BURDEN OF PROOF BEGONE

This article examines the tendency of emergency child removal decisions—by social workers, police officers, and judges—to become self-reinforcing and self-perpetuating in subsequent child protective proceedings. This snowball effect, as one court has referred to it, is widely acknowledged by lawyers who practice in juvenile court, yet is largely unknown beyond those circles. The article explores the causes and consequnces of this phenomenon in the age of the 1997 federal Adoption and Safe Families Act (ASFA), which converts every day that a child spends in foster care into one more tick of the clock in a countdown toward termination of parental rights. The article provides some background on the law and practice of emergency child removal in the United States today, analyzes the factors that make initial removals outcome determinative in many child protection cases, considers the implications of this phenomenon in light of ASFA, and identifies possible solutions.     

Using Reasonable Efforts Determinations to Improve Systems and Case Practice in Cases Involving Family Violence and Child Maltreatment

The Adoption and Safe Families Act (ASFA) of 1997 reinforced that the safety, permanency, and well‐being of the child should be the primary concerns when making decisions about child protection interventions, child placement, and efforts at reunification. The court's role in oversight of agency practice in individual cases through the requirement of specific judicial findings as a condition of receipt of certain funding was also maintained and strengthened by ASFA. Based on the recognition of the number of cases where there is a co‐occurrence of domestic violence and child maltreatment, there is a need for communities and agencies to set reasonable expectations of good practice for responding to the issues raised. As the community sets the expectations of good practice through agency policy, training, and service delivery, the judiciary, through the findings regarding “continuation in the home” or “reasonable efforts” in each individual case, provides the oversight of practice required by ASFA. This article will explore the current applications of reasonable efforts, discuss ways that courts and communities are defining the concept, and examine the need for the development of a reasonable efforts protocol.     

The Adoption and Safe Families Act: Proposing a “Best Efforts” Standard to Eliminate the Ultimate Obstacle for Family Reunification

The Adoption and Safe Families Act of 1997 (ASFA) was enacted in an attempt to expedite the child's permanency plan by pushing for adoption of children in foster care. The ASFA requires the U.S. Department of Health to make reasonable efforts to reunify and preserve existing families while rewarding the states for increased adoption of foster care children. The ASFA was enacted to ensure the best interests of the child are to remain paramount, but in practice, the ASFA is furthering the best interests of the state. This Note proposes amendment of the ASFA to increase the obligation of the Department of Social Services (DSS) to make its best efforts to preserve and reunify the existing family unit, while also imposing a penalty if the DSS fails to do so.     

INVISIBLE PARTIES: LISTENING TO CHILDREN

This article discusses how children are involved in family court proceedings in New Zealand. On July 1, 2005, the Care of Children Act 2004 came into force. One of the changes brought about by this Act is an increased expectation that children will participate in proceedings involving them, by the court giving the child a reasonable opportunity to express his or her view. Children may participate in three ways, the primary mechanism being through the lawyer for the child. Children's views can also be elucidated through a specialist report, and direct participation can be achieved through judicial interviews. As each child is different, it is important that the unique circumstances of the case are accounted for. This article will discuss how each of the three methods can be combined to tailor an approach that gives every individual child a reasonable opportunity to express his or her view. There are a number of examples given of this approach in practice, showing how the court has adapted the process to accommodate the child's situation and personality.     

IN SEARCH OF PERMANENCY

President Clinton signed the Adoption and Safe Families Act (ASFA) into law on November 19, 1997. ASFA is designed to prevent children in foster care from being returned to unsafe homes and to find safe homes for children who are not able to return to their families. Some critics say that ASFA is too extensive and intrusive; others feel it does not go far enough. The author focuses on the practical issues of what ASFA has done so far and how various communities can still use it to ameliorate some of their child welfare problems. She begins with the history of child welfare in the United States, followed by an extensive discussion of ASFA's provisions. The author then addresses criticisms of some of ASFA's key components. A discussion of the ways the states have implemented ASFA follows. The author concludes that ASFA could be a powerful and important tool in aiding the child welfare system.     

Child Welfare Workers and Michigan's Family Court Legislation: The Relationship Between Policy and Practice

Michigan created a family court in 1998, combining in a single court jurisdiction over most family law cases. This study examines the child welfare workers' role in creating the family court, the family court's impact on child welfare workers' practice, and child welfare workers' efforts to educate other professionals on the potential benefits of the family court system. This study found that child welfare workers were not actively involved in the creation of the family court and have not aggressively sought to educate other professionals regarding the family court's potential. Further, though child welfare workers' reception of the family court has largely been positive (or at least neutral), child welfare workers must take greater advantage of the family court system to improve the effectiveness of their practice.     

Child Protection Law as an Independent Variable

Child protection professionals work in a multidisciplinary system in which the law and the family court play central roles and which collects an increasing amount of data. Yet we know little about what impact the law has on whether a child is removed by child protective services, is deemed neglected by a family court, or reunifies with a parent. Do state‐to‐state variations in child protection laws, or changes by individual states to their laws, lead to different outcomes for children and families? The dramatic variations in child welfare practice from one state to another suggest that legal variations do matter. Yet empirical research on these questions is scarce both because we collect too little data to measure all such issues, and, because we have failed to study the data we do have. This article is a plea for researchers to rectify that problem and for policymakers to improve data collection. Doing so would facilitate a more clear understanding of the law's effect on child protection outcomes and aid policymakers and advocates in identifying both promising and problematic practices and legal reforms.     

Domestic violence and dependency courts: the Greenbook demonstration experience

This field study reports on a cross-site evaluation of dependency courts in communities receiving federal funding to implement the Greenbook initiative, a multisite demonstration for community improvement of coordinated responses to families victimized by domestic violence and child maltreatment. This article focuses on the dependency court, where child maltreatment cases are heard, specifically court participation in collaborative activities and court practice improvements. Findings indicate that perceptions of judicial leadership varied considerably by site. Cross-training appeared to increase over time, particularly with court staff. Collaborative efforts emerged across the Greenbook initiative with regard to the courts, and some innovative practices appeared within Greenbook sites, such as separate case plans for perpetrators and victims of violence in families, reducing the likelihood of controversial failure to protect charges. Results also highlight challenges inherent in changing court practices. Research and practice implications are discussed, focusing on relevance to other communities attempting to work collaboratively with the court system.     

FAMILY GROUP CONFERENCES

Family group conferencing has emerged as a child welfare system–transforming practice that fosters new collaborations between families, child welfare practitioners, and the courts. The key components of the model are explained. This article highlights the strengths and challenges associated with incorporating family group conferencing into traditional child welfare agency and court practice. It suggests future practice considerations and outcome-based study that are necessary to strengthen and sustain family group conferencing as a prevention/intervention strategy.     

Building Bridges for Babies in Foster Care: The Babies Can't Wait Initiative

In 2001, the New York State Permanent Judicial Commission on Justice for Children, chaired by New York State's Chief Judge Judith Kaye, developed the Babies Can't Wait Initiative to maximize the well‐being and permanency prospects of infants in foster care. This court‐based innovation became a path to healthy development for babies in foster care, a bridge to unprecedented collaboration among the New York City Family Court, child welfare system, and service providers and merged knowledge about child development with court and child welfare practice. This article tells the story of the Babies Can't Wait Initiative—its creation, implementation, successes, and lessons.     

Child abuse and neglect:A National Summary Of State Statutes

Effective court improvements must be based on comprehensive, baseline analysis of state child abuse and neglect statutes. This information will provide policy makers with improved tracking and evaluation opportunities as significant statutory changes are contemplated in pending federal initiatives and state court improvement activities. This article provides excerpts of a comprehensive national study undertaken to determine the level of uniformity or variance in statutes since the initiation of federal legislation attempting to improve state practice in the handling of child abuse and neglect cases. The state-by-state information is designed to provide diverse jurisdictions with an opportunity for comparative statutory analysis. The complete, 50 state Matrix of State Statutes Pertaining to Child Abuse, Neglect and Dependency is scheduled for publication later this year.     

LESSENING THE STING OF ASFA: THE REHABILITATION‐RELAPSE DILEMMA BROUGHT ABOUT BY DRUG ADDICTION AND TERMINATION OF PARENTAL RIGHTS

Congress passed the Adoption and Safe Families Act of 1997 (ASFA) as a response to children waiting in foster homes for years without permanent placement. In addressing the problem of permanency, however, Congress set a strict limit on how long a child could be in foster care (15 out of the most recent 22 months) before a state must either commence a proceeding to terminate parental rights or else lose valuable federal funding. Due to health care funding schemes and quality of treatment, this requirement, in particular, negatively impacts parents currently in drug rehabilitation whose parental rights may be permanently terminated before a realistic chance to recover is permitted. Although ASFA requires that states make “reasonable efforts” to keep families united, it does not define “reasonable efforts,” leaving parental rights and family unity subject to a chaotic interpretation of this requirement from state to state. “Reasonable efforts” should be interpreted to take into account current drug addiction and recovery research and drug court programs should be used to facilitate this goal. Research has shown that focusing on adequate treatment saves states money and improves the lives of children and their families, reducing the need for reliance on termination of parental rights.     

Specialist domestic violence courts for child arrangement cases:safer courtrooms and safer outcomes?

ABSTRACT

Child arrangement cases in England and Wales are dealt with in the ordinary family courts. Whilst a special practice direction is applicable to child arrangement proceedings where there are allegations of domestic abuse, there is no specialist domestic violence court in the family justice setting. However, court specialisation is a feature of the criminal justice system and has been demonstrated to have success in domestic violence cases. Some of the potential benefits of specialisation, such as the provision of safer courtrooms, might be transferable to the family justice setting. Given the well documented problems of ordinary courts dealing with child arrangements in domestic violence cases, this article considers whether court specialisation could provide victims with safer courtrooms and safer outcomes in child arrangement cases.     

CHILD PROTECTION MEDIATION: A 25-YEAR PERSPECTIVE

This article reviews the creation, development, and growth of child protection mediation (CPM) in the United States. Starting with a few pilot projects in the 1970s, CPM has grown throughout the country. The article traces child protection's development through the publication of the Resource Guidelines and Model Courts and then discusses what the necessary ingredients for a mediation program are. Mediation is then discussed from a judicial perspective. Barriers to mediation are listed, followed by a discussion of special issues that arise when developing and maintaining CPM programs. The article concludes with the observation that CPM is now recognized as a best practice by most judges and court improvement professionals and that it continues to grow.     

FRAGMENTED COURTS AND CHILD PROTECTION CASES

This article discusses the proposed implementation of a model court project that can serve as an alternative approach to adjudicating child abuse and neglect cases. The model project allows criminal child abuse cases to be processed with related civil proceeding in one court before one judge. This integrated approach can ensure more efficient case processing, more informed judicial decision making, and more effective delivery of services to children and families.     

Forgotten Children of Immigration and Family Law: How The Absence of Legal Aid Affects Children in the United States

The absence of government‐appointed legal counsel in immigration proceedings adversely affects large numbers of children in the United States. Children born in the United States to parents without citizenship status (U.S.‐born children of noncitizen parents or UCNP) are harmed by a parent's detention and removal. Unaccompanied alien children (UAC) who have entered the country without legal status are adversely affected by their own detention and removal. The possibility of obtaining relief from removal is drastically diminished by the lack of legal representation. Currently UAC and immigrant parents are not entitled to court‐appointed attorneys. Any meaningful change in immigration law, such as a federal statutory amendment to provide UAC and immigrant parents with government‐appointed counsel is unlikely due to the present political dissension in Congress regarding this issue. Because UAC and immigrant parents are not entitled to government‐funded legal representation, a pro bono legal service system has developed, but is unable to meet the present need adequately. For immigrant parents, this Note proposes the adoption of a statute to allow the appointment of court liaisons in family court proceedings. The court liaison is a nonattorney who is familiar with the processes of the family court and ensures that immigrant parents are fully informed regarding all pertinent family court proceedings. For UAC, this Note proposes an amendment to the William Wilberforce Trafficking Victims Protection Reauthorization Act to mandate the appointment of a child advocate to all UAC. The child advocate is not a lawyer, but works with the UAC's attorney to provide the child with legal representation and advocacy.

Key Points for the Family Court Community:
• UCNP confront the loss of parents to detention and removal. Children are condemned to limbo, torn between absent biological parents and placement in foster care.
• The recent surge in the number of UAC who enter the United States by crossing the border from Mexico has been described as a humanitarian crisis. These children often remain alone without legal protection, vulnerable to detention and removal.
• Ideally, UAC and the immigrant parents would be provided with government‐funded legal representation in immigration proceedings. In the absence of the federal statutory reform necessary to make that a reality, state statutory reform to allow for the provision of court liaison programs for immigrant parents and federal statutory reform to allow the appointment of child advocates for UAC can begin to offer children and families needed legal support and advocacy.

     

LEGAL AND PSYCHOLOGICAL MANAGEMENT OF CASES WITH AN ALIENATED CHILD

Cases entering the family court with an alienated child require intensive and coordinated case management to intervene effectively. It is critical to link the authority of the court with the delivery of mental health services to address the complex systemic factors that may entrench a chilďs unwarranted rejection of a parent. This article provides principles of legal and psychological case management for families with an alienated child, followed by various structural interventions, including sample court orders, for managing these cases as they progress through the family court process. Finally, criteria for making custody recommendations in the most severe cases of child alienation are provided.     

Family Court Enhancement Project: Improving Access to Justice

In 2013, Minnesota's Fourth Judicial District was one of four courts in the country selected by the U.S. Department of Justice, Office on Violence Against Women to receive a Family Court Enhancement Project (FCEP) grant, a multiyear demonstration initiative designed to build the capacity of court systems and partner stakeholders to improve child custody decision making in cases involving domestic violence. The FCEP enabled the project sites to explore, implement, and assess new and innovative court and noncourt procedures and practices. This article is an exploration of the outcomes of this project.     

Judicial Perspectives on Family Drug Treatment Courts

Family Drug Treatment Courts are a specialized calendar or docket that operates within the juvenile dependency court. These courts provide the setting for a collaborative effort by the court and all the participants in the child protection system to come together in a non‐adversarial setting to determine the individual treatment needs of substance‐abusing parents whose children are under the jurisdiction of the dependency court. This article is intended to give judges and others a judicial perspective on FDTCs, and to offer some assistance for those who are operating or who are considering creating one.     

A New Method of Assessing Judicial Workload in Juvenile Dependency Cases

This article describes a new method for calculating judicial workload in dependency or child abuse and neglect cases. In contrast to traditional judicial workload methods, the method described herein produces estimates of judicial workload that take into account the complex role of the juvenile dependency court judge—a role that includes both on‐ and off‐the‐bench activities. The method provides workload estimates that give guidance to courts not only about the minimally sufficient judicial resources needed to accommodate current caseload needs, but also what level of judicial resources would be required to hold substantive dependency court hearings that comport with nationally recognized practice recommendations. The article reviews commonly used judicial workload methods, outlines the new method, and uses a pilot of the method as an example of how the method works in practice. Broader implications of this workload method are also discussed.