigator. Judges charged with reviewing the desion to remove a child are in a power ul and challenging position. Removing a child rom his parents will likely result imoving the child rom his siblings, extended amily, riends, activities, belongings and community. Once removed, a c

may be placed with an adult and other children whom they do not know, who may not look like them, speak their language, or ollow their amilys customs. Tey may be separated roschool or community activities, and adults that they trust. Parents are o ten con used, scaredconcerned and desperate.

ime rames or the PPH di er by state.34 Whatever the time rame, the state child protectioagency is required to make a prima acie case or probable cause showing that supports removo the child. Te question at this point is not whether the allegations are true but, assuming

the allegations are true, whether an imminent sa ety threat to the child necessitating removalexists? Some state statutes speci cally state that the judge may make either a profnding, or rule that the court requires additional time to obtain and review documents in orderto determine the risk o harm to the child.35

It is the duty o the court to ensure that its fndings are based on conclusions that are sup-ported by acts. O ten, statements are made in court that are, in act, conclusions drawn by witnesses without evidence to support the claims. For example, a neighbor may have reportedto the agency that a parent has a substance abuse problem. Because the agency has not hadadequate time to gather additional in ormation, the court may simply be in ormed that theparent has a substance abuse problem that places the child at risk. Te court should challengeevery conclusion made to ensure that those conclusions are supported by acts. Statements inpetitions such as, Te parent was out o control, should be urther explored by the judge. A parent may have behaved this way due to the trauma o having their children removed. Tis behavior may be completely uncharacteristic o the parent and does not necessarily pose a threato the childs sa ety.

When evaluating the acts contained in the petition, judges should consider whether theamilys cultural background, customs, and traditions have been taken into account regarding the events and circum-

stances that led to the removal, as well as the types, tailoring, and appropriateness o services provided and the method b which the amily was engaged. Cultural norms shape the way that individuals evaluate and determine whether a particu

behavior is considered abusive or places a child at risk. Sometimes they cause people to fnd abuse where none in act exConversely, sometimes belie s about what is normal or a culture or community cause those responsible or determinsa ety and risk to dismiss signs o threat or harm. Tus, a decision-makers cultural norms must be balanced by knowledand in ormation about cultures and communities coupled with objective and e ective sa ety and risk assessments by prsionals in the feld. Tere are a number o key in ormants on this issue in addition to the agency: the parents, the extended

34 In Florida, or example, the statute requires a hearing within 24 hours a ter the removal o the child (Fla. Stat. 39.401(3)(b). Arizona law requires the cto hold a preliminary protective hearing to review the removal not ewer than fve days nor more than seven days a ter the child is taken into custody (ARS8-824).35 For example, Florida Statute 39.402(8)(h) in discussing what written fndings must be made states, Tat based upon the allegations o the petition or placment in shelter care, there is probable cause to believe that the child is dependent or that the court needs additional time, which may not exceed 72 hours, in

which to obtain and review documents pertaining to the amily in order to appropriately determine the risk to the child.

Cultural norms shape the way

that individuals evaluate and

determine whether a particular

behavior is considered abusive

or places a child at risk.

Sometimes they cause people

to fnd abuse where none in act exists. Conversely, sometimes

belie s about what is normal

or a culture or community

cause those responsible or

determining sa ety and risk

to dismiss signs o threat

or harm. Thus, a decision-

makers cultural norms must

be balanced by knowledge

and in ormation about cultures

and communities coupled

with objective and e ective

sa ety and risk assessments by

pro essionals in the feld.


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amily, religious, cultural or tribal representatives or experts, or community leaders. Judges should inquire whether theincident(s) causing the harm or sa ety concerns were related to the parent engaging in a cultural or religious practice orbelie .

Te court must care ully consider whether these customs rise to the level o child abuse or neglect. I the judge fndsthat cultural or community practices and belie s contributed to the allegations, there should be an exploration o the risk o harm to the child i the practice was to continue in the home. I the judge does believe there is a sa ety threat to the child,

the courts role in ensuring culturAl competenceFalicov (1995) recommends that an inquisitive and open-minded strategy is adopted, rather than relying on ste-

reotypical in ormation about members o a particular group. She also cautions us to view people in all their many contexts and acets including rural, urban, or suburban setting; language, age, gender cohort, amily confguration,race, ethnicity, nationality, socioeconomic status, employment, education, occupation, sexual orientation, political

ideology, migration and state o acculturation (p. 375). In other words, knowing one particular act about a amilysidentity, such as its race or ethnic background, tells us little about who the amily really is.

Saba and Rodgers (1990, p. 205) o er the ollowing guidelines: Clarify your assumptions (about members of the group.) Realize that your perceptions may vary considerably from the familys. Accept that a climate of mistrust exists. Understand that mutual stereotypes enter the interview room rst. Be conscious of the power relationships between you and the family. When uncommon events occur, consider alternate explanations in addition to the obvious ones. Accept and admit your fallibility. When you discover your discriminatory behaviors, do not give up. Make changes and continue to work. Explore your setting for structures that foster prejudice. Cultivate safe collegial relationships that will permit discussion of clinical discrimination. Most importantly, be open to learning from the families you treat.

Source: Fontes, L.A. (2005).Child Abuse and Culture: Working with Diverse Families . Guil ord Press: NY.

For more resources on cultural competence in child abuse and neglect cases, including how child abuse and neglect isviewed in di erent cultures, please consult the Child Wel are In ormation Gateway, a technical assistance service o the U.S. Department o Health and Human Services- Administration o Children and Families Childrens Bureau. www.childwel are.gov/systemwide/cultural/can.c m


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the parents willingness to explore di erent ways to respect cultural tradition without causing harm to the child must be evaluated.

I the judge determines that a prima acie case was made or probable cause was shown, theare additional inquiries and fndings that need to be made. Te judge must next determine:1) whether reasonable e orts were made to prevent removal and 2) whether the immediate threhas diminished and/or whether adequate sa eguards could be put in place to su ciently protecthe child should he/she return home today? Foster care placement should only be uresort.

Every child who should be in

care must be in care, and not

one child more.

HonoRaBle R.MiCHael Key Juvenile CouRT o TRouP CounTy

lagRange, geoRgia


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determine whether reAsonABle efforts were mAde topreVent remoVAl

Were there any pre-hearing conferences or meetings that included the family? Who was present? What was the outcome?

What services were considered and o ered to allow the child to remain at home? Were these seculturally appropriate? How are these services rationally related to the safety threat?

What was done to create a safety plan to allow the child to remain at home or in the home o without court involvement? Have non-custodial parents, paternal and maternal relatives been identi ed and explored? What

plan to do so?

How has the agency intervened with this family in the past? Has the agencys previous contact wfamily in uenced its response to this family now?


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Te ederally required reasonable e orts to prevent removal determination is one o the most critical elements o thPPH. Federal law requires the judge to determine whether reasonable e orts have been made to prevent or eliminate theneed or removal.36 Tis fnding must be made by the court within 60 days rom the time o removal.37

36 42 U.S.C. 672(a)(1), 672(a)(1); 45 C.F.R. Section 1356.21(b)(1)37 45 C.F.R. 1356.21(b)(1)

reAsonABle efforts in dependency cAses inVolVing domestic ViolenceIn cases involving domestic violence, the court must frst understand the agencys rationale or removal or or seeking

removal o the child. Was the child being physically or emotionally abused by the perpetrator o abuse against the adultvictim? Was the child being physically or emotionally abused or neglected by the adult victim of domestic vremoval sought because the child was exposed to domestic violence in the home (which some states defne as per se ne-glect). In order to determine whether the agencys e orts to prevent removal were reasonable, the judge should consider the

ollowing:

1. How did the family come to the agencys attention? How did the investigator/case manager determinedomestic violence was an issue for the family? What injury to the child is the agency alleging?2. How did the agency seek to address the domestic violence in the family prior to seeking removal?

Why was immediate removal warranted?) Did the adult victim have strategies to keep the child safe? If so, why were those strategies not Did the investigator/case manager consult with a domestic violence expert or advocate? If applicab

consult with the perpetrators probation or parole o cer or treatment providers? Was there an assessment of the likelihood of future violence?

3. What assistance and services, i any, were provided to the adult victim to keep hersel and her children sa e andtogether? (e. g., developing a meaningful safety plan; providing emergency funds; legal assistance for

victim; helping the victim enter shelter or obtain a protective order i she deems these necessary; connecting theadult victim with in-patient services that will allow her child to remain with her; etc.)

4. How did the agency deal with the batterer? Does the petition hold the batterer accountable for histhe agency try to have the batterer removed from the home?

5. I the child has already been moved, what actions would be necessary to allow the child to return homeimmediately and safely and what services would be required to support the childs return?

Source: Goodmark, L. (2008).Reasonable E orts Checklist or Dependency Cases Involving Domestic Violence . Reno, NV: National Council o Juvenile and Family Court Judges Family Violence Department.


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Te reasonable e orts evaluation is the judges opportunity to ully assess the e orts that have been made to engage theamily in services and supports that would have either eliminated the sa ety threat prior to placement or allow the child to

return home today. Tese fndings power ully communicate whether the court is satisfed that the agency is using ostercare only as a last resort and not simply as the most expeditious intervention and provide guidance to the agency about thecourts expectations or immediate service delivery whenever possible.

It is reasonable to make no e orts in an emergency situation. Courts must care ully evaluate which situations are actual-ly emergencies. Court and agency culture over the years sometimes leads to a less than thorough exploration o alternativesto placement even when a situation appears grave on its ace. A judicial fnding that it was reasonable to make no e orts toprevent the placement should only be made i there are no other reasonable means to protect the child rom an imminentsa ety threat.

I the court determines that an emergency situation did not exist, the judge should inquire about the specifc servicesprovided and the specifc sa ety concerns they were meant to ameliorate. A judicial inquiry should also be made about thecultural relevance and appropriateness o the services, including the languages in which they were o ered. Proo o provi-sion o these services, beyond a simple one-page re erral sheet, is also important to consider.

Te amilys past interactions with the court and the child protection agency should be considered by the judge, butcare should be taken to ensure that the judge or the child protection agency is not unduly in uenced by that history. Teagency as well as the judge must use history as a context, but also view the current situation in light o the presenting set o

acts and circumstances and the e orts made now to prevent removal. Past e orts that were unsuccess ul do not relieve theagency rom making reasonable e orts to prevent removal should a new allegation arise.


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Most importantly, judges should explore with the agency whether an in-home sa ety plan was considered prior to theremoval and whether such a plan would allow the child to sa ely return home with or without the involvement o theagency and /or court. I an in-home sa ety plan would be su cient, and the agency ails to consider or implement onethen the agency has ailed to provide reasonable e orts to prevent removal.38 Te elements o assessing sa ety and the ap-propriateness o an in-home sa ety plan are discussed more thoroughly in the next section.

38 Lund, ., & Renne, J. (2009). Child sa ety: A guide or judges and attorneys . Washington, DC: American Bar Association, p. 25.


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i f the child hAs Been remoVed on An emergency BAsisAnd reA sonABle efforts to preVent remoVAl were notreQuired, determine whether there is Any thing thAtpreVents the child from returning home todAy

What is the current and immediate safety threat? Has the threat diminished? How do you knowSpeci cally, how can the risk be ameliorated or removed?

What is preventing the child from returning home today? What type of safety plan could be devand implemented in order for the child to return home today? What specifcally prevents the parents rom being able to provide the minimally adequate standard o

care to protect the child? Will the removal or addition o any person rom or in the home allow the child to be sa e and be

placed back in the home? If the safety threat is too high to return the child home, how have the conditions for return bee

conveyed to the parents, family and child, and are you satis ed that they understand these condit


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Determining sa ety threats and the need or continued out-o -home placement is one o the most challenging aspeco serving as a judge in child protection proceedings. Accurate, up-to-date in ormation rom credible sources about thethreats to the childs sa ety must be available to the judge. At the frst hearing, emphasis is requently ocused on the chstay in substitute care rather than thoroughly assessing whether the child can sa ely return home immediately. Implicit band historical systemic practice can easily cloud the decision-making process regarding the need or the childs removalthus necessitating a more structured approach based on discernable criteria upon which to base this key decision.

Con usion o the terms risk and sa ety is a core issue when evaluating an emergency removal decision.39 In state stat-ute, as well as in common child wel are parlance, risk and sa ety are o ten re erred to as one and the same, when, in they are not.

Te Child Sa ety Guide disseminated in 2009 by the ABA Center on Children and the Laws National Resource Centeon Legal and Judicial Issues40 and the National Resource Center or Child Protective Services advocates the use o six bground questions to assess the threat o danger, vulnerability o the child and protective capacities o the parent(s):

1. What is the nature and extent of the maltreatment?2. What circumstances accompany the maltreatment?3. How does the child function day-to-day?4. How does the parent discipline the child?5. What are overall parenting practices?6. How does the parent manage his own life?Tere is a signifcant chance o missing in ormation and/or bias in uencing the answers to these questions. For examp

many women experiencing domestic violence never disclose the battering to their closest riends and amily, let alone ttheir attorneys or a government agency empowered to remove their children. And although pro essional organizations sas the National Association o Public Child Wel are Administrators have stressed the importance o screening and asseing amilies or domestic violence, some caseworkers may not make such inquiries.41 I this critical in ormation is notdisclosed, it is possible that negative assumptions may be made about the behavior o a battered woman, when in act, tvery behavior may be necessary to save her li e or that o her children.

39 Child Sa ety: A Guide or Judges and Attorneys jointly developed by the American Bar Association Center on Children and the Law and the National ResouCenter or Child Protective Services. Tis is an excellent and thorough guide through the questions and decision-making process in which judges must engato determine sa ety throughout the li e o the case. Te Guide also provides comprehensive case studies that demonstrate the decision-making process recomended by the authors.40 Te National Council o Juvenile and Family Court Judges and the National Center or State Courts are partners with the ABA in the National ResourceCenter on Legal and Judicial Issues.41 Goodmark, L. (2008). Reasonable E orts Checklist or Dependency Cases Involving Domestic Violence . Reno, NV: National Council o Juvenile and Family Court Judges Family Violence Department.

Whether or not a child is sa e depends on a threat o danger, the childs vulnerability and a amilys protective

capacity..Vulnerable children are sa e when there are no threats o danger within the amily or when the parents

possess su fcient protective capacity to manage any threats.Children are unsa e when threats o danger exist

within a amily and children are vulnerable to such threats and parents have insu fcient protective capacities to

manage or control threats. Source: Lund, ., & Renne, J. (2009). Child sa ety: A guide or judges and at torneys. Washington, DC: American Bar Associat ion, (p.2).


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In another example, children may unction very di erently day-to-day depending on their culture. Tey may spend moretime with grandparents than they do with their biological parents, they may share sleeping quarters with multiple siblings,they may live in homes with dirt oors and minimal ood. Failure to explore the cultural relevancy o certain behaviors orconditions may lead to assumptions about those behaviors or conditions having a negative in uence on a child.

Each case must be care ully evaluated within the amilys cultural context. In making the sa ety decision, judges arestrongly encouraged to re er directly to the sel -re ection questions to help them ensure that bias is not in uencing the

sa ety inquiry at this critical juncture. Making a sa ety determination at the PPH stage is especially challenging because ittakes time or caseworkers, attorneys, and CASAs to gather the needed contextual and background in ormation.

Te decision to remove a child on an emergency basis must be actually supported even though the agency may haveonly limited in ormation. Te extent o maltreatment and the surrounding circumstances must be clearly explained.42 I the judge determines a sa ety threat did, in act, exist, the judge should then inquire whether an in-home sa ety plan wasconsidered and, i ound to be appropriate, implemented. Te ollowing actors must be evaluated to determine whether anin-home sa ety plan is easible:43

42Lund & Renne (2009), p. 743Lund & Renne (2009), p. 25


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If the familys current capacity to protect the child is limited, what other measures can be put in plsafety? Considering when and how threats develop and emerge is important in making this decision. Fa domestic violence case, i the alleged abuser is removed rom the home, can the child and the alleged victim paremain safe?

Based on the above analysis, is an in-home safety plan going to control the safety threats? What services and action steps are necessary for the in-home plan to control the threats to the childTe judge should use answers to these questions to assess whether an in-home sa ety plan will be su cient, easible and

sustainable.44 Te sa ety plan is not a case plan, although some o the services and supports necessary or implementing thsa ety plan will also be part o the parents case plan. Only when the court determines that an in-home sa ety plan is not sible or sustainable, should the court turn its attention the childs out-o -home placement and ongoing contact with his or he

amily.

44 Lund & Renne (2009), p. 25-26


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determine whether the current out-of-home pl Acementmeets the childs And fAmilys needs

considering kin As A first resort

If child is placed in foster care/shelter, have kinship care options been fully explored? If not, whatdone to explore relatives? If so, why were the relatives deemed inappropriate?

If child is placed in kinship care, what steps have been taken to ensure the relative is linked withtraining, services, and nancial support?

How is the placement culturally and linguistically appropriate? From the family and childs perspective, is the current placement culturally and linguistically app

How does the placement support the childs cultural identity? In what way does the placement suppchilds connection to the family and community?

How does the placement support the family/childs involvement in the initial plan? What are the terms of meaningful family time with parents, siblings and extended family members?

Do the terms of family time match the safety concerns? Is it supervised? Speci cally, why mustsupervised?

Is the time and location o amily time logistically possible or the amily, and supportive o the childsneeds?


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Te stability and quality o placement and parenting time (visitation) are essential to success ul reunifcation betweenchildren and their parents. Agencies are required to provide an out-o -home placement that is the least restrictive andmost amily-like or the child. Judges must consider the cultural, linguistic, environmental, and geographical aspectsthe placement, as well as the substitute caregivers ability to maintain the childs connection to his or her amily, schooltraditions and community. Kinship care (or relative placement) can be the best possible opportunity or maintaining theties and reducing the overall trauma o removal and placement. Furthermore, kinship care placements generally allow more natural parenting time routine, a amiliar supervisor i parenting time is required to be supervised, and potential

ewer logistical challenges associated with timing and transportation.Research has shown that children placed with kin experience ewer placement disruptions than do children placed w

non-related oster parents and, i disruption occurs, the children are more likely to be trans erred to the care o anotherelative rather than a non-relative caregiver.45

Because research has shown that kinship caregivers are more likely to be older, single, less educated, unemployed, anpoorer than most agency oster parents,46 they are sometimes eliminated as unable or unft to care or the children. Tey typically require assistance rom caseworkers in order to obtain fnancial, health and social support to be able to provide

or the children placed in their care. Judges should specifcally inquire about the level o support that has been o ered t

Right From the Start, Courts Catalyzing Change in Protective Hearing, 2010

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