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Home > Working with the Courts in Child Protection > Appendix E: Legal and Judical Issues Suggested by the Child and Family Services Review Performance Indicators
Working with the Courts in Child Protection
User Manual Series (2006)
Author(s): Children's Bureau
Jones |
| Year Published: 2006 |
Appendix E
Legal and Judicial Issues Suggested by the Child and Family Services Review Performance Indicators
To help States consider the legal dimensions of the seven safety, permanency, and well-being outcomes and the seven systemic factors (including the 45 related specific performance indicators identified by the Federal government), this appendix annotates the 45 performance indicators addressed in the first round of reviews. That is, the 45 Federal performance indicators are listed verbatim and boldface below, while legal and judicial aspects of each performance area are provided as bullets. Note: These bullets are meant to illustrate the kinds of legal practice and policy issues that may require attention to comply with each performance area.
- SAFETY:
- Timeliness in initiating child abuse and neglect investigations.
- Effective legal help is available to overcome barriers to investigations.
- Legal advice is provided to the agency that supports the filing of actions in dependency court whenever abused and neglected children need State intervention.
- Legislation and court rules provide legal remedies allowing agencies to complete investigations when family members or other people familiar with the child refuse to cooperate.
- Statutes, regulations, and procedures provide clear and appropriate guidance for investigators and caseworkers to obtain otherwise confidential information from substance abuse treatment providers, criminal justice agencies, schools, mental health providers, doctors, and other professionals.
- Recurrence of abuse or neglect by parents.
- Courts remove children from home and enforce comprehensive judicial protective supervision.
- Courts carefully consider safety factors when deciding whether to return a child home.
- Courts exercise caution when deciding whether to terminate court jurisdiction (dismiss case).
- Judges and attorneys take time to carefully review documents and ask challenging questions concerning safety issues in the home.
- Adequate evidence demonstrating danger to the child is offered in court proceedings.
- Judges carefully consider evidence about the child and caretakers to ensure the child will be safe.
- Domestic violence policies are well defined.
- Services to protect children at home and prevent removal.
- In appropriate circumstances judges order parents to participate in services to protect the child instead of ordering the child removed from home.
- Adequate evidence demonstrating whether services will alleviate danger to the child is offered in court proceedings.
- Laws and regulations define an array of services for abused and neglected children and their families, to be delivered immediately in emergencies.
- Domestic violence policies are well defined.
- Risk of harm to child including abuse or neglect of child while in foster care.
- Courts order removal of children from their foster homes when the agency appropriately requests it to avoid potential abuse or neglect. (Note that courts do not have the power in all States to block removal of a child from a foster home.)
- Courts monitor foster placements by insisting caseworkers and children's legal representatives visit and evaluate the foster home.
- Safety clearances are done on every adult in the foster parents' or adoptive parents' homes.
Note: Many organizational problems may affect the factors listed below. Important examples are excessive workloads, insufficient training, poor hiring practices and management, and weak case management skills. These are common problems facing caseworkers, attorneys, foster parents, child advocates, judges, and court staff and can weaken the legal system.
- PERMANENCY:
- Foster care reentry.
- Adequate time and resources are allocated for meaningful case review before sending the child home.
- Courts require evidence that the home is safe before authorizing the child's return home.
- When courts allow children to remain home following adjudication of child abuse or neglect, they require that the case be brought back to court if the agency decides to place the child in foster care. Due process protections regarding subsequent removal of the child are in place.
- Courts order specific services and refer parents to community supports to make the return successful and require that parents and children complete the services.
- Courts gather enough information about the parent and child before return.
- Courts ensure visitation plans are designed to foster healthy parent-child relationships and work toward successful reunification to avoid foster care reentry (e.g., efforts are made to ensure visits are meaningful, progressively longer visits are imposed).
- Courts and agencies closely monitor cases.
- Courts carefully and thoroughly consider the evidence when deciding whether to return children home.
- Stability of foster placement—too many moves of foster children into different foster homes.
- Judges monitor moves while children are in foster care.
- Laws, regulations, and State policies discourage moving children between foster homes.
- Policies and practices support training for foster parents of special needs children.
- Judges understand bonding and attachment issues and factor them into decision-making.
- Courts thoroughly review children's needs.
- Children's counsel effectively represents children by:
Reviewing case plans;
Participating in case planning;
Preserving placements;
Advocating for reunification services;
Advocating for independent living services;
Visiting and interacting with the child to independently assess whether moves are necessary.
- Permanency goal for child.
- Attorneys, judges, and court personnel are adequately trained in permanency planning practices.
- Permanency hearings are conducted in a timely manner and sufficient time is allotted for hearings.
- Judges and attorneys understand concurrent planning and support it when appropriate.
- State laws provide appropriate grounds for legal guardianship, clear and efficient procedures for establishing legal guardianships, and adequate legal protections and financial supports for legal guardians.
- State laws provide appropriate grounds for termination of parental rights (TPR) and clear and efficient procedures for TPR.
- State laws and policies provide appropriate exceptions for mandatory petitions for TPR, based on Federal requirements.
- State laws and policies provide workable procedures for determining whether to file or join petitions for the TPR.
- Reunification, guardianship, or permanent placement with relatives.
- Courts consistently follow or enforce time limits for hearings and judicial decisions. Courts have a comprehensive system of time limits governing all stages of the court process.
- Adequate judicial case tracking systems are in place.
- Judges fully explore all possible placement resources.
- Judges routinely establish or approve specific permanency plans for foster children.
- Courts minimize delays by notifying appropriate parties, denying adjournments, ensuring diligent efforts to locate missing parents at start of case, determining paternity early in case, and addressing other procedural problems.
- Multi-court involvement in different stages of child protection cases is discouraged to avoid delays, loss of information, and other inefficiencies.
- Court practices are efficient to minimize time to achieve reunification.
- Clear, efficient procedures exist to indefinitely transfer custody to a non-custodial parent or relative in child protection proceedings.
- State laws provide appropriate grounds for legal guardianship, clear and efficient procedures for establishing legal guardianships, and adequate legal protections and financial supports for legal guardians.
- Courts consistently and thoroughly review reasonable efforts to achieve a new permanent home for the child.
- Achievement of adoption.
- Courts adequately track case progress toward adoption.
- Courts thoroughly consider the appropriateness of prospective adoptive caretakers.
- Judges fully explore all possible placement resources.
- Courts understand when TPR petitions are required and the exceptions to such requirements.
- Courts take steps to encourage or require TPR petitions, when appropriate.
- State laws provide appropriate grounds for TPR and clear and efficient procedures for TPR.
- Sufficient resources and court time are available to promote timely TPRs.
- The appellate process is streamlined to avoid TPR delays.
- Courts and attorneys inform agencies of available steps to speed appeals.
- Courts actively oversee cases between TPR and finalization of adoption.
- Courts minimize scheduling delays and prioritize cases when needed.
- Courts minimize delays by notifying appropriate parties, denying adjournments, ensuring diligent efforts to locate missing parents at start of case, determining paternity early in case, and addressing other procedural problems.
- Multi-court involvement in different stages of child protection cases is discouraged to avoid delays, loss of information, and other inefficiencies.
- Permanency goal of other planned permanent living arrangement.
- "Another planned permanent living arrangement" is clearly defined to avoid misapplication.
- Courts carefully use this permanency option, ensuring compelling reasons exist and giving thought to long-term permanency planning.
- Courts order or recommend services that might allow the child to move into a more permanent placement.
- Courts review case plans to determine agency compliance with services and visitation for other planned permanent living arrangements.
- Courts operate with the understanding that independent living (foster children "aging out") is not a permanency plan, but foster children are entitled to independent living services.
- Courts are familiar with available independent living services for children in the community and refer children to appropriate services.
- Courts are familiar with Federal legislation supporting independent living services.
- Courts ask about independent living services in most cases involving older teens in foster care.
- State laws authorize extending court jurisdiction for children who have turned 18 and specify appropriately.
- Proximity of foster care placement.
- Courts request information about the proximity of the foster care placement.
- Courts do not order children placed outside their communities or counties if appropriate placement resources are located in close proximity.
- Courts routinely request information based on agency visits with children placed out of State.
- Statutes, court rules, and policies provide appropriate guidance concerning the proximity of foster care placement.
- Placement with siblings.
- Courts consistently ask agencies to present specific reasons for failing to place siblings together.
- State statutes, court rules, and polices address the priority of placement with siblings.
- Attorneys and judges are adequately trained on the importance of maintaining sibling ties as well as on reasons why this might not be appropriate.
- Visits with parents and siblings.
- Courts request information about the nature and quality of foster children's visits, contacts, and relationships with parents and siblings.
- Courts address visiting, when appropriate, in court orders.
- Attorneys request evaluations of the quality of visits with parents and siblings.
- Statutes, court rules, and policies provide clear guidance regarding visitation.
- Attorneys and judges are adequately trained on visitation issues.
- Preserving connections.
- Attorneys request evaluations of relatives.
- Statutes, court rules, and policies provide clear guidance regarding maintaining relative ties.
- Attorneys are adequately trained on the importance and pitfalls of maintaining relative ties.
- Courts ask whether children are Native American and, if so, whether tribes have been notified.
- Courts support collaboration with tribal courts on transfers of cases of Native American children where appropriate.
- Courts enforce placement preferences for Native American children under ICWA, including placement with the child's extended family and with tribes.
- Relative placement.
- Courts ask about possible placement with maternal and paternal relatives early and often.
- Courts ask agencies to present specific reasons for not placing children with relatives.
- Attorneys and judges are adequately trained on relative placement issues.
- Relationship of child in care with parents.
- Courts consistently ask about child's relationship with parents while in care, including nature and quality of visits and other contact.
- Courts monitor visiting arrangements and their frequency where specified in court orders.
- Attorneys are adequately trained regarding maintaining parent-child relationships during foster placements.
- CHILD AND FAMILY WELL-BEING:
- Needs and services of child, parents, foster parents.
- Courts ensure that agencies conduct thorough assessments and provide services to meet the needs of the child, parents, and foster parents.
- Courts review case plans submitted to the courts by the child protection agency to see if needs are being met through the provision of services.
- Courts address barriers to service provision and delivery.
- Attorneys and advocates identify and address their clients' needs and advocate appropriate services.
- Attorneys, advocates, and judges have sufficient training, experience, and resources to advocate effectively for children's service needs (e.g., special education, medical, and mental health needs).
- Judges and attorneys are sufficiently knowledgeable about confidentiality laws to help ensure that information on children's and family's needs is available to the court and agency.
- Child and family involvement in case planning.
- Attorneys and advocates participate in and encourage child and family involvement in case planning.
- Statutes, court rules, and policies provide appropriate guidance to encourage child and family involvement in case planning.
- Worker visits with the child.
- Statutes, court rules, and policies provide appropriate guidance on worker visits with parents and children.
- Attorneys and advocates request information about and, when appropriate, advocate for worker visits with the child.
- Worker visits with parents.
- Courts consistently review and note worker visits with parents and children.
- Statutes, court rules and policies provide appropriate guidance on and, when appropriate, advocate for worker visits with parents.
- Educational needs of the child.
- Courts request information about foster children's education from teachers, guidance counselors, caseworkers, and others.
- Court forms request education information including school records addressing the child's academic performance, behavior and adjustment to school, and special educational needs.
- Judges, attorneys, and advocates consistently determine whether foster children's education needs are being met.
- Policies offer guidance on minimizing disruptions in foster children's education due to frequent moves.
- State laws appropriately address confidentiality issues surrounding access to education records of foster children and children under protective supervision.
- Judges, attorneys, and advocates have sufficient knowledge about the education system to intervene effectively to ensure a good education for foster children.
- Physical health of the child.
- Courts obtain information about foster children's medical needs.
- Court forms request physical health information, including any known medical problems, needed treatments, medication, and physical symptoms of abuse or neglect.
- Judges, attorneys and advocates consistently determine whether foster children's physical health needs are being met.
- Courts are aware of State requirements regarding foster children's physical health, such as those concerning medical examinations and immunizations.
- Courts inquire, when appropriate, whether health records have been reviewed, updated, and supplied to the foster care provider.
- State laws appropriately address confidentiality issues governing access to medical information about abused and neglected children.
- Mental health of the child.
- Judges, attorneys, and advocates request information from children's therapists about foster children's mental health issues.
- Court forms request mental health information.
- Courts are aware of State requirements for diagnosis and treatment regarding foster children's mental health.
- Judges, attorneys, and advocates consistently determine whether foster children's mental health needs are being met.
- State laws appropriately address confidentiality issues governing access to mental health information.
- STATEWIDE INFORMATION SYSTEM:
- State operates information system that readily can identify the status, demographic characteristics, location, and goals for the placement of every child who is (or within the preceding year was) in foster care.
- Courts have created a statewide information system or good local information systems.
- Case tracking responsibilities are clearly assigned to appropriate court staff.
- Courts and agencies have automated systems that use computers and tickler systems to manage cases.
- Computer data is used to measure judicial performance.
- Agency information systems include information about critical court events to help evaluate judicial performance in child protection cases.
- Data are shared between judicial and agency computers.
- Sophisticated procedures exist to collect and report data.
- CASE REVIEW SYSTEM:
- Written case plan developed jointly with parents.
- Parents' attorneys participate in the case planning process.
- Parents' attorneys are trained on non-adversarial models for resolving conflict (i.e., Family Group Conferencing and mediation).
- Parents' attorneys advocate for meaningful case planning for their clients.
- Judges ask about parental involvement in case planning.
- Process for periodic review at least once every six months, by court or by administrative review.
- Court procedures and forms ask hard questions and ensure thoroughness.
- Courts and/or agencies schedule 6-month reviews in a timely manner.
- Reviews thoroughly consider whether reasonable efforts have been made to achieve permanency, especially after the case goal is no longer reunification.
- Courts set aside enough time to hold review hearings that thoroughly consider the individual circumstances of each child and family and that address each issue specified by State and Federal law.
- If administrative reviews are held in lieu of judicial reviews, the courts take time to examine the reports from the reviews and address them in court proceedings.
- Permanency hearings within 12 months after a child is considered to have entered foster care and at least once every 12 months thereafter.
- Adequate scheduling procedures for reviews are in place.
- Courts devote enough time to conduct thorough permanency hearings that address each issue specified in State and Federal statutes and to determine an appropriate permanency plan for each child.
- State laws, court rules, court forms, and court procedures create a structure for permanency hearings that encourages timely decisions by the court and agency, even in challenging cases.
- Permanency hearings thoroughly consider whether reasonable efforts have been made to achieve permanency, especially after the case goal no longer is reunification.
- Process for termination of parental rights proceedings in accordance with ASFA.
- Attorneys and judges are aware of State and Federal statutory requirements to file petitions for TPR and of the exceptions.
- Courts routinely review agency documentation of exceptions to State and Federal requirements to file petitions for TPR.
- Procedures for TPR fully protect parents' rights without being needlessly inefficient.
- State laws do not require parties to reprove facts established in earlier stages of the court process in order to terminate parental rights.
- Grounds for TPR are complete, focused, and consistent.
- Agency procedures and policies for deciding whether to file are timely and balanced.
- Process for foster parents, preadoptive parents, and relative caregivers of children in foster care to be notified of, and have an opportunity to be heard in, any review or hearing held with respect to the child.
- Courts consistently encourage active participation of foster parents, preadoptive parents, and relative caregivers in court proceedings.
- Foster parents, preadoptive parents, and relative caregivers consistently receive notice of court proceedings.
- The wording of notice forms encourages the attendance of foster parents, preadoptive parents, and relative caregivers in court.
- State laws and procedures specify an effective notification method for foster parents, preadoptive parents, and relative caregivers and define what is meant by "opportunity to be heard."
- Courts have forms and procedures for review and permanency hearings that call for statements by and questioning of foster parents, preadoptive parents, and relative caregivers.
- State laws and procedures clearly define an effective notification method for foster parents, preadoptive parents, and relative caregivers and define what is meant by "opportunity to be heard."
- State laws, court rules, and policies clarify and reinforce the role of foster parents, preadoptive parents, and relative caretakers in court.
- QUALITY ASSURANCE SYSTEM:
- Implementation of standards for services to children in foster care, to protect their health and safety.
- The agency has comprehensive standards for services to children in child protection cases and courts are aware of these standards.
- Agencies and courts work together to exchange information on services to children.
- Quality assurance system in place to evaluate the quality of services, identify strengths and needs of service delivery system, provide relevant reports, and evaluate implementation of program improvement measures.
- Agencies enlist courts to help evaluate caseworkers' performance in court.
- Courts have systematic quality assurance systems to evaluate their own performance.
- TRAINING:
- Staff development and training program for all staff, including training on objectives of Title IV-B plan and services under Title IV-B and IV-E. To include initial training for all staff.
- The State agency provides copies of its Title IV-B and IV-E plans to all judges.
- The State agency provides to all judges and attorneys copies of lists of the services provided under Titles IV-B and IV-E.
- Training is provided for all new judges and attorneys concerning Title IV-B and IV-E and participation is mandatory.
- Comprehensive training is provided for all new judges and attorneys concerning child welfare law and basic social work principles and participation is mandatory.
- Staff development and training to address ongoing skills needed to implement Title IV-B plan.
- Periodic training on child protection cases is provided for experienced judges and attorneys and participation is mandatory.
- Judicial and attorney training requirements for child protection cases are rigorous.
- Training on permanency planning concepts and procedures is provided to ensure timely permanence.
- Courts and agencies use appropriate cross training-addressing issues of mutual concern-and avoid inappropriate use of cross training in lieu of training in core legal skills and knowledge.
- Training for prospective foster parents, adoptive parents, and staff of facilities with children receiving foster care or adoption assistance under Title IV-E.
- Prospective foster parents receive training on the legal aspects of permanency planning, including t4e stages and purposes of the legal process.
- Foster parents receive training and materials on their rights and responsibilities in child welfare proceedings, including the right to be heard and to participate in the case.
- Prospective adoptive parents receive training concerning their legal responsibilities and about the legal process of adoption.
- Foster parents, prospective adoptive parents and agency staff receive training concerning legal protections (e.g., procedural rights, entitlements, contractual rights) regarding adoption assistance.
- SERVICE ARRAY:
- State has array of services. The array of services assesses strengths and needs of children and families, determines other service needs, addresses needs of individual children and of families to create a safe home environment, enables children to remain at home when reasonable, and helps children in foster and adoptive placements achieve permanency.
- Child protection agencies inform courts of available services, who is eligible for different services, and usual waiting periods for services.
- State laws, regulations, and budgets provide for a core of services that are consistently available to abused and neglected children and their families.
- The services in the array (listed in response to the above item) are accessible to families and children in all political jurisdictions covered in the State's Title IV-E plan.
- Contracts for services are well written and ensure availability of needed services.
- Agencies have master plans for contracts to ensure consistent availability of key services.
- State laws require other agencies to give priority to and ensure availability of services to clients served by the child protection agency and under court jurisdiction.
- The services in the array can be individualized to meet the unique needs of children and families served by the agency.
- State laws and policies budget for child protection services based on documented need for such services.
- Agencies' contracts for services provide flexible services to meet material and special needs of children and families.
- AGENCY RESPONSIVENESS TO THE COMMUNITY:
- Ongoing consultation with tribal representatives, consumers, service providers, foster care providers, the juvenile courts, and other public and private child and family serving agencies and includes the major concerns of these representatives in the goals and objectives of the Title IV-B plan.
- Courts regularly meet with the agency and meet with all of the child protection professionals listed above to work on mutual problems and improve working relationships.
- Judicial ethics clarify and encourage judicial outreach to the agency and community regarding child protection cases.
- The agency develops, in consultation with these representatives, annual reports of progress and services delivered under the Title IV-B plan.
- The agency consults with legal system representatives concerning its annual reports, including allowing them to review draft reports in advance. Among other things, the agency asks for comments concerning service delivery.
- The State's services under the Title IV-B plan are coordinated with services or benefits of other Federal or federally assisted programs serving the same population.
- The agency consults with legal system representatives specifically concerning the delivery of federally assisted services provided by agencies and entities not funded by the child protection agency.
- FOSTER AND ADOPTIVE PARENT LICENSING, RECRUITMENT, AND RETENTION:
- Implementation of standards for foster family homes and child care institutions, reasonably in accord with national standards.
- Courts have information about standards for foster and adoptive parents and concerning child care institutions.
- Standards applied to all foster family homes and child caring institutions receiving title IV-E or IV-B funds.
- Courts are informed when foster family homes and child caring institutions no longer meet agency standards.
- State complies with Federal requirements for criminal background checks and has a case planning process that addresses the safety of foster and adoptive placements.
- State law requires criminal record checks of parents found to have abused or neglected their children and of other people living in the households of abused and neglected children.
- State law requires criminal record checks of all adults in foster and adoptive homes.
- Courts or court forms ask about the criminal record of parents found to have abused or neglected their children and of other people living in the households of abused and neglected children.
- Attorneys and judges are aware of State and Federal statutory restrictions concerning the licensing of specific categories of convicted criminals as foster and adoptive parents.
- State has process for diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed.
- Courts and attorneys are well informed about the process of recruiting, matching, screening and evaluating foster and adoptive families.
- In case reviews in which the permanency plan is adoption and the child is not yet placed in a preadoptive home, judges and advocates ask about State efforts to recruit and arrange such a home.
- When evaluating whether the State made reasonable efforts to finalize a child's permanency plan, judges and advocates consider, if relevant, the State's efforts to recruit, evaluate, and select adoptive parents for the child.
- State has a process for effective use of cross-jurisdictional resources to facilitate timely adoptive or permanent placements for waiting children.
- Courts receive technical assistance, materials, and training on interstate placements (and overcoming barriers to such placements), including implementation of the ICPC.
- Judges and attorneys are familiar with the ICPC, interstate adoption assistance benefits, ICAMA, and other interstate placement benefits and requirements.
- Judges, attorneys, and advocates consistently ask informed and penetrating questions when interstate placement or services are being considered.
Source: Hardin, M. (2002). How and why to involve the courts in your Child and Family Services Review (CFSR): Suggestions for agency administrators [On-line]. Available: http://www.abanet.org/child/rclji/courtimp.html.
This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway.
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