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Working with the Courts

in Child Protection

The Honorable William G. Jones

2006

U.S. Department of Health and Human Services

Administration for Children and Families

Administration on Children, Youth and Families

ChildrenÊs Bureau

Office on Child Abuse and Neglect

 Table of Contents

PREFACE ......................................................................................................................................................1

ACKNOWLEDGMENTS ....................................................................................................................... 3

1. PURPOSE AND OVERVIEW....................................................................................................... 5

2. THE COURT SYSTEM AND CHILD PROTECTION................................................................ 7

Jurisdiction .....................................................................................................................................7

Juvenile Court.................................................................................................................................7

Specialized Courts ...........................................................................................................................8

Powers of the Court ......................................................................................................................10

The Rights of Parents and Children in Child Maltreatment Cases .................................................13

3. THE INTERPLAY BETWEEN CHILD MALTREATMENT LEGISLATION AND

CASEWORKER PRACTICE....................................................................................................... 17

The Child Abuse Prevention and Treatment Act ............................................................................17

The Individuals with Disabilities Education Act ............................................................................19

The Indian Child Welfare Act .......................................................................................................19

The Adoption Assistance and Child Welfare Act ...........................................................................19

The Adoption and Safe Families Act..............................................................................................20

The Interstate Compact on the Placement of Children..................................................................21

4. THE JUVENILE COURT PROCESS ......................................................................................... 23

The Petition for Removal ..............................................................................................................23

The Initial Hearing .......................................................................................................................26

Pretrial Conferences ......................................................................................................................28

Discovery ......................................................................................................................................29

The Adjudication Hearing.............................................................................................................29

The Disposition Hearing ...............................................................................................................30

Review Hearings ...........................................................................................................................32

Working with the Courts in Child Protection i

 The Permanency Hearing ..............................................................................................................33

Termination of Parental Rights .....................................................................................................34

Adoptions .....................................................................................................................................37

Appeals .........................................................................................................................................39

5. THE CRIMINAL COURT PROCESS ........................................................................................ 41

Arrest, Bail, and Other Conditions of Release ...............................................................................41

Preliminary Hearings ....................................................................................................................42

Discovery......................................................................................................................................42

Plea Bargaining .............................................................................................................................42

Trial ..............................................................................................................................................42

6. DOMESTIC RELATIONS CASES AND OTHER COURT PROCEEDINGS .......................... 45

Custody and Divorce Hearings .....................................................................................................45

Domestic Violence Hearings .........................................................................................................48

Mental Health Hearings................................................................................................................49

Confidentiality of Court Records ..................................................................................................51

Suits Against Child Protective Services Caseworkers and Agencies ................................................51

Class Actions Against Agencies......................................................................................................51

7. GOING TO COURT ................................................................................................................... 53

The Rules of Evidence...................................................................................................................53

Expert Testimony..........................................................................................................................55

Court Reports ..............................................................................................................................55

Testifying ......................................................................................................................................55

Ex Parte Communications.............................................................................................................57

Children’s Testimony.....................................................................................................................57

Judges’ Expectations of Child Protective Services Caseworkers ......................................................61

8. WORKING WITH THE COURTS............................................................................................. 65

Understanding Judges ...................................................................................................................65

What Caseworkers Can Do To Effect Change in the Court ..........................................................66

9. COURT IMPROVEMENT AND BEST PRACTICES................................................................ 71

Child and Family Services Reviews and the Courts .......................................................................71

Best Practices ................................................................................................................................74

Judicial Leadership........................................................................................................................76

Conclusion ...................................................................................................................................78

ENDNOTES ......................................................................................................................................... 79

ii Table of Contents
APPENDICES:

APPENDIX AGLOSSARY OF TERMS................................................................................... 83

APPENDIX BRESOURCE LISTINGS OF SELECTED NATIONAL ORGANIZATIONS

CONCERNED WITH CHILD MALTREATMENT................................................................... 91

APPENDIX CSTATE TELEPHONE NUMBERS FOR REPORTING CHILD ABUSE........ 99

APPENDIX DGUIDELINES FOR CHILD PROTECTIVE SERVICES CASEWORKERS

FOR PERMANENCY AND REVIEW HEARINGS.................................................................. 101

APPENDIX ELEGAL AND JUDICIAL ISSUES SUGGESTED BY THE CHILD AND

FAMILY SERVICES REVIEW PERFORMANCE INDICATORS............................................ 111

Working with the Courts in Child Protection iii

 Preface

E ach day, the safety and well-being of children

across the Nation are threatened by child
abuse and neglect. Intervening effectively in the
The Office on Child Abuse and Neglect within the
Children’s Bureau of the Administration for Children
and Families, U.S. Department of Health and
lives of these children and their families is not the Human Services, has developed this third edition of
sole responsibility of a single agency or professional the User Manual Series to reflect increased knowledge
group, but a shared community concern. The and the evolving state of practice. The updated and
Child Abuse and Neglect User Manual Series has new manuals are comprehensive in scope while also
provided guidance on child protection to hundreds succinct in presentation and easy to follow, and
of thousands of multidisciplinary professionals and they address trends and concerns relevant to today’s
concerned community members since the late 1970s. professional.
The User Manual Series provides a foundation for
understanding child maltreatment and the roles This manual, Working with the Courts in Child
and responsibilities of various practitioners in its Protection, provides a basis for understanding court
prevention, identification, investigation, assessment, processes most relevant to child abuse and neglect
and treatment. Through the years, the manuals have cases. The manual offers guidance and practical tips
served as valuable resources for building knowledge, primarily for child protective services caseworkers. It
promoting effective practices, and enhancing also may be useful to other nonlegal professionals,
community collaboration. such as those working in law enforcement, health
care, mental health, and child advocacy, who wish to
Since the last update of the User Manual Series in gain a better understanding of court processes.
the early 1990s, a number of changes have occurred
that dramatically affect each community’s response to This manual builds on information presented in other
child maltreatment. The changing landscape reflects publications in the User Manual Series, particularly A
increased recognition of the complexity of issues facing Coordinated Response to Child Abuse and Neglect: A
parents and their children, new legislation, practice Foundation for Practice and Child Protective Services:
innovations, court improvements, and system reform A Guide for Caseworkers. Readers are encouraged to
efforts. Significant advances in research have helped refer to other manuals relevant to their professions
shape new directions for interventions, while ongoing and interests.
evaluations show “what works.”

Working with the Courts in Child Protection 1

 User Manual Series

This manual—along with the entire Child Abuse and Neglect User Manual Series—is available from Child
Welfare Information Gateway. For a full list of available manuals and ordering information, contact:

Child Welfare Information Gateway

1250 Maryland Avenue, SW
Eighth Floor
Washington, DC 20024
Phone: (800) FYI-3366 or (703) 385-7565
Fax: (703) 385-3206
E-mail: [email protected]

The manuals also are available online at http://www.childwelfare.gov/pubs/usermanual.cfm.

2 Preface
 ACKNOWLEDGMENTS

human service agencies regarding the intersection of

PRIMARY AUTHOR domestic violence and child abuse and neglect.

The Honorable William G. Jones is a retired juvenile ACKNOWLEDGMENT OF PRIOR EDITION

and family court judge who served for 25 years for the
Mecklenburg County District Court hearing child
abuse and neglect, termination of parental rights, This manual is an update of the 1992 publication
and other family court cases. He has been a long­ Working with the Courts in Child Protection by Jane
time member of the National Council of Juvenile and Nusbaum Feller with Howard A. Davidson, Mark
Family Court Judges and its Permanency Planning Hardin, and Robert M. Horowitz. The first edition of
and Family Violence Departments. In Charlotte, the manual was published in 1980 as Child Protection:
North Carolina, Judge Jones was instrumental in the The Role of the Courts by Hortense R. Landau, Marsha
establishment of the Guardian ad Litem Program, K. Salus, and Thelma Stiffarm, with Nora Lee Kalb.
the Children’s Law Center, a Supervised Exchange The prior work informed and contributed to the
and Visitation Center, and the Family Court. He content of this publication.
continues to sit as an emergency judge in North
Carolina, serves on two court-appointed panels REVIEWERS
charged with monitoring compliance by child welfare
agencies with U.S. District Court injunctions, and acts
as a consultant to various communities and programs Howard Davidson, American Bar Association
regarding children and families in the courts.
Mark Hardin, American Bar Association

CONTRIBUTOR Beverly Heydon, Howard County, Maryland, Office

of Law

H. Lien Bragg, M.S.W., is a former consultant with Katherine Pinto, Howard County, Maryland,
Caliber, an ICF International Company. She has over Department of Social Services
a decade of social service work experience. Ms. Bragg
The Honorable W. Stephen Rideout, Alexandria,
has served in a variety of victim and community
Virginia, Juvenile and Domestic Relations
service capacities, including providing technical
District Court
assistance to State and local public child welfare and

Working with the Courts in Child Protection 3

 Sarah Webster, Texas Department of Protective and Barry Salovitz
Regulatory Services (retired) Child Welfare Institute/National Resource Center
on Child Maltreatment
Glenmont, NY
TECHNICAL ADVISORY PANEL
Sarah Webster
Texas Department of Protective and Regulatory
The following were members of the January 2001
Services
Technical Advisory Panel for the User Manual Series
Austin, TX
contract. The organizations identified reflect each
member’s affiliation at that time. Ron Zuskin
University of Maryland at Baltimore School of Social
Carolyn Abdullah
Work
FRIENDS National Resource Center
Baltimore, MD
Washington, DC
The following members subsequently were added to
Lien Bragg
the Technical Advisory Panel:
American Public Human Services Association
Washington, DC William R. (Reyn) Archer III, M.D.
Hill and Knowlton, Inc.
Sgt. Richard Cage
Washington, DC
Montgomery County Police Department
Wheaton, MD David Popenoe, Ph.D.
National Marriage Project
Diane DePanfilis, Ph.D.
Princeton, NJ
University of Maryland at Baltimore School of Social
Work Bob Scholle
Baltimore, MD Independent Consultant
Pittsburgh, PA
Pauline Grant
Florida Department of Children and Families Brad Wilcox, Ph.D.
Jacksonville, FL University of Virginia, Department of Sociology
Charlottesville, VA
Jodi Hill
Connecticut Department of Children and Families
Hartford, CT ADDITIONAL ACKNOWLEDGMENTS
Robert Ortega, Ph.D.
University of Michigan School of Social Work The third edition of the User Manual Series was
Ann Arbor, MI developed under the guidance and direction of Irene
Bocella, Federal Task Order Officer, and Catherine
Nancy Rawlings Nolan, Director, Office on Child Abuse and Neglect.
Kentucky Cabinet for Families and Children Also providing valuable input and review were Susan
Frankfort, KY Orr, Associate Commissioner, Children’s Bureau,
and Emily Cooke, Special Assistant for Court
Improvement, Division of Program Implementation,
Children’s Bureau.

This manual was developed and produced by Caliber, an ICF International Company, Fairfax, VA, under
Contract Number HHS-282-98-0025.

4 Acknowledgments
 CHAPTER 1

Purpose and Overview

T he courts play a central role in making decisions

regarding the protection of children who have
been maltreated. Understanding this process is crucial
caseworkers prepare for what can be an overwhelming
experience. The manual describes:

for any professional involved in child protection. By • The general or common court system;
having a thorough knowledge of this legal process
• The powers of the court and the rights of parents
and by working in partnership with the courts, child
and children in child maltreatment cases;
protective services (CPS) caseworkers and other
professionals can work toward the safety, permanency, • The interplay between child maltreatment
and well-being of children more effectively. legislation and caseworker practice;
Child maltreatment cases are handled in a variety of • The juvenile court process;
courts. Thus, the rules and procedures that govern
these cases may differ depending on the type of • The criminal court process;
proceeding within which an allegation of abuse is
brought, the laws governing the court involved, and
• Domestic relations and other court proceedings;
the local practice in a particular court. • The issues involved in going to court;
In recent years, a number of reforms have addressed the • The relationship between CPS caseworkers and
unique nature of child maltreatment and the special the court;
needs of its victims. Both legislative and judicial
efforts have improved the ability and flexibility of the • Court improvement and best practices.
courts to respond to allegations of abuse or neglect.
Courts now have more alternatives and resources with Appendices to this manual include a glossary, resource
which to work when faced with a case where abuse or listings, and guidelines for CPS caseworkers for
neglect has been established by the required burden of permanency and review hearings.
proof under State law.
Various terms are used within the field and
This manual provides the basic information needed throughout communities to describe CPS agencies
by CPS caseworkers to work successfully with the and caseworkers, including:
courts. It introduces concepts and terminology
associated with the courts, describes the key court
processes, and presents practical information to help

Working with the Courts in Child Protection 5

 • CPS agency: understanding, this manual primarily uses “CPS” and
“CPS caseworker.”
– Department of Social Services
– Child welfare agency One note of caution is necessary. On its own, this
– Social services manual cannot adequately prepare any professional,
legal or nonlegal, to practice in the area of child
– Family services protection. Consultation with a skilled legal specialist
• CPS caseworker: is critical, as is comprehensive training on working
with the courts, particularly with respect to unique
– Caseworker State laws and local practices.
– Social worker
Information and suggestions incorporated throughout
– Social caseworker
this manual do not necessarily imply endorsement by
– Worker the U.S. Department of Health and Human Services
or official interpretation of Federal requirements.
In many settings, there is little or no distinction
among these terms. For the sake of clarity and ease of

6 6 Purpose and Overview

 CHAPTER 2

The Court System

and Child Protection

S tate courts, including county and municipal

courts, are responsible for resolving a wide variety
of issues and do so increasingly in diverse ways. In
over the parties against whom the case is brought,
such as the parents of a child removed from the home.
It is the judge’s responsibility to decide at the outset
addition to going to court for child abuse and neglect whether the court has jurisdiction over the subject
cases, child protective services (CPS) caseworkers matter of the case and over the parties. Objections
often also must be involved in court proceedings for to jurisdiction, although infrequent in child abuse
child support, domestic violence, criminal conduct, and neglect cases, can be complex and require CPS to
juvenile delinquency, child custody, mental health, have legal representation.
and directly related proceedings such as termination
of parental rights (TPR) and adoption. How courts
JUVENILE COURT
are organized and how they divide their caseloads vary
widely by State and even within a State. Thus, it is
important for CPS caseworkers to know which courts The juvenile court decides whether children have been
hear which kinds of cases in their communities. victimized by maltreatment, as defined by State law.
It then assumes responsibility for ordering services
This chapter begins with an introduction to the and monitors cases to ensure that its interventions are
concept of jurisdiction. The chapter continues with as beneficial and effective as possible.
an overview of the juvenile court, then provides
descriptions of other specialized courts. To set the
The Focus of Juvenile Courts
stage for the later discussion of court processes, the
chapter also reviews the general powers of the court,
as well as the rights accorded to parents and children The juvenile court—the earliest of the specialized
in judicial proceedings. courts—originated in Illinois in 1899. Initially, the
juvenile court’s primary focus was on delinquency
(i.e., the commitment by youth of what would be
JURISDICTION crimes if they were adults) and status offenses (i.e.,
transgressions of children that would not be crimes
To hear and to decide a case, a court must have if adults committed them). The emphasis was on
jurisdiction or “authority” over that type of case, as the rehabilitation and reform of the youth who
specified by State law. The allegations of the petition came before the court. Over time, the juvenile court
initiating the case must satisfy the statutory criteria for concept spread rapidly to other States and expanded
cases of that type. The court must have jurisdiction to include protecting children from child abuse and
neglect.

Working with the Courts in Child Protection 7

 The juvenile court operates according to the legal aim to make well-informed decisions to address needs
power of parens patriae. The parens patriae doctrine for housing, childcare, in-home services, domestic
stipulates that the State has the legal authority to act violence advocacy, mental health or substance abuse
as the guardian of children whose parents are unable treatment, paternity establishment, child support,
to provide adequate protection or meet their needs educational services, or employment. Also unique
sufficiently. to the juvenile court, particularly in CPS cases, are
the frequent review of parents and the assessment of
Today, juvenile court judges hear cases alleging agency performance.
child abuse and neglect, delinquency, and status
offenses. Most also hear TPR cases and adoption
matters. Some juvenile courts have responsibility for SPECIALIZED COURTS
mental health commitment and admission hearings,
abortion consent waivers for minors, and petitions for
Many communities are experimenting with
emancipation.
“specialized” or “dedicated” courts that focus on
The organization and structure of juvenile courts vary particular areas, such as mental health, truancy,
widely from State to State and within States, depending domestic violence, substance abuse, child support,
on how State legislatures create their court systems and reentry. Specialized courts are designed to
and on the volume of cases in each jurisdiction. Some require treatment and services for the specific offense
large communities have full-time courts dedicated to in addition to, or instead of, punishment, such as
hearing just child abuse and neglect or delinquency incarceration. These courts are more common in
cases, while others have one or more full-time courts larger communities that have available funding.
that hear a mix of juvenile cases. Judges in smaller Three specialized courts that are particularly relevant
and rural communities regularly hear a variety of case to CPS cases are highlighted here.
types and commonly hear all the juvenile cases on the
same docket with other types of cases. Family Courts

How Juvenile Courts Are Different From Other

Several States either have or are implementing
Courts

“unified” or “coordinated” family courts that hear
most, if not all, of the different types of cases having
Juvenile courts operate like other courts when to do with children and families. Family courts are
deciding whether a child was abused or neglected or characterized by:
committed a delinquent act or a status offense. What
• Case management practices that expedite the
is unique about juvenile courts is that they also make
resolution of cases;
extensive use of experts, including CPS caseworkers,
juvenile probation officers, psychologists, mental • Specialized services;
health professionals, physicians, domestic violence
specialists, educators, child development specialists, • Coordination of all cases involving the same
foster parents, relative caretakers, and others. The family, often before the same judge;
court utilizes the expertise of these individuals to
understand children and their families better, why
• Extensive use of alternative dispute resolution
methodologies;
events occurred that necessitated court intervention,
and how to prevent recurrence. Juvenile courts • Reduced court appearances;
attempt to look beyond individual and family deficits
to understand the family and child as a whole. They

8 The Court System and Child Protection

 Model Family Courts
Currently, there are 25 model family courts located throughout all the States and the District of
Columbia. The National Council of Juvenile and Family Court Judges (NCJFCJ) has conducted extensive
information dissemination, curriculum development, and training and technical assistance in support of
the model courts process. Its nationally recognized Child Victims Act Model Courts Initiative works to
improve juvenile and family court practices in child abuse and neglect cases nationwide.1

A “model court” is created when a lead judge in a juvenile court jurisdiction seeks to implement the
principles of court reform. These were first formulated in the 1995 NCJFCJ publication Resource
Guidelines: Improving Court Practices in Child Abuse and Neglect Cases (online at http://www.ncjfcj.
org/images/stories/dept/ppcd/pdf/resguide.pdf). The model court teams identify impediments to the
timeliness of court events and to the delivery of services for families with children in care and then design
and implement court- and agency-based changes to address these barriers. Model courts receive ongoing
technical assistance and training from the Permanency Planning for Children Department of NCJFCJ.
For more information on model courts and this initiative, visit the “Frequently Asked Questions” page of
the NCJFCJ Web site at http://www.ncjfcj.org/content/view/267/156.

• Enhanced training for judicial officers; Drug Courts

• A commitment to providing participants with

Drug courts, an increasingly common specialized court,
good customer service.
emphasize recovery from addiction, provide access to
Family court cases are fundamentally different from immediate treatment, and conduct frequent reviews
criminal cases for several reasons. First, they involve to monitor abstinence, participation in treatment,
intimate, interpersonal relationships and highly and compliance with court orders. The reviews are
charged emotions that profoundly affect how the a constructive and supportive group process in which
parties approach the litigation. Commonly, the each participant’s performance is assessed in the drug
courtroom battle is an extension of unresolved personal court. While drug courts handle mostly criminal
conflicts. The adversarial process only heightens the cases and require an underlying criminal conviction
conflict. Second, they involve multiple claims, each to mandate participation, the number of dependency,
with a unique set of issues and timetables for court delinquency, and child custody drug courts is rising.
action. Third, the litigation is ongoing. Any changes
Drug courts, including criminal ones, are resources
in the circumstances in the lives of the parents or
CPS should utilize whenever possible. Studies suggest
children, changes in the financial circumstances, or
that parental substance abuse is a contributing factor
noncompliance with support or visitation provisions
for between one-third and two-thirds of children
of an order frequently require renewed litigation.
involved with CPS.2 Drug courts can facilitate access
Where family courts have been established, they to treatment, which otherwise may not be available.
typically include the juvenile court and attempt to Individuals with substance use disorders who access
coordinate cases that arise there with cases on other services through drug courts generally initiate
dockets involving the same family. They also provide treatment sooner, have lower rates of recidivism, and
access to a variety of services, some of which may be participate in treatment longer.3
valuable resources in child maltreatment cases (e.g.,
child waiting rooms with capable caretakers when
parents need to be in court).

Working with the Courts in Child Protection 9

 For more on drug courts, including grants and drugs or those exposed to substance abuse through
funding information, visit the National Criminal family members. They also provide a structure
Justice Reference Service at http://www.ncjrs.org/ allowing for the ongoing, active participation and
drug_courts/summary.html. oversight of a judge. Common goals of juvenile drug
courts include providing children with substance
abuse treatment and services, offering constructive
Juvenile and Family Drug Courts

support to aid them in resisting further criminal

activity, supporting them to perform well in
Recently, a number of jurisdictions have referred to school and to develop positive relationships in the
the experiences of adult drug courts to determine community, and helping them to build skills that
how juvenile courts might adapt to the increasing will aid in leading productive substance- and crime-
population of substance abusing juveniles and parents. free lives. The goals of family drug courts are similar,
The result is the emergence of: but also include helping parents become emotionally,
• The juvenile drug court—a drug court that financially, and personally self-sufficient and develop
focuses on juvenile delinquency matters and effective parenting skills.
status offenses that involve juveniles who are
substance abusers.4
For more information on family drug courts, go to
• The family drug court—a drug court that deals http://www.ncjrs.org/pdffiles1/bja/206809.pdf.
with cases involving parental rights in which:
– An adult is the litigant (i.e., any party to a
lawsuit, which means plaintiff, defendant, POWERS OF THE COURT
petitioner, respondent, cross-complainant
or cross-defendant, but not a witness or
attorney); Courts and judges often are viewed as possessing
enormous power and influence. The power of the
– The case comes before the court through courts is ever changing, and the authority of judges
either the criminal or civil process; varies considerably from State to State. Some courts
– The case arises out of the substance abuse of exercise the authority to dictate to CPS where children
a parent.5 should be placed, sometimes including specific foster
homes. Other States are more prescriptive in their
Juvenile and family drug courts provide immediate
statutory laws about placement options for children
intervention in the lives of children and parents using

Family Drug Courts

As of December 31, 2004, there were 153 family drug courts in 33 States and the District of Columbia. A
family drug court, also known as a family dependency treatment court, is a juvenile or family court docket
in which selected abuse, neglect, and dependency cases are identified and treatment providers collaborate
to provide safe homes for children while simultaneously providing drug and alcohol treatment and other
support services to the parents.6 Family drug courts typically operate within the general court organization
in their respective jurisdiction. In most family drug courts, the judge, after consultation with attorneys,
CPS, and treatment providers, will decide which cases to accept into the program. Once in the program,
participants are subjected to frequent drug screenings and may appear more frequently before the judge,
sometimes as often as once a week, to report on their progress with treatment.7

10 The Court System and Child Protection

in State custody and give less discretion and authority based on evidence independent of the immunized
to the courts. CPS caseworkers who recognize and testimony or statements.
know how to access the powers of the court will find
them advantageous to the resolution of their cases. • Transactional immunity—bars any subsequent
This section describes seven different powers held by court action against the immunized person,
the court: regardless of the source of the evidence against
that person.
• Power to subpoena witnesses;
Use immunity is generally preferred because it
• Power to subpoena documents and records; does not prevent prosecuting the person based on
independently acquired evidence. For example,
• Power to assist CPS investigations; both parents are allegedly the only people present
when their child is killed. The prosecutor may grant
• Power to make negative “reasonable efforts”
use immunity to the parent believed not to have
determinations;
participated in the actual murder to gain that parent’s
• Power to hold individuals in contempt; testimony against the other. If subsequent evidence is
uncovered from an independent source that implicates
• Power to order treatment; the immunized parent (e.g., an eyewitness comes
forward or a videotape of the incident is discovered),
• Inherent power of the position. he can then be prosecuted. If transaction immunity
This section also highlights how these powers can had been granted, however, even with this subsequent
benefit casework practice and court processes. evidence, the parent could not be charged. If either
type of immunity is granted, the witness can be
Power To Subpoena Witnesses compelled to testify.

Depending on State law, witnesses who are doctors,

Courts have the power to subpoena witnesses. A
clergy, lawyers, and mental health professionals may not
subpoena is a court order that directs a person to
be compelled to divulge confidential communications
appear in court. Anyone who is properly served with
made to them by or about their clients. The content
a subpoena and who fails to appear as directed is
of these communications is privileged and cannot be
subject to being held in contempt.
disclosed without the express, informed consent of
Courts also can compel a witness to testify, unless there the client. These privileges encourage those seeking
is a constitutional right or a privilege that protects the professional assistance to interact freely and openly
witness from having to do so. The U.S. Constitution’s with those professionals in order to maximize the
Fifth Amendment privilege against self-incrimination benefits of their services and to eliminate fear of
is a protection that applies to criminal proceedings as repercussions. Such privileges, however, may not
well as to testimony in any other forum, including apply if the client reveals child maltreatment. Under
child abuse and neglect courts, if the testimony might those circumstances, the professional may be required
be used against the witness in a future prosecution. to make a report to CPS and to testify in court if a
court proceeding results from the report. The court
There are two types of immunity that the prosecuting ultimately determines whether any claim of privilege
attorney or, in some States, the judge may grant: applies. Any witness who refuses a court directive
to provide testimony can be held in contempt and
• Use immunity—bars the use of a witness’s incarcerated until the testimony is given.
testimony and statements from being used
directly or indirectly against that person in a
subsequent trial. Future prosecution must be

Working with the Courts in Child Protection 11

 Power To Subpoena Documents and Records • Reunite a child with the family from which the
child was removed;
Courts also have the power to issue a subpoena
• Secure an adoptive home or other permanent
duces tecum (i.e., a court order requiring the release
placement for a child.
of specified documents or records). This subpoena
commands a person to produce in court certain A negative reasonable efforts finding can result
designated documents or records. For example, a in a court order preventing CPS from seeking
court may require a hospital to provide its records on reimbursement for the cost of that child’s care or
a child’s care or compel a CPS caseworker to produce to report the finding to Federal and State oversight
a case file or notes of conversations. agencies.

Power To Assist CPS Investigations “Reasonable” is a familiar term in the law, and
determining what is reasonable is a familiar standard
for judges. It is applied on a case-by-case basis to
CPS caseworkers can face seemingly insurmountable
the particular needs of that child and family and the
barriers in their investigations of suspected child
services necessary to meet those needs. (For more
maltreatment. For example, parents are under no
information on reasonable efforts, refer to the section
legal obligation to allow CPS to enter their homes to
on the Adoption and Safe Families Act (ASFA) in
conduct an investigation. The Child Abuse Prevention
Chapter 3, The Interplay Between Child Maltreatment
and Treatment Act (CAPTA), as amended by the
Legislation and Caseworker Practice.)
Keeping Children and Families Safe Act (P.L. 108–
36), requires a CPS worker to advise the individuals
being investigated for child abuse or neglect of the Power To Hold Individuals in Contempt
complaints and allegations being made against them,
but they must still protect the confidentiality rights There are two types of contempt, civil and criminal.
of the person who reported the suspected abuse. (42 Civil contempt is the willful failure to do something
U.S.C. 5106a(b)(2)(A)(xviii)). that a court has ordered, such as refusing to testify
when the court has found that no privilege applies
Obtaining formal documents and other information or refusing to pay child support when there are
related to the alleged maltreatment, such as medical ample funds to do so. Civil contempt is punishable
or school records, is also difficult. To assist CPS in by incarceration, which, in theory, can last until the
obtaining information necessary to investigations, witness relents and complies. Usually, however, a
some States have granted courts the authority to order compromise is negotiated or one side relents before
parents to allow CPS to examine and to interview their anyone is sent to jail.
children and to compel others who have information
relevant to a child maltreatment investigation to make Criminal contempt can be indirect or direct.
that information available for CPS examination. Indirect contempt is a willful violation of a court’s
order. Examples of indirect contempt include a
Power To Make a Negative “Reasonable Efforts”

CPS caseworker’s refusal to arrange for a particular
Determination

evaluation or a parent’s refusal to submit to paternity
testing. Indirect criminal contempt requires advanced
notice of the specific charge and a full hearing. Direct
A court can find that CPS has failed to make
contempt occurs in the presence of the judge and
“reasonable efforts” to:
usually involves some disruptive or disrespectful
• Avoid a child’s removal from the home; behavior, such as uttering an epithet when the judge
announces an unfavorable decision. Direct criminal

12 The Court System and Child Protection

contempt is punishable immediately. Both direct the type of proceeding in which they are involved,
and indirect criminal contempt can be punished by including:
incarceration for a fixed time determined by statute,
a fine, or both. • The right to family integrity;
• The right to notice of the proceedings;
Power To Order Treatment
• The right to a hearing;
Some States specifically authorize courts to order
• The right to counsel;
parents to participate in mental health or substance
abuse treatment. Whether or not the court has that • The right to a jury trial;
power by statute, it does have the power to determine
if the child should be removed from or returned to • The CAPTA requirement of a Guardian ad Litem
a parent, which may be conditioned on the parent’s or court-appointed special advocate;
participation in treatment.
• The entitlement to reasonable efforts.
Inherent Power of the Position Parents and children must not only be informed of their
rights, but they also must understand the protections
One of the most significant judicial powers is not those rights afford them. Court representatives and
found in statutes or in case law; it is the power to CPS caseworkers can educate families about their
gain the attention of others. Most of the professionals rights and help them feel empowered in an otherwise
involved with child maltreatment respect the position intimidating process.
and authority of the court and are responsive to judicial
requests or inquiries. When a judge calls a meeting to The Right to Family Integrity
address a particular issue or invites stakeholders in a
child abuse or neglect case to a meeting, they usually Public policy has long recognized a right to family
attend. This is the power “to get people to the table.” integrity, and there has been ample case law
Of course, the outcome of such a meeting depends on defending that right. The legal framework regarding
the judge’s leadership skills and the extent to which the parent-child relationship balances the rights
the attendees are willing and able to communicate and responsibilities among parent, child, and State,
effectively and to collaborate in achieving system as guided by Federal statutes. It has long been
improvements. (See Chapter 9, Court Improvement recognized that parents have a fundamental liberty
and Best Practices for more on judicial leadership.) interest, protected by the Constitution, to raise their
children as they choose. This parent-child relationship
For information on any particular State’s child abuse grants certain rights, duties, and obligations to both
and neglect laws, visit http://www.childwelfare. parent and child, including the responsibility of the
gov/systemwide/laws_policies/search/index. parent to protect the child’s safety and well-being. If
cfm. a parent, however, is unable or unwilling to meet this
responsibility, the State has the power and authority to
take action to protect a child from significant harm.8
THE RIGHTS OF PARENTS AND CHILDREN IN

CHILD MALTREATMENT CASES

A series of U.S. Supreme Court cases have defined

when it is constitutional for the State to intervene in
9
The court system accords both parents and children
family life. Although the Court has given parents
certain legal rights and entitlements, depending on
great latitude in the upbringing and education of their

Working with the Courts in Child Protection 13

 children, it has held that the rights of parenthood procedures that are speedy, fair, and impartial. It
and the family have limits and can be regulated in applies to both parents, whether or not they are living
the interest of the public. The Court has further together. Orders entered without notice are subject
concluded that the State, as parens patriae, may restrict to being withdrawn.
the parent’s control by regulating or prohibiting the
child’s labor, by requiring school attendance, and by Putative fathers (those identified as the biological
intervening in other ways to promote the child’s well­ parent, but whose paternity has not been legally
being.10 established) also must be identified in the petition
and be served. Their relationship to the child needs
In a recent case, the U.S. Supreme Court reaffirmed to be determined as early in the proceeding as possible
the right to family integrity in Troxel v. Granville by formal acknowledgment or by genetic testing. If
when it said that parents’ interest in the “care, custody, paternity is established, these fathers or their families
and control of their children is perhaps the oldest of may become financial and placement resources for
fundamental liberty interests.”11 In Troxel v. Granville, the child.
the U.S. Supreme Court reviewed a Washington
State statute authorizing grandparent visitation. The Petitions may be filed and emergency ex parte orders
Court decided that the statute unconstitutionally may be entered without advance notice to parents.
infringed on Granville’s fundamental liberty interest Ex parte is defined as being on behalf of or involving
in raising her children free from State interference. only one party to a legal matter and in the absence
This fundamental interest extends to a family’s right of and usually without notice to the other party. For
to remain together. example, an emergency removal of a child from an
unsafe home situation may be done through an ex
As discussed in the next chapter, CAPTA is one of parte order. Action must be taken, however, to serve
the primary pieces of Federal legislation guiding the parents with the petition and order as quickly as
casework (See Chapter 3, The Interplay Between Child possible. Foster parents and kinship care providers
Maltreatment Legislation and Caseworker Practice), also must be notified of pending court hearings and
and it supports the right of family integrity through be given an opportunity to be heard during these
community-based grants that aim to strengthen proceedings. (For more information on ex parte
families. Of course, this right is not absolute. A communications, see Chapter 7, Going to Court.)
compelling State interest, such as the need to
protect children from significant harm, will justify The Right to a Hearing
infringement on the right to family integrity.
Another fundamental element of due process is the
The Right to Notice of the Proceedings right to a hearing on the merits of a petition, including
the right to cross-examine or to question any witness
Parents or other custodians of a child have the right called by CPS, by the other parent, or on behalf of
to “notice” of any petition filed regarding that child the child, as well as the right to present evidence on
and to be notified of any hearing regarding that one’s own behalf.
petition. The right to notice encompasses the right to
be formally given the petition, which also must state The Right to Counsel
what the parent has done or not done that makes
court involvement necessary. The right to notice is
Most States provide court-appointed lawyers for
a fundamental element of the constitutional right
indigent parents in child maltreatment cases, but
to due process. Due process specifies the right to be
there is no Federal constitutional right to counsel in
present in court, representation by an attorney, and
such cases. A constitutional right to counsel (i.e.,

14 The Court System and Child Protection

every citizen’s right to an attorney) does attach in • Meeting the child;
some TPR cases, but not all.12
• Exploring the facts of the case;
The quality of this representation varies widely among
lawyers and courts. With the goal of improving • Obtaining medical, educational, and other
quality, national, as well as many State and court, records;
standards or guidelines exist for attorneys practicing • Determining the child’s perspective and needs;
juvenile and family law. Some jurisdictions also
mandate training before appointing attorneys to child • Identifying appropriate services and resources;
abuse and neglect proceedings. In fact, the amended
CAPTA requires that attorneys representing children • Monitoring the progress of the case;
receive training that is “appropriate to [their] role.”13
• Promoting the child’s interests.
The Right to a Jury Trial Where both an attorney and a GAL are appointed,
it is with the expectation that they will function as a
A few States grant parents the right to a jury trial team in performing those tasks and in advocating for
in child maltreatment cases, but the right is usually the child, as well as in making the child’s own views
“waived” or “voluntarily given up” by the parent. In known to the court. These advocates can be valuable
criminal child maltreatment cases, by contrast, the sources of knowledge and information and important
U.S. Constitution gives adult defendants in every allies when they and the CPS caseworker concur on
State a right to trial by jury. how the case should be resolved.

In some States, an attorney usually is appointed as the

The CAPTA Requirement of a Guardian ad Litem child’s GAL. Laws in some States require the GAL to
or Court-appointed Special Advocate
advocate in the best interests of the child, even when
Children who allegedly have been maltreated are contrary to the expressed wishes of the child. In other
entitled to a Guardian ad Litem (GAL), who is an States, however, the GAL’s advocacy may be guided
independent advocate for the children’s best interest. more clearly by legal ethics that compel advocacy in
States must comply with this requirement in order support of a child’s stated wishes. Although legal
to satisfy CAPTA State Grant funding requirements. ethics may dictate that the attorney advocate the
The GAL role may be fulfilled by the appointment client’s position zealously, there also is consideration in
of an attorney, a volunteer who is not an attorney, or ethical rules for the common situation where certain
both. Volunteers also may be called court-appointed clients (e.g., very young children) are considered
special advocates (CASA). The volunteers often are incapable of possessing the judgment necessary to
professionals trained in other disciplines, such as guide an attorney’s actions. These situations likely
nursing, psychology, or education. Responsibilities will result in the GAL advocating what is believed to
of the GAL or CASA include: be in the child’s best interest.

National Court Appointed Special Advocate Association

The National Court Appointed Special Advocate Association (NCASAA) promotes and supports volunteer
advocacy in juvenile courts for children alleged to be maltreated. NCASAA provides money and technical
assistance to start and expand programs, disseminates performance standards, produces training manuals
and other publications, and trains program leaders and volunteers. For more information on NCASAA
and GAL, go to http://www.casanet.org.

Working with the Courts in Child Protection 15

 How children are represented in child maltreatment Assistance and Child Welfare Act (P.L. 96–272)
cases—whether by a lawyer, a volunteer GAL or and ASFA (P.L. 105–89) to have State agencies
CASA, or one of each—is a matter of State law or make reasonable efforts to keep them together, or if
local practice. CPS caseworkers will want to know a child has been removed from the family, to make
what model is used in their community and whether reasonable efforts to reunify the family. ASFA also
any advocates who are attorneys owe allegiance to the states that children who are not going to be reunited
child’s stated or best interest. with their families are entitled to reasonable efforts by
State agencies or departments to secure a permanent
In addition to CAPTA’s requirements of counsel or placement for them.
a GAL, minors who are parents also may be eligible,
in some States, for a different type of GAL. This is Federal law further requires that judges decide at
nearly universal in civil cases, which include child each critical stage of an abuse or neglect case whether
maltreatment and TPR proceedings. The assignment the agency has complied with the reasonable efforts
is articulated in the States’ Rules of Civil Procedure, requirement. The obligation to make reasonable
most of which track the Federal rules, which state that efforts applies to CPS alone, not to the parents, any
minors are entitled to have a responsible adult function other individuals, or service providers.
as a decision-maker for them in matters related to
any litigation. The court appoints someone to fulfill “Reasonable efforts” is not defined in Federal law.
this responsibility. If there is no conflict of interest Some States, however, have attempted to define it, and
between the roles of counsel for the minor parent caseworkers will need to familiarize themselves with
and the GAL, the same person can be appointed to any definition in their State’s statutes. Information
perform both functions. It is not required, however, about the application of reasonable efforts in a
nor is it required that the GAL be a lawyer. State’s appellate court should be provided by the
CPS agency’s attorney to the head of the agency for
dissemination to caseworkers and other pertinent
The Entitlement to Reasonable Efforts
staff, along with clarification of the decision’s impact
on their responsibilities.
Except in certain aggravated circumstances, parents

and children are entitled under the Adoption

Caseworkers are encouraged to read Making Reasonable Efforts: A Permanent Home for Every Child, developed
by the Youth Law Center, for a comprehensive discussion on the reasonable efforts requirement and how
it affects their responsibilities and those of their agency, attorneys for all parties, and the judges. It can be
obtained online at http://www.emcf.org/pdf/children_makingreason.pdf.

16 The Court System and Child Protection

 CHAPTER 3

The Interplay Between

Child Maltreatment
Legislation and Caseworker
Practice

C hildren had little legal protection from

maltreatment until the early 20th century
when addressing child abuse and neglect became
dramatically and have transformed the nature of their
relationship. Therefore, it is imperative that CPS
caseworkers understand the implications of significant
a component of the new juvenile court movement. legislation on successful outcomes for families.
Court practices varied, but generally were inadequate
to meet the needs of abused and neglected children The case example in Exhibit 3-1 illustrates a family
and their families. The identification of battered experiencing multiple issues needing intervention.
child syndrome in 1962 heightened public interest Following the case example are summaries of relevant
in child maltreatment and resulted in the passage of legislation, including:
legislation in most States to enhance protections for
children.14
• The Child Abuse Prevention and Treatment Act;

As recently as the late 1970s, it was common that the

• The Individuals with Disabilities Education Act;
only people in the courtroom in child maltreatment • The Indian Child Welfare Act;
cases were the caseworker, the judge, and sometimes
the parents. Children rarely participated in the • The Adoption Assistance and Child Welfare Act;
process and none of the parties, including child
protective services (CPS), had legal representation. • The Adoption and Safe Families Act;
Nor were there Guardians ad Litem (GALs) or court-
• The Interstate Compact on the Placement of
appointed special advocates (CASAs). The court’s role
Children.
was limited. If it found abuse or neglect, it would
place the child in the custody of CPS, and that ended Following each summary is a discussion of how that
its responsibility. There were no case plans, no court legislation may be applicable in the case example.
reports, no periodic reviews, no reasonable efforts
requirement, and no permanency planning.
THE CHILD ABUSE PREVENTION AND

Since then, sweeping changes have occurred in the law, TREATMENT ACT

CPS practice, and the litigation of child maltreatment

cases. Family dynamics and problems (e.g., AIDS,
homelessness, substance abuse) have become more The first Federal legislation to address child

complex as well. These changes have increased the maltreatment became law in 1974 with the passage

frequency of interaction between the courts and CPS of the Child Abuse Prevention and Treatment Act

Working with the Courts in Child Protection 17

 Exhibit 3-1
Case Example
April Smith is a 32-year-old mother of three children, aged 16 months, 4 years, and 12 years. CPS conducted
an emergency removal of the three children due to allegations of severe neglect, inappropriate supervision,
the sexual abuse of the 12-year-old child, and domestic violence. A CPS investigation concluded that the
allegations possessed substantial evidence warranting ongoing CPS involvement and the filing of a petition
to juvenile court for foster care placement.
The CPS petition contained the following information and allegations:

• The 16-month-old and two unrelated 7-year-old children were left at home for approximately 3 days in
the care of the 12-year-old child without any adult supervision;
• The 4-year-old and 12-year-old children reported witnessing violent, physical attacks against Ms. Smith;
• The 12-year-old child reported that Robert Johnson had touched her inappropriately on three occasions;
• The 12-year-old attempted suicide, is failing academically in school, is suspected of having a learning
disability, and was suspended from school on two occasions for fighting with peers;
• The rental home was littered with broken glass, animal and human feces, molding food, and hazardous
electrical fixtures;
• The domestic violence perpetrator, Mr. Johnson, is the biological father of Ms. Smith’s 16-month-old
and 4-year-old children, but Ms. Smith and Mr. Johnson are not married;
• Ms. Smith abuses alcohol and cocaine;
• Mr. Johnson also abuses alcohol and cocaine;
• Ms. Smith was employed by a cleaning service, but recently lost her job;
• Mr. Johnson is employed as a landscaper.
The initial hearing granted CPS temporary legal and physical custody of the three children. At the
adjudication hearing, the court ordered that the children be placed in foster care, that CPS develop a case
plan for reunification, and that Ms. Smith and Mr. Johnson cooperate with CPS in receiving services. (See
Chapter 4, The Juvenile Court Process, for definitions of “initial hearing” and “adjudication hearing.”)

The CPS caseworker assigned to the Smith family faced several issues:

• The siblings were not placed in the same foster home. While the 16-month-old and 4-year-old children
were placed in the same foster home, the lack of available therapeutic foster homes or residential
facilities prompted placement of the 12-year-old child in a temporary receiving shelter until approval
was granted for placement into a therapeutic residential facility or home located in a neighboring State.
There were no known relatives available for placement.
• The whereabouts of Eric Lequoi, the alleged biological father of the 12-year-old child, were unknown.
Mr. Lequoi’s last known whereabouts were with his family at a Native American reservation in
Wyoming.
• Ms. Smith denied having a substance abuse problem and wanted to maintain her relationship with Mr.
Johnson.
• Mr. Johnson refused to participate in substance abuse treatment, sexual offender assessment, or a
batterer intervention program and denied that he was the biological father of the 16-month-old child.
Ms. Smith maintained that Mr. Johnson was the biological father of the 16-month-old and 4-year-old
children.
Considerations and actions regarding this case and how existing legislation affects the provision of services
are discussed throughout the remainder of this chapter.

18 The Interplay Between Child Maltreatment Legislation and Caseworker Practice

(CAPTA) (P.L. 93–247).15 In return for Federal CPS caseworker the opportunity to engage Ms.
funding, CAPTA required that States adopt mandatory Smith in meeting the educational needs of her
child abuse reporting laws, ensure the confidentiality child and in coordinating services with the child’s
of agency records and court proceedings, and appoint teacher and special education administrator.
a GAL for every child in maltreatment proceedings IDEA also provides access to individualized
in juvenile court. CAPTA has been reauthorized services that address the child’s educational needs,
periodically and amended by Congress, most recently as well as her emotional and mental difficulties.
as part of the Keeping Children and Families Safe Act Through IDEA, CPS can demonstrate reasonable
of 2003 (P.L. 108–36). efforts to collaborate with external agencies to
meet children’s needs and to reunify families.
The recent amendment to CAPTA changed the
confidentiality requirements so that States now are
obligated to share confidential information with any THE INDIAN CHILD WELFARE ACT
agency or individual who has a statutory duty to
protect children.16 This amendment also contains
The Indian Child Welfare Act (ICWA) (P.L. 95–
language that allows States flexibility to determine
608) of 1978 requires specific protections to Native
State policies that permit public access to child abuse
American children involved in CPS and juvenile
court proceedings.
court proceedings. If a child is affiliated with a tribal
¾ Caseworkers follow the definitions established organization, the tribe has the right to intervene in
by CAPTA and State laws to substantiate child proceedings or to petition to have the case transferred
abuse and neglect against Ms. Smith and Mr. to tribal court.18
Johnson. The condition of the home and the
¾ Eric Lequoi, the alleged father of the 12-year-old
act of leaving three under-aged children without
child, is Native American. The CPS caseworker
adult supervision for 3 days meet the threshold
will need to locate Mr. Lequoi to establish
for substantiating neglect.
paternity. If he is the child’s biological father,
the caseworker will need to determine whether
THE INDIVIDUALS WITH DISABILITIES

he is a viable permanency option for the child or

EDUCATION ACT

can provide child support and medical insurance.

Once the paternity of the child is established, the
caseworker will need to determine whether the
Originally enacted in 1975, the Individuals with child is entitled to the protections of ICWA.
Disabilities Education Act (IDEA) (P.L. 94–142)
entitles eligible children to education programs that
meet their special needs. An Individual Education THE ADOPTION ASSISTANCE AND CHILD

Plan (IEP) is developed for eligible children to identify WELFARE ACT

their specific educational needs as well as strategies

for meeting them. In its most recent reauthorization,
The Adoption Assistance and Child Welfare Act (P.L.
CAPTA contains a provision that requires CPS to
96–272) of 1980 requires that CPS make reasonable
refer children under the age of three for evaluation
efforts to avoid unnecessary removals of children
of IDEA eligibility in substantiated cases of abuse or
from their homes and to reunify foster children
neglect.17
with their families. “Reasonable efforts” means
¾ The 12-year-old child’s poor academic providing a parent with useful resources that enable
performance and possible learning disability are them to protect the child, to provide a stable home
significant presenting problems. IDEA offers the environment, and to promote the child’s well-being.

Working with the Courts in Child Protection 19

 If the court finds that reasonable efforts have not been ¾ Additionally, reasonable efforts require that
made, CPS funding from Federal and State sources services be available and accessible to Ms. Smith
may be reduced. and Mr. Johnson. Thus, if transportation to
substance abuse treatment or weekly urine
¾ In this case example, the requirements for screens is an issue, the CPS caseworker may want
bypassing reunification efforts are not met, so to provide transportation or bus tokens to them.
the caseworkers should assume that the goal
is to reunify the children with their biological
parent, Ms. Smith. (For more information on THE ADOPTION AND SAFE FAMILIES ACT
circumstances where reunification should not be
the goal, see the next section on The Adoption In 1997, Congress passed the Adoption and Safe
and Safe Families Act, as well as Exhibit 4.2, Families Act (ASFA) (P.L. 105–89) in response to
Circumstances Under Which Reunification Is concerns that many children were remaining in
Not Attempted.) In order to meet the reasonable foster care for long periods or experiencing multiple
efforts requirement, the CPS caseworker must placements. The law requires timely permanency
conduct a comprehensive and thorough family planning for children. Permanency for children
assessment to identify specific services that will involves either reunification with the biological
address the issues prompting removal of the parent, legal guardianship with a relative or caregiver,
children. The CPS caseworker, for example, may adoption, or an alternative planned permanent living
recommend that a domestic violence specialist arrangement. ASFA emphasizes that the child’s safety
conduct a domestic violence assessment with is the paramount concern in any child maltreatment
Ms. Smith and that Mr. Johnson participate in a case.
batterer intervention program.
In addition, ASFA addressed the lack of clarity
¾ In this case, the court also may expect that the regarding what constituted making “reasonable
following services will be offered to demonstrate efforts” to keep families together. The legislation:
reasonable efforts:
– A developmental or medical assessment of
• Restricts the reasonable efforts requirement of
attempting to keep families intact by permitting
the children;
it to be waived under specified circumstances,
– A child sexual abuse assessment of the 12­ such as severe or chronic maltreatment or the
year-old; death of another child in the household due to
– A substance abuse assessment and treatment maltreatment;
plan for Ms. Smith and Mr. Johnson;
• Expands the reasonable efforts requirement
– Domestic violence counseling; to make it applicable to CPS efforts to secure
– A parenting program; permanent homes for children who will not be
– Emergency benefits for the family (e.g., reunited with their families;
temporary shelter, groceries voucher);
• Mandates a permanency hearing to occur no
– Enrollment in the Temporary Assistance for more than 12 months after a child is placed in
Needy Families program; foster care;
– Vocational rehabilitation services;
• Dictates, with some exceptions, that petitions for
– Parent and sibling visitation. termination of parental rights need to be filed for

20 The Interplay Between Child Maltreatment Legislation and Caseworker Practice

 children who have been in foster care for 15 of compliance with the court-ordered case plan.
the previous 22 months; The caseworker also may collaborate with service
providers to assist Ms. Smith and Mr. Johnson
• Includes several provisions to promote, to with addressing their issues in a timely manner.
facilitate, to fund, and to support adoptive
placements; ¾ Establishing paternity is another critical piece
of casework practice to prevent further delays in
• Gives substitute care providers the right to receive achieving permanency. If the permanency plan’s
notice of court hearings and the opportunity to goal is adoption, the children cannot be freed
be heard; for adoption unless the parental rights of their
biological parents are terminated. In this case,
• Requires criminal record checks on all substitute
Mr. Johnson denies paternity of the 16-month­
care providers;
old child. The CPS caseworker must ascertain
• Directs that compliance with these provisions if Mr. Johnson’s claims are true and, if so, begin
and other performance standards be carefully proceedings to locate the biological father.
monitored and enforced.19 Additionally, if the children remain in foster care
placement, child support needs to be established
ASFA has a significant impact on caseworker practice, and paid to the CPS agency by Ms. Smith and
guiding caseworkers through family reunification, Mr. Johnson. If Ms. Smith and Mr. Johnson are
the provision of services to the family, and alternative separated, each parent will need a separate child
permanent placements, if necessary. support order. The CPS caseworker can utilize
the Child Support Enforcement (CSE) office
¾ Ms. Smith and Mr. Johnson abuse alcohol and that is responsible by law for establishing and for
cocaine, which exacerbates the incidence and enforcing paternity, child support, and medical
severity of physical violence perpetrated by Mr. insurance obligations for children in foster care.
Johnson. Substance use disorder and domestic Collaboration with the CSE office is an example
violence are commonly known to be chronic of the CPS caseworker’s ability to demonstrate
issues that typically require extensive time for reasonable efforts to the courts and to ensure
successful treatment and resolution. ASFA timely permanency for Ms. Smith’s children.
requires that Ms. Smith and Mr. Johnson address
and resolve their substance abuse and domestic
violence issues in a shortened and restricted THE INTERSTATE COMPACT ON THE

length of time. If Ms. Smith and Mr. Johnson PLACEMENT OF CHILDREN

cannot resolve their issues within 12 months, the

CPS caseworker is faced with the possibility of
In addition to Federal legislation, the Interstate
making a recommendation at the permanency
Compact on the Placement of Children (ICPC) also
hearing that parental rights be terminated and the
can play an important role in caseworker practice.
children be placed for adoption. The caseworker
ICPC is an agreement among all 50 States, the
also could utilize concurrent planning, which
District of Columbia, and the U.S. Virgin Islands
seeks to reunify children with their birth families
regarding placement (e.g., kinship care, adoption,
while, at the same time, establishing an alternative
foster care) across State lines. The placement must be
permanency plan if reunification cannot take
approved by the ICPC offices of each of the affected
place.20 In either case, the CPS caseworker
States before it can occur.
needs to be diligent and expeditious in engaging
Ms. Smith and Mr. Johnson in services. It is
equally important for the caseworker to ensure

Working with the Courts in Child Protection 21

 ¾ Due to the special needs of the 12-year-old consuming and can prolong the quest for
child and the lack of an appropriate therapeutic permanency. Thus, the CPS caseworker will need
foster care placement, an alternative foster to contact the State ICPC office immediately,
care placement located in a neighboring State follow all ICPC requirements, and pursue timely
was recommended. This process can be time completion of the ICPC process.

For more information on Federal child abuse and neglect legislation, visit the Legal Issues and Laws page
of the Child Welfare Information Gateway website at http://www.childwelfare.gov/systemwide/laws_
policies/search/index.cfm.

22 The Interplay Between Child Maltreatment Legislation and Caseworker Practice

 CHAPTER 4

The Juvenile Court Process

O ther than judges or attorneys, most people find

court proceedings intimidating and confusing.
Child protective services (CPS) caseworkers and
known to the petitioner, but should include enough
to establish the court’s jurisdiction.

families involved in juvenile court face the daunting The decision to file a child maltreatment petition is
task of understanding the court process, the roles of made by the CPS caseworker and supervisor, often
court personnel, the complex legal jargon, and the in consultation with the agency’s lawyer. Most States
court’s expectation of them. CPS caseworkers need allow only CPS to initiate child protection proceedings,
to be competent in navigating the juvenile court but some also permit other public officials or even
process to achieve positive outcomes for children and private citizens to do so. It is a complex and difficult
families. This chapter discusses the juvenile court decision that requires assessing the risk of harm to the
process and the responsibilities of child protection child and weighing it against the distress caused by
caseworkers, attorneys, and judges at each step of removal. The decision to file should always be based
a family’s involvement with the court. Exhibit 4-1 on safety considerations and not on how likely it is
presents a flow chart of the juvenile court process. that the case can or cannot be won in court. As a
Because the process varies widely across jurisdictions, result, child maltreatment petitions tend to concern
this flow chart illustrates one example of how a child children who are exposed to serious threats to their
maltreatment case might proceed. safety.

The requirements for reasonable efforts have resulted

THE PETITION FOR REMOVAL in more attempts to “remove the harm and not the
child” by effectively addressing maltreatment without
going to court. These attempts include diverting
Cases of any type begin with the filing of an initial families to community-based programs and services,
pleading with a court. A child protection proceeding such as residential mental health treatment, substance
is initiated by filing a petition. The petition usually abuse treatment combined with the placement of the
will be captioned “In re Jane Doe,” meaning it is child with a relative, housing subsidies, child care,
brought regarding her. The State or county is the or financial support; in-home services ranging from
petitioner and the parents, caretakers, or child may be intensive family preservation to periodic monitoring;
referred to as respondents. They are not “defendants” and ordering violent or sexually abusive adults out of
and the petition does not “charge” them with child the child’s home.
abuse or neglect. The petition contains the essential
elements of the conduct that is alleged to be child Another important factor that CPS caseworkers and
maltreatment. It does not need to contain all the facts others in the court process, including service providers,

Working with the Courts in Child Protection 23

 Exhibit 4-1
Juvenile Court Process Flow Chart

Petition Filed

Emergency Removal Without Request for Removal Request for Removal Request for Removal
Court Approval (No Notice to Parents) (Notice to Parents) (Notice to Parents)

Child Removed Child Not Removed

Petition Filed

Initial Hearing

Child’s Removal Continued Child Returned Home

Pretrial Motions or Conferences

Mediation

Case Cannot Be Resolved Without

Case Resolved by Consent
Contested Adjudicatory Hearing

Adjudicatory (Fact Finding) Hearing

Disposition Hearing

Child Remains/Is Returned Child Remains/Is Placed

Home Under Supervision Outside Home

Periodic Reviews

Child Remains/Is Placed Child Remains/Is

Outside Home Returned Home

Permanency Hearing
Mediation

Goal: Reunification
Goal: Reunification Goal: Adoption Goal: Permanent
Child To Be Returned
Child Remains/Is Termination of Parental Placement Other Than
Home in No More Than
Returned Home Rights Adoption
Three Months

Termination of Parental
Termination of Parental Post -permanency
Rights
Rights Granted Hearing Review
Denied

Efforts To Achieve Permanent

Child Not Returned Home
Placement Other Than Child Is Returned Home
Reunification Will Not Be Goal
Reunification Reviewed

Adoption or Other Permanent

Plan Finalized

24 The Juvenile Court Process

must keep in mind is the importance of learning and Filing and Serving Petitions

respecting the cultural traditions and strengths of the

families in which they intervene. Every effort must be The CPS caseworker or attorneys representing CPS
made, either through written materials in the native typically are responsible for delivering new petitions
language of the parents and child or by using certified to the clerk of the juvenile court for filing. The clerk
interpreters, to ensure that CPS and the parents will file the case and give it a docket number and an
understand each other. initial hearing date. The caseworker should request a
stamped copy of the petition.
Content of Petitions
Once a petition is filed, it needs to be served on
the respondents. Serving a petition generally is
Petitions, or “complaints,” alleging child maltreatment
accomplished by personally delivering to each
should be prepared by lawyers with the information
respondent the petition, the summons, and the
provided by CPS caseworkers. These facts need
notice of hearing. Typically, the sheriff or another
to be conveyed in a manner that clearly describes
law enforcement officer is responsible for this act. In
what the parent or parents did or failed to do and
many States, service also can be made by registered
how it affected the child. Together, the lawyer and
or certified mail with a return receipt. In some
the caseworker should construct a real-life story by
communities, the papers may be served by the CPS
identifying the characters, by describing the setting
caseworker. It can be difficult to serve persons whose
and the events, and by relating their impact on the
whereabouts are unknown, so they will need to be
child or other participants.
served by following the State’s alternative processes
In documenting cases, caseworkers need to be careful for providing notice of the petition, such as placing
to state only the facts and not legal conclusions. For an ad in a newspaper. (See the section, “Termination
example, the caseworker should write, “On January of Parental Rights,” later in this chapter for further
1, 2003, Joe Smith hit his son Jack Smith, age 7, on discussion on this topic.)
the arm with a baseball bat, breaking the boy’s arm,”
instead of “the father physically abused his son.” Petitions and Removals

Lawyers’ opinions and practices vary widely regarding

State and local practices regarding the filing of
whether a petition should be detailed or should recite
petitions, emergency removals, and prior authorization
only the facts essential to establishing jurisdiction.
of removals by judicial officers are not governed by
(See Chapter 2, The Court System and Child Protection,
Federal law and vary widely between and within
regarding jurisdiction.) The length of the petition also
States. Ideally, no child should be removed from a
will vary depending on the complexity of a particular
family until after a petition is filed and the court has
case and on local practice. Long petitions may be a
conducted a hearing at which the parents were present
useful guide for gathering and presenting evidence at
and had an opportunity to be heard. In reality, most
trial. Care must be taken not to include any allegation
removals are authorized by ex parte orders and the first
in a petition that cannot be proven by evidence in
hearing is conducted after the removal has occurred.
court. Whether short or long, the petition must
contain allegations of fact to support every element Petitions alleging maltreatment do not have to include
of the particular claim asserted. Otherwise, the court a request that the child be removed. It sometimes may
will dismiss the petition. be useful to file a petition without asking for removal.

Working with the Courts in Child Protection 25

 An example would be a case in which maltreatment is Continuances, Adjournments,

substantiated and removal does not appear necessary, Postponements, and Delays

but the parents are resistant to CPS intervention.

The court may be convinced to exercise its powers Continuances (postponements of a date of a trial,
of persuasion, or even coercion, to promote parental hearing, or other court appearance to a later date)
cooperation. or adjournments (temporary postponements of the
proceedings of a case until a specified future time)
Where ex parte removal is requested, judges have the
should be avoided, if at all possible. They waste court
option of denying the request or of scheduling an
time and inconvenience the parties, CPS caseworkers,
initial hearing at which the issue of placement can
attorneys, Guardian ad Litem (GAL) or court-
be considered more fully. In making the decision
appointed special advocate (CASA) volunteers, and
whether to grant the application ex parte, the judge
witnesses. Typically, the impact of these delays is felt
will determine the risk of harm to the child if removal
most acutely by the children and families involved.
is not authorized and what efforts CPS has made or
Most importantly, they delay resolution of the case
could make to avoid removal or reduce the risk of
and permanency for the child.
harm.

When immediate removal of a child is dictated by

THE INITIAL HEARING
emergency circumstances, a petition should be filed
promptly and judicial approval for the removal
obtained. The laws of some States set time limits The first event in court after the filing of a petition
for obtaining retroactive approval for the removal. is the initial hearing, known also as the preliminary
Courts have procedures in place to ensure that CPS protective hearing, shelter care hearing, detention
caseworkers have round-the-clock access to a judge hearing, emergency removal hearing, or temporary
with the expertise and authority to respond to requests custody hearing. It occurs soon after the filing of the
for removal. If these procedures are not available or petition or the removal of the child from the home.
preferred by the court, a CPS caseworker needs to The precise deadline for this hearing depends on State
ensure that the timely filing of the petition occurs law. Ideally, it should occur on the first day following
immediately after emergency removals. the filing of the petition, upon removal of the child,
or as soon as possible thereafter.
In some jurisdictions, removals by police or CPS
caseworkers are sometimes made without judicial The initial hearing is the most critical stage in the child
authorization or any attempt to obtain it, even in abuse and neglect court process. Many important
nonemergencies. This practice was condemned by decisions are made and actions taken that chart the
the U.S. Court of Appeals for the Second Circuit, course for the remainder of the proceeding. At this
which held that “[I]t is unconstitutional for State hearing, the relationships between those involved
officials to effect a child’s removal on an ‘emergency’ in the process also are established, and the tone is
basis where there is reasonable time safely to obtain set for their ongoing interactions. Too often, these
judicial authorization consistent with the child’s hearings are brief and perfunctory, but to the extent
safety.”21 While this ruling may apply only to States that sufficient time is devoted to them to address the
within the Second Circuit, it reminds practitioners relevant issues thoroughly, initial hearings facilitate
of the importance of obtaining judicial authorization and expedite the resolution of the case.22 From a
whenever possible. caseworker’s perspective, being ill-prepared, having
incomplete information, or having a judge unfamiliar

26 The Juvenile Court Process

with family court proceedings typically lead to a poor require prompt resolution. Some courts welcome or
initial hearing. Having thorough documentation, even require a regularly updated photo of the child
service plans, and an established positive relationship for the file.
with the judge frequently lead to a good initial
hearing. Counsel should have been appointed for the parents at
the time the petition was filed and should be present
The main purpose of the initial hearing is to determine in advance of the hearing to talk with them and to
whether the child should be placed in substitute care prepare their presentation to the court. The GAL
or remain with or be returned to the parents pending or CASA and any attorney for the child also should
further proceedings. The critical issue is whether in- have been appointed and be prepared to proceed in
home services or other measures can be put in place advance of the initial hearing. Courts needs to have
to ensure the child’s safety. policies and procedures in place to ensure that these
appointments are made and that the initial hearing is
scheduled and conducted expeditiously.
For information about the appropriate lengths
for hearings in the juvenile court process, refer
Issues Addressed at the Initial Hearing
to the National Council of Juvenile and Family
Court Judges’ Adoption and Permanency Guidelines:
Improving Court Practice in Child Abuse and Neglect In addition to assessing the child’s safety and making a
Cases, and Resource Guidelines: Improving Court placement decision, the court must make a reasonable
Practice in Child Abuse and Neglect Cases at http:// efforts determination. Many courts require the filing
www.pppncjfcj.org/html/publications.html. of a reasonable efforts affidavit detailing the efforts
that were made. Whether it is required or not,
CPS caseworkers should be prepared to inform the
Parties To Be Present at Initial Hearings

court, preferably in writing, of the efforts they made
to avoid removal and placement of the child or to
Both parents, including any putative father, need to explain the difficult or unusual circumstances that
be notified of the hearing and be present. Extended precluded the need to make such efforts.23 Guidance
family members who could become placement options for reasonable efforts and safety requirements for
also need to be identified as a part of this process. foster care placements are laid out in the U.S. Code
Issuing domestic violence protective, restraining, as part of the State plan requirements of Title IV-E of
or similar orders directed to alleged abusers may be the Social Security Act (42 U.S.C. 671(a)(15)).
considered as an alternative to removing the child.
Other issues that need to be addressed at the initial
The child also should be present at the hearing unless hearing include:
it would be detrimental to the child’s well-being. As
• The verification of any immediate needs the child
an alternative, the judge may decide to meet with
or parents may have and determination of how
the child in chambers. Much can be learned from
they can be met;
observing the interactions between a child and parent
or other relatives, even in an artificial and stressful • The appointment of counsel for the parents and
setting. In addition, the judge and others in the of a GAL, CASA, or attorney for the child, if not
case who will not have ongoing contact with the previously made;
child can meet, observe, and interact. This has the
benefits of humanizing the process, emphasizing that • The determination of whether the Indian Child
the child is more than another name on another file, Welfare Act is applicable;
and underscoring that the child has real needs that

Working with the Courts in Child Protection 27

 • The determination of paternity of any putative • The roles and responsibilities of each of the other
father; participants;

• The assessment of the need for mental health, • What will happen before the next hearing;
substance abuse, medical, or other diagnostic tests
for the parents and the child (sometimes these • The court’s expectations of the parents.
assessments cannot be initiated until after there
The judge should promote a cooperative, problem-
has been an adjudication of child maltreatment);
solving approach to resolving the case and control
• The identification and location of any absent any conflict or hostility between the parties.24 To
parent or family member who is a potential the extent that the initial hearing may not conform
placement option or source of emotional or to the process outlined above, CPS caseworkers are
financial support for the child or family; encouraged to do what they can to fill in the gaps for
parents and to incorporate these approaches in their
• The resolution of child support; interactions with all participants. (See Chapter 7,
Going to Court, for a discussion of judges’ expectations
• The provision of relevant records including for CPS caseworkers and how to work effectively with
criminal, medical, educational, and substance others.)
abuse or mental health treatment for parents and
the child;
PRETRIAL CONFERENCES
• The timing of visitation with parents and siblings
if the child is placed outside the home;
Some courts use pretrial conferences, also known as
• The appropriateness of the case for mediation if settlement conferences, in child maltreatment cases.
that service is available; These conferences are opportunities for the parents,
their attorneys, and the child’s advocates to discuss
• The discovery (pretrial process that allows each a settlement in the form of stipulated, or agreed to,
party to obtain information relevant to the case facts that would make a trial unnecessary. In courts
from the other parties); where there are no formal pretrial conferences, these
settlement negotiations often occur among attorneys
• The determination of the next court date.
by phone or at the courtroom and as late as right
The initial hearing should establish a supportive before the scheduled adjudication. The judge may
atmosphere in which parents are treated with dignity or may not participate, depending on the jurisdiction
and respect. It is a process that should focus on and the nature of the case, and some judges will
understanding the problems the case presents and initiate such negotiations themselves.
solving them as quickly as possible so the family can
Negotiated settlements can save time and money for
be reunited safely.
courts, attorneys, parents, witnesses, and CPS. They
The judge also should explain to the parents: also may avoid the trauma and acrimony that often
result from contested adjudications. Additionally, they
• Their rights; can expedite the development and implementation
of the case plan, the terms of which are frequently
• The course that the case will take, including included in the settlement.
possible outcomes ranging from dismissal to
termination of parental rights (TPR); It is important, however, that provable allegations
of significant child maltreatment not be negotiated

28 The Juvenile Court Process

 Mediation
An increasing number of juvenile courts across the country are using mediation and other nonadversarial
dispute resolution methods, such as family group conferencing, to settle child maltreatment and TPR
cases. The mediation process usually is called “dependency mediation” and is similar in many ways to
settlement conferences, except that there is a skilled and trained mediator facilitating the discussion.
Family group conferencing also utilizes a facilitator, but tries to involve the child’s extended family more
fully and encourages family members to craft their own plans for the support of the child and parent.
When settlement conferences and mediation fail to produce agreement on the entire case, they nevertheless
may produce agreement on some issues and at least shorten the time necessary for the adjudication.25

away. CPS caseworkers need to participate in Discovery in child maltreatment cases usually involves
settlement discussions to ensure that the terms of the parents’ and child’s attorneys asking CPS for its
the stipulations accurately reflect the seriousness of records. In most States, they are entitled to those
the maltreatment. A stipulation that the child was records. While details of the initial and investigative
neglected, for example, provides no information about reports are revealed, the name of the reporter is not.
what actually happened. To support the development CPS may not be able to look at certain records from
of an appropriate case plan, the critical facts of a case other sources, such as mental health evaluations or
need to be included in the stipulations. These facts substance abuse treatment records that carry their
also enable participants in future proceedings to know own confidentiality protections. Such records,
exactly what issues necessitated court action and to however, usually can be obtained by other means.
measure progress. Records from a private practitioner may be obtained
Settlement discussions should include the child’s through a subpoena duces tecum (an order requiring a
advocates. The advocates and the CPS caseworker person to produce for the court specified documents
should ensure that the child’s safety and needs are or records). State agency records can be obtained by
reflected in the settlement. The court should require submitting a Freedom of Information Act request.
the recommendations of the child’s GAL or CASA Other forms of discovery also are available in some
before it approves the agreement. Parents must not States and jurisdictions. These include:
be coerced or be enticed to admit facts that they deny.
Before accepting any settlement, the court must ask • Interrogatories or written questions that need to
that the parents be certain that they have entered into be answered under oath within a specified time
the agreement freely and voluntarily and with a full frame;
understanding of the potential consequences and
rights they have waived by doing so. • Requests for admissions that are deemed admitted
if not denied under oath by a specific date;

DISCOVERY • Depositions or transcribed oral examinations

under oath.

Discovery is a pretrial process that allows each party

to obtain information relevant to the case from THE ADJUDICATION HEARING
the other parties. It is intended to avoid “trial by
ambush,” to narrow the contested issues, and to
If the case is not settled by agreement of the parties,

expedite settlement.
it will go to adjudication. Once the petition is filed,

Working with the Courts in Child Protection 29

 the court schedules an adjudication hearing (also Burden of Proof

known as the “fact-finding hearing” or “jurisdictional

hearing”). At the adjudication hearing, the court CPS holds the burden of proof, and its attorney
decides whether CPS can prove the allegations in needs to present enough evidence to convince the
its petition. The CPS attorney will present evidence judge that the maltreatment of the child alleged in
through the testimony of the CPS caseworker, law the petition occurred. The burden of proof is either
enforcement officers, or other witnesses, including the greater weight (or preponderance) of the evidence
any experts. Documents such as medical records or or clear and convincing evidence, depending on the
photographs also may be entered into evidence. The State. In determining whether the burden of proof
attorneys for the parents and the child will have the has been met, the judge will take into account the
right to question or to cross-examine the witnesses quantity, quality, credibility, and convincing force of
and to present evidence. The parents may testify, as the evidence.
may other family members or neighbors who have
knowledge of the facts alleged in the petition or of If the judge determines that CPS has met its
the care the parents provided their children. burden, that determination justifies continuing CPS
intervention and further court involvement. On the
Parent Testimony other hand, if the judge determines that the evidence
presented by CPS fails to satisfy the burden of proof,
the case will be dismissed, and CPS will have no
Because child maltreatment cases in juvenile court
authority to continue its involvement with the family
are civil as opposed to criminal, the parents do not
without the family’s consent.
enjoy the right against self-incrimination contained
in the Fifth Amendment to the U.S. Constitution.
Therefore, they can be called to testify by CPS, the Order
other parent, or the GAL. They still can “take the
Fifth,” however, and refuse to testify on the grounds At the conclusion of an adjudication in favor of
that their answers may incriminate them. CPS (whether it is by agreement or after a contested
hearing), the judge needs to enter an order finding
In a civil case, a refusal to testify can be weighed specific facts regarding the child’s maltreatment and
against the witness. This issue surfaces when a the problems that must be resolved before the child
parent is charged with a crime arising from the same can return home safely. Other issues to be addressed
underlying facts as the child maltreatment case in include whether CPS has made reasonable efforts
juvenile court. Criminal prosecutions, particularly to avoid placement or to achieve reunification, the
complex ones like child sexual abuse, usually are child’s placement, all incomplete or unresolved issues
not resolved until after the adjudication of the child from the initial hearing, and the disposition hearing
maltreatment case. Thus, a parent who is called to date.
testify in a juvenile court maltreatment case and who
is facing criminal charges may refuse to testify to
avoid having her testimony used against her in the THE DISPOSITION HEARING
subsequent criminal prosecution. The parent’s lawyer
may not call her to testify for the same reason. In At the disposition hearing, the court decides whether
some courts, parents may be granted “immunity” the child needs help from the court and, if so, what
whereby judges can order that the statements by the services will be ordered. For example, the court
parents in juvenile court cannot be used against them may enter an order that mandates counseling and
in other court proceedings. For more on immunity, rehabilitative services. The court also may enter orders
see Chapter 2, The Court System and Child Protection. providing for out-of-home placements or visitation

30 The Juvenile Court Process

 The GAL or CASA also should prepare and distribute
schedules or for controlling the conduct of the a court report in the same manner, addressing the
parent. It also can order CPS to conduct follow-up same issues.
visits with the family to ensure the child’s protection.
Essentially, the disposition hearing determines what
The Case Plan
will be required to resolve the problems that led to
CPS intervention.
Before the disposition hearing, CPS should confer
The rules of evidence are relaxed in disposition hearings, with the parents and develop with them a case
and they are generally less formal than adjudications, plan that identifies the problems that led to CPS
although witnesses sometimes testify and are cross- involvement with the family and are specified in the
examined. While the disposition hearing is sometimes adjudication order.27 The case plan will state the goal
held on the same day as the adjudication hearing, the for the child’s permanent placement. When the goal
National Council of Juvenile and Family Court Judges is reunification, which it usually is at this stage of the
recommends that the disposition hearing be separate proceedings, the case plan will:
and follow the adjudication within 30 days.26
• Identify the actions to be taken and the behavioral
improvements to be achieved by the parents;
Court Report
• Specify the services to be provided by CPS to
CPS must prepare a disposition court report and support the parents in eliminating or in alleviating
present it to the court, the counsel for all parties, and the identified problems;
any GAL or CASA at least 7 calendar days prior to
the hearing or by the time specified in any local court
• Set forth the time frame for completion of each
component of the case plan;
rules. The court report should:

• Outline the history of CPS involvement with the • Articulate objective, measurable criteria for
determining whether the necessary improvements
child and family including identification of the
have been achieved;
current placement as well as all prior placements;

• Specify the reasonable efforts made to avoid • Identify any special needs of the child and the
proposed strategies and services for addressing
placement and, if the child was placed, to achieve
those needs.
reunification;
If inadequacies in parenting must be addressed,
• Identify and evaluate placement options;
the case plan should identify the specific problem
• Update the status of any unresolved issues from behavior, spell out how the behavior must change,
the initial or adjudication hearings; and suggest some way of determining whether
the desired change has been accomplished. For
• Attach the case plan and any relevant evaluations, example, if a parent disciplines a 6-month-old
assessments, or reports (medical, psychological, infant for continuing to cry after being told to stop,
psychiatric, developmental, or educational) the desired change would be that the parent learns
related to the child or parents; about developmentally appropriate behavior and can
demonstrate reasonable expectations of behavior by a
• Make other appropriate recommendations for child of that age. The mere requirement that a parent
court action.
complete a parenting course would not be sufficient

Working with the Courts in Child Protection 31

 because course completion does not necessarily result • A group home or institutional care.28
in improved parenting skills.
As a part of its reasonable efforts inquiry, the court
Case plans should be tailored to the facts and needs to scrutinize carefully any CPS recommendation
circumstances of each case. A template for the case that the child be placed outside the home. The
plan is useful, but “boilerplate” statements of needs caseworker making that recommendation always
and services to meet those needs are not acceptable. should be prepared to discuss why the child cannot be
maintained safely in the home through the provision
In some States, TPR is a dispositional option, used only of in-home services, a restraining order prohibiting
in the most severe and unresolvable circumstances, contact by the abusive parent, close supervision, or
such as when adoption is clearly the long-term plan other means. If the recommendation is foster care,
for the child’s placement. More commonly, a plan to the caseworker also should be prepared to say why it
pursue TPR and adoption will involve separate court is preferable to placement with any available family
proceedings. member.
In some States, the court must approve the case plan. Both CPS and the court should take care to ensure
In all States, the plan must be discussed and refined that the placement is supportive of the CPS plan
at the disposition hearing, and any disagreements for reunification of the child with the family and
regarding its terms must be resolved. The case plan is is otherwise appropriate to the needs of the child.
the blueprint for permanency. Where feasible, sibling groups should be placed
together. Ideally, the child’s ethnic heritage, cultural
The Placement Decision identity, language, religion, or special diet, if any,
should be accommodated without causing any delay
Placement is the key issue at the disposition hearing. in the child’s placement. The placement should be
The child can be: in close geographic proximity to the child’s school,
family, and any siblings who may be placed elsewhere,
• Left with or returned to the parents, usually if possible.
under CPS supervision;

• Kept in an existing placement; REVIEW HEARINGS

• Moved to a new placement;
Review hearings are the next stage of a continuing
• Placed in substitute care for the first time if process that begins with the initial hearing and
removal was not ordered previously. continues through adjudication and disposition.
The review hearing is an opportunity to evaluate the
The option that the court chooses will depend on progress that has been made toward completing the
the circumstances of the case, principally the risk of case plan and any court orders and to revise the plan
harm to the child in the home and the possibilities as needed. If no progress has been made, and none
for reducing that risk to a safe level. The options for seems likely, it is a chance to change the goal of the
placement will depend on the needs of the child and plan completely. Review hearings should guide the
include: case to permanency for the child. Unless a permanent
placement is accomplished on or before the date of
• Either or both parents;
the permanency hearing, the court must continue to
• The extended family or kinship care; review the case periodically.

• Foster care;

32 The Juvenile Court Process

 Review Hearing Report

Timing of Review Hearings

CPS caseworkers must prepare a court report for Federal law, through Title IV-E of the Social Security
each review hearing that includes or is accompanied Act (42 U.S.C. 675(5)(B)), requires that States make
by a reasonable efforts affidavit detailing what has provision for cases to be reviewed at least every 6
been done to achieve the permanency plan. Like the months after the child is placed in substitute care.
disposition report, the report should be delivered to Many States’ laws also require court reviews, sometimes
the court, the counsel for all parties, and any GAL more frequently than Federal law dictates. The review
or CASA at least 7 calendar days prior to the hearing requirement of the Adoption Assistance and Child
or by the time specified in any local court rules. The Welfare Act (P.L. 96–272) also can be satisfied by
GAL or CASA also needs to prepare and distribute a internal CPS teams or citizen review boards.
court report in the same manner. The court report
should update the disposition hearing report and also The National Council of Juvenile and Family Court
should include: Judges encourages judges to schedule reviews more
frequently than the law requires.29 They may do so to
• Whether the case plan is on target; expedite resolution of the case, to address an unresolved
issue, to monitor parent or agency compliance with
• Whether the child’s physical, emotional, and a court directive, or to respond to a party’s motion.
mental health needs are being met; These extra reviews can be burdensome to the CPS
caseworker and other participants, but they also
• Whether progress has been made toward achieving
can aid in moving the case toward resolution more
the case plan’s objectives;
quickly. CPS caseworkers who establish a reputation
• What reasonable efforts were made to achieve for making diligent efforts to implement case plans,
reunification; for supporting the parents and child, and for pursuing
permanency expeditiously will earn the trust and
• Whether the child should be returned home and, confidence of the judge. For these caseworkers,
if not, why; additional reviews are less likely to be scheduled. For
more information on this topic, see Appendix D,
• What remains to be accomplished before Guidelines for Child Protective Services Caseworkers for
reunification can occur;
Permanency and Review Hearings.
• What timetable has been established for returning
the child home; THE PERMANENCY HEARING
• Whether and how the case plan should be
modified. Review hearings are intended primarily to monitor
compliance with the case plan, adjust the plan as
These inquiries are the essential issues to be addressed necessary, and ensure that the case is progressing
at the review hearing. The court also should consider toward resolution. The permanency hearing is
any lingering issues from previous hearings or orders; fundamentally different as it is the point at which a
modify child support, visitation, and other matters as definitive decision is made about the child’s permanent
needed; and set the date for the next hearing, if one placement. ASFA requires that the permanency
is necessary. hearing occur no later than 12 months from the date
the child is considered to have entered foster care.30

Working with the Courts in Child Protection 33

 The Placement Decision
in the same manner and to the same people as the
disposition and review hearing reports. The report
The options for permanent placement include: should be accompanied by a reasonable efforts report
in affidavit form to aid the court in its reasonable
• Returning the child home; efforts determination.

• Returning the child home by a specific date (no

more than 3 months later), provided the court Timing of Permanency Hearings
finds from the evidence that the parents are
making significant progress toward completing In some cases, the permanency hearing is the last
the case plan; stage of child maltreatment litigation. It determines
whether the final plan will be to reunite the child
• Terminating parental rights, if necessary, and and parent or to pursue an alternative, permanent
permitting adoption by a relative, foster parent, home. It is a more formal hearing than reviews. If it
or other nonrelative; is contested, witnesses may be called to testify and to
be cross-examined. Some cases, however, may never
• Granting legal guardianship; have a permanency hearing because the children are
• Permanently placing the child with a relative, reunited with their families after brief stays in foster
foster parent, or other nonrelative; care, while other cases proceed directly to the TPR
hearing.
• Providing another specified permanent living
arrangement if the court documents and finds The permanency hearing usually is held after 1
that there is a compelling reason why it would year. However, if it becomes readily apparent earlier
not be in the best interests of the child to proceed that a reunification plan will not be successful, the
with one of the other options.31 permanency hearing should be scheduled as soon as
possible.
In making the determination about the permanent
placement of the child, the court must weigh which As presented in Exhibit 4-2, ASFA specifies
option is in the child’s best interest.32 In some circumstances under which reunification should not
cases, concurrent planning may be pursued. Under be the goal and in which reasonable efforts to reunify
concurrent planning, an alternative, permanent are, therefore, not necessary. ASFA also allows States
placement is developed at the same time as family to specify additional aggravated circumstances.34 The
reunification is attempted. With this approach, agency’s lawyers should ensure that CPS caseworkers
the child can be moved quickly to a stable home if are aware of what those are in their respective States.
reunification with the birth family cannot take place. Whenever the court finds aggravated circumstances,
ASFA requires that a permanency hearing be held
within 30 days.
Permanency Hearing Reports

To prevent miscommunication between the agencies TERMINATION OF PARENTAL RIGHTS

and the courts, CPS caseworkers should submit a
detailed report to the court discussing the preferred The 14th Amendment to the U.S. Constitution
permanent placement option, the reasons for that protects the fundamental liberty interest of natural
preference, and each of the potential alternatives. parents in the care, custody, and management of
This report should be distributed at least 7 calendar their children. This protection does not disappear
days in advance of the permanency hearing and simply because they have not been model parents or

34 The Juvenile Court Process

 Exhibit 4-2
Circumstances Under Which Reunification Is Not Attempted
ASFA provides that under some circumstances reunification should not be the goal:

• A parent has aided, attempted, conspired, solicited, or committed the murder or voluntary manslaughter
of another of his or her children;

• A parent has committed a felony assault resulting in serious bodily injury to the child or another of the
parent’s children;

• A final decision is being made regarding an involuntary TPR to a sibling;

• Other circumstances under which efforts to preserve or to reunify the family are inconsistent with the
child’s permanency plan, which holds the child’s health and safety as paramount.33

have lost custody of a child temporarily.35 Because Most TPR proceedings arising from child abuse and
the stakes are so high, TPR hearings are the most neglect are initiated by CPS, but in some States, the
formal, longest, and frequently appealed of all child GAL also can petition on the child’s behalf for TPR.
maltreatment proceedings. TPR hearings also may ASFA requires that if anyone other than CPS files for
be called “permanent commitment,” “severance,” TPR, CPS must join in the action.36
or “guardianship with the power to consent to
adoption.” Ending the Legal Rights and

Responsibilities of Parents

Grounds for Termination of Parental Rights

Biological parents whose parental rights are terminated
The grounds for TPR are specified in the statutes as a result of child maltreatment have no right to
of each State, and CPS caseworkers are advised to have contact with the child, knowledge of the child’s
familiarize themselves with these. ASFA requires that whereabouts, pictures, or information regarding the
filing for TPR must be instituted when: child. In addition to losing legal rights to the child,
parents whose rights have been terminated generally
• A child of any age has been in foster care for 15 have no further responsibilities to the child, except
of the most recent 22 months, unless exceptions to pay child support that is past due. Because of the
apply; seriousness and finality of the consequences, TPR has
been called the “death penalty” of family law.
• The child is an abandoned infant;
There are exceptions. Children who are old enough
• The parent has committed, aided, or attempted
to remember and to know how to contact their
the murder or voluntary manslaughter of a sibling
parents may choose to do so. Some children are never
of the child;
adopted and remain in foster care; others are returned
• The parent has committed a felony assault to foster care because of a disrupted adoption or
resulting in serious bodily injury to the child or a because they were abused or neglected by an adoptive
sibling of the child. or other surrogate parent. In these situations, the
original parents may be the best placement option
if their circumstances have improved to the point

Working with the Courts in Child Protection 35

 that they pose less risk of harm to the children and dispositional alternative, service is a less complicated
if the children are older and better able to protect process, provided that each parent was served with
themselves. the petition in the underlying child maltreatment
action. It may be sufficient to mail the notice to
Termination of Parental Rights

the respondent’s last known address. Notice of the
Petitions and Service

proceeding and its time and location still should be
served, but the process is less formal and technical.
Drafted by the CPS attorney, TPR petitions will
allege facts that, if proven, would satisfy the grounds Termination of Parental Rights Trials
for termination in State law. In many States, TPR is a
separate action from the child maltreatment case and TPR cases rely heavily on what happened in the
sometimes must be filed in a different court. When underlying child abuse and neglect cases. In some
it is a separate action, the complaint or petition and States, some of the findings of the court in child abuse
summons should be served on each of the parents. or neglect cases may be admissible as evidence to prove
aspects of the termination case.38 Most importantly,
Every effort should be made to locate both parents a trial will focus on what the parents did or did not
and to serve them personally. The burden of locating do since CPS became involved and on what CPS did
parents likely will fall on the CPS caseworker, which to support the parents’ efforts to regain custody of
can be a difficult and time-consuming process, the child. There are appellate laws in almost every
particularly if one or both parents has disappeared State related to TPR cases, and reversals and remands
while the child maltreatment proceeding was pending for retrial frequently are based on perceived CPS
or if one of the parents was never located and served shortcomings. Caseworkers who anticipate testifying
at the start of that case. in TPR trials need to be thoroughly familiar with the
history of the case, including the details of everything
Each State has a process for providing notice to the
CPS offered to do or did for the parents and how the
parents, or “constructive service,” if a parent cannot
parents responded.
be located after diligent efforts. Constructive service
can be posting a notice in a legal newspaper or in TPR cases take longer than other child maltreatment
the courthouse. Although it almost never results proceedings, but predicting how long is largely
in actual notice, it takes time and may involve guesswork. Scheduling and concluding them,
some expense. One option is to access the Federal therefore, is a chronic problem in most courts.
Parent Locator Service (FPLS) of the local Federal Frequently, they are tried piecemeal for a few hours or
Child Support Office.37 (For more information on half days at a time. Each rescheduling of successive
FPLS, see Chapter 6, Domestic Relations Cases and sessions of the trial requires finding a date and time
Other Court Proceedings.) Other sources that may that is satisfactory for all essential participants. Such
yield results are State Department of Motor Vehicles an approach often delays conclusion of the case and
records, State and local prison system records, phone permanency for the child for months. Some courts
directories, and various online search engines. have addressed this problem by establishing “long
Agencies are encouraged to develop a routine practice cause” calendars for cases that do not fit into the
for completing this process, including using form normal, relatively short scheduling blocks of the
affidavits to document their efforts. juvenile court. Others courts may set aside large
blocks of time on future calendars in anticipation of
Failure to make legally sufficient service can become
having protracted TPR trials. CPS can urge courts to
grounds for dismissal of the termination petition or
adopt these or other scheduling practices that permit
for reversal on appeal and consequently can disrupt
the child’s placement. In States where TPR is a

36 The Juvenile Court Process

termination cases to be tried from beginning to end termination, it will proceed to the second issue—
on consecutive days. whether termination is in the best interest of the
child. CPS can enhance the prospects for a favorable
Mediation decision by preparing a report weighing the pros and
cons of termination from the child’s point of view and
by being prepared to testify regarding the best interest
Mediation also can be an effective alternative to
issue. The prospect of a safe, stable, and permanent
formal termination proceedings. In courts where it is
home is a strong selling point when contrasted with
an option, it often results in voluntary relinquishment
the likelihood that the child cannot return home
of the child by the parents. Rather than focusing on
safely within any reasonable period of time.
parents’ failures or inadequacies, mediation focuses
on the child’s needs and how they can best be met, Some courts insist on a showing of adoptability
and it offers parents an opportunity to make a self- before termination will be ordered, although the
sacrificing choice to give their child a safe and stable basic goal and premise of ASFA is that all children
future. Most often, it is successful in States that allow are adoptable. It obviously is more difficult to find
“open adoptions” or “adoptions with contact” or that adoptive homes for some children than for others, but
otherwise permit parents to receive information about if children are not “cleared for adoption,” meaning
their child, including letters and photographs, or that their parents’ rights have not been terminated,
even limited personal contact. Such agreements may adoption agencies may not actively pursue adoptive
not be enforceable depending on State law, but even placements. If agencies cannot place them, they will
where they are not, parents may choose to trust the not be adopted.
good will of prospective adoptive parents, particularly
if their identities are known, and commit to honoring
a continuing contact agreement. ADOPTIONS

Burden of Proof and Best Interest Issues Children placed for adoption by CPS are entitled to
a timely placement with an adoptive family. When
TPR usually involves two issues. First, CPS must prove parents’ rights have been terminated, their child’s
by “clear and convincing evidence” that one or more involvement with juvenile court does not end at the
of the grounds for termination exist.39 Note that this TPR hearing. CPS caseworkers should continue
is a higher burden of proof than is required in many to participate in post-hearing activities to ensure
States to prove child abuse and neglect. The “clear that CPS is complying with ASFA requirements,
and convincing evidence” is also a higher burden of incorporating Federal adoption legislation into
proof for TPR than what existed prior to the Santosky practice, and accessing a variety of adoption subsidies
v. Kramer decision upholding due process under the and post-adoption services for eligible children.
14th Amendment. In this case, the Supreme Court
found that a “fair preponderance of evidence” is Post-termination Reviews
not sufficient to terminate parental rights, and that
“before a State may sever completely and irrevocably Many post-termination reviews, or post-permanency
the rights of parents in their natural child, due process hearings, will focus on whether CPS has made
requires that the State support its allegations by at reasonable efforts to recruit an adoptive placement.
least clear and convincing evidence.”40 The reasonable efforts inquiry might question whether
If the court finds that CPS has met the burden the agency has an effective recruitment program for
of proof with respect to at least one ground for adoptive parents and whether its adoption program
is adequately and expertly staffed, knowledgeable

Working with the Courts in Child Protection 37

 about subsidies and interstate placements, and able to administrator who can be an invaluable source of
provide appropriate post-adoption services. In cases assistance to caseworkers in ensuring post-adoption
involving special needs children, CPS may be asked services for children placed across State lines.
whether it is utilizing the specialized agencies that
serve these populations. Caseworkers will want to be ICAMA is important since ASFA requires State child
prepared to respond to such inquiries. welfare plans to:

• Specify that the State will not deny or delay

The Multi-Ethnic Placement Act the placement of a child for adoption when
an approved family is available outside of the
Another issue that may arise at hearings to review court jurisdiction that has the responsibility for
efforts to place children available for adoption is handling the case of the child;
whether the agency is complying with the Multi-
Ethnic Placement Act (MEPA) of 1994, as amended • Contain assurances that the State will develop
by the Inter-Ethnic Adoption Provisions of 1996, plans for the effective use of cross-jurisdictional
laws that prohibit discrimination in foster care and resources to facilitate timely adoptive or
adoption. These acts provide that States may not permanent placements for waiting children.42
“...deny to any person the opportunity to become Interstate placements also need to comply with the
an adoptive or foster parent on the basis of the race, Interstate Compact on the Placement of Children.
color, or national origin of the person or of the child (See Chapter 3, The Interplay Between Child
involved; or...delay or deny the placement of a child Maltreatment Legislation and Caseworker Practice,
for adoption or into foster care on the basis of the for more information.) Again, the caseworker needs
race, color or national origin of the adoptive or foster to provide full documentation for court records
parent or the child involved.…” 41 that ICAMA was adhered to before the adoption or
MEPA primarily addresses considerations in finding placement is legalized; otherwise, the home State may
out-of-home placements. During court proceedings not pay for this assistance.
regarding placements, the judge may ask about
compliance with this and other pertinent laws, Adoption Assistance Subsidies
particularly if there is an aggrieved party contesting the
placement. Therefore, caseworkers must be prepared Parents adopting children who are “IV-E eligible” are
to document compliance so it can be submitted in the entitled to receive a subsidy. According to amendments
court documents. MEPA also requires that special to the Social Security Act, a child is IV-E eligible if the
efforts be made to recruit minority foster and adoptive family from which the child was removed was eligible
homes. for Aid to Families with Dependent Children, as the
program existed on July 16, 1996, and the child is
The Interstate Compact on Adoption classified as having “special needs.” (See below for
and Medical Assistance more information about special needs. A child
classified as having special needs also is IV-E eligible if
The Interstate Compact on Adoption and Medical receiving Supplemental Security Income (42 U.S.C.
Assistance (ICAMA) addresses medical and other 673(2)).43
post-adoption services, as well as payment for those Special needs are defined differently by each State and
services, for the ongoing needs of children who are may include:
adopted across State lines. Not all States are signatories
to ICAMA. Those that are have a designated ICAMA • A sibling group of two or more;

38 The Juvenile Court Process

• An ethnic background that is non-Caucasian; been provided to the adoptive parents or special needs
children. Therefore, caseworkers should document
• Any child age 6 or older; all efforts to help adoptive parents secure appropriate
financial assistance and insurance.
• A documented physical, mental, or developmental
disability or disorder, or an emotional disturbance
or behavior problem; Post-adoption Services

• An identified or reasonably identifiable risk Adequate financial and health care support of children
of developing a physical or developmental is critical to the ultimate success of an adoption. The
disability, mental disability or disorder, emotional same is true of post-adoption services, which may
disturbance, or behavioral problem that is related include providing information and referrals, parent
to the child’s history of abuse or neglect, genetic training, education and support groups, individual
factors, or other environmental traumas; and family counseling, respite care, and home-
• Psychological attachment to the foster caregiver based or residential treatment services. The details
due to placement of at least 1 year, such that of the financial support and other services adoptive
placement with another family would not be in parents will receive or have available to them must be
the child’s best interests. put in writing, along with information about what
they can do if their circumstances change or other
Caseworkers will need to know and be able to apply the unanticipated issues arise. The court will require
definition of special needs to children in their States. documentation to ascertain that, in addition to
States have discretion to determine the amount of the receiving adoption assistance, provisions have been
subsidy, but it cannot be greater than the amount that made for post-adoption services, as well as a follow-
a family would have received if the child was in foster up schedule to ensure that the adoptive parents
care. They can pay more if the additional amount have received such services. This documentation is
can be supported through State or local funding. The particularly important in cases where the adoption
State can make subsidy payments to a family until is disrupted. CPS caseworkers also will want to be
the adopted child is 18, but can extend assistance to prepared to respond to any inquiry from the court
age 21 for children who are disabled physically or as to whether the subsidy and other post-adoption
mentally. All special needs children who are IV-E supports are sufficient to ensure reasonably that the
eligible, and most who are not, also are eligible for adoption will be a permanent placement.
Medicaid. States are required to provide the same
subsidies for special needs children who are not IV-E
eligible as they provide for those who are, except that
APPEALS
for children who are not IV-E eligible:
Parents and CPS have the right to appeal some
• Eligibility can be limited based on family decisions of the juvenile court in child abuse and
income; neglect and TPR cases. At the very least, the right to
• All funding must be from State or local sources. appeal attaches at the conclusion of any adjudication,
disposition, or TPR trial. Some States may allow
Caseworkers need to be able to inform prospective appeal from other trial court orders or decisions, but
adoptive parents of the financial assistance and generally, only final decisions are appealed or accepted
medical insurance to which the child will be entitled. for appellate review.
Additionally, the courts often will ask if the caseworkers
are aware of all available assistance and whether it has Appellate courts decide cases based on the written
record, or a videotape in some locations, from the

Working with the Courts in Child Protection 39

 trial court. They examine the record and determine The appellate process often is extremely slow. Orders,
whether: transcripts, and appellate briefs need to be prepared,
filed, and selected for submission to the appellate
• The trial judge abused his or her discretion in court. Appellate judges should confer, make a
finding the facts; tentative decision, and identify one member to write
the opinion. Negotiations over the decision can take
• The facts support the judge’s conclusions of the considerable time in cases where there are significant
law;
differences of opinion. It is not uncommon for this
• The judge correctly applied the law to the facts. process to take more than a year from the time of
the trial court’s decision until an appellate opinion is
Although the child is the subject of the litigation, published. Meanwhile, the child, parents, and foster
the child is not a “party” and, depending on the laws or adoptive parents are in limbo. Some State appellate
of that State, may not have an independent right to courts have attempted to correct this problem by
appeal. In States that have intermediate appellate prioritizing the completion of cases.44
courts, appeals most likely will be addressed to these
courts. In other States, the appeal will be made
directly to the State Supreme Court.

40 The Juvenile Court Process

 CHAPTER 5

The Criminal Court

Process

C onduct that rises to the level of child abuse

or neglect may constitute a crime, depending
on State law and the circumstances of the case; not
• Plea bargaining;
• Trial.
all criminal acts, however, are prosecuted. Some
prosecutors are less zealous than others, or they may ARREST, BAIL, AND OTHER

believe that all but the most serious of intra-family CONDITIONS OF RELEASE

offenses are best addressed in the juvenile court.

Other reasons to forgo prosecution are that it may
interfere with rehabilitating families or be traumatic Criminal prosecutions most commonly begin with
for the children, particularly if they have to testify. an arrest. Defendants then are brought before a
Cases typically prosecuted include sex offenses or judicial officer (a judge, magistrate, or commissioner)
those that result in the death of, or serious injury to, who informs them of the charges against them and
a child. determines the conditions of their release pending
trial.
Child protective services (CPS) caseworkers may
have information about the family that is critical to The defendant will be notified of the conditions
the criminal court proceeding. Caseworkers always that must be met to be released from police custody
should determine whether either parent or any before the trial. Defendants with stable residence and
potential caretaker in a child abuse and neglect case has employment histories and no significant prior records
a criminal record or pending criminal charges. This often are released on their own recognizance or with a
information can inform a caseworker’s assessment of written promise to appear at subsequent court dates.
potential risk to the child and enhance case planning For defendants who seem less reliable, a cash bond may
and service coordination activities. be required. Defendants can post the full amount of
the bond in cash or property or secure a bondsman for
While the criminal court process may vary across a percentage of that amount. If the defendant flees,
jurisdictions, key stages include: the bondsman is obligated to pay the full amount of
the bond. The judge also has the discretion to impose
• Arrest, bail, and other conditions of release; other conditions of release, including the defendant
• Preliminary hearings; having no contact with the child or other parent or
not returning to the residence.
• Discovery;

Working with the Courts in Child Protection 41

 CPS caseworkers can assist with protecting the child
and the non-offending parent by reporting to the DISCOVERY
prosecutor any violation of a “no contact” or “stay
away” condition. In such cases, the caseworker can Discovery refers to the process of obtaining
encourage the prosecutor to ask the criminal court information about the charge from the opposing party
judge to revoke the defendant’s bond and return him and, at times, other sources. It is less accessible and less
to jail. extensively used in criminal cases than in civil actions,
including child abuse and neglect proceedings, due
to more stringent legal requirements. Defendants in
PRELIMINARY HEARINGS
some States, however, may be entitled to access CPS
records, particularly if they contain information or
The purpose of a preliminary hearing is to determine evidence that may be helpful to their defense. The
whether there is probable cause to believe that the identity of reporters of child maltreatment, however,
defendant committed the alleged offense and that still may be withheld.
he should be tried on that charge. If the judge finds
no probable cause, the case will be dismissed. If the
judge finds probable cause, the case will be transferred PLEA BARGAINING
to the trial court for resolution.
Plea bargaining is to the criminal process what
Witnesses sometimes are called to testify and are
settlements are to the juvenile court process. These
cross-examined at preliminary hearings. The CPS
negotiated resolutions conclude the majority of both
caseworker or the child may be among them. As a
types of cases. Without them, courts could not reach
general rule, CPS caseworkers should discourage
all the cases to be tried on a timely basis.
having the child testify, except possibly in cases
where there is no other way to establish probable Plea bargaining, which results in avoiding trial, has
cause. Because they may be asked to recount painful the added benefit in child abuse and neglect cases of
memories in a public and contentious environment, eliminating the need for the child to testify and of
children may find testifying in court to be traumatic speeding the resolution of the case, both of which
and uncomfortable. (See Chapter 7, Going to Court, relieve the child’s anxiety. Nevertheless, there also
for more information on children’s testimony.) may be negative consequences to a plea bargain.
Depending on the sentence, the child victim may
In some States, evidence of criminal conduct by
feel betrayed, disbelieved, or unsafe. In addition, the
the defendant is presented at a preliminary hearing
public may perceive that child maltreatment is not
to a grand jury instead of a judge. The grand jury
taken as seriously as other crimes.
then determines whether the evidence is sufficient to
constitute probable cause. If so, the grand jury will
issue an indictment that also puts the case before the TRIAL
trial court. Only the prosecutor and State’s witnesses,
usually the investigating law enforcement officer,
appear before the grand jury. It is unlikely that either If no plea bargain is reached, the case goes to trial. In
the CPS caseworker or a child would be asked to criminal trials, the rules of evidence are applied strictly,
testify. Neither the defendant nor the defense attorney and the prosecutor has a greater burden of proof. In
has the right to be present at that proceeding. order to convict, the jurors must unanimously find
“beyond a reasonable doubt” that the defendant
committed the alleged offense. This is a much higher
burden of proof than the “clear and convincing

42 The Criminal Court Process

evidence” standard in termination of parental rights he is an important figure in the child’s life, has been
trials in some States’ child abuse and neglect actions. participating successfully in a batterers’ intervention
It is higher still than the “preponderance or greater program, is the principal breadwinner for the family,
weight of the evidence” standard in civil cases generally and the plan is reunification of all family members,
and in child abuse and neglect cases in some States. then a lengthy sentence would be contrary to the
case plan. A suspended sentence and probation,
CPS caseworkers should know if any criminal charges with conditions consistent with the case plan, could
were filed stemming from the facts and circumstances enhance prospects for the plan’s success. This scenario
related to their child abuse and neglect cases. The would not impose a fine or other financial burdens
caseworker will want to establish and to maintain that would interfere with the defendant’s ability to
contact with the prosecutor responsible for those support the family.
charges to know when events in the case are scheduled,
whether the child may be called as a witness, or the terms Frequently, a parent or other caretaker in a child
of any plea offer. The prosecutor needs to be informed abuse and neglect case will be on probation for some
of the status of the child abuse and neglect case, the unrelated criminal offense (e.g., a drug charge) and
case plan, and how the prosecution can benefit from be required as a condition of probation to complete
that plan. To ensure that provisions important to the a drug treatment program successfully. The threat
child and the case plan are considered, the caseworker of incarceration can be a powerful motivator for
should ask to participate in any bond hearing or plea overcoming a substance abuse habit or for changing
negotiations and in the sentencing process. However, other behaviors. The caseworker will want to establish
the criminal court judge may operate independently and to maintain contact with the probation officer to
of the juvenile court and may give little or no weight stay abreast of the defendant’s compliance with the
to what the caseworker requests. conditions of probation. This level of coordination of
the two processes is uncommon, but positive results
The criminal court case may be concluded well after can be realized when the CPS caseworker establishes
the disposition hearing in the child abuse and neglect a good working relationship with the probation
case, and its outcome can be inconsistent with the officer.
case plan and the best resolution of the child abuse
and neglect case. The opposite also can be true, and Communicating with the prosecutor and the probation
the criminal sentence can augment and enhance the officer in criminal cases involving the parents or other
case plan and the prospects for a positive outcome. caretakers of children who have been maltreated is
In communities where the same prosecutor represents an important role for CPS caseworkers and other
the public interest in both criminal and child abuse involved service providers. Sharing information and
and neglect cases, there is greater likelihood of a coordinating agency efforts with what happens in
coordinated approach to resolving both matters. In criminal court to achieve a safe, permanent home for
communities where different offices are responsible children can produce beneficial results in a CPS case.
for the two types of cases, the CPS caseworker should
do as much as possible to ensure that the outcome
in criminal court complements and supports the case
plan in the juvenile case.

The desired court outcomes might vary from case

to case. For example, in a case where the mother’s
boyfriend has been abusive to her and the child, the
caseworker may advocate that he be incarcerated for
the maximum period possible. On the other hand, if

Working with the Courts in Child Protection 43

 CHAPTER 6

Domestic Relations
Cases and Other Court
Proceedings

F amilies involved with child protective services

(CPS) often face multiple problems and complex
challenges, some of which require court involvement.
and, when the couple has minor children, custody,
visitation, and child support. Actions between
unmarried parents often are referred to as paternity
Matters involving child maltreatment or juvenile cases and involve the issues of paternity, custody, and
delinquency typically are resolved in juvenile court. child support.
Other issues affecting families frequently are addressed
in other court venues. CPS caseworkers who work CPS Involvement in Custody Cases
with families struggling with divorce, domestic
violence, and mental health problems may find these
families involved in other court processes. As well Domestic relations, paternity, and domestic violence
as understanding the juvenile court process, CPS cases are civil actions, and unlike child abuse and
caseworkers also should be familiar with other court neglect cases, they take place between private
hearings that affect families and case practice. individuals. CPS may become involved, however,
if allegations of child abuse or neglect are made
This chapter provides an overview of three types of against a parent or someone living in the parent’s
court hearings that may involve CPS families— home. In these circumstances, CPS has the challenge
custody and divorce, domestic violence, and mental of determining whether to substantiate a complaint
health hearings. The chapter also discusses suits made in the context of what often is an acrimonious
against CPS caseworkers and agencies and Federal battle between parents over their child. There is a
class actions against agencies. temptation, therefore, to discount these complaints.
CPS must be careful, however, to conduct a thorough
investigation that considers the context and objectively
CUSTODY AND DIVORCE HEARINGS evaluates other facts. Retaining a neutral, well-
trained, experienced, and widely respected custody
Allegations of child abuse or neglect may arise in evaluator may be useful.45
custody and divorce cases, which result from the
If abuse or neglect is substantiated, deciding whether
separation of married partners or the estrangement of
to try the case in the domestic relations or the juvenile
unmarried parents. These also are known in some
court can be an issue. CPS should not file a petition
places as matrimonial or domestic relations cases.
alleging child abuse or neglect if the nonabusive
Actions between spouses may include claims for parent is committed to protecting the child and if the
the division of marital property, spousal support court adopts an access and visitation plan that will

Working with the Courts in Child Protection 45

 keep the child safe. However, if CPS doubts that the court could order either more restricted visitation or
parent or the court will protect the child from harm, no visitation.
it may choose to file a petition in juvenile court. In
most States, the jurisdiction of the juvenile court to Family Courts
determine whether a child is abused or neglected will
take precedence over a custody determination by the
The complex relationships among different courts and
domestic relations court. Custody and visitation
potentially conflicting decisions can cause confusion
issues can be relegated to domestic relations or juvenile
among practitioners and family members. These
court upon showing that circumstances have changed
issues are some of the driving force behind the rising
substantially in ways that affect the child.
popularity and implementation of family courts. (See
Motions to change custody or visitation frequently Chapter 2, The Court System and Child Protection, for
include allegations of child abuse as a basis for the a description of family courts.) In a model family
motion. CPS needs to address these allegations as court, the same judge would hear the domestic
if they were new cases. For example, when a father relations, the domestic violence, and the child abuse
is charged with a sex offense against his child and and neglect cases. Family courts can offer multiple
there is a pending custody proceeding, the domestic benefits:
relations court, the criminal court, or both usually
• Minimizing the potential for conflicting orders
will order either no visitation or supervised visitation.
and outcomes;
If the father is acquitted or the charge is dismissed in
criminal court, he may come to the domestic relations • Improving coordination among the court
court requesting unsupervised visitation on that basis. interventions;
The court’s decision about custody and visitation,
however, is independent of the criminal process. The • Reducing the number of court appearances;
domestic relations court judge must hear evidence
and decide whether the child was sexually abused by • Enhancing the judge’s familiarity with the issues
the father and, if so, what to do about visitation. and the parties;

Caseworkers should keep in mind that the burden of • Bringing about a more successful end result.
proof in criminal cases is “beyond a reasonable doubt,” While most courts are not organized, equipped, or
a much higher standard than the “preponderance of legally able to achieve the “one family-one judge
or greater weight of the evidence” standard in custody model,” many are moving as far as possible in that
cases. Criminal charges are dismissed for a variety of direction. For example, some courts are making
reasons including the age of the child, the trauma to beneficial services, such as those listed below, more
the child testifying, or insufficient credible evidence readily available and are committed to resolving
to prove the charge. A dismissal or an acquittal on family conflicts with minimal negative impact on the
those charges is not necessarily a determination that children.
the defendant was innocent of the charge.

In this scenario, if the domestic relations court allows Case Management and Services
visitation that, in the judgment of CPS, will result
in abuse of the child, CPS can file a child abuse and Domestic relations courts can provide essential case
neglect petition in juvenile court, which also would management and services to families appearing before
hear the evidence and make an independent decision them. While not the case in every State, well-resourced
as to whether the father had sexually abused the domestic relations courts use case managers to:
child. If it is determined that he did, the juvenile

46 Domestic Relations Cases and Other Court Proceedings

• Ensure that discovery, motions, requests for during parental visits. In some programs, the
temporary relief (e.g., spousal or child support), supervisor will coach a parent on how to engage
or other pretrial issues are addressed and resolved the child or on how to interact more appropriately
on schedule; with the child or with the other parent. They
often will involve the use of intermediaries to
• Monitor the completion of mandatory actions, transfer the child between the parents.
such as parent education or mediation;
• Parenting coordination—a relatively new
• Keep the case on track for a timely, final service, typically used in high-conflict cases, that
resolution; employs a mental health professional to support
and to assist parents in implementing a parenting
• Identify and facilitate the delivery of services to
agreement or court order. A parenting coordinator
children and parties (whether they are available
can help parents settle their differences and can
through the court or elsewhere).
enable them to avoid the time, emotional trauma,
The following are services offered by some domestic and expense of returning repeatedly to court.46
relations courts:
The above services also may be beneficial in some
• Mediation—a process focusing on how parents child abuse and neglect cases. CPS caseworkers will
will share responsibility for their children in want to know how to access them, particularly when
the future. Facilitated by a trained mediator, parents or family members are vying for custody or
mediation can be effective in resolving custody visitation of a child in a maltreatment case.
disputes without a trial.
Child Support
• Custody evaluations—evaluative services for
parents and children that can be useful to the court
in making custody and visitation determinations. Many children in child abuse and neglect proceedings
These services sometimes are publicly funded and have unmet economic needs. Most live with one
other times available only from private providers or neither of their biological parents, and of those,
at the expense of the litigants. many do not receive any child support. CPS should,
therefore, place a priority on locating biological
• Guardians ad Litem (GAL)—lawyers appointed parents, establishing paternity (if necessary), and
by some courts for the children in custody and pursuing child support and medical insurance from an
visitation cases, particularly if there are allegations absent parent. In fact, reasonable efforts requirements
of maltreatment or domestic violence, or if the mandate that CPS do so.
conflict between the parents is unusually high.
These GALs typically are not associated with the Establishment of paternity and establishment and
GAL or CASA Program in the juvenile court. enforcement of child support and medical insurance
obligations for foster children are by law the
• Parent education programs—courses for responsibility of Child Support Enforcement (CSE).47
separating parents that can help them understand Every community has access to a CSE office, and in
how their children may be affected by the many places, they are co-located with, and operated
separation and what they can do to minimize by, the same agency as CPS. Caseworkers who are
adverse effects. attempting to keep a family together need to help the
family access CSE services.
• Supervised visitation and exchange services—
programs that offer safe, comfortable settings and Some courts establish paternity during child abuse
trained professionals to protect a child’s safety and neglect proceedings, often at the initial hearing

Working with the Courts in Child Protection 47

 Federal Parent Locator Service
The Federal Parent Locator Service (FPLS) is an automated information system maintained by the Federal
Office of Child Support Enforcement (OCSE). FPLS is a vast database that includes Social Security
numbers, names of employers, and information on income and personal assets. It is used by CSE to locate
persons who may be the father of a child or a parent who has a child support obligation. The Adoption
and Safe Families Act (P.L. 105–89) requires that the resources of FPLS also be available to CPS for
locating parents in its cases.48 FPLS is an invaluable resource for caseworkers who need to find and serve a
putative father or absent parent.

Some courts have developed working agreements or protocols with CSE and CPS to facilitate the
establishment of paternity, as well as the establishment and enforcement of support obligations, and to
speed access to FPLS. These strategies may include locating OCSE staff and computers near the juvenile
court to serve the parent and to help identify the paternity and child support needs of the children and
families in that court. Judges have to ensure that all has been done to locate the missing parent, not only
for the enforcement of child support, but also for placement options or for termination of parental rights.
Therefore, the courts may require documentation from the caseworker regarding utilization of this service.
For more information about FPLS, visit http://www.acf.hhs.gov/programs/cse/newhire.

or the adjudication, provided the putative father request that a reduction of the child support payments
is willing to consent to the entry of a judgment of be considered. For the same reason, consideration
paternity. When a putative father denies paternity must be given to suspending repayment of past public
or is not willing to acknowledge it formally, the assistance or arrearages.
case must be referred immediately to CSE. Genetic
testing will be done, and in almost all cases, the results
of that testing will be conclusive. CSE can initiate DOMESTIC VIOLENCE HEARINGS
paternity establishment for putative fathers living in
other States when requested to do so by CPS. While children should not be removed unnecessarily,
neither should they be left in environments that
Support payments made by the parents reduce CPS’s
jeopardize their safety. This has been a particularly
(or a relative’s) costs for providing for the child. The
problematic issue in cases where children are exposed
amount of child support owed by an absent parent
to domestic violence. As CPS caseworkers become
is determined in every State by the application of a
increasingly aware of the high co-occurrence of
child support guideline or formula. The guidelines
domestic violence and child maltreatment and
are based on the assumption that one parent pays
of the potential emotional impact of exposure to
support to the other. Additionally, parents whose
domestic violence on children, more communities
children were already receiving child support and
are filing child maltreatment petitions in such cases
have been placed in foster care often have difficulty
and requesting removal of the children.49 Research
regaining custody for financial reasons. They may
indicates that children exposed to domestic abuse are
need housing, furnishings, security and utility
more likely to experience physical abuse or neglect
deposits, or other services. The amount of their child
than children living in nonviolent homes.50 Studies
support payments should not preclude them from
estimate that there are adult and child victims in
having the funds necessary to achieve reunification.
30 to 60 percent of families experiencing domestic
In these circumstances, caseworkers may want to
violence, and for adult victims who experience severe

48 Domestic Relations Cases and Other Court Proceedings

forms of domestic abuse, their children are in danger having the child removed by CPS. It is important to
of suffering serious physical harm.51 respect the victim’s opinion of what would enhance
the children’s safety or would place them at greater
CPS caseworkers should recognize that “[c]hildhood risk. Protection orders can contribute to the safety of
exposure to adult domestic violence should not adult and child victims of domestic violence, but they
automatically be defined as maltreatment….” do not ensure safety. Those orders often are violated,
Instead, “[w]hat’s needed…are empirical and sometimes resulting in serious injury or even the
practice-based criteria for deciding whether or not a death of the parent or children. Domestic violence
child is at a heightened risk of harm” before placing victims’ advocates can provide CPS caseworkers
an undue burden on the victim by removing the with recommendations to engage adult victims in
child.52 Once established, these criteria must be the protection and safety of themselves and their
developed into effective screening and assessment children.
instruments for use in the field. In addition, there
is a dire need to develop greater expertise within
child protection agencies about domestic violence, to For more information on domestic violence and
collaborate with domestic violence programs, and to child maltreatment, see the User Manual Series
provide alternative forms of voluntary, community- publication Child Protection in Families Affected
based services for exposed children and their families, by Domestic Violence at http://www.childwelfare.
including specialized parenting and intervention gov/pubs/usermanuals/domesticviolence/.
programs for the perpetrator.53

The process for filing actions for protection against MENTAL HEALTH HEARINGS
domestic violence is designed to accommodate
persons who do not have an attorney. Complaint
Some children in foster care are committed
forms are available, no filing fee is required, and
involuntarily or are admitted voluntarily to mental
most jurisdictions afford relatively prompt access
health treatment facilities. The CPS caseworker
to a judicial officer at any hour of the day or night.
should work with a supervisor and a mental health
Litigants often request, and are able to obtain
professional in deciding whether to pursue such a
immediately, an ex parte order granting eviction of the
placement and likely will be the person to accompany
alleged abusers from the parties’ residence or other
and to admit the child to the facility. The caseworker
protective relief. Additionally, in best case scenarios,
also will need to attend the hearing and present CPS’s
the time from filing to final hearing and conclusion
position regarding the child’s need for continued
of the case can be brief, ranging from a few days to
treatment. It is unlikely that a CPS lawyer will be
a few weeks at most. For these reasons, claims for
present although there may be a prosecutor or a
protection against domestic violence usually are
lawyer for the facility. The caseworker will want to
filed as separate actions. Exhibit 6-1 provides more
communicate with facility staff to learn the child’s
information about protection orders.
diagnosis and recommendations for treatment and
CPS caseworkers with cases in which family violence immediately begin work with staff on a discharge
is a significant problem will want to consider the plan that will meet the child’s needs. Every effort
efficacy of a protection order. This may involve must be made to avoid extending confinement in the
encouraging the victim to take the actions necessary facility because of a lack of appropriate alternative
to obtain the order, or in some jurisdictions, CPS may placement.
request a protective order in the child maltreatment
Some State laws require court approval for the
case. A victim should not be compelled, however, to
voluntary admission of minors to mental health
choose between obtaining or abiding by an order and

Working with the Courts in Child Protection 49

 Exhibit 6-1
Domestic Violence Protective Orders
Claims for protection against domestic violence sometimes are brought in conjunction with a domestic
relations case, but more often they are filed separately. These are variously known as protective orders,
restraining orders, or orders of protection. These orders are available in every State and may require that
the abusive partner:

• Be evicted from the parties’ residence, not return there, or not go to where the victim works;
• Refrain from abusing the victim;
• Have no contact with the victim;
• Participate in substance abuse treatment or a batterers’ intervention program;
• Pay support.
The order also may include protection for the children and may award custody of the children and child
support. Not all of these remedies are available in every State, but statutes usually authorize the court to
impose any additional terms or conditions it deems necessary for the victim’s protection. In most States,
orders granting relief in domestic violence cases are limited in duration from 1 to 5 years.

Federal law also makes possession of a firearm illegal for anyone who is subject to an active protective
order that meets specified criteria. Some States and judges go further and order defendants against whom
a protective order is issued to surrender all weapons to a law enforcement agency and to not purchase
or possess any firearm as long as the order remains in effect. Possessing a firearm also is illegal for any
individual who has ever been convicted of certain domestic violence crimes.54

Domestic violence protection or restraining orders should be logged immediately into a State’s central
registry as well as the National Crime Information Center Protection Order File, which can be accessed by
any law enforcement officer. These orders are enforceable across State lines.55 Violation of the order is a
separate criminal offense in most States and will result in immediate arrest of defendants who are caught
violating it. If the defendants are not caught, but there is probable cause to believe they violated an order,
a warrant for their arrests can be issued. Alternatively, violations can subject the offenders to being found
in contempt of court and punished by fines or incarceration.

treatment facilities or for the involuntary commitment to being admitted, and, from their perspective, the
of minors or adults. Whether the law applies to a admission is involuntary. While caseworkers need
particular placement usually depends on whether it to respect the child’s feelings and concerns, they
is a locked facility, such as a psychiatric hospital or also need to explain the reason for admittance, such
residential treatment program. Voluntary admissions as the child being a danger to herself (e.g., suicidal
to mental health treatment facilities are made by a tendencies) or to others. Otherwise, the caseworker
parent, guardian, or CPS for a child. The court must should continue to find the least restrictive facility that
determine whether the child is mentally ill and in meets the child’s mental health needs. Additionally,
need of further treatment. Some States also require the court must decide whether the child is mentally
that a child not be placed in such facilities if better ill or poses a danger.
alternatives are available. Many children object

50 Domestic Relations Cases and Other Court Proceedings

Statutes governing voluntary admissions and out-of-home care through CPS negligence or willful
involuntary commitments are intended to protect the misconduct. An example is the physical or sexual
liberty interests of patients. They help ensure that the abuse of a child by a foster parent.
decision to deprive them of their freedom is reviewed
independently and objectively and that they will not The defendants in suits for damages are likely to be
be held against their will unless a court finds that the CPS caseworker, the caseworker’s supervisor, the
there is a legally sufficient basis for doing so. agency director, and the county or State. It is difficult
to generalize about the liability of caseworkers because
In some States, involuntary commitment and the law on liability is defined largely by appellate
voluntary admissions are the only vehicles for forcibly decisions and is State-specific. CPS caseworkers will
placing a child in a mental health treatment facility. want to know:
In others, juvenile court judges can order that children
be admitted to such facilities as the disposition for a • What the law regarding their liability is in the
delinquent or status offense. State where they work;

• Whether they have any immunity from liability

CONFIDENTIALITY OF COURT RECORDS and, if so, the extent of that immunity;

• Whether CPS insures them for liability and the

The Child Abuse Prevention and Treatment Act extent of that protection;
(CAPTA) of 1974 required that records of child abuse
complaints and investigations be confidential and that • Whether CPS or any insurance carrier will
court proceedings be closed to the public. CAPTA provide legal representation for a caseworker who
was reauthorized and amended by Congress, most is sued.
recently as part of the Keeping Children and Families Caseworkers should request this information from
Safe Act of 2003 (P.L. 108–36). This amendment their agency which is frequently named as co­
to CAPTA changed the confidentiality requirements respondent in a suit. The National Center for Field
so States now must share confidential information Consultation can provide guidance on coping with
with any Federal, State, or local government entity or child welfare litigation. Additional information on
agency with a legal responsibility to protect children. child welfare litigation is available at http://www.
In addition, States now can conduct court proceedings cwla.org/consultation/litigation.htm, by e-mailing
at which child abuse and neglect determinations are [email protected], or by calling (202) 942–0287.
being made more open without jeopardizing eligibility
for CAPTA funds.56
CLASS ACTIONS AGAINST AGENCIES
SUITS AGAINST CHILD PROTECTIVE SERVICES

CASEWORKERS AND AGENCIES

Under some circumstances, a group of individuals

who are similarly situated may bring a class action
against CPS for violations of Federal law or of the
If CPS negligently fails to investigate or to intervene U.S. Constitution. These actions usually address
to protect a child when there is reason to believe the inadequacies in agency services, staffing, or practices.
child is abused or neglected, and the child is harmed Although individual claims for monetary damages
as a result, the child may be able to sue for damages may accompany the claim for class relief, the remedy
through a GAL or a “next friend,” the legal term usually sought is a declaratory judgment or an
for an adult who files suit on the child’s behalf. A injunction. A declaratory judgment is a statement
suit also can be filed for maltreatment that occurs in by the court about what the law requires of CPS. An

Working with the Courts in Child Protection 51

 injunction is a directive or order requiring CPS to The type of court that hears the case determines who
take certain actions or forbidding it from engaging in is affected by the decision. State court appellate
specified actions. decisions have the force of law only in the States in
which they are issued. U.S. District Court decisions
A number of such lawsuits have been filed in recent apply only in the district in which they are issued,
years. Most have been settled by agreement of the and U.S. Court of Appeals (Circuit Courts) decisions
parties, known as a “consent decree.” The relief apply only in the States of that circuit. U.S. Supreme
generally has involved a commitment by CPS to Court decisions, however, have national reach.
improve practice and service delivery in specified ways. Appellate courts of all types often cite decisions from
In most cases, the court has appointed a receiver or, other State or Federal courts to support their own
more commonly, a review panel to monitor and to rulings in similar cases.
assist implementation of the consent decree.

Example of Class Action Lawsuit

One notable example of a class action lawsuit is Nicholson v. Williams in New York City. Unlike most
other class action suits, it went to trial, and the result was an injunction against the city’s Administration
for Children Services (ACS). The injunction prohibited ACS from removing “...a child from the custody
of the mother without a court order solely because the mother is a victim of domestic violence except in
cases where the child is in such imminent danger to life or health that he or she must be removed and there
is not reasonably sufficient time to obtain a court order.” The injunction also required that petitions not
be filed against a mother solely because she “engaged” in domestic violence in the presence of the children
or refused to accept services unless the petition alleges with specificity how the child has been harmed.
Due to the lawsuit, petitions are required to describe specifically any acts of domestic violence alleged
and any harm suffered by the child as a result of such acts. Additionally, ACS was required to develop
new materials and training regarding cases in which domestic violence is an issue, to employ domestic
violence specialists, and to conduct a safety conference within 72 hours of the removal of any child from a
mother who is a victim of domestic violence and has not otherwise abused or neglected the child.57

52 Domestic Relations Cases and Other Court Proceedings

 CHAPTER 7

Going to Court

M ost child protective services (CPS) caseworkers

are prepared to interview family members, to
conduct home visits, to document cases, and to work
• Direct evidence is based on personal knowledge,

such as the testimony of an eyewitness;

with other social service providers. However, there is • Demonstrative evidence includes items such as
one component of casework practice that leaves some documents, photographs, or x-rays;
caseworkers anxious and ill-equipped—preparing for
and conducting themselves in court. Simply knowing
• Circumstantial evidence is indirect evidence
from which an inference can be drawn, such as a
the different types of court hearings and mastering
child with an oddly shaped bruise on her back.
legal terminology do not demonstrate a caseworker’s
competence in juvenile court. Skillful courtroom For example, a CPS caseworker’s record might contain
presentation, well-documented court reports, and the following types of evidence:
a collaborative style also are necessary to maximize
constructive family, agency, and court outcomes. • The log kept by a teacher of the days the child
This chapter presents practical guidelines to help CPS came to school with noticeable bruises;
caseworkers prepare themselves for going to court, to
help them work with children who also may be called • Documentation that a neighbor heard the child’s
to testify, and to improve their working relationships screams;
with the judges.
• The record of the physician who examined the
child reporting that she had multiple bruises
THE RULES OF EVIDENCE of different ages and severity on her back and
buttocks;

The rules of evidence determine what information • Photographs of the bruises taken by police;
can be introduced in court and for what purposes.
They are intended to ensure that the court’s decisions • Documentation that the child told the CPS
are based on reliable information. caseworker that she lives alone with her mother
and that her mother hits her with a belt;
Types of Evidence • The belt.

Evidence takes different forms, specifically:

In court, the child’s testimony would be direct
evidence. The teacher’s log, the photographs, and the

Working with the Courts in Child Protection 53

 belt would be demonstrative evidence. Living alone that are particularly relevant to child abuse and neglect
with her mother, coupled with the screams and the cases include:
bruises, would be circumstantial evidence identifying
the mother as the abuser. • Admissions. The mother said to the CPS
caseworker, “I know I hit her too hard, but I will
All evidence must be both material and relevant to not do it again.” The caseworker would be allowed
be admitted. To be material, evidence must have to testify to what the mother said, even though it
a logical connection to an issue in the case. To be is an out-of-court statement offered for its truth,
relevant, evidence must increase the likelihood that a because it was also the admission of a party. Such
particular fact is true. an admission is thought to be reliable because it
was against the mother’s interest to make it.
The more caseworkers know about the rules of
evidence, the better they can prepare for a case. • Excited utterances. An out-of-court statement
The burden of proof for the particular stage of the that is made spontaneously under extreme
proceeding or type of case determines how much emotional excitement also may be admissible
evidence is enough. The judge or jury will decide as an exception to the hearsay rule. An excited
whether the credible evidence presented satisfies the utterance is viewed as trustworthy because the
burden of proof. (See Chapter 4, The Juvenile Court speaker’s excitement at the time it was made is
Process, for a discussion on adjudication and the thought to prevent him or her from reflecting long
burden of proof.) enough to fabricate the statement. The length
of time between the event and the statement is a
The Hearsay Rule and Exceptions critical factor in determining the admissibility of
such statements.
The hearsay rule excludes evidence that is unreliable. • Regularly kept records. Records are hearsay
Hearsay is defined as an out-of-court statement made because they contain second-hand information,
by someone other than the witness, which is offered for but their contents will be considered reliable and,
the truth of that statement. For example, the hearsay therefore, admissible when they are kept regularly,
rule would prevent a caseworker from testifying that a systematically, and routinely. The regularity of
neighbor told the caseworker that she saw the mother the record-keeping process by persons with a duty
hit the child with a belt. For that information to be to supply accurate data ensures trustworthiness.
admitted, the neighbor would have to testify in court. The foundation for the admission of records is
The rule, however, does not exclude out-of-court established by the testimony of the person who
statements that are not offered for the truth of what made the record or the custodian of the records.
was said. For example, a statement by the neighbor This exception may be applied to medical
that she heard the mother yell, “I’m going to kill you,” records, police reports, school records, and CPS
just before the child’s screams would be admitted not files. Caseworkers must be careful to record
for the truth of the statement but to show that the accurately the statements of others and their own
mother said it. The neighbor would not be testifying observations. The record must be as factual as
as to whether the mother actually attempted to kill or possible.
to abuse the child, only that she made the statement.
There are other exceptions to the hearsay rule, but
There are numerous exceptions to the hearsay rule they are used less commonly in child maltreatment
that admit evidence that otherwise would be hearsay. cases.
These exceptions are based on the existence of other
indications that the statements are reliable. Exceptions

54 Going to Court
 EXPERT TESTIMONY COURT REPORTS

Expert testimony is opinion testimony about a Court reports afford caseworkers some of the best
subject that is outside the judge or jury’s knowledge opportunities to communicate information to the
or experience. The witness needs to show that she court and to influence its decision. If CPS or the
is qualified to testify as an expert on a particular court has a standard format for such documents, the
subject. These qualifications may be based on caseworker will need to use that. Some formats may
experience; education and training; professional be ineffective vehicles, however, for quickly imparting
accomplishments, recognition, and memberships; critical information. Poorly organized reports frustrate
prior testimony as an expert; or familiarity with the judges and other participants and are less likely to be
relevant professional literature. After each party has influential. Caseworkers should consider adding a
the opportunity to question the witness, the judge cover page that summarizes key decisions to be made
will decide whether the witness may testify as an and the CPS position with respect to each of them,
expert and on what specific subject. Expert witnesses including references by title and page number to any
are common in child maltreatment cases. Examples attached documentation. References to documents
of expert witnesses include: in the court’s file should be noted by the title and date
of filing.
• Medical doctors who have expertise in the causes
of physical injuries or conditions, such as spiral Case plans and reasonable efforts reports also are
fractures, Shaken Baby Syndrome, failure to valuable for conveying information to the court. As
thrive, or Munchausen syndrome by proxy; with the court report, they should be comprehensive,
concise, and written as directly and clearly as possible.
• Mental health professionals who can diagnose If the document is an updated version of an earlier
mental illness or can explain issues of bonding one, the new material should be highlighted. The
and attachment; goal is to present the material in a manner that is
easily understood. In addition, it should be simple
• Domestic violence specialists who have the
to locate any supporting documentation. Judges will
expertise to explain the debilitating effects on
appreciate receiving reports that satisfy these criteria
a child of witnessing the physical abuse of a
and will be able to understand more clearly CPS
parent;
positions and the reasons for them.
• Specialists in child sexual abuse or substance
The content of the court report will depend on the
abuse.
type of hearing for which it is presented and the
To be admitted into evidence, the expert’s opinion status of the case. (See Chapter 4, The Juvenile Court
needs to be relevant, which means that it needs to Process, for further information on the issues to be
increase the likelihood that a particular fact is true addressed at various hearings over the course of a
or that a particular condition exists. The expert’s child maltreatment case.)
testimony also needs to have a sound scientific basis.
Application of these rules can be complicated. It is the
TESTIFYING
CPS attorney’s responsibility to identify the need for
expert testimony, to prepare the witness to testify, and
to demonstrate in court that the witness is qualified Speaking to the court and other participants in a case

and that the testimony is admissible.58 is another excellent opportunity to communicate

information that may affect the court’s decision.

Working with the Courts in Child Protection 55

 Relatively few child maltreatment cases are adjudicated • Talk with any previous caseworkers about their
by trial, but when one is tried, the caseworker involvement with the family.
invariably will be called to testify or to give answers
under oath. Caseworkers also may be called to give The caseworker also should prepare a description of
formal testimony at other stages of the court process, his professional experience and qualifications.
particularly the permanency hearing, and usually at
any trial related to the termination of parental rights. Guidelines for Testifying

More commonly, caseworkers will have the

During direct examination, the attorney calls the
opportunity to testify informally regarding case plans,
caseworker to be a witness and asks questions.
the child’s well-being, reasonable efforts, visitation,
Generally, the rules for direct examination require
parental performance, and needed services at each
open-ended questions (e.g., “What did you see?” or
hearing in the case. This testimony is not under oath
“What happened next?”). Leading questions that
and usually is delivered from the CPS counsel table
suggest the answer or questions calling for a “yes” or
rather than from the witness stand.
“no” answer usually are not permitted (e.g., “Didn’t
the mother tell you that she hit the child with a
Preparation for Testimony belt?”). When testifying, caseworkers should:

Before every hearing, the caseworker should review • Be confident and self-assured;
the case and be prepared to answer questions about it.
• Listen carefully to the question and answer it
The nature of the hearing will determine the types of
directly;
questions that may be asked. In order to prepare to
testify, the caseworker should: • Ask that a question be repeated if it is difficult
to hear or understand, but not make a habit of
• Become thoroughly familiar with the facts of the doing so;
case and with the case file;
• State facts, not opinions or conclusions
• Meet with the CPS attorney to discuss the case (e.g., instead of saying that the mother was
and the particulars of the testimony, especially
uncooperative and rude, state exactly what she
any troublesome aspects;
said or did);
• Identify key facts or points that the attorney will • State whether an answer is unknown or cannot
want to elicit;
be recalled;
• Discuss with the attorney the expected cross- • Speak clearly, distinctly, and loudly enough to be
examination questions;
heard;
• Outline the history of the case, including • Make eye contact with the questioner and the
important dates and events;
judge;
• Summarize the services offered, the response, and • Refer to the case file only as necessary in order to
the outcomes;
recall information.
• Prepare to answer questions about reasonable When an attorney objects to a question or moves to
efforts;
strike an answer, the caseworker should wait until the
judge rules on the motion before speaking. If the

56 Going to Court
judge overrules the objection, then the caseworker
should answer the question. If the judge sustains the CHILDREN’S TESTIMONY
objection, then the caseworker should not answer the
question; the attorney will ask another one. The courtroom can be an intimidating and
traumatizing environment for most people, but
Cross-examination is questioning by attorneys other
especially for children, many of whom may be
than the one who called the caseworker as a witness.
terrified by the prospect of testifying. They may
The purpose of cross-examination is to expose
become anxious or distraught. Some even freeze
weaknesses, errors, inconsistencies, biases, or other
and are unable to respond to simple, preliminary
deficiencies in the testimony of the witness. The
questions. Younger children are more likely to have
attorney also may focus on the caseworker’s lack of
these types of reactions. Older children also are at
experience or qualifications and will try to show that
risk of emotional trauma because they are more likely
the caseworker did not do a thorough investigation
to be cross-examined aggressively by attorneys. For
or exercised poor judgment. Cross-examination can
these reasons, children should not be called to testify,
be unpleasant, but it is important that caseworkers
particularly against parents or relatives, unless the
not take it personally and remain outwardly calm,
children’s testimony is essential to proving critical
confident, and respectful. If a caseworker becomes
allegations of the petitions or if the children want and
hostile or defensive, the judge may discount the
need to testify for their own emotional well-being.
testimony.

Leading questions are permitted on cross-examination. The Decision To Call a Child To Testify
Lawyers often will ask such questions, insist they be
answered “yes” or ‘“no,” and before the witness can Most child abuse or neglect cases can be proved by
explain, ask another question. When a “yes” or “no” the testimony of other witnesses or by demonstrative
requires an explanation, the witness can ask permission or documentary evidence. In some cases, however,
to explain the answer. the child’s testimony may be the only evidence. This
is especially true of some sexual abuse cases.
EX PARTE COMMUNICATIONS The decision to call a child to testify should be made
by CPS and its attorney, in consultation with the
Ex parte communications are verbal or written advocates and any therapists for the child. They need
communications addressed to the judge in a case by to weigh carefully the potential benefits of the child’s
one party outside the presence of another party without testimony against the potential harm, both to the
copying the other party. They are strictly prohibited.59 child from testifying and to the child, other family
The prohibition extends to representatives of a party, members, and the community if the charge is not
including CPS caseworkers. Thus, caseworkers must proven.
never attempt to communicate privately with any
judge about an open case; however, communications Some CPS attorneys may not be sensitive to how a
that are not case-specific, such as those suggested child can be affected by testifying. Consequently, the
in Chapter 8, Working with the Courts, are not CPS caseworker (perhaps with the child’s advocate and
prohibited. therapist) should be prepared to assert any concerns
when deciding whether to call the child as a witness.
It is critical that children never be put in a position of
giving testimony against a parent or other caretaker
unless they can be safeguarded against retaliation.

Working with the Courts in Child Protection 57

 Every witness needs to be competent, which means Care must be taken by all interviewers never to ask
that the witness must know the difference between leading questions regarding possible abuse or neglect.
the truth and a lie; appreciate the necessity of telling Leading questions are those that suggest an answer,
the truth; and be capable of observing, remembering, for example, “Didn’t he grab your mother by the neck
and describing events about which the witness will with his hands and choke her?” as opposed to “What
testify. This is a component of the voir dire process, did he do?” Any indication that the child’s testimony
a preliminary examination to determine competency may be the result of such suggestive questioning will
of a witness or absence of bias of a juror. Under undermine its credibility.
Federal law and that of many States, all witnesses
are presumed competent, but some States have more Likewise, repeated questioning of the child by the same
restrictive requirements. If the issue is raised, the or multiple persons, including professionals, about
lawyers and judge may question the child to determine any abuse or neglect also will undermine credibility.
competency. CPS should have specially trained interviewers for
children. CPS administrators are encouraged to
Younger children are more likely to not be allowed develop protocols with police, prosecutors, medical
to testify due to lack of competency. Thus, age is a personnel, and mental health treatment providers
significant factor in determining whether to call a child that minimize the number of interviews to which a
as a witness. The reliability and credibility of children’s child is subjected. Ideally, there should be only one
testimony has been the subject of much research, some interview, and it should occur in a safe, child-friendly
of it contradictory. It can be summarized by saying environment. The interview should be videotaped to
that younger children are able to recall events less reduce the likelihood of subsequent interviews and
accurately and are more susceptible to suggestion.60 A to demonstrate that the interview was conducted
recommended approach for assessing children’s ability appropriately.
to tell the truth is presented in Exhibit 7-1.
Supporting Child Witnesses in the Courtroom
Credibility of a Child’s Testimony
Supportive measures for young witnesses in child
Decisions about children’s credibility will depend maltreatment proceedings might include videotaping
mostly on their demeanor and the convincing force depositions or allowing the child to speak to the judge
of their testimony. Other factors considered include in chambers, a common practice in child custody
whether the child’s testimony is consistent with earlier cases. Some States have relaxed hearsay rules for the
statements or with any other credible evidence. The statements of child witnesses and are more lenient
court also will be interested to know if there is any in allowing leading questions of children.61 When
indication that the child has been coached or that a child needs to testify, the CPS caseworker must
the story is the result of intentional or unintentional decide whether utilizing one of these measures would
influence by a parent, CPS, law enforcement, medical benefit the child and facilitate the testimony. If so,
professionals, or others. the caseworker should confer with the CPS attorney

The National Children’s Advocacy Center

The National Children’s Advocacy Center supports a network of community-based facilities that use a
multidisciplinary team approach to respond to child abuse. The center is a resource for information about
how to best conduct interviews of child victims and how to establish a model program. See Appendix
B, Resource Listings of Selected National Organizations Concerned With Child Maltreatment, for more
information on the National Children’s Advocacy Center, or go to http://www.nationalcac.org.

58 Going to Court
 Exhibit 7-1
Assessing Younger Children’s Ability or Willingness To Tell the Truth
• Begin the inquiry by establishing a rapport with the child. For example, ask about her age or favorite
activity. Use this information to guide the inquiry.
• Ask the child the following:
– What does it mean to tell the truth?
– Why do you tell the truth? Is it important to tell the truth? Why?
– What happens when you tell the truth?
– What is a lie?
– What have you told a lie about or when have you not told the truth?
– What happens when you lie or do not tell the truth?
– Are there times when it is OK to lie or not tell the truth? When?
• Using information provided by the child, ask questions and reframe the child’s comments to assess her
ability to discern the difference between a truth or a lie, as well as her willingness to tell the truth or to
correct inaccurate information.
– For example, if the child said she was 5 years old, begin the inquiry with “So, you’re 7 years old?”
• Assess if the child will correct the inaccurate statement. If the child agrees, respond by saying,
“Oh, I thought you told me earlier that you were 5 years old?” Frequently, children will confirm
their original answer.
• In this situation, ask the child if the statement that she is 7 years old is a lie or the truth. Explain
to the child that if information is not correct, you want them to provide the truth or correct
answer and that they must be sure to do this in any situation, including court testimony.
– Another example would be, if the interviewer is wearing black shoes, to ask the child, “If I told you
my shoes were yellow, would that be the truth or a lie?” Alternatively, “If I told you that my shoes
were black, would that be the truth or a lie?”
• Proceed with similar questions or statements that will help with the assessment.
• Conclude the inquiry by praising the child for his participation and affirmative answers. Stress the
importance of telling the truth in court.

in advance of the trial to file the necessary motions, bench, sit at the same level as the children and other
to develop the required supporting evidence, and to participants, or not wear judicial robes. Some casual
make arrangements for whatever equipment may be conversation with children can help relax them, as
required if the motion is granted. will excluding unnecessary participants from the
courtroom. Permitting very young children to sit on
Taking frequent breaks and making the setting less the lap of a support person while testifying is another
formal are other measures a court can take to make possibility. Some judges will take or authorize these
children more comfortable in the courtroom and to
facilitate their testimony. The judges can come off the

Working with the Courts in Child Protection 59

 measures on their own initiative, while others may The advocates are particularly helpful allies in cases
need to be asked or encouraged to do so. where children will testify. The GAL or CASA often
may have a closer personal relationship with the child
A child witness should not enter the courtroom until than others involved in the case and be in a better
it is time to testify and should be prepared in advance position to facilitate the child’s ability to testify
for that moment and what will happen after. There effectively.
will be people present in the courtroom whom the
child has never seen, often including an armed bailiff.
Standards for Testifying by Alternative Means
The child will be the center of attention, which may
create or heighten anxiety or fear. CPS caseworkers
(or the CPS agency attorney) should do what they Many States have passed laws regarding child
can to prepare the child for this experience. At witnesses in the courtroom. These laws focus
minimum, preparation should include visiting the primarily on protecting a child from having to testify
courtroom when it is not in use, practicing being in the presence of the alleged abuser. One protective
sworn in, sitting in the witness stand and answering measure is the use of closed-circuit television in which
questions (unrelated to the case), speaking into the the child’s testimony is broadcast into the courtroom
microphone, and seeing the view from the bench. where the judge, jury, and defendant can see and hear
Tell the child who will be present, and point out what the child says. The lawyers are present with the
where each of those individuals will sit. child, and the defendant’s lawyers can cross-examine
the child while communicating privately with their
The CPS caseworker or attorney should familiarize client. This approach will be deemed constitutional
the child with the court process, including: regarding the right to face one’s accuser, provided
there is sufficient evidence for the judge to find that
• Explaining that different lawyers will ask questions the child would be significantly traumatized by the
and giving examples; presence of the defendant and, thus, unable to testify.62
• Describing objections and explaining how the Expert testimony may be necessary to establish the
child should wait until the judge rules on them; basis for a request to protect a child in this way.

• Explaining the terms “sustained” and The most significant recent development regarding
“overruled;” the testimony of child witnesses is the adoption of
the Uniform Child Witness Testimony by Alternative
• Role playing the competency inquiry (without Methods Act, drafted by the National Conference of
telling the child the answers); Commissioners on Uniform State Laws and approved
and recommended for enactment in all States.63 In
• Arranging for the child to meet with the CPS 2003, the American Bar Association approved the
attorney (if this meeting has not yet occurred) law. At the time of this manual’s publication, three
and assisting the attorney and child so that they States had adopted it, and two more had legislation
may interact comfortably. pending.64 The Act applies to children under 13
years of age and to both criminal (including juvenile
While it is inappropriate to remind a child what
delinquency) and noncriminal proceedings. It
to say or otherwise attempt to influence the child’s
establishes standards for determining whether a child
testimony, it may be appropriate for the caseworker
witness may testify by alternative means.65
and attorney to review with the child any videotaped,
audiotaped, or written statement that may have been The Act also prescribes the content of the court’s
made. order and requires a full and fair opportunity to cross-
examine the child witness. It does not dictate the

60 Going to Court
 Exhibit 7-2
Child Testimony
In noncriminal proceedings, such as child maltreatment cases, standards for child testimony are less
rigorous. These differences are best demonstrated by reference to Section 5 of the Uniform Child Witness
Testimony by Alternative Methods Act, entitled Standards for Determining Whether Child Witness May
Testify by Alternative Method, which states:

(a) In a criminal proceeding, the presiding officer may allow a child witness to testify by an alternative
method only in the following situations:

1. The child may testify otherwise than in an open forum in the presence and full view of the finder
of fact if the presiding officer finds by clear and convincing evidence that the child would suffer
serious emotional trauma that would substantially impair the child’s ability to communicate
with the finder of fact if required to testify in the open forum.

2. The child may testify other than face-to-face with the defendant if the presiding officer finds by
clear and convincing evidence that the child would suffer serious emotional trauma that would
substantially impair the child’s ability to communicate with the finder of fact if required to be
confronted face-to-face by the defendant.

(b) In a noncriminal proceeding, the presiding officer may allow a child witness to testify by an
alternative method if the presiding officer finds by a preponderance of the evidence that allowing the
child to testify by an alternative method is necessary to serve the best interests of the child or enable
the child to communicate with the finder of fact. In making this finding, the presiding officer shall
consider:
1. The nature of the proceeding;
2. The age and maturity of the child;

3. The relationship of the child to the parties in the proceeding;

a. The nature and degree of emotional trauma that the child may suffer in testifying;

Any other relevant factor, such as developmental delays.66

alternative methods for receiving a child’s testimony,

but strongly suggests that only two current practices JUDGES’ EXPECTATIONS OF CHILD PROTECTIVE

are likely to satisfy all provisions of the Act: closed- SERVICES CASEWORKERS

circuit television and courtroom arrangements that

avoid direct confrontation between a witness and a
Judges and CPS caseworkers generally do not
particular party or the finder of fact.67 See Exhibit
have routine, direct contact with one another.
7-2 for more information about the Act.
Communication typically occurs in the courtroom and
often is transmitted via CPS or the parents’ attorneys.
Judges may ask a question or make a request directly
to caseworkers, but there is limited opportunity for

Working with the Courts in Child Protection 61

 caseworkers to become familiar with them. Many Communication with the clients must be direct,
judges, however, are receptive to enhancing their honest, and unambiguous to avoid any
relationships and to ensuring a positive experience misunderstanding of important information,
for individuals who appear in their courtroom. CPS including conveying possible case outcomes. Before
caseworkers can improve these relationships through the hearing, an explanation of the court process will
improved awareness of courtroom rules, procedures, give the parents some idea of what to expect. After
expectations, and the personalities of those involved. the hearing, the caseworker should help parents
understand key decisions, reinforce the outcome and
Judges expect that CPS caseworkers will successfully: expectations, and answer questions. Parents often leave
the courtroom not knowing what happened or why,
• Engage clients in the court process;
what will happen next, or what is expected of them.
• Work effectively with others; It is easy for those who are familiar with the court
hearings, the terminology, and the consequences of a
• Arrive on time; judge’s decisions to forget how foreign the experience
may be to others.
• Know the law and follow court rules;
Most States require case and service plans to be
• Prepare appropriate court orders. incorporated into the court records for the judge
Fulfilling these expectations, as described below, will to determine if they meet requirements regarding
help improve caseworkers’ court experiences. services and reunification efforts. In fact, discussion of
the agency’s actions and the parents’ progress toward
their goals comprises the largest part of the hearings.
Engaging Clients in the Court Process
During testimony and in the documents, caseworkers
should focus on the most serious issues that must be
The foundation for effective casework is the resolved to achieve reunification. (See Chapter 4, The
relationship between the caseworker and the Juvenile Court Process, for more information about
client. Some clients are less appealing than others developing case plans.) Since the judge often will ask
or are more difficult to engage. Some caseworkers’ how the caseworker dealt with these issues, it should
experiences or personalities equip them to perform be documented that the caseworker:
this aspect of the work better than others. Regardless
of these variables, engaging clients at the outset is • Made clear what the client needs to change and
one of the keys to successful outcomes and requires how;
sincerely communicating concern for them and their
children as well as a desire that the family be together.
• Identified and built on the clients’ strengths and
those of the extended family;
Caseworkers should be empathetic and sensitive
to clients’ feelings and needs and should take an • Offered whatever services and resources were
approach that identifies the specific strengths of each needed;
client and that tailors interventions to those strengths.
Caseworkers also should engage parents as a means of • Rewarded the clients’ successes and encouraged
encouraging, motivating, and inspiring them to take further progress;
the necessary steps to retain or to regain custody of
their children. Caseworkers who experience the most • Advocated for the client with CPS supervisors,
success with families are the ones who work most service providers, and the court;
effectively with parents. Insightful judges recognize
this quality in caseworkers and value the results it
produces.

62 Going to Court
• Took care not to demand more of clients than was constructive interactions and who achieve consensus
realistically possible due to limitations of time, about the course of cases.
transportation, resources, other responsibilities,
or innate abilities. In some cases, service providers may have to testify
about the services and the families; therefore, it
is important for caseworkers to establish good
Working Effectively With Others
relationships with them. Judges may have questions
for the caseworker about the service providers, so
Another critical skill for caseworkers is the ability caseworkers will want to make personal contacts
to establish good working relationships with others, with them to understand what they do, whom they
including service providers, throughout the legal serve, and their criteria for providing services and to
process. Some communities have multidisciplinary determine the quality of their work. Service providers
team meetings to discuss cases, particularly complex also should be participants in team discussions about
ones, which may involve experts who have no direct the case.
involvement with the case. Other communities
commonly have “staffings” at which all service Similarly, a good relationship between CPS and
providers and those involved in the court process the public mental health agency is important.
meet to discuss a case and to strategize ways to address Unfortunately, this relationship can be acrimonious
the needs presented. in many communities. If CPS depends on the mental
health agency to perform evaluations or to provide
Whether or not these structures are in place, resolving treatment or placements, including hospitalization,
child maltreatment cases successfully almost invariably CPS should take the initiative to establish a good
involves a team approach, with the caseworker both working relationship between the two agencies.
the coach and a key member of the team. Success Defining each agency’s responsibilities, setting
often will depend on the caseworker’s collaboration timelines for completion of evaluations or other tasks,
skills or ability to cooperate with the other team and establishing lines of communication for sharing
members, particularly the child’s advocates and the information are just a few of the issues that need to be
parents’ attorneys. Working effectively means: addressed. Discussion of these issues should involve
the heads of each agency and the court. Individual
• Treating the other team members with respect;
caseworkers, however, can contribute to this process
• Involving them in identifying the issues the case by identifying problems that arise between the
presents; agencies in specific cases and documenting how
those problems affected the child or CPS’s ability to
• Thinking collectively about how to resolve those comply with timelines established by the Adoption
issues; and Safe Families Act (ASFA) (P.L. 105–89). Sharing
that information with supervisors might lead to the
• Sharing information; initiation of a process to improve communication
• Communicating about new developments as and cooperation between the agencies. In the
they arise. absence of such a process, the relationship between
the caseworker and a mental health counterpart can
Establishing good working relationships within the produce good results, even in a flawed system. The
team is more likely to result in positive case outcomes. ability to access quality services on a timely basis
As working relationships become more effective, distinguishes caseworkers in the eyes of judges.
conflicts will be less likely, and future interactions
in other cases will be more constructive. Judges
appreciate the efforts of caseworkers who facilitate

Working with the Courts in Child Protection 63

 Arriving on Time

to abide by them. They also should expect others in
the process to do likewise and, when they do not,
Some judges are habitually late, while others are should notify the CPS attorney.
always on time. All of them, however, will expect
timeliness from caseworkers in the performance of Preparing Court Orders
their duties, including:

• Attending court hearings; Court orders in child maltreatment cases should

be prepared at the conclusion of the hearings, then
• Filing court reports; distributed to the parties and other participants. They
are more accurate and complete if written or dictated
• Following up on the requirements of court while the court’s decisions and directives are fresh in
orders; the minds of all participants. Any disagreements or
misunderstandings can be resolved immediately, and
• Transferring cases between caseworkers;
the parents can depart with a written statement of the
• Keeping cases on track for resolution within the court’s expectations of them and of CPS.
ASFA timelines.
Orders need to be clear and easy to understand. The
use of forms is essential, and a clerk, a lawyer, or the
Knowing the Law and Following Court Rules judge can complete them. For ease of understanding
and distribution of sufficient copies, it is preferable
Agency and court practices and procedures in child that they be prepared on a computer and printer
maltreatment cases must comply with Federal and in the courtroom. Objections to this approach are
State laws. It is essential, therefore, that caseworkers based on the time it takes to discuss and prepare the
have good knowledge and understanding of the key orders. Nevertheless, it will save time that often is
principles, mandates, and purposes of these laws. spent debating and clarifying what the court ordered.
Lack of technology may be an impediment in some
Many courts have rules governing the filing of court courts, so this approach to order preparation is not
reports, discovery, distribution of experts’ evaluations, yet common. Where it is implemented, it contributes
continuances or postponements, notice of placement significantly to improved understanding and
changes, notice of hearings, and conduct of hearings. outcomes. CPS can encourage courts, and perhaps
Caseworkers will be expected to know these rules and assist them with necessary hardware, to implement
this practice.

64 Going to Court
 CHAPTER 8

Working with the Courts

J ust as judges have power to initiate improvements

in court practice and performance, they also can be
formidable roadblocks to such improvements. Some
express themselves succinctly. Most are practical and
decisive, and nearly all are impatient to some degree,
particularly with delays, poor performance, dramatic
judges may be intentional in their determination to behavior, and excessive detail.
continue operating in familiar ways; others simply
may be unaware of alternatives, their power to make Judges’ personalities are revealed over time, as are
changes, or the resources that are available to inform their work habits, knowledge, skills, commitment to
and to support efforts to improve court operations. doing the work well, and their proclivities regarding
The ability of child protective services (CPS) and of particular issues or circumstances. Caseworkers who
individual caseworkers to improve the court process appear regularly in the juvenile court will learn quickly
depends on their understanding judges and knowing which judges are the easiest and hardest to work with
how to work with them, to support them, and to and which ones are most likely to be receptive to
provide them with the information and tools they improving court practice.
need to do their job better. This chapter deals with In some States, judges are elected or appointed to
measures agencies and individual caseworkers can the juvenile court bench and sit only in that court.
pursue. In most States, however, the juvenile court is part
of a larger court system. In these jurisdictions,
UNDERSTANDING JUDGES judges occasionally may remain in the juvenile court
assignment for extended periods of time, but the
most common practice is for judges to be assigned
Almost all judges are lawyers. Most are politicians to that court on a periodic rotation. The length of
who had to win election or were appointed through a the assignment may vary from as little as 1 day to
process that was at least partly political. Judges vary as much as a few years. Generally, 3 to 5 years is
widely in terms of their values, experience, intelligence, considered optimal because it takes time to learn
skills, knowledge, work ethic, receptivity to change, about the laws governing the court’s proceedings; the
and personalities, but like other lawyers, many tend to complexities and dynamics of child maltreatment;
be analytical thinkers. Judges focus on facts and look the availability and quality of the services, resources,
for cases that are presented, or problems addressed, in and interventions at the court’s disposal; the
logical progression. They expect witnesses to answer administrative responsibilities of the role; and the
questions directly, and they want people who testify myriad professionals who appear before the court.68
or make oral presentations to “get to the point” and to

Working with the Courts in Child Protection 65

 This is particularly true for the majority of judges who suggestion if the caseworker has established credibility
had no juvenile court experience as lawyers. and earned the judge’s respect by the quality of her
performance in individual cases. Some judges also may
Ideally, judges and judicial officers will be assigned respond more favorably if approached by a caseworker
to the juvenile court only after substantial training who is accompanied by a child’s advocate or a parent’s
on the unique responsibilities of a judge in that attorney, so the caseworker is not suspected of seeking
court, the problems and needs of the court’s clientele, favored treatment.
and the human services systems on which it relies.
Court improvements are less likely to occur without
Interacting and Building Positive Working

the leadership and the support of a knowledgeable

Relationships With Judges

and experienced judge. Indeed, some States have

extensive training programs for both new and
experienced juvenile court judges and formal In taking steps to build positive working relationships
certification procedures to ensure that they are well- with judges, CPS caseworkers can:
prepared for the difficult work of that court. Much
• Introduce themselves to the judge at each court
of the knowledge that juvenile court judges acquire,
appearance or other encounter;
however, is gained by sitting in the juvenile court on a
consistent basis over a significant period of time. • Speak and write as clearly and plainly as
possible;
WHAT CASEWORKERS CAN DO TO EFFECT

• Be concise and to the point;

CHANGE IN THE COURT

• Learn as much as possible about the judge’s

tendencies, personality, and likes and dislikes and
CPS caseworkers who practice in a court that has
be guided by that knowledge;
good judicial leadership are encouraged to find ways
to participate in the collaborative efforts underway • Determine the history of the judge’s interactions
in the work of that court. Doing so will enhance with CPS and how it may affect the judge’s
their knowledge and enrich their work experience. handling of particular issues or dealings with
Of course, some judges are friendlier and more caseworkers;
approachable than others, and some will be more
receptive to suggestions than others. Judges are • Build relationships with clerks, bailiffs, and court
more likely to respond to an individual caseworker’s reporters;

Judicial Training Programs

Numerous training programs for juvenile court judges who hear child maltreatment cases are available at
various locations through the National Council of Juvenile and Family Court Judges (NCJFCJ) and other
legal, judicial, and social services organizations. Judges who are interested in improving court practices
and their own knowledge and skills can be referred to those organizations or to a nearby lead judge in one
of the 25 NCJFCJ model court sites across the country. NCJFCJ, the National Center for State Courts,
the American Bar Association’s Center on Children and the Law, the National Association of Counsel for
Children, and the Youth Law Center also are excellent sources of information about child maltreatment
litigation. (See Appendix B, Resource Listings of Selected National Organizations Concerned With Child
Maltreatment, for more information on these organizations.)

66 Working with the Courts

• Follow local practices and protocols regarding judge knows well. Preparing a presentation can
appropriate dress for the courtroom, for addressing be a good learning experience, particularly if the
the court, and for approaching the bench; judge is provided with good resource materials
for that purpose.
• Be polite and respectful, but when the opportunity
presents itself, do not hesitate to assert strongly • Recognize the judge’s accomplishments in some
held opinions about what the judge should order way that does not appear to be currying favor
or decide in regard to a case; but, instead, may be motivational. Joining with
child and parent advocates for this purpose would
• Not display emotion, especially anger or disdain, lessen any appearance of impropriety. A Child
if the judge makes a decision with which CPS or Abuse Prevention Month event might be a good
the caseworker disagrees. opportunity to honor a judge.

Effecting Change in the Court • Devise a strategy for motivating the judge to
endorse the development of a mission and goals
statement by a multidisciplinary group if the
Judges often are perceived as omnipotent, and the
court has none. Do the same if the court has no
idea that CPS, much less an individual caseworker,
rules that govern procedures or if they need to be
could influence them to change practice may seem
updated.
fanciful. Indeed, some judges are impervious to
change, regardless of the source of the suggestion • Suggest the development of model templates
or the pressure to do so. Many others, however, for court reports, reports on reasonable efforts,
understand that good outcomes in child maltreatment mental health assessment referrals, child support
cases require the cooperative efforts of CPS, service referrals, and other common forms.
providers, and the court. In several urban and
small communities, judges meet regularly with CPS • Invite a judge on a ride-along to observe the
representatives to improve procedures, policies, and realities of being a CPS caseworker on the
practices, and to enhance services. The State Court frontline. The judge should not be assigned to a
Improvement Program and the National Council of case resulting from anyone or anything observed
Juvenile and Family Court Judges (NCJFCJ) Model during the ride-along.
Court Project have contributed to this development.
(See Chapter 9, Court Improvement and Best Practices, • Make the judge aware of caseload demands, time
for more information on these important initiatives.) constraints, and resource and service deficits.

For those child maltreatment courts that lack strong • Ask judges to support CPS’s budget request in
judicial leadership, the following list offers suggestions States where judges are not precluded from such
for informing and motivating promising juvenile activities.
court judges to take leadership in constructive ways: • Suggest a training event and secure the judge’s
• Provide information about particular “best endorsement. Invite the judge to help plan it,
practices” that could constitute significant and elicit the judge’s suggestions for topics. Ask
improvement in how the court operates. Offer to the judge to make a presentation, and involve a
help plan and implement the practice locally or multidisciplinary group to design the training,
to set up a meeting of stakeholders to discuss it. secure presenters, and arrange for a site. NCJFCJ
and the American Bar Association (ABA) Center
• Invite the judge to make a presentation at a on Children and the Law (and its National Child
training for CPS caseworkers on a topic that the Welfare Resource Center on Legal and Judicial

Working with the Courts in Child Protection 67

 Issues at http://www.abanet.org/child/rclji/ of domestic violence, or a parenting course
home.html) are able to provide quality training specifically for fathers with a history of violence
on a variety of topics at no charge to State or local toward their child’s mother.
forums.
• Provide the court with periodic reports on the
• Encourage State judicial educators to address status of its cases.
topics of particular importance at their periodic
judicial training events and then encourage a Some of these suggestions may be undertaken
local judge to attend. by individual caseworkers; others may require
involvement by CPS lawyers or administrators,
• Keep informed of local, State, and national grant depending on the size of the community and the
opportunities. The State Court Improvement culture of the court and CPS.
Program is perhaps the best such opportunity.
Collaborating on a grant application can be a CPS caseworkers also may direct judges to valuable
very good learning experience that promotes resources. For example, they can provide the judge
understanding and strengthens working with literature regarding judicial training from the
relationships, even if a grant is not awarded. NCJFCJ, the ABA Center on Children and the
Law, the National Center for State Courts, and the
• Suggest that an ad hoc, multidisciplinary National Association of Counsel for Children.
committee be formed to consider implementation
of some of the recommendations of: Similarly, caseworkers may refer judges who
are interested in improving court practices and
– Emerging Practices in the Prevention of enhancing their own knowledge and skills to the
Child Abuse and Neglect at http://www. above-referenced organizations for publications and
childwelfare.gov/preventing/programs/ technical assistance. They also can be referred for
whatworks/report/index.cfm; technical assistance to a nearby lead judge in one of
– Adoption and Permanency Guidelines: the 25 model court sites across the country or to a
Improving Court Practice in Child Abuse and State Court Improvement Project judge who has
Neglect Cases at www.ncjfcj.org or http:// effectively addressed particular issues. Other valuable
www.pppncjfcj.org; sources of training, information, and technical
assistance sponsored by the Children’s Bureau are
– Resource Guidelines: Improving Court Practice
the eight National Resource Centers, including one
in Child Abuse and Neglect Cases at http://
on legal and judicial issues, two clearinghouses, and
www.pppncjfcj.org/html/publications.
four Technical Assistance Support Systems. (See
html.
Appendix B, Resource Listings of Selected National
– About the Pew Commission on Children in Organizations Concerned with Child Maltreatment, for
Foster Care at http://pewfostercare.org/ more information on these organizations.)
about.
• Promote the creation of a multidisciplinary child Working With Problem Judges
abuse and neglect committee that can identify
problems and devise and implement solutions. Unfortunately, there are judges who are verbally
abusive; unreasonably demanding; habitually late
• Identify needed, but insufficient or nonexistent,
starting court, preparing orders, or reading reports;
services and enlist the judge’s assistance in
biased; or incompetent. If a pattern of any of these
securing or developing them. Examples might be
behaviors or some other significant deficit is identified
a visitation center, a program for child observers
in multiple cases by more than one caseworker,

68 Working with the Courts

the caseworker or CPS should not feel powerless. • Speaking out in any reappointment, retention,
Caseworkers should request assistance from CPS or re-election process in which the judge must
administrators and attorneys when confronting participate, as well as identifying and encouraging
challenging judges. Actions that can be taken to alternative candidates. Joining with children’s
address such problem behaviors include: advocates or parents’ attorneys would make these
suggested actions more credible than if they come
• Asking the CPS attorney, supervisor, or just from CPS.69
administrator to speak to the judge on behalf
of CPS or the caseworkers or to file a complaint There is the risk with each of these strategies,
with the State’s Judicial Standards Commission, however, that nothing will change and that the judge
depending on the nature of the problem will be vindictive toward CPS or the caseworkers.
behavior; Legitimate complaints must nevertheless be voiced
because it is quite common for problem judges to be
reassigned or not to be retained or re-elected when
well-documented grievances are made known to
authorities or the public.

Working with the Courts in Child Protection 69

 CHAPTER 9

Court Improvement
and Best Practices

A n integrated and comprehensive approach to

the complex problems of families involved
with child protective services (CPS) and the courts
Improvement Plans (PIP) to correct the weaknesses
and gaps identified in the CFSR.71

is critical to achieving safety and permanency for Although CPS and related child welfare agencies are
children. Evolving Federal child welfare legislation the primary focus of the CFSR and PIP, there is a
has prompted CPS and the courts to implement clear need for collaboration with the courts for the
innovative policy and programmatic changes. Thus, following reasons:
the pioneering efforts of court and child advocates • CPS performance depends, in part, on its
have created a variety of inventive practices focused relationship with the courts and on court
on accomplishing positive outcomes for families. performance;
This chapter provides an overview of the Child and
Family Services Reviews (CFSRs) and the courts • CPS can use the legal system to learn how
and information about best practices and model to overcome legal barriers that diminish its
court programs existing throughout the country. It performance;
also provides information about the importance of
judicial leadership in improving court practice. • CPS and the courts have mutual goals for
achieving child welfare outcomes, especially in
the area of achieving permanency;
CHILD AND FAMILY SERVICES REVIEWS AND

THE COURTS

• Court reform requires CPS and other key
stakeholders’ involvement;

The Federal CFSR process is a results-oriented, • CPS has an interest in ensuring that the courts
comprehensive monitoring and review system designed carry out PIP goals.72
to assist States in improving safety, permanency, and
well-being outcomes for children and families who The CSFRs evaluate CPS performance based partly
come into contact with the nation’s public child on how well it works with the courts and other
welfare systems.70 Fiscal sanctions may result from agencies to achieve child welfare outcomes, such
failure to meet the measures of the CFSRs, but it is as the time in care until adoption or reunification.
the State’s desire to improve practice and outcomes CPS collaboration with the courts also may help
for the nation’s most vulnerable children that has overcome or mitigate court-related barriers to
motivated States to work on comprehensive Program achieving CFSR outcomes. For instance, courts may
provide CPS with strategies to work with Federal and

Working with the Courts in Child Protection 71

 State confidentiality requirements in order to obtain • Explain to the court, legislature, and caseworkers
complete information about an abused child’s family, what resources are required for successful
which may result in an improved safety outcome for development and implementation of the PIP.77
the child.73 The roles of CPS and the courts and their
methods for achieving these mutual goals are most Once CPS and the courts begin working together,
efficient and productive when a uniform, long-range they can tackle systemic problems affecting child
plan and a cooperative relationship are established.74 safety, well-being, and permanency more efficiently.
The agency can suggest improvements that may help
Additionally, each State’s Court Improvement Program courts make better decisions for children, such as:
(CIP) (discussed later in the chapter) is expected to
help achieve PIP goals.75 The juvenile and family • Improving agency court reports and testimony;
courts cannot effectively perform their child welfare
• Upgrading legal representation of the agency;
responsibilities in isolation; CPS participation is an
essential part of court reform. Specific improvements, • Assisting judges to implement the Adoption and
such as strengthening case management and Safe Families Act (ASFA) and its regulations;
information systems for recording a child’s court and
placement history, require collaboration.76 • Helping courts obtain better performance data or
providing them with helpful data;
Using the CFSRs as a catalyst, CPS can either initiate
or improve upon an already existing collaborative • Getting caseworkers to attend court hearings
relationship with the State juvenile and family courts more consistently;
in several ways, including:
• Working together to improve court resources;
• Research other States’ CFSR processes, including
how they collaborate with their legal system to
• Improving State law to ensure better and timelier
services for families, thereby making it easier for
improve their CFSR performance;
judges to deliver timely decisions.78
• Consider all legal and judicial issues suggested by
These changes could help eliminate barriers the courts
the CFSR performance indicators, which can be
face, such as insufficient information, the length of
prepared with the aid of the State’s legal system;
time needed to resolve permanency issues, slow
• Invite the juvenile and family court judges and progress in cases, and obstacles to timely termination
legal professionals to participate in meetings to of parental rights. Their implementation can aid
plan and to organize the State’s CFSR process; both the courts and the agencies in achieving better
outcomes for children and families.79 For more on
• Explain the importance of the CFSR to juvenile how and why agencies should work with the courts,
and family court judges and legal professionals see Appendix E, Legal and Judicial Issues Suggested
and persuade them to participate in the CFSR by the Child and Family Services Review Performance
process; Indicators.
• Include juvenile and family court judges and legal
professionals in PIP development;

72 Court Improvement and Best Practices

 Pew Commission on Children in Foster Care
The Pew Commission on Children in Foster Care was established to develop recommendations to improve
outcomes for children in the foster care system. Of primary importance are expediting the movement
of children from foster care into safe, permanent, and nurturing families and preventing unnecessary
placements in foster care.80 The Commission recognized that while dependency courts and child welfare
agencies both work to protect children, too often they work in isolation. To address these problems,
the Commission released a set of recommendations focused on reforming Federal financing and court
oversight of foster care, including court and agency collaboration.81

Several key recommendations highlighted the need for effective collaboration to promote the protection
and well-being of children:

• The U.S. Department of Health and Human Services (HHS) should require that the State IV-E plans,
PIPs, and CIPs demonstrate effective collaboration;

• HHS should require States to establish commissions on children in foster care, ideally co-directed by the
State’s child welfare agency director and Chief Justice;

• Congress should appropriate $10 million to train court personnel, a portion of which should be used for
joint training of child welfare agency staff and court personnel;

• Local and State courts and agencies should collaborate and plan for the collection and sharing of all
relevant data and information that can aid in making better decisions and creating better outcomes for
children.82

The Commission’s report states, “Collaboration should recognize that the children and families involved
with the child welfare system are often simultaneously engaged with other community agencies and
services—schools, health care, mental health, child care, and others. Children and families are better
served when these multiple community partners come together on their behalf.” 83 Following their
release, a number of national and State child welfare organizations and judicial entities issued resolutions
supporting the recommendations. These organizations and entities included the National Council of
Juvenile and Family Court Judges (NCJFCJ), the Conference of Chief Justices and Conference of State
Court Administrators, the North American Council on Adoptable Children, the Judicial Council of
California, and the Texas Supreme Court Task Force on Foster Care.84

For additional information about CFSRs, go to the Children’s Bureau website at http://www.acf.hhs.gov/
programs/cb/cwrp/index.htm. For more information about CPS and court collaboration related to CFSRs,
visit the National Child Welfare Resource Center on Legal and Judicial Issues at http://www.abanet.org/
child/courtimp.html and http://www.abanet.org/child/rclji/online.html.

Working with the Courts in Child Protection 73

 CIP was first authorized as part of the Omnibus
BEST PRACTICES Budget Reconciliation Act of 1993 (P.L. 103–66,
sections 13711–13712) and was first reauthorized
Legislative changes and CPS and judicial efforts by ASFA (P.L. 105–89) of 1997 without substantial
are actualized through the daily practices of court programmatic changes. The CIP is a Federal grant
personnel and CPS caseworkers. These practices need program designed to improve the quality of court
to incorporate proven methods that are responsive to proceedings in handling child abuse and neglect
the individual and multiple needs of families who are cases. Federal funding goes to the highest court of
linked to different and complex systems. Many judges each State, which administers the funds and directs
and others in the courts recognize the importance of the project. Each State has wide discretion on how to
collaborating with other systems to implement creative use CIP funds, but they must be used to improve the
approaches that best serve families. The following are litigation process for abused and neglected children.
initiatives and legislation designed to promote the use The program was reauthorized again in 2002 by the
of best practices in this area. Promoting Safe and Stable Families Amendments of
2001 (P.L. 107–133). This reauthorization expanded
the program’s scope to include the implementation of
The State CIP
a PIP, as necessary, in response to findings identified
in a CFSR. Through CIP, all State court systems are
The State CIP provides grants to State courts “…to required to participate in the implementation of a
conduct assessments of their foster care and adoption CFSR PIP when a State court system is involved.86
laws and judicial processes and to develop and
implement a plan for system improvement.”85 The

New CIP Grants87

In the Deficit Reduction Act of 2005 (DRA), Congress expanded the CIP to authorize two new grants.
The new grants include:

• A data collection and analysis grant to help ensure that foster children’s needs for safety, permanency, and
well-being are met in a timely and complete manner;

• A grant for training judges, attorneys, and other legal personnel in child welfare cases and conducting
cross-training with child welfare agency staff and contractors.

These new grants are authorized for $10 million each for five years.

The DRA also establishes the following important new collaboration requirements for both State courts
and child welfare agencies:

• The law requires State court applicants to include in their applications for all three CIP grants a
demonstration of meaningful and ongoing collaboration among the courts in the State, the State child
welfare agency (or any other agency with which the State contracts to administer Titles IV-B or IV-E),
and, where applicable, Indian Tribes.

• The law adds a Title IV-B State plan requirement for the State or Tribal child welfare agency to
demonstrate substantial, ongoing, and meaningful collaboration with State courts in the development
and implementation of its State plans under Titles IV-B and IV-E, as well as PIPs developed as a result
of the Child and Family Services and IV-E Foster Care Eligibility Reviews.

74 Court Improvement and Best Practices

 The Model Courts Project

resolutions of problems encountered by judges and
CPS personnel.
The Permanency Planning for Children Department
(PPCD) of NCJFCJ established the Child Victims The Strengthening Abuse and Neglect Courts Act
Act Model Court Project in 1992 with funding
from the Office of Juvenile Justice and Delinquency In FY 2001, Congress enacted the Strengthening Abuse
Prevention.88 There are 25 model courts across the and Neglect Courts Act (SANCA) (P.L. 106–314) and
country, including those in New York, Los Angeles, funded it for the first time in FY 2002. The purpose of
and Chicago, as well as smaller communities such as SANCA is to award grants to State and local courts to
Zuni, New Mexico, the site of a Tribal court. These enable them to develop and to implement automated
courts and their community partners, including data collection and case-tracking systems so that they
CPS, work with PPCD and each other to improve can eventually use such systems to evaluate court
court practice in child abuse and neglect cases. They performance. To date, grants have been made to six
identify barriers to permanency and other successful States (Colorado, Florida, Georgia, Idaho, New Jersey,
outcomes for children in their court and social services and Oregon) to pilot the implementation of suggested
systems and develop and implement strategies for performance measures developed by the American
overcoming those barriers. Annual status reports Bar Association, NCJFCJ, and the National Center
outlining the goals and accomplishments of each of for State Courts. (See http://www.ncsconline.org/
these communities are available from PPCD at http:// WC/Publications/KIS_FamJusSANCAProject.pdf
www.ncjfcj.org/content/view/81/145/ and are an for an overview.) The Act makes financial resources
excellent starting point for identifying successful available to qualifying courts “…for the purpose

Tribal Courts
Prior to the passage of the Indian Child Welfare Act (ICWA) of 1978, private, State, and Federal agencies
typically removed abused and neglected Indian children from their families and Tribal communities.
Often, these children were placed without considering the cultural and other effects this would have on
them.89 State courts often ignored the sovereign authority of Tribal courts with regard to these children.

With ICWA, child welfare proceedings involving Indian children are treated differently from other child
welfare cases. If the child lives on a reservation, the case must be decided by the Tribal courts of the child’s
Tribe instead of by State courts. Many cases involving Indian children who do not live on a reservation
can be transferred to Tribal courts. These children, however, must be enrolled as a member of an Indian
Tribe or be eligible for membership and have a biological parent who is a Tribe member.

When foster care placements or termination of parental rights proceedings for Indian children are brought
before the State courts, those children, their Native American custodians, and their Tribes have the right
to become involved, enabling the cases to be transferred to Indian Tribal courts. The children’s parents,
Indian custodians, and the Tribes also are entitled to a notice of the State court action, so they can appear
and respond to the charges or intervene and request a transfer, if appropriate.

In 1990, Congress enacted the Indian Child Protection and Family Violence Act (P.L. 101–630).
Among other things, it authorizes Federal funds to be used by the Bureau of Indian Affairs for a variety
of purposes, including to help Tribes establish CPS programs and develop multidisciplinary child abuse
investigation and prosecution teams.90

Working with the Courts in Child Protection 75

 of developing, implementing and maintaining
automated information systems that enable the JUDICIAL LEADERSHIP
nation’s abuse and neglect courts to effectively and
efficiently meet the intended goals of the Adoption and Strong judicial leadership is essential to successful
Safe Families Act.” Courts that apply must have “…a implementation of reforms and improvements in
demonstrated history of collaborative planning and how CPS and the courts process child maltreatment
court improvement…” and “must have full support cases. Communities that have embraced ASFA and
from [their] collaborative partners,” including CPS.91 accomplished timely permanency for abused and
neglected children have, without exception, benefited
The Toolkit Project from judicial leadership. While judges alone cannot
initiate change, their support and leadership are
In FY 2003, the Children’s Bureau funded a project critical to reforming court practice.
to help courts develop a viable approach to engaging
Many communities across the country are fortunate
in continuous quality improvement with regard to
to have judicial leaders in juvenile court who are
the handling of dependency cases. The American
committed to optimizing the ability of CPS and the
Bar Association, the National Center for State
courts to address effectively the needs of abused and
Courts, and the NCJFCJ are working together to
neglected children and their families. Communities
help courts improve their performance by addressing
with model courts and strong State CIPs are good
the two most critical and challenging areas of court
examples.
reform: court performance measurement and judicial
workload. Utilizing a guide and toolkit recently Like all effective leaders, judges must have a vision
developed by these organizations under a grant from for what can and should be accomplished. For child
the David and Lucile Packard Foundation, the groups abuse and neglect cases, that vision will include the
are providing targeted technical assistance to help timely achievement of safe, permanent homes for the
six project courts achieve increased accountability children. The vision and how it is communicated by
and better performance. The final products of this the words and actions of the judge and others who
project will be an updated guidebook and toolkit that share it can motivate juvenile court practitioners and
will provide revised instrumentation and procedures can provide meaning and value to their work. Areas
based on lessons learned during the implementation in which judges’ leadership can be exercised include
study, as well as a report on the implementation of court operations, interactions with other stakeholders,
a time-study and workload assessment at the local and advocacy for abused and neglected children.
court level.

Examples of Court Reform Projects

For examples of successful projects, see NCJFCJs’ Technical Assistance Bulletin, State Court Improvement
Projects “Bragging Rights” at http://www.ncjfcj.org/images/stories/dept/ppcd/pdf/braggingrights.pdf
and the National Court Improvement Progress Report and Catalog maintained by the National Child
Welfare Resource Center on Legal and Judicial Issues at http://www.abanet.org/child/cipcatalog/home.
html.

76 Court Improvement and Best Practices

 Court Operations

• Continuances are rare;
• Decisions and orders are entered and distributed
Through the hearing and management of cases, judges
promptly.
set a standard for court operations, which includes
the judges’:
Interactions With Other Stakeholders
• Knowledge and skill in hearing, monitoring, and
resolving individual cases; Judicial leaders “…must encourage and promote
collaboration and mutual respect among all
• Commitment to timely proceedings and
participants in the child welfare system…,” and
decisions;
“…should regularly convene representatives from [it]
• Enforcement of rules; to improve operations of the system.”92 All effective
juvenile courts are characterized by successful
• Participation in training opportunities; partnerships with CPS and with other community
and system stakeholders. Judges meet regularly with
• Style of interacting with families and these partners and work cooperatively with them
professionals.
to identify and resolve systemic problems, to plan
This is important because good administrative training events, to strategize about new services to
leadership of court operations ensures that: fulfill unmet needs, to address resource and funding
issues, to improve service delivery and court processes,
• The court has rules of procedure to guide and to share their successes. These collaborative
practitioners; efforts create “…a synergy in which the contributions
of the various partners enhance and magnify their
• Petitions and other pleadings and documents are individual effects.”93
maintained in an orderly and accessible way;

• Cases are scheduled and decided on a timely Advocacy for Abused and Neglected Children
basis, before the same judge, and at intervals
that minimize waiting and inconvenience to Judicial leaders from the juvenile court should take an
participants; active role in educating policymakers and the public
about the needs of child maltreatment victims. This

Court Management Information Systems

Effective administrative leadership includes maintaining an information system that tracks individual
and aggregate case data. For more information about the need for courts to have good management
information systems for child abuse and neglect cases, as well as suggestions for improving existing
capabilities and developing and implementing new systems, see:

• Information Management: A Critical Component of Good Practice in Child Abuse and Neglect Cases;
• Model Court Approaches to Information Technology: A Dependency Court Data System Implementation
Guide.

Both are published by the PPCD of the NCJFCJ and are available at http://www.pppncjfcj.org.

Working with the Courts in Child Protection 77

 includes new or expanded resources and services that
are necessary to meet those needs, the importance of
the work being done in the juvenile court, and the
statutory changes necessary to enhance that work.
Because of their position within the child welfare
community, judges experienced in child maltreatment
cases can be particularly effective in bringing about
useful changes.

CONCLUSION

Navigating the juvenile court process in child

abuse and neglect cases can be an overwhelming
experience for CPS caseworkers and the families
they serve. However, a solid understanding of
applicable child maltreatment legislation, various
court proceedings, and court expectations will help
CPS caseworkers enhance their case practice and
outcomes. Furthermore, juvenile and family courts
throughout the country are increasingly aware that
innovative court practices and partnerships with CPS
and community service providers are instrumental
to achieving safety, permanency, and well-being for
children and families.

78 Court Improvement and Best Practices

 Endnotes

1 9
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pppncjfcj.org/html/childvic.html. 10
Prince, 321 U.S. at 166.
2
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13
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courts in the United States [On-line]. Available: http:// 17
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practice [On-line]. Available: http://www.childwelfare. 19
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gov/pubs/usermanuals/foundation/index.cfm.
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 34
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21
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80 Endnotes
 58
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ACF. (2005). Court involvement in the Child and

82 Endnotes
 APPENDIX A

Glossary of Terms

Adjournment – the suspension of business or Case Planning – the stage of the CPS case process
sessions, either for a fixed time, indefinitely, or until where the CPS caseworker develops a case plan with
the opening of another term. the family members.

Adjudicatory Hearings – held by the juvenile and Caseworker Competency – demonstrated

family court to determine whether a child has been professional behaviors based on the knowledge, skills,
maltreated or whether another legal basis exists for personal qualities, and values a person holds.
the State to intervene to protect the child.
Central Registry – a centralized database containing
Adoption and Safe Families Act (ASFA) – signed information on all substantiated/founded reports
into law November 1997 and designed to improve of child maltreatment in a selected area (typically a
the safety of children, to promote adoption and other State).
permanent homes for children who need them, and
to support families. The law requires CPS agencies Child Abuse Prevention and Treatment Act
to provide more timely and focused assessment and (CAPTA) – see Keeping Children and Families Safe
intervention services to the children and families that Act.
are served within the CPS system.
Child Protective Services (CPS) – the designated
CASA – court-appointed special advocates (usually social services agency (in most States) to receive
volunteers) who serve to ensure that the needs reports, investigate, and provide intervention and
and interests of a child in child protection judicial treatment services to children and families in which
proceedings are fully protected. child maltreatment has occurred. Frequently, this
agency is located within larger public social service
Case Closure – the process of ending the relationship agencies, such as Departments of Social Services.
between the CPS worker and the family that often
involves a mutual assessment of progress. Optimally, Civil Contempt – the willful failure to do something
cases are closed when families have achieved their that a court has ordered, such as refusing to testify
goals and the risk of maltreatment has been reduced when the court has found that no privilege applies or
or eliminated. refusing to pay child support when there are ample
funds to do so. The usual sanction is incarceration
Case Plan – the casework document that outlines the for a term that lasts until the person in contempt
outcomes, goals, and tasks necessary to be achieved in complies with the court order.
order to reduce the risk of maltreatment.

Working with the Courts in Child Protection 83

 Concurrent Planning – identifies alternative plans guardian, or custodian does not properly provide for
for permanent placement of a child by addressing such a child.
both reunification and legal permanency with a new
parent or caregiver if reunification efforts fail. Differential Response – an area of CPS reform that
offers greater flexibility in responding to allegations
Consent Decree – a decree entered by a court that of abuse and neglect. Also referred to as “dual track”
is determined by the parties’ agreement; a settlement or “multi-track” response, it permits CPS agencies to
between the parties that is subject to judicial approval respond differentially to children’s needs for safety,
and supervision. the degree of risk present, and the family’s needs for
services and support. See “dual track.”
Continuance – an adjournment of a case from one
day to another or to a later hour of the same day. Discovery – pretrial process that allows each party
to obtain information relevant to the case from the
Criminal Contempt – an act that obstructs justice or other parties.
attacks the integrity of the court that is punishable by
fine or imprisonment or both. Criminal contempt Depositions – transcribed oral examinations under
may be indirect or direct. Indirect contempt is oath.
contempt occurring outside the courtroom, such as a
willful violation of a court’s order. Direct contempt Dispositional Hearings – held by the juvenile and
is disruptive or disrespectful behavior that occurs in family court to determine the legal resolution of cases
the presence of the judge, such as uttering an epithet after adjudication, such as whether placement of
when the judge announces an unfavorable decision. the child in out-of-home care is necessary, and what
services the children and family will need to reduce
Cross-examination – questioning of a witness by the risk and to address the effects of maltreatment.
attorneys other than the one who called the person
as a witness. Dual Track – term reflecting new CPS response
systems that typically combine a nonadversarial
Cultural Competence – a set of attitudes, behaviors, service-based assessment track for cases where children
and policies that integrates knowledge about groups are not at immediate risk with a traditional CPS
of people into practices and standards to enhance the investigative track for cases where children are unsafe
quality of services to all cultural groups being served. or at greater risk for maltreatment. See “differential
response.”
Declaratory Judgment – a court decision which
simply declares the rights of the parties or expresses Duces Tecum – a type of subpoena or court order that
the opinion of the court on a question of law without requires a person to produce for the court specified
ordering anything to be done. documents or records.

Delinquency – the commitment of an offense by a Due Process – The principle that every person has
youth of what would be a crime if he or she were an the protection of a day in court, representation by
adult. an attorney, and the benefit of procedures that are
speedy, fair, and impartial.
Dependent Child – as used in statues providing for
the care of dependent, neglected, and delinquent Evaluation of Family Progress – the stage of the
children, the term means dependent upon the public CPS case process where the CPS caseworker measures
support; any child under the age of 18 who is destitute, changes in family behaviors and conditions (risk
or whose home by reason of neglect by the parents is factors), monitors risk elimination or reduction,
an unfit place for such child, or whose father, mother, assesses strengths, and determines case closure.

84 Appendix A—Glossary of Terms

Exculpatory – evidence or testimony that exonerates fulfill the expectations, and the rights of the parents
or clears the defendant. to ensure that the family completely understands the
process.
Ex Parte – on behalf of or involving only one party
to a legal matter and in the absence of and usually Guardian ad Litem – a lawyer or layperson who
without notice to the other party. represents a child in juvenile or family court. Usually
this person considers the “best interest” of the child
Expert Testimony – opinion testimony about a and may perform a variety of roles, including those
subject that is outside the judge’s or jury’s knowledge of independent investigator, advocate, advisor, and
or experience, provided by a witness with established guardian for the child. A layperson who serves in this
expertise on that subject. role is sometimes known as a court-appointed special
advocate or CASA.
Family Assessment – the stage of the child protection
process when the CPS caseworker, community Hearsay – an out-of-court statement made by
treatment provider, and the family reach a mutual someone other than the witness that is offered for the
understanding regarding the behaviors and conditions truth of that statement.
that must change to reduce or eliminate the risk of
maltreatment, the most critical treatment needs that Home Visitation Programs – prevention programs
must be addressed, and the strengths on which to that offer a variety of family-focused services to
build. pregnant mothers and families with new babies.
Activities frequently encompass structured visits to
Family Drug Court – a drug court that deals with the family’s home and may address positive parenting
cases involving parental rights in which an adult is practices, nonviolent discipline techniques, child
the litigant (i.e., any party to a lawsuit, which means development, maternal and child health, available
plaintiff, defendant, petitioner, respondent, cross- services, and advocacy.
complainant and cross-defendant, but not a witness
or attorney); the case comes before the court through Immunity – established in all child abuse laws to
either a criminal or civil proceeding; and the case protect reporters from civil law suits and criminal
arises out of the substance abuse of a parent. prosecution resulting from filing a report of child
abuse and neglect.
Family Group Conferencing – a family meeting
model used by CPS agencies to optimize family Initial Assessment or Investigation – the stage
strengths in the planning process. This model brings of the CPS case process where the CPS caseworker
the family, extended family, and others important determines the validity of the child maltreatment
in the family’s life (e.g., friends, clergy, neighbors) report, assesses the risk of maltreatment, determines
together to make decisions regarding how best to if the child is safe, develops a safety plan if needed to
ensure safety of the family members. assure the child’s protection, and determines services
needed.
Family Unity Model – a family meeting model used
by CPS agencies to optimize family strengths in the Injunction – an equitable remedy in the form of a
planning process. This model is similar to the Family court order compelling a party to do or refrain from
Group Conferencing model. doing a specified act.

Full Disclosure – information provided to the Intake – the stage of the CPS case process where the
family regarding the steps in the CPS intervention CPS caseworker screens and accepts reports of child
process, the requirements of CPS, the expectations of maltreatment.
the family, the consequences if the family does not

Working with the Courts in Child Protection 85

 Interview Protocol – a structured format to ensure Mandated Reporter – individuals required by
that all family members are seen in a planned strategy, State statutes to report suspected child abuse and
that community providers collaborate, and that neglect to the proper authorities (usually CPS or law
information gathering is thorough. enforcement agencies). Mandated reporters typically
include professionals, such as educators and other
Jurisdiction – the power or right to exercise school personnel, health care and mental health
authority. professionals, social workers, childcare providers, and
law enforcement officers. Some States identify all
Juvenile and Family Courts – established in most
citizens as mandated reporters.
States to resolve conflict and to otherwise intervene
in the lives of families in a manner that promotes the Multidisciplinary Team – established between
best interest of children. These courts specialize in agencies and professionals within the child protection
areas such as child maltreatment, domestic violence, system to discuss cases of child abuse and neglect
juvenile delinquency, divorce, child custody, and and to aid in decisions at various stages of the CPS
child support. case process. These teams also may be designated by
different names, including child protection teams,
Juvenile Drug Court – a drug court that focuses on
interdisciplinary teams, or case consultation teams.
juvenile delinquency matters and status offenses that
involve juveniles who are substance abusers. Neglect – the failure to provide for a child’s basic
needs. Neglect can be physical, educational, or
Keeping Children and Families Safe Act – The
emotional. Physical neglect can include not providing
Keeping Children and Families Safe Act of 2003
adequate food or clothing, appropriate medical care,
(P.L. 108–36) included the reauthorization of the
supervision, or proper weather protection (heat or
Child Abuse Prevention and Treatment Act (CAPTA)
coats). Educational neglect includes failure to provide
in its Title I, Sec. 111. CAPTA provides minimum
appropriate schooling, special educational needs, or
standards for defining child physical abuse and neglect
allowing excessive truancies. Psychological neglect
and sexual abuse that States must incorporate into
includes the lack of any emotional support and love,
their statutory definitions in order to receive Federal
chronic inattention to the child, exposure to spouse
funds. CAPTA defines child abuse and neglect as “at
abuse, or drug and alcohol abuse.
a minimum, any recent act or failure to act on the
part of a parent or caretaker, which results in death, Out-of-Home Care – childcare, foster care, or
serious physical or emotional harm, sexual abuse or residential care provided by persons, organizations,
exploitation, or an act or failure to act which presents and institutions to children who are placed outside
an imminent risk of serious harm.” their families, usually under the jurisdiction of
juvenile or family court.
Kinship Care – formal child placement by the
juvenile court and child welfare agency in the home Overrule – to set aside the authority of a former
of a child’s relative. decision; the act of court in rejecting a motion or
objection made by a party to a lawsuit.
Liaison – the designation of a person within an
organization who has responsibility for facilitating Parens Patriae Doctrine – originating in feudal
communication, collaboration, and coordination England, a doctrine that vests in the State a right of
between agencies involved in the child protection guardianship of minors. This concept has gradually
system. evolved into the principle that the community, in
addition to the parent, has a strong interest in the care
Litigant – a party to a lawsuit.
and nurturing of children. Schools, juvenile courts,
and social service agencies all derive their authority

86 Appendix A—Glossary of Terms

from the State’s power to protect children who are or terrorizing a child. The term “psychological
unable to protect themselves. maltreatment” is also known as emotional abuse or
neglect, verbal abuse, or mental abuse.
Parent or Caretaker – person responsible for the care
of the child. Putative Father – the alleged or supposed male
parent; the person alleged to have fathered a child
Petitions – a document containing allegations of whose parentage is at issue.
child abuse or neglect that is typically filed by the
CPS attorney in juvenile court. Respondent – an answering party in a proceeding in
juvenile or family court.
Physical Abuse – the inflicting of a nonaccidental
physical injury upon a child. This may include, Response Time – a determination made by CPS
burning, hitting, punching, shaking, kicking, beating, and law enforcement regarding the immediacy of the
or otherwise harming a child. It may, however, response needed to a report of child abuse or neglect.
have been the result of over-discipline or physical
punishment that is inappropriate to the child’s age. Review Hearings – held by the juvenile and family
court to review dispositions (usually every 6 months)
Preponderance of the Evidence – the burden of and to determine the need to maintain placement in
proof for civil cases in most States, including child out-of-home care or court jurisdiction of a child.
maltreatment proceedings. The attorney for CPS or
other petitioner must show by a preponderance of Risk – the likelihood that a child will be maltreated
evidence that the abuse or neglect happened. This in the future.
standard means that the evidence is more credible
Risk Assessment – to assess and measure the
than the evidence presented by the defendant party.
likelihood that a child will be maltreated in the future,
Primary Prevention – activities geared to a sample frequently through the use of checklists, matrices,
of the general population to prevent child abuse and scales, and other methods of measurement.
neglect from occurring. Also referred to as “universal
Risk Factors – behaviors and conditions present in
prevention.”
the child, parent, or family that likely will contribute
Protective Factors – strengths and resources that to child maltreatment occurring in the future.
appear to mediate or serve as a “buffer” against risk
Safety – absence of an imminent or immediate threat
factors that contribute to vulnerability to maltreatment
of moderate-to-serious harm to the child.
or against the negative effects of maltreatment
experiences. Safety Assessment – a part of the CPS case process
in which available information is analyzed to identify
Protocol – an interagency agreement that delineates
whether a child is in immediate danger of moderate
joint roles and responsibilities by establishing criteria
or serious harm.
and procedures for working together on cases of child
abuse and neglect. Safety Plan – a casework document developed when
it is determined that the child is in imminent or
Psychological Maltreatment – a pattern of caregiver
potential risk of serious harm. In the safety plan,
behavior or extreme incidents that convey to children
the caseworker targets the factors that are causing or
that they are worthless, flawed, unloved, unwanted,
contributing to the risk of imminent serious harm to
endangered, or only of value to meeting another’s
the child, and identifies, along with the family, the
needs. This can include parents or caretakers using
interventions that will control the safety factors and
extreme or bizarre forms of punishment or threatening
ensure the child’s protection.

Working with the Courts in Child Protection 87

 Secondary Prevention – activities targeted to prevent Suspended Sentence – a sentence that the defendant
breakdowns and dysfunctions among families who will not have to serve if he or she complies with the
have been identified as at risk for abuse and neglect. conditions of probation.

Service or Constructive Service – the act of delivering Sustain – to allow or uphold as valid.
to, or informing someone of, a writ, summons, or
other notice as prescribed by law. Termination of Parental Rights Hearing – a legal
proceeding to free a child from a parent’s legal custody
Service Agreement – the casework document so that others can adopt the child. The legal basis
developed between the CPS caseworker and the family for termination of parental rights differs from State
that outlines the tasks necessary to achieve goals and to State, but most States consider the failure of the
outcomes necessary for risk reduction. parent to support or communicate with the child for
a specified period, parental failure to improve home
Service Provision – the stage of the CPS casework conditions, extreme or repeated neglect or abuse,
process when CPS and other service providers deliver parental incapacity to care for the child, and/or
specific services geared toward the reduction of risk of extreme deterioration of the parent-child relationship.
maltreatment. In making this finding, the court is determining that
the parents will not be able to provide adequate care
Sexual Abuse – inappropriate adolescent or adult
for the child in the future by using a standard of clear
sexual behavior with a child. It includes fondling
and convincing evidence. This burden of proof is
a child’s genitals, making the child fondle the
higher than preponderance of the evidence, which is
adult’s genitals, intercourse, incest, rape, sodomy,
used in civil abuse or neglect cases where termination
exhibitionism, sexual exploitation, or exposure to
is not sought.
pornography. To be considered child abuse, these acts
have to be committed by a person responsible for the Tertiary Prevention – treatment efforts geared to
care of a child (for example a baby-sitter, a parent, address situations where child maltreatment has
or a daycare provider) or related to the child. If a already occurred, with the goals of preventing child
stranger commits these acts, it would be considered maltreatment from occurring in the future and of
sexual assault and handled solely by the police and avoiding the harmful effects of child maltreatment.
criminal courts.
Transactional Immunity – a broader form of use
Status Offender – a juvenile under the jurisdiction of immunity that bars prosecution of a witness for
the court because of acts that would not be criminal any event or transaction described in the witness’s
if committed by an adult, but that indicate that the compelled testimony, regardless of the source of the
child is beyond parental control. evidence against that person.
Status Offenses – transgressions of children that Treatment – the stage of the child protection case
would not be crimes if they were legal age; primarily process when specific services are provided by CPS
involve running away and truancy. The age for and other providers to reduce the risk of maltreatment,
bringing such charges varies from State to State. support families in meeting case goals, and address
the effects of maltreatment.
Substantiated – an investigation disposition
concluding that the allegation of maltreatment or risk Universal Prevention – activities and services directed
of maltreatment was supported or founded, as defined at the general public with the goal of stopping the
by State law or State policy. A CPS determination occurrence of maltreatment before it starts. Also
means that credible evidence exists that child abuse referred to as “primary prevention.”
or neglect has occurred.

88 Appendix A—Glossary of Terms

Unsubstantiated (not substantiated) – an
investigation disposition that determines that there is
not sufficient evidence under State law or policy to
conclude that the child has been maltreated or is at
risk of maltreatment. A CPS determination means
that credible evidence does not exist that child abuse
or neglect has occurred.

Use Immunity – bars the use of a witness’s compelled

testimony and statements from being used directly or
indirectly against that person in a subsequent trial.

Voir Dire – the inquiry of prospective jurors to

determine if the jurors are fit for jury duty in a given
case.

Working with the Courts in Child Protection 89

 APPENDIX B

Resource Listings of
Selected National
Organizations Concerned
With Child Maltreatment

Listed below are several of the many national American Professional Society on the Abuse of

organizations and groups dealing with various aspects Children

of child maltreatment. Visit http://childwelfare.
address: P.O. Box 30669
gov/pubs/usermanual.cfm to view a more
Charleston, SC 29417
comprehensive list of resources and visit http://www.
childwelfare.gov/organizations/index.cfm to view phone: (843) 764-2905
an organization database. Inclusion on this list is for (877) 40A-PSAC
information purposes only and does not constitute
fax: (803) 753-9823
an endorsement by the Office on Child Abuse and
Neglect or the Children’s Bureau. e-mail: [email protected]
Web site: www.apsac.org
CHILD WELFARE ORGANIZATIONS Provides professional education, promotes research to
inform effective practice, and addresses public policy
American Humane Association Children’s

issues. Professional membership organization.
Division
American Public Human Services Association
address: 63 Inverness Dr., East
address: 810 First St., NE, Suite 500
Englewood, CO 80112-5117
Washington, DC 20002-4267
phone: (800) 227-4645
phone: (202) 682-0100
(303) 792-9900
fax: (202) 289-6555
fax: (303) 792-5333
Web site: http://www.aphsa.org
e-mail: [email protected]
Addresses program and policy issues related to the
Web site: http://www.americanhumane.org
administration and delivery of publicly funded human
Conducts research, analysis, and training to help public
services. Professional membership organization.
and private agencies respond to child maltreatment.

Working with the Courts in Child Protection 91

 AVANCE Family Support and Education Program

National Black Child Development Institute

address: 118 N. Medina address: 1101 15th St., NW, Suite 900
San Antonio, TX 78207 Washington, DC 20005
phone: (210) 270-4630 phone: (202) 833-2220
fax: (210) 270-4612 fax: (202) 833-8222
Web site: www.avance.org e-mail: [email protected]
Operates a national training center to share and Web site: www.nbcdi.org
disseminate information, material, and curricula
Operates programs and sponsors a national training
to service providers and policy-makers interested in
conference through Howard University to improve
supporting high-risk Hispanic families.
and protect the well-being of African-American
Child Welfare League of America children.

address: 440 First St., NW, Th ird Floor National Center for State Courts
Washington, DC 20001-2085
address: 300 Newport Ave.
phone: (202)
638-2952 Williamsburg, VA 23185-4147
fax: (202)
638-4004 phone: (800)
616-6164
Web site: http://www.cwla.org fax: (757)
564-2022
Provides training, consultation, and technical Web site: http://www.ncsconline.org
assistance to child welfare professionals and agencies
Enhances court operations with the latest technology,
while also educating the public about emerging issues
collects and interprets the latest data on court
affecting children.
operations nationwide, and provides information
National Association of Counsel for Children on proven “best practices” for improving court
operations.
Address: 1825 Marion Street, Suite 242
Denver, CO 80218 National Children’s Advocacy Center

phone: (888) 828-NACC address: 210 Pratt Ave

Huntsville AL 35801
e-mail: [email protected]
phone: (256) 533-KIDS
Web site: http://www.naccchildlaw.org

fax: (256) 534-6883

Provides training and technical assistance to child

advocates and works to improve the child welfare,

Web site: http://www.nationalcac.org
juvenile justice and private custody systems.

Provides prevention, intervention, and treatment

services to physically and sexually abused children and
their families within a child-focused team approach.

92 Appendix B—Resource Listings of Selected National Organizations Concerned

With Child Maltreatment
National Council of Juvenile and Family Court National Indian Child Welfare Association
Judges
address: 5100 SW Macadam Ave.,
address: NCJFCJ – Permanency Planning for Suite 300
Children Department Portland, OR 97239
1041 North Virginia St.
phone: (503) 222-4044
P.O. Box 8970

Reno, NV 89507
fax: (503) 222-4007
phone: (775) 784-6012 e-mail: [email protected]
fax: (775) 784-6628 Web site: http://www.nicwa.org
email: [email protected] Disseminates information and provides technical
Web site: http://www.pppncjfcj.org assistance on Indian child welfare issues. Supports
community development and advocacy efforts to
Serves the Nation’s children and families by improving facilitate tribal responses to the needs of families and
the courts of juvenile and family jurisdictions. Its children.
mission is to better the justice system through
education and applied research and improve the Youth Law Center
standards, practices, and effectiveness of the juvenile
address: Children’s Legal Protection Center
court system. NCJFCJ strives to increase awareness
1010 Vermont Ave., NW, Suite 310
and sensitivity to children’s issues and focuses on Washington, DC 20005-4902
providing meaningful assistance to the judges, court
administrators, and related professionals in whose phone: (202) 637-0377
care the concerns of children and their families have fax: (202) 379-1600
been entrusted.
e-mail: [email protected]
National Court Appointed Special Advocate
Web site: http://www.youthlawcenter.com
Association
Works to ensure that vulnerable children are provided
address: North Tower, 100 West Harrison St., with the conditions and services they need, particularly
Suite 500
focusing on children living apart from their families
Seattle, WA 98119-4123
in child welfare and juvenile justice systems.
phone: (800) 628-3233
fax: (206) 270-0078
email: [email protected]
Web site: http://www.nationalcasa.org
Promotes and supports volunteer advocacy in juvenile
courts for children alleged to be maltreated. It receives
Federal and private funding, provides money and
technical assistance to start and expand programs,
promulgates performance standards, produces
training manuals and other publications, and trains
program leaders and volunteers.

Working with the Courts in Child Protection 93

 National Resource Center for Adoption
NATIONAL RESOURCE CENTERS
address: 16250 Northland Drive, Suite 120
Southfield, MI 48075
National Child Welfare Resource Center on Legal
and Judicial Issues phone: (248) 443-0306
fax: (248) 443-7099
address: ABA Center on Children and the Law
e-mail: [email protected]
740 15th St., NW
Web site: http://www.nrcadoption.org
Washington, DC 20005-1019
phone: (800) 285-2221 (Service Center) Develops and distributes training curricula,
publications, and videos and sponsors three national
(202) 662-1720 conferences to improve the effectiveness and quality
fax: (202) 662-1755 of adoption and post-adoption services. The center
also provides training on current practices, policies,
e-mail: [email protected] and issues in special needs adoption; permanency
Web site: http://www.abanet.org/child/rclji/home. planning; post-adoption services; and cultural
html competence.

Provides technical assistance, training and consultation National Resource Center for Child Protective
to State, local and Tribal agencies and courts to Services
strengthen their knowledge of legal and judicial issues
related to child welfare and juvenile and family courts. address: 925 #4 Sixth Street NW
Its expertise on a wide variety of subjects includes Albuquerque, New Mexico 87102
court improvement, agency and court collaboration, phone: (505) 345-2444
termination of parental rights, non-adversarial case
resolution, reasonable efforts requirements, legal fax: (505) 345-2626
representation of children, permanent guardianship, e-mail: theresa.costello@actionchildprotection.
confidentiality, and other emerging child welfare org
issues.
Web site: http://www.nrccps.org
Focuses on building State, local, and Tribal capacity
through training and technical assistance in CPS,
including meeting Federal requirements, strengthening
programs, eligibility for the CAPTA grant, support to
State Liaison Officers, and collaboration with other
NRCs.

94 Appendix B—Resource Listings of Selected National Organizations Concerned

With Child Maltreatment
National Resource Center on Domestic Violence: TECHNICAL ASSISTANCE SUPPORT SYSTEM

Child Protection and Custody ORGANIZATIONS

address: Family
Violence Department
National Council of Juvenile and Family Interstate Compact on Adoption and Medical
Court Judges Assistance
P.O. Box 8970

Reno, NV 89507

address: Association of Administrators of the
Interstate Compact on Adoption and
phone: (800)
527-3223 Medical Assistance
fax: (775)
784-6160 810 First St., NE, Suite 500
Washington, DC 20002
e-mail: [email protected]
phone: (202) 682-0100
Web site: http://www.ncjfcj.org/dept/fvd/res_center
fax: (202) 289-6555
Promotes improved court responses to family violence
through demonstration programs, professional Web site: http://aaicama.aphsa.org/index.html
training, technical assistance, national conferences, Provides technical and legal assistance, education
and publications. and training, and materials on practice and policy
issues to facilitate the administration of the Interstate
National Resource Center for Family-Centered
Compact on Adoption and Medical Assistance.
Practice and Permanency Planning

address: National Resource Center for Family- Interstate Compact on the Placement of Children
Centered Practice and Permanency
address: Association of Administrators of the
Planning
Interstate Compact on the Placement of
Hunter College School of Social Work
Children
129 East 79th Street
American Public Human Services
New York, NY 10021
Association
phone: (212) 452-7053 810 First St., NE, Suite 500
Washington, DC 20002-4267
fax: (212) 452-7475
phone: (202)
682-0100
Web site: http://www.hunter.cuny.edu/socwork/
nrcfcpp/ fax: (202)
289-6555
Provides training and technical assistance and e-mail: [email protected]
information services to help States through all stages Web site: http://icpc.aphsa.org
of the CFSRs, emphasizing family-centered principles
and practices and helping States build knowledge of Provides ongoing administrative, legal, and technical
foster care issues. Partners with the Child Welfare assistance to individual States that administer the
League of America and the National Indian Child Interstate Compact on the Placement of Children,
Welfare Association to provide training, technical which is a uniform State law that establishes a
assistance, and information services. contract among party States to ensure that children
placed across State lines receive adequate protection
and services.

Working with the Courts in Child Protection 95

 PREVENTION ORGANIZATIONS Shaken Baby Syndrome Prevention Plus

address: 649 Main St., Suite B

National Alliance of Children’s Trust and Groveport, OH 43125
Prevention Funds
phone: (800) 858-5222
address: 5712 30th Ave. NE (614) 836-8360
Seattle, WA 98105
fax: (614) 836-8359
phone: 206-526-1221
e-mail: [email protected]
fax: 206-526-0220
Web site: http://www.sbsplus.com
e-mail: [email protected]
Develops, studies, and disseminates information and
Web site: www.ctfalliance.org materials designed to prevent shaken baby syndrome
Assists State children’s trust and prevention funds to and other forms of child abuse and to increase positive
strengthen families and protect children from harm. parenting and child care.

Prevent Child Abuse America COMMUNITY PARTNERS

address: 200 South Michigan Ave.,
17th Floor The Center for Faith-Based and Community
Chicago, IL 60604-2404 Initiatives
phone: (800) 835-2671 (orders)
address: U. S. Department of Health and Human
(312) 663-3520
Services
fax: (312) 939-8962 200 Independence Ave., SW.
Washington, DC 20201
e-mail: [email protected]
phone: 1-877-696-6775
Web site: http://www.preventchildabuse.org
e-mail: [email protected]
Conducts prevention activities such as public
awareness campaigns, advocacy, networking, research, Web site: http://www.hhs.gov/faith/
and publishing, and provides information and Welcomes the participation of faith-based and
statistics on child abuse. community-based organizations as valued and
essential partners with the U.S. Department of
Health and Human Services. Funding goes to faith-
based organizations through Head Start, programs
for refugee resettlement, runaway and homeless
youth, independent living, childcare, child support
enforcement, and child welfare.

96 Appendix B—Resource Listings of Selected National Organizations Concerned

With Child Maltreatment
Family Support America
(formerly Family Resource Coalition of America) FOR THE GENERAL PUBLIC

address: 205 West Randolph Street,

Suite 2222 Childhelp USA
Chicago, IL 60606 address: 15757 North 78th St.
phone: (312) 338-0900 Scottsdale, AZ 85260

fax: (312) 338-1522 phone: (800)

4-A-CHILD
(800) 2-A-CHILD (TDD line)
e-mail: [email protected] (480) 922-8212
Web site: www.familysupportamerica.org fax: (480)
922-7061
Works to strengthen and empower families and e-mail: [email protected]
communities so that they can foster the optimal
development of children, youth, and adult family Web site: http://www.childhelpusa.org
members. Provides crisis counseling to adult survivors and child
victims of child abuse, offenders, and parents, and
National Exchange Club Foundation for the
operates a national hotline.
Prevention of Child Abuse
National Center for Missing and Exploited
address: 3050 Central Ave.
Children
Toledo, OH 43606-1700
phone: (800)
924-2643 address: Charles B. Wang International Children’s
(419) 535-3232 Building
699 Prince St.
fax: (419) 535-1989 Alexandria, VA 22314-3175
e-mail: [email protected] phone: (800)
843-5678
Web site: http://www.nationalexchangeclub.com (703) 274-3900

Conducts local campaigns in the fight against child fax: (703)

274-2220
abuse by providing education, intervention, and Web site: http://www.missingkids.com
support to families affected by child maltreatment.
Provides assistance to parents, children, law
National Fatherhood Initiative enforcement, schools, and the community in
recovering missing children and raising public
address: 101 Lake Forest Blvd., Suite 360 awareness about ways to help prevent child abduction,
Gaithersburg, MD 20877 molestation, and sexual exploitation.
phone: (301) 948-0599
fax: (301) 948-4325
Web site: http://www.fatherhood.org
Works to improve the well-being of children by
increasing the proportion of children growing up
with involved, responsible, and committed fathers.

Working with the Courts in Child Protection 97

 Parents Anonymous

address: 675 West Foothill Blvd., Suite 220

Claremont, CA 91711
phone: (909) 621-6184
fax: (909) 625-6304
e-mail: Parentsanonymous@parentsanonymous.
org
Web site: www.parentsanonymous.org
Leads mutual support groups to help parents provide
nurturing environments for their families.

FOR MORE INFORMATION

Child Welfare Information Gateway

address: 1250 Maryland Avenue, SW

Eighth Floor
Washington, DC 20024
phone: (800) 394-3366
(703) 385-7565
fax: (703) 385-3206
e-mail: [email protected]
Web site: http://www.childwelfare.gov/
Collects, stores, catalogs, and disseminates information
on all aspects of child maltreatment, child welfare, and
adoption to help build the capacity of professionals in
the field. A service of the Children’s Bureau.

98 Appendix B—Resource Listings of Selected National Organizations Concerned

With Child Maltreatment
 APPENDIX C

State Telephone Numbers

for Reporting Child Abuse

E ach State designates specific agencies to receive and investigate reports of suspected child abuse and neglect.
Typically, this responsibility is carried out by child protective services (CPS) within a Department of Social
Services, Department of Human Resources, or Division of Family and Children Services. In some States, police
departments also may receive reports of child abuse or neglect.

Many States have local or toll-free telephone numbers, listed below, for reporting suspected abuse. The
reporting party must be calling from the same State where the child is allegedly being abused for most of
the following numbers to be valid.

For States not listed, or when the reporting party resides in a different State from the child, please call Childhelp,
800-4-A-Child (800-422-4453), or your local CPS agency. States may occasionally change the telephone
numbers listed below. To view the most current contact information, including State Web addresses, visit
http://www.childwelfare.gov/pubs/reslist/rl_dsp.cfm?rs_id=5&rate_chno=11-11172.

Alabama (AL) Delaware (DE) Indiana (IN)

334-242-9500 800-292-9582 800-800-5556

Alaska (AK) District of Columbia (DC) Iowa (IA)

800-478-4444 202-671-SAFE (7233) 800-362-2178

Arizona (AZ) Florida (FL) Kansas (KS)

888-SOS-CHILD 800-96-ABUSE 800-922-5330
(888-767-2445) (800-962-2873)
Kentucky (KY)
Arkansas (AR) Hawaii (HI) 800-752-6200
800-482-5964 808-832-5300
Maine (ME)
Colorado (CO) Idaho (ID) 800-452-1999
303-866-5932 800-926-2588 800-963-9490 (TTY)

Connecticut (CT) Illinois (IL) Massachusetts (MA)

800-842-2288 800-252-2873 800-792-5200
800-624-5518 (TDD) 217-524-2606

Working with the Courts in Child Protection 99

 Mississippi (MS) New Mexico (NM) South Dakota (SD)
800-222-8000 800-797-3260 605-773-3227
601-359-4991 505-841-6100
Tennessee (TN)
Missouri (MO) New York (NY) 877-237-0004
800-392-3738 800-342-3720
573-751-3448 518-474-8740 Texas (TX)
800-369-2437 (TDD) 800-252-5400
Montana (MT) 512-834-3784
866-820-KIDS (5437) Oklahoma (OK)
800-522-3511 Utah (UT)
Nebraska (NE) 800-678-9399
800-652-1999 Pennsylvania (PA)
800-932-0313 Vermont (VT)
Nevada (NV) 800-649-5285 (after hours)
800-992-5757 Puerto Rico (PR)
775-684-4400 800-981-8333 Virginia (VA)
787-749-1333 800-552-7096
New Hampshire (NH) 804-786-8536
800-894-5533 Rhode Island (RI)
603-271-6556 800-RI-CHILD Washington (WA)
(800-742-4453) 866-END-HARM
New Jersey (NJ) (866-363-4276)
877-652-2873 South Carolina (SC) 800-562-5624 (after hours)
800-835-5510 (TDD/ TTY)) 803-898-7318 800-624-6186 (TTY)

West Virginia (WV)

800-352-6513

100 Appendix C—State Telephone Numbers for Reporting Child Abuse

 APPENDIX D
Guidelines for Child
Protective Services
Caseworkers for Permanency
and Review Hearings

INDIVIDUALS WHO SHOULD BE PRESENT AT BOTH PERMANENCY AND REVIEW HEARINGS

• The judge who has monitored the case from the first hearing;
• The child, unless inappropriate for a specific reason;
• The parent whose rights have not been relinquished or terminated;
• The attorney for the parent;
• The assigned social services caseworker;
• The prosecuting or agency attorney;
• For Indian children, a representative from the child’s tribe and tribal attorney, if any;
• The guardian ad litem for the child, whether attorney, social worker, or other paid nonattorney,
volunteer, or Court-Appointed Special Advocate;

• The attorney for the child, if applicable;

• The foster parent, legal-risk foster parent, or adoptive parent;
• Relatives, other interested persons, and witnesses;
• The court reporter or suitable recording technology;
• The court security and other court staff.

Working with the Courts in Child Protection 101

 QUESTIONS FOR ALL CASES: WHAT ARE THE CHILD’S SPECIAL NEEDS?

• What is the child’s health and education status?

• What is being offered to address the child’s cultural needs, if applicable?
• What is the child’s current placement adjustment?
• What services are being provided to the child, what progress has the child made, and what issues
still need to be addressed?

FOR THE PERMANENCY HEARING

If Reunification Is Recommended:

• How have the conditions or circumstances leading to the removal of the child been corrected?
• Why is this plan in the best interests of the child?
• How often is visitation occurring and what is the impact on the child?
• What is the date and detailed plan for the child’s safe return home and follow-up supervision after
family reunification?

• What are the plans to continue any necessary services to the child?
• What are the plans to continue any necessary services to the family?
• If a change of school will occur, what will be done to prepare for the transition?
If Termination of Parental Rights and Adoption Are Recommended:

• What are the facts and circumstances supporting the grounds for termination?
• What reasonable efforts were made to reunify?
• Why is this plan in the best interests of the child?
• Has the petition been filed and, if not, what is the date it will be filed?
• Are there relatives who will adopt the child if termination of parental rights is granted? If so, is the
child living with the relative? If not, why not? If there are no relatives willing and able to adopt,
why not?

• If relative adoption is not the plan, is adoption by the foster parents the plan? If not, why not?

102 Appendix D—Guidelines for Child Protective Services Caseworkers

for Permanency and Review Hearings
 • If an adoptive home must be recruited, what efforts are being made to identify potential adoptive
homes both locally and in other jurisdictions? Are there adults with whom the child has a positive
relationship and are they potential adopting families?

Will Adoption With Contact Be Recommended and Why or Why Not?

• What counseling will occur to assist the child to deal with this change of plan?
• If the child is an Indian child, have Indian Child Welfare Act requirements been met?
If Permanent Guardianship or Permanent Custody Is Recommended:

• Why is this option preferable to termination of parental rights and adoption? Why is it in the best
interests of the child?

• What reasonable efforts were made to reunify?

• What are the facts and circumstances demonstrating the appropriateness of the individual or couple
to serve as permanent family to the child? Is there another person who spends significant time in
the home, and if so, has that individual been interviewed for appropriateness?

• Has there been full disclosure to the family of the child’s circumstances and special needs?
• What is the plan to ensure that this will be a permanent home for the child?
• What contact will occur between the child and parents, siblings, and other family members?
• What financial support will be provided by the biological parents?
• What are the plans to continue any necessary services to the child? How will these services be
funded after guardianship or custody has been granted?

• If the child is not already placed in this home, why not and:

– How often is visitation occurring and what is the impact on the child?

– What is the date and detailed plan for the child’s placement in this home and follow-up
supervision after placement?
– If a change of school will occur, what will be done to prepare for the transition?
If Another Plan Is Being Recommended:

• What are the compelling reasons not to proceed with reunification, termination of parental rights,
permanent guardianship, or permanent custody? What is the plan, and why is this plan in the
child’s best interests?

• What reasonable efforts were made to reunify the child with the parent?
• How will this plan provide stability and permanency for the child?
• What contact will occur between child and parents, siblings, and other family members?

Working with the Courts in Child Protection 103

 • What are the plans to continue any necessary services to the child?
• If the child is a teenager, what is the plan to prepare the child for independent living?
• If the child is not already placed in this home, why not and:
– How often is visitation occurring and what is the impact on the child?
– What is the detailed plan for the child’s placement in this home and follow-up supervision
after placement?
– If a change of school will occur, what will be done to ease the transition?
Findings and Conclusions:

• Record the persons present and whether absent parties were provided with appropriate notice;
verification that reports offered into evidence have been provided to all parties in advance of the
hearing.

• A
finding as to what reasonable efforts the agency has made to reunify the family and to finalize
a permanent plan. A well-designed, appropriate case plan and meaningful case reviews should
prevent unexpected findings of “no reasonable efforts” at this stage of a case. Should it be found
that additional remedial steps are necessary, specific expectations should be set out in a detailed
order, with a short time frame (e.g., 30 days) for holding the follow-up permanency hearing. A
copy of the order should be forwarded to the head of the social services agency.

• A statement addressing special factors or conditions of the child that are identified as special needs,
what services are to be provided to address these needs, and who is responsible for providing the
services.

• The court’s determination of the permanent plan for the child and why the plan is in the best
interests of the child. The order should state the steps to be taken and time lines for accomplishing
the permanent goal. If the plan is reunification, the date for reunification should be stated.

• If the plan is termination of parental rights and the petition has not yet been filed, the order should
state expected time frame for filing a petition for termination of parental rights that must be within
30 days. If the petition has been filed, the court should schedule pretrials, mediation, and trial
dates.

• If the plan is termination of parental rights, and a parent wishes to relinquish parental rights at the
permanency hearing, the court should be prepared to accept the relinquishment and include the
relinquishment in the order.

• For any plan, next hearing date and purpose, unless all court and agency involvement is
terminated (i.e., permanent guardianship, permanent custody, or reunification without protective
supervision).

104 Appendix D—Guidelines for Child Protective Services Caseworkers

for Permanency and Review Hearings
 FOR REVIEW HEARINGS THAT FOLLOW PERMANENCY HEARINGS OR TERMINATION OF PARENTAL

RIGHTS HEARINGS

If Reunification Is the Permanent Plan:

• What progress has been made on each of the issues that prevented implementation of this plan at
the permanency hearing?

• How often is visitation occurring and what is the impact on the child and family?
• What is the date and detailed plan for the child’s safe return home and follow-up supervision after
family reunification?

• What are the plans to continue any necessary services to the child?
• What are the plans to continue any necessary services to the family?
• If a change of school will occur, what will be done to prepare for the transition?
• If the family has not made adequate progress to enable a safe return home, what alternate permanent
plan is recommended and what are the steps and time frames for its implementation?

If Permanent Guardianship or Permanent Custody Is the Permanent Plan:

• What progress has been made on each of the issues that prevented implementation of this plan at
the permanency hearing?

• What contact is occurring between the child and parents, siblings, other family members and tribal
and clan members, if applicable, and is this contact working well for the child and all involved
individuals?

• Has there been full disclosure regarding the child’s background history and current or potential
disabilities?

• What are the plans to continue any necessary services to the child? How will these services be
funded after guardianship or custody has been granted?

• What is the plan for financial support from the biological parents?
• Is there any reason that permanent guardianship or permanent custody should not be granted
today?

• If sufficient progress has not been made to enable the granting of permanent guardianship or
permanent custody at this hearing, what alternate permanent plan is recommended and what are
the steps and time frames for its implementation?

Working with the Courts in Child Protection 105

 If Relative or Foster Home Adoption Is the Permanent Plan:

• What progress in approving the relative or foster home as the adoptive home has been made since
the termination of parental rights hearing? If it is not yet approved, why not, what remains to be
done, and when will it be approved?

• Has there been full disclosure regarding the child’s history, and current or potential disabilities?
• If adoption with contact has been agreed upon, what contact is occurring between the child and
parents, siblings, other family members, or tribal and clan members, if relevant, and is this contact
working well for the child and all involved individuals?

• How soon can the adoption be finalized? What specific steps must occur and what is the time
frame for each of the steps?

• Has the adoption assistance agreement been negotiated? If not, why not? Have all appropriate
subsidies been identified and has all paperwork been completed with regard to these subsidies?
Will services follow the family if they move out of State? Is the adopting family aware of the details
of all appropriate subsidy issues?

• Has the relative or foster parent been made aware of ways to access needed services after the
adoption is finalized? Has the relative or foster parent been given contacts for support groups or
other adopting families who can serve as mentors and supports?

If an Adoptive Home Has Been Recruited Since the Last Hearing but the Child Has Not Yet Been Placed in
the Home:

• A detailed description of the family and the neighborhood in which the family lives. Is there another
person who spends significant time in the home, and if so, has this individual been interviewed for
appropriateness?

• If the child is an Indian child, does the home meet the placement preferences listed in the Indian
Child Welfare Act, and if not, why not? What efforts has the agency made to identify a placement
under Indian Child Welfare Act?

• Has there been full disclosure to the adopting family of the child’s circumstances, history, special
needs, and potential disabilities?

• Have all available subsidies been identified and discussed with the adopting family?
• Is the adopting family aware of any adoption with contact agreement and are they accepting of the
agreement?

• What is the visitation and placement plan and its time frame? If visits have begun, how are the
child and the adopting family adjusting?

• If the home is out of State, have all regulations regarding the Interstate Compact for the Placement
of Children and the Interstate Compact on Adoption and Medical Assistance been followed? Are

106 Appendix D—Guidelines for Child Protective Services Caseworkers

for Permanency and Review Hearings
 there any known or anticipated issues relative to these compacts that may cause delays and if so,
what is being done to resolve or avoid the delays?

• Has there been full disclosure regarding the child’s history and current or potential disabilities?
• What are the plans to continue any necessary services to the child? How will these services be
funded after guardianship or custody has been granted?

• What is the plan for financial support from the biological parents?
• Is there any reason that permanent guardianship or permanent custody should not be granted
today?

• If sufficient progress has not been made to enable the granting of permanent guardianship or
permanent custody at this hearing, what alternate permanent plan is recommended and what are
the steps and time frames for its implementation?

If the Child Has Been in the Adoptive Home Since the Last Hearing:

• What progress has been made since the last hearing toward finalization? When will finalization
occur? What specific steps must occur and what are the time frames for each step?

• Have any new problems or issues occurred since the last hearing? What is the plan to address the
problems or issues?

• If full disclosure regarding the child’s history and current or potential disabilities had not yet
occurred at the last hearing, has it now occurred?

• If adoption with contact has been agreed upon, what contact is occurring between the child and
parents, siblings or other family members, and is this contact working well for the child and all
involved individuals?

• Has the adoption assistance agreement been negotiated? If not, why not? Have all appropriate
subsidies been identified and has all paperwork been completed with regard to these subsidies? Will
services follow the family if they move out of state? Is the adopting family aware of the details of all
appropriate subsidy issues?

• Has the adopting family been made aware of ways to access needed services after the adoption
is finalized? Has the adopting family been given contacts for support groups or other adopting
families who can serve as mentors and supports?

If the Agency Is Recruiting an Adoptive Home:

• What efforts have been made since the termination of parental rights hearing or last review hearing
to identify potential adoptive homes both locally and in other jurisdictions?

• If the child is an Indian child, what efforts are being made to identify potential adoptive homes in
the child’s tribal community?

Working with the Courts in Child Protection 107

 • What is the status of investigating adults with whom the child has or has had a positive relationship
with regard to their potential to become adopting families?

• On what adoption exchanges and Internet sites is the child listed?

• How many potential families have expressed interest in the child and what is the status of
investigating each family?

• What efforts are being made by the agency to comply with Indian Child Welfare Act placement
preferences, if applicable?

If Another Plan Is the Permanent Plan:

• What progress has been made since the permanency hearing and is the existing permanent plan still
in the child’s best interests?

• Do the compelling reasons not to proceed with reunification, termination of parental rights,
permanent guardianship, or permanent custody that existed at the permanency hearing still
apply?

• If they do not, what is the new permanent plan and how is it in the child’s best interests? What
are the steps and time frames that have occurred, or still need to occur to fully implement this new
plan?

• What is the frequency and duration of contact that is occurring between the child and parents,
siblings, other family members, tribal or clan members, or other significant adults? Is this contact
working well for the child and all involved individuals?

• What is the plan to prepare the child for independent living?

• If a change of placement is planned:
– Why is this change necessary and in the best interests of the child?
– What is the plan for pre-placement visits? Have they begun and how is the child
responding? What is the detailed plan for the child’s placement in this home and
follow-up supervision after placement?
– If a change of school or service providers will occur, what will be done to ease the transition?
Findings and Conclusions:

• Who is present at the hearing and whether absent parties were provided with appropriate notice.
If the child is an Indian child, the court should verify whether the child’s tribe received notice and
was offered an opportunity to participate. It should be verified that reports provided to the court
were made available to all parties prior to the hearing.

• A finding as to whether the agency has made reasonable efforts to finalize a permanent home with
detail to support the finding. If the child is in an adoptive home, the finding should indicate
whether the agency is doing everything possible, as quickly as possible, to approve the home,
complete all aspects of the adoption assistance agreement including subsidies and services, and

108 Appendix D—Guidelines for Child Protective Services Caseworkers

for Permanency and Review Hearings
 move toward finalization. If an adoptive home must be recruited, the finding should indicate
whether the agency is doing everything possible, as quickly as possible, to list the child on all
appropriate exchanges, Internet sites, and with all appropriate private agencies, and to promptly
screen and complete home studies on prospective adopting parents.

• If the child is an Indian child, a finding as to whether the agency has complied with the placement
preferences within the Indian Child Welfare Act, and if not, the efforts made to comply.

• If there are any changes or adjustments to the permanent plan, a description with time lines for
implementation and the reasons that these adjustments or changes are in the best interests of the
child.

• If visitation issues, including agreements for adoption with contact apply, are the terms and
schedules of visitation being complied with and are they effective.

• A statement addressing special factors or conditions of the child that are identified as special needs,
what services are being provided to address the needs and how the child is progressing.

• Any specific orders that are to be implemented.

• Unless the permanent plan is finalized at the hearing, the date and time for the next review or the
finalization hearing.

Source: National Council of Juvenile and Family Court Judges. (2000). Adoptions and permanency guidelines: Improving
court practice in child abuse and neglect cases. Reno, NV: Author.

Working with the Courts in Child Protection 109

 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.

I. SAFETY:
1. 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.
2. 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.

Working with the Courts in Child Protection 111

 • Judges carefully consider evidence about the child and caretakers to ensure the child will be safe.
• Domestic violence policies are well defined.
3. 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.

4. 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.

II. PERMANENCY:
5. 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.

112 Appendix E—Legal and Judicial Issues Suggested by the Child and
Family Services Review Performance Indicators
 • 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.
6. 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.

7. 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.

Working with the Courts in Child Protection 113

 • State laws and policies provide workable procedures for determining whether to file or join petitions
for the TPR.
8. 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.
9. 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.

114 Appendix E—Legal and Judicial Issues Suggested by the Child and
Family Services Review Performance Indicators
 • 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.
10. 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.
11. 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.

Working with the Courts in Child Protection 115

 12. 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.
13. 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.
14. 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.
15. 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.
16. 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.

116 Appendix E—Legal and Judicial Issues Suggested by the Child and
Family Services Review Performance Indicators
 • Attorneys are adequately trained regarding maintaining parent-child relationships during foster
placements.

III. CHILD AND FAMILY WELLBEING:

17. 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.
18. 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.
19. 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.
20. 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.
21. Educational needs of the child.

• Courts request information about foster children’s education from teachers, guidance counselors,
caseworkers, and others.

Working with the Courts in Child Protection 117

 • 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.
22. 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.
23. 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.

118 Appendix E—Legal and Judicial Issues Suggested by the Child and
Family Services Review Performance Indicators
 IV. STATEWIDE INFORMATION SYSTEM:
24. 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.
V. CASE REVIEW SYSTEM:
25. 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.
26. 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.

Working with the Courts in Child Protection 119

 27. 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.
28. 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.
29. 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.

120 Appendix E—Legal and Judicial Issues Suggested by the Child and
Family Services Review Performance Indicators
 • 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.

VI. QUALITY ASSURANCE SYSTEM:

30. 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.

31. 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.
VII. TRAINING:
32. 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.
33. 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.

Working with the Courts in Child Protection 121

 • 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.
34. 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.

VIII. SERVICE ARRAY:

35. 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.
36. 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.
37. 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.

122 Appendix E—Legal and Judicial Issues Suggested by the Child and
Family Services Review Performance Indicators
 IX. AGENCY RESPONSIVENESS TO THE COMMUNITY:
38. 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.
39. 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.
40. 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.

XI. FOSTER AND ADOPTIVE PARENT LICENSING, RECRUITMENT, AND RETENTION:

41. 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.
42. 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.
43. 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.

Working with the Courts in Child Protection 123

 • 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.
44. 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.
45. 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/courtimp.
html.

124 Appendix E—Legal and Judicial Issues Suggested by the Child and
Family Services Review Performance Indicators
To view or obtain copies of other manuals in this series,
contact Child Welfare Information Gateway at:

800-394-3366
[email protected]
www.childwelfare.gov/pubs/usermanual.cfm