The Unreasonable Assault on "Reasonable Efforts"

http://www.nccpr.org/reports/9Efforts.pdf

National Coalition for Child Protection Reform Issue Paper 9

The Unreasonable Assault on "Reasonable Efforts"
Faced with overwhelming evidence of
huge numbers of children needlessly placed in
foster care -- and what foster care was doing to
these children, Congress passed a law in 1980
that included a clause requiring states and
localities to make "reasonable efforts" to keep
families together. Judges were supposed to
certify that "reasonable efforts" had been made -
- a process that simply involved checking a box
on a form -- before the case was eligible for
federal foster care funds.
There was nothing in that law that
prevented agencies from moving swiftly to
remove children from their homes -- and keep
them out -- in the small minority of "horror story"
cases. The law required "reasonable efforts" --
not ridiculous efforts. And everybody knows it.
By 1997, the debate over “reasonable
efforts” had taken an Orwellian turn. Child
savers began blaming it for their own failure
to get children out of foster care. To make
the case, they cited the increase in the foster
care population since the early 1980s. But
they avoided going back further than that –
because had they done so, they would have
had to admit that in the late 1970s, before
“reasonable efforts” became law, there were
at least as many children languishing in
foster care, relative to the total child
population, as there are today.
The real problem is the opposite:
Rather than making reasonable efforts, agencies
typically make little or no effort at all to keep
families together. Once children are in foster
care, they are filed away and forgotten as
overwhelmed workers rush on to the next case.
According to the National Council of
Juvenile and Family Court Judges, many judges
"remain unaware of their obligation to determine
if reasonable efforts to preserve families have
been made. Other judges routinely 'rubber
stamp' assertions by social service agencies ..."
1

A report released in March, 2000 by a
team of leading national child welfare experts
found that in New York City’s family courts the
question of whether reasonable efforts have
been made is “very rarely addressed.” The
same report found that judges admit they often
routinely approve requests to take away children
even when they don’t really believe the child
savers have made an adequate case. The
report concluded that “Such practice … comes
frighteningly close to abdicating the Court’s basic
responsibility to protect the rights of children and
families.”
2
A survey of Michigan judges found that
20 percent of the judges said they always
concluded that reasonable efforts had been
made – in other words their child welfare
agencies were perfect. Another 70 percent said
they rarely concluded otherwise.
But even more significant: 40 percent of
judges admitted that they lied, and said the
state child welfare agency made “reasonable
efforts” in cases where the judges really
didn’t believe it. In half those cases, the judges
admitted they lied because, if they didn’t, the
state would not get federal aid for holding the
child in foster care, and the county would have to
pick up the extra costs.
3
And if that’s the proportion who will
admit it on a survey …
A study of "lack of supervision" cases in
New York City by the Child Welfare League of
America found that in 52 percent of the cases
studied, the service needed most was what one
might expect -- day care or babysitting. But the
"service" offered most often was foster care.
4

Where were the “reasonable efforts”?
Three separate studies since 1996 have
found that 30 percent of America’s foster
children could be safely in their own homes right
now, if their birth parents had safe, affordable
housing.
5
Where were the “reasonable
efforts”?
In Washington D.C., where the foster
care system was run for several years by the
federal courts, the first receiver named by the
court to run the agency found that between onethird and one-half of D.C.'s foster children could
be returned to their parents immediately -- if they
just had a decent place to live.
6
Where were
the “reasonable efforts”?
Even the Chicago Tribune, the
newspaper that led the crusade that derailed
family preservation for years in Illinois, eventually
acknowledged that the "reasonable efforts"
requirement was not enforced in that state.
7
It wasn’t enforced anywhere else either.
The federal government never seriously
enforced the reasonable efforts requirement and
the U.S. Supreme Court ruled that individuals
couldn’t even sue to have it enforced.
8
Children do not languish in foster care
because of reasonable efforts. Children
languish in foster care because of the lack of
reasonable efforts.
And none of this is surprising. All of the
(over)
Reasonable Efforts (continued)
incentives -- for everyone from the frontline
worker to the agency administrator -- pushed
against making reasonable efforts.
Financial incentives: The National
Commission on Children found that children
often are removed from their families
"prematurely or unnecessarily" because
federal aid formulas give states "a strong
financial incentive" to do so rather than
provide services to keep families together.
9
(See Issue Paper 12).
Political incentives: No worker or
administrator will ever be penalized for wrongly
placing a child in foster care -- even if the child is
abused there. But if a child is left at home and
something goes wrong, workers may be fired,
judges transferred, and all face the wrath of the
media.
Personal incentives: When a worker
sees a child living in poverty, the first instinct is
often to "rescue" the child on the assumption
that the child is bound to be "better off" in care.
That child in that home is a reality before the
worker's eyes. The dangers of foster care,
physical and emotional, however real, are an
abstraction.
But despite all these incentives and
despite the mountain of evidence that the
"reasonable efforts" clause was widely ignored,
whenever a child "known to the system" died,
someone was sure to blame "the law" -- by
which they meant the "reasonable efforts"
clause. Why? Because when a child dies, it's
usually because workers are overwhelmed with
too many cases; or they have little or no training,
or paperwork got lost, or any one of dozens of
similar problems, many of which require more
money to solve and all of which reflect badly on
the agencies themselves.
Thus, when asked "Why did this child
die?" They can say either: "This child died
because 'the law' made us do it" or "This child
died because we screwed up." What are most
agency administrators likely to say?
Sadly, the scapegoating of family
preservation has been so successful that by the
end of 1997, Congress had effectively repealed
the “reasonable efforts” requirement. Backers of
the 1997 law say it only ends reasonable efforts
in the most egregious cases. In fact, the law is
filled with “catch-all” clauses that make it
possible to avoid the requirement in almost every
case. The law no longer requires reasonable
efforts, but it does not prohibit them. It is up to
states and localities to decide what to do next.
Updated, December 28, 2009
___________________________________________________________________________________
1. National Council of Juvenile and Family Court Judges et. al., Making Reasonable Efforts: Steps for Keeping Families Together.
(New York: Edna McConnell Clark Foundation, 1987), p.8. //2
..
Special Child Welfare Advisory Panel, Advisory Report on Front
Line and Supervisory Practice, March 9, 2000, pp. 47,48. //3. Muskie School Of Public Service Cutler Institute For Child And
Family Policy, University of Maine, and American Bar Association Center for Children and the Law, Michigan Court Improvement
Program Reassessment, August, 2005, available online at http://muskie.usm.maine.edu/Publications/cf/MI_Court Improvement
ProgramReassessment.pdf //4. Mary Ann Jones, Parental Lack of Supervision: Nature and Consequences of a Major Child
Neglect Problem (Washington: Child Welfare League of America, 1987) p.2. //5. Deborah S, Harburger with Ruth Anne White,
“Reunifying Families, Cutting Costs: Housing – Child Welfare Partnerships for Permanent Supportive Housing Child Welfare, Vol.
LXXXIII, #5 Sept./Oct. 2004, p.501. See also: Janita Poe and Peter Kendall “Cases of Neglect May Be Only Poverty in Disguise,”
Chicago Tribune, Dec. 24, 1995, p.6. //6. Tamar Lewin, “Child Welfare Is Slow to Improve Despite Court Order,” The New York
Times, Dec. 30, 1995, p.6. //7. Andrew Gottesman, “System Overload: Juvenile Court Can Rarely Spare the Time to Care,”
Chicago Tribune, Dec. 22, 1993, p.1. //8. Suter v. Artist M., 112S.Ct. 1360, 1992. //9. National Commission on Children, Beyond
Rhetoric: A New American Agenda for Children and Families, (Washington DC: May, 1991) p.290.