Exploring Family First’s impact on reasonable efforts, stakeholders

“Reasonable efforts” is a term that has existed for decades in child protective services, though its interpretation has changed drastically over the years resulting in widely different and often contradictory conclusions. Factors such as the economic times, different organizational structures, budgetary considerations, geography, service availability, and judicial interpretation have all contributed to the system’s evolving understanding of what “reasonable efforts” means. This understanding is expected to change considerably in the coming years as the child protection system enters a new era of interpretation under the Family First Preservation Services Act (Family First). Family First begins its first phase of implementation in October 2019 and will have significant impact on the operational implementation of “reasonable efforts.”

The origins of “reasonable efforts”

The term “reasonable efforts” was first introduced to the child protection system in 1974 with the passage of the Child Abuse and Prevention and Treatment Act (CAPTA) — legislation meant to address the increasing number of children placed in foster care and the extended period of time many of those children remained in foster care placements. CAPTA required jurisdictions to create a plan to address the issues, required a Guardian Ad Litem or Court Appointed Special Advocate (GAL/CASA) to be appointed for each child, and identified Juvenile and Family Court judges to provide oversight for cases involving children placed in foster care.

CAPTA focused on three goals: preventing out of home placement, advancing family reunification, and providing more timely permanency for children. At the time, these three objectives were thought best achieved by good case management and emphasizing implementation of timely and effective services that would demonstrate and qualify as reasonable efforts toward achieving those goals. Essentially, those goals were not met and additional federal legislation was passed to clarify and provide enforcement for the principles; first, the Adoption Assistance and Child Welfare Act (AACWA) of 1980, followed by the Adoption and Safe Families Act (ASFA) of 1997.

One of the most important changes to occur through these new federal legislations was the clarification of the term “reasonable efforts” in several respects. First, after 1980, the federal government provided reimbursement for expenses for certain qualifying families and children, if efforts made by the agency were consistent with federal law.  Second, AACWA clarified agency requirements for documenting judicial oversight of “reasonable efforts” findings.  Third, CAPTA clarified there were exceptions where, in some situations, “reasonable efforts” were not required at all.

Arguably the most significant of all changes was the system’s understanding of the term “reasonable efforts.” While federal legislation did not fully define the term, definitions were developed at the state level either through legislation or by case law. Many of those interpretations led to the conclusion that reasonable efforts would be defined primarily in the terms of achieving reunification with the individuals or family from whom the child or children had been removed. That concept then was further adapted in practice by setting not reasonable efforts but rather extraordinary efforts because of the parents “right” to have the child returned.

In 1997, ASFA significantly amended and clarified that interpretation by emphasizing the “health and safety” of the child as the primary consideration upon removal from the home. Even though ASFA was passed 20 years ago, jurisdictions still vary widely in their implementation of the phrase “reasonable efforts.” That confusion and conflict will be tested further with the implementation of Family First. While there is still much to be clarified, decided, and documented regarding Family First, what is clear is this: the emphasis on secondary prevention, and continued emphasis on primary prevention, family preservation, timely permanency, and service delivery oversight will significantly challenge the child protection system to improve and to implement policies, processes, and practices that truly provide safety, permanency, and well-being for children.

The impact of Family First on “reasonable efforts”

Jurisdictions will have to address health and safety of the child considering the traditional statements of safety, permanency, and well-being in at least three stages of the system:

1. To prevent removal from the home;
2. To provide timely and safe reunification where possible after the child is removed from the home; and
3. Where reunification with the home is not possible, to provide alternative permanency as federal legislation defines that.

During those stages, the agency and the system must identify and address factors such as housing, substance use/abuse, domestic violence, mental health, child and family health issues, family functioning, parental participation and engagement, employment, and other family functioning and individual issues.

It is not the intention here to address the specifics of Family First, but rather to address the issue of how the term “reasonable efforts” may impact or may be impacted by Family First.  One of the historic criticisms of the federal legislation regarding child protection is that it appears to favor or support out-of-home placement through its Title IV-E policies. That will significantly change when jurisdictions opt into the terms and conditions of Family First.  In fact, the emphasis on secondary prevention, timeliness of services, requirements regarding trauma informed care and evidence-based practices, timely assessments, and limitations on residential/congregate care will require significant changes by every stakeholder in the child protection system.

Key considerations for stakeholders across the system

Certainly, the most significant impact will be on the child protection agency.  But stakeholders such as service providers, GAL/CASA, attorneys for the agency, parents, or children, residential/congregate care providers and Judges will be substantially impacted as well.  Following are some of the considerations for each in terms of implications regarding “reasonable efforts” under Family First:

1. Child Protection Agency. The emphasis on secondary prevention will necessarily cause the agency to evaluate its organizational structure and its ability to provide appropriate prevention services that are trauma informed and evidence-based, and to document that those services qualify as “reasonable efforts.” That will increase in importance as the families offered services may have further involvement with the agency and courts. The agency should offer services that qualify as “reasonable efforts” in the context of the subsequent referral to prevent or eliminate the need for removal or for expedited permanency. As an example, the agency must ensure that services for children and families are timely and geographically uniformly available or be subject to a judicial “no reasonable efforts” finding.
2. Service Providers. Service providers will be required to document initially and continually to improve service qualities on trauma informed care, evidence-based practices, and timeliness of service provision. They will have to document more substantially their compliance with Family First and agency contracts, and to consider making those services geographically available, timely, and individually as well as family unit sensitive. Specifically, their reports to other stakeholders, such as the agency and the courts, will have to ensure the services provided are meeting and addressing issues identified by the screenings and assessments.
3. GAL/CASA. These advocates and representatives will require training to understand fully the new mandates placed on the agency to provide timely and appropriate trauma informed and evidence-based practices that meet the previously identified needs. They will have to be trained and prepared to advocate for and comment on the appropriateness and effectiveness of the services offered and available by the agency, and for the service providers to meet the reasonable efforts requirements. They should specifically, on behalf of the children, address those issues to ensure safety, permanency and well-being as well as timeliness are the primary consideration.
4. Attorneys for Agency, Parents, or Children. Attorneys for participants must be trained to understand and address all of the issues regarding the children and families to ensure safety, permanency and well-being of the children are being met. While there may appear to be competing interests for an attorney representing those different groups, their interest should be substantially the same – to ensure that services offered and available meet statutory and contractual requirements to address, as early and as effectively as possible, the assessed needs of the families and children. Each must develop an understanding of the importance of timeliness to permanency, and that the road to timeliness of permanency (reunification, guardianship, adoption, etc.) is paved by the earliest possible advocacy for and implementation of effective services.
5. Residential/Congregate Care Providers. These providers, specifically, must understand and as early as possible comply with all of the conditions set out in Family First. Not only is it likely that every agency at some point will opt into the Act, but also, and arguably more importantly, the conditions of Family First are all best practices designed to ensure the health and safety of the child, which should be every provider’s top priority. Having a timely assessment for residential placement, implementing trauma informed care and evidence-based practices, being accredited, engaging family members (including parents and siblings) in the treatment program, and planning for discharge of the child from the facility at the earliest possible moment, with follow-up services in place – all of these are best practices regardless of Family First. Engaging and participating in Family First implementation discussions are critical first steps for residential and congregate care providers.
6. Judges. Trial and appellate Judges are, and have been for some time, the gatekeeper and overseer for effective child protection services once the agency is engaged in the life of a child and family. The National Council of Juvenile and Family Court Judges, through its publications, have documented and supported Judicial engagement, involvement and oversight of the child protection process. Judges assigned to this responsibility have accepted that challenge and must be trained (and retrained) to fully understand not only the new requirements of Family First, but also all of the issues stated above regarding family functioning, service delivery requirements, effective use of trauma informed care and evidence-based practices, and ensuring that each of the stakeholders accept their individual roles and embrace the common goal of providing timely and appropriate safety, permanency and well-being for each child.

The implementation of Family First is a critical opportunity for all stakeholders to reengage in understanding the collective and individual roles they each serve. For each, this will mean retraining regarding traditional efforts for them to understand and participate effectively in the child protection system. It will also require each stakeholder to receive training in new policies, procedures and processes focused on issues such as trauma informed care, evidence-based practices, timely assessments for placement, accreditation requirements, and, perhaps most importantly, understanding the impact that prevention services will have on the renewed emphasis and consideration of “reasonable efforts.”

About the author

Judge James Payne is a Senior Advisor within Public Consulting Group’s (PCG) Human Services practice. Judge Payne has extensive agency leadership experience at the national, state, and local levels, and is widely recognized as an expert in: organizational and system change, child welfare program development, court and child welfare engagement, and statute and legal review. Prior to joining PCG, Judge Payne served as Presiding Judge of the Marion Superior Court, Juvenile Division in Indiana for 20 years. He also served as Director of the Indiana Department of Child Services (DCS) for seven years, during which time he completely transformed the existing child welfare system and led the development of a new practice model aimed at prevention and early intervention. More information is available here.