IN THE INTEREST OF v. << (2017)

OPINION

This is an appeal from a decree terminating the parental rights of an incarcerated father with respect to his three biological children, B.D.A., L.A.A.-M., and J.X.A. The father contends that the evidence was insufficient to support the trial court's decree.

Rather than supporting a firm belief or conviction that termination would be in the children's best interest, the record before us raises more questions than it answers. Did the Department of Family and Protective Services make reasonable efforts to provide appropriate services to facilitate the children building or maintaining a healthy relationship with their incarcerated father? Were all the children's eligible relatives considered as possible kinship placements? And what is the plan for the children to achieve permanency, particularly in light of the separation of three siblings into separate placements, with no evidence of their placement history in foster care or of prospective adoptive placements?

The children can't live with their father in prison, but that fact alone is not sufficient to justify terminating their last formal legal connection to their natural family. Evaluating the evidence in light of the Holley v. Adams factors used to evaluate whether termination of parental rights is in the best interest of the children,¹ we conclude that the Department failed to carry its burden of proof by clear-and-convincing evidence. We reverse and remand to the trial court for further proceedings.

Background

For most or all of the lives of the three children involved in this parental-termination proceeding, their father has been in jail or prison. The children were removed from the mother's custody, and the Department of Family and Protective Services filed a petition seeking to terminate the parental rights of both the mother and the father. Just before trial, the mother voluntarily relinquished her parental rights. Our review of the sufficiency of the evidence on appeal is limited to the information received into evidence at trial (which is comprehensively detailed in this opinion), as well as any matter the trial court properly could have judicially noticed.

Trial was held before a master on December 15, 2016.² Before offering witness testimony, the parties offered exhibits into evidence. The mother tendered into evidence her affidavit of voluntary relinquishment of parental rights. The Department then offered nine exhibits into evidence. The first six exhibits were the children's three birth certificates and three letters certifying that each child had not been the subject of a prior suit affecting the parent-child relationship. The Department also offered the father's judgment of conviction for aggravated robbery with a deadly weapon, a family service plan for the father, and the trial court's order establishing the father's parentage.

The father's family service plan was dated July 29, 2015, and the Department's “Permanency Goals” for each child were identified as “Family Reunification.”³ The plan included the following description of the “reason for Child Protective Services involvement”:

On June 16, 2015, the Texas Department of Family and Protective Services (DFPS and/or the agency) received a referral for neglectful supervision of [L.A.A.-M.], by his mother, [S.M.]. According to the referral the child, [L.A.A.-M.], sustained a head scalp injury from a dog bite while at [the mother's] friend's house party and at the time of the incident the mother's whereabouts were unknown. The referral indicated the mother appeared to be intoxicated and attempted to drive herself to the hospital but was stopped by EMT, asked to ride in the EMT truck, and mother agreed. At the hospital, the mother's speech was slurred and she appeared lethargic. According to the referral, while at the hospital, it was very difficult to wake the mother and a doctor tried pressing on her chest to wake her up. It was reported that the mother fell asleep twice while answering hospital staff questions. ․ According to the intake report, while moving [the] child to the new hospital room, it took two nurses to physically assist mother to the new room because the mother could not walk without wobbling. The TXDFPS requested to be named Emergency Temporary Managing [Conservator] of the children. At this time, the mother, [S.M.], has a C-SCAL alert out of the 313th District Court in Harris County Texas (Cause# 2014-06547J) because she has a history of fleeing from DFPS in the past.[4] The child, [L.A.A.-M.] was discharged. Clear Lake Hospital was cooperative until CPS could find suitable placement for the child due to him being a[u]tistic; and the fact that the mother is not an appropriate caregiver for him at this time. The relative placement for the other two children, [B.D.A.] and [J.X.A.], could no longer take care of them. Due to there being no other appropriate placements that have been identified to care for the three children and ongoing danger, TXDFPS was granted [temporary managing conservatorship].

(Emphasis supplied.) The family service plan form included spaces to identify “family strengths and supports” and “community supports,” each of which were filled out with the words “Not Applicable.”

Under the heading “Family and CPS Concerns Related to Risk and Safety,” the family service plan identified the following “Initial Concerns” as of July 29, 2015:

All children are 5 years old and under and is unable to protect themselves [if] danger occurs. [L.A.A.-M.] is autistic and can be violent if his mother is not in his sight. [L.A.A.-M.] is non-verbal.

The mother, [S.], stated she suffers from anxiety, depression and insomnia. [The mother] stated she doesn't have any medication because she doesn't have the funds to get her medication. [The mother] tested positive for cocaine and marijuana by hair follicle. [L.A.A.-M.] is autistic, but can't take any medication because he's too young.

It's unknown if [the mother] left her children to inappropriate caregivers because she failed to provide information about the whereabouts of her children.

[The mother] disclosed she was a victim of sexual abuse by a family member. There were 4 previous CPS cases ․ 1 cause her children to be removed, 2 unable to complete cases because the family couldn't be located and 1 physical abuse case that was ruled out. It's unknown if [the mother] has her children exposed to people who's not appropriate.

It's unknown where the children were living during the investigation. [The mother] stated they were living with a cousin, but wasn't able to provide an address of where the cousin lived. It's unknown if the home was unsanitary or clean. [The mother's] family support is unknown because she stated she doesn't associate with her family since her last CPS case when admitted to the Santa Maria Hostel.

[The mother] stated she didn't want to be involved with CPS and only went to the hospital to [have] her son treated for dog bite injuries, but [not] for CPS to take her children. [The mother] has been untruthful about where her children were.

[The mother] had limited outside support that can help her with her children due to communications abandoned and family conflict.

(Emphasis supplied.) The plan identified the following “Service Plan Goals (Changes Needed to Reduce Risk)”:

Parent will demonstrate an understanding of and ability to provide for the special needs of the child. Parent will demonstrate the willingness and ability to protect the child from harm.

Parent will learn new behaviors that promote cooperation, stability, and a sense of self-worth among family members. Parent will actively participate in therapy to understand how their own abuse/neglect as a child may impact their current parenting style.

Parent will demonstrate an ability to provide basic necessities such as food, clothing, shelter, medical care, and supervision for the child. Parent will demonstrate the ability to put the needs of the children ahead [of] their own.

Parent will build a support network that will help ensure the safety of the child. Parent will demonstrate ability to protect the child from harm.

Family will understand and support efforts to deal with issues related to their prior maltreatment; including but not limited to counseling, medical care, or drug treatment of the child.

Parent will maintain housing that is safe and free of hazards and provide protection, food, and shelter for the child and family. Parent will demonstrate an ability to use willing and appropriate friends and relatives to help with the child.

Parent will actively cooperate in fulfilling the agreed upon safety plan in order to control the risk of abuse or neglect.

Under the heading “Tasks and Services,” the plan included one item that was “assigned to” the parents:

[F]ather ․ will submit to DNA testing. Upon verification, the Family Plan of Service may be modified. [Father] is currently incarcerated with a projected release date of July 14, 2027. Services will be requested if there is a sooner release date.

(Emphasis supplied). The plan identified a person to be contacted by a parent for information about the family service plan or the children. The contact person was identified as Deitra E. Smith, and a phone number was provided.

The family service plan included a page for the parents to acknowledge receipt of the plan. It included signature lines for up to four parents, a caseworker, and a supervisor. The document offered into evidence was signed on August 6, 2015 by caseworker Bridgette Sharkey and a supervisor, but it was not signed by any parent.⁵

The Department presented two witnesses. Caseworker Sharkey testified that at the time of trial, B.D.A. was seven years old, L.A.A.-M. was five years old, and J.X.A. was four years old. DNA testing confirmed that each is the child of the appellant father.

The caseworker initially was asked to explain why it was in the children's best interest to terminate the mother's parental rights based on her voluntary relinquishment. She explained that the Department attempted “numerous times to work out arrangements to support the primary goal at the time of family reunification.” The caseworker said the care of the children “started deteriorating” when they “were placed with the mother.” She testified that the mother “was not able to physically, financially, or emotionally be there for the children.”

The caseworker said the children were “actually getting more support in the placement that they are in.” She noted that the mother tested “positive again for drugs when she went through the program once all of the requests and referrals were made for drug services, individual therapy,” and “none of the dangers were alleviated that brought the children into care.” The caseworker then stated, “along with, of course, [L.'s] neglectful supervision.”⁶ She concluded: “And so, because of that we believe that the children's best interest would be to stay in the placements that they are in and eventually become adoptive into a permanent placement where they will be stable and their needs can be met.”

With respect to the father, the caseworker confirmed that his paternity was proved by DNA test. Asked whether “throughout this case” she had “reached out to” the father, she agreed and testified that “he was mailed a family plan of service as well as a letter to notify him of the case.” The Department's lawyer then asked, “Has he reached out to you?” She responded, “No.” She further agreed with the lawyer that, to her knowledge,⁷ the father had not “sent any letters, any cards to his children,” and he was sentenced in 2013 to a 15-year prison sentence, meaning it would be “over two years before he gets out.” She confirmed that she was asking the court to terminate the father's parental rights, that she did not believe it shows “good parenting skills to engage in criminal conduct,” and that “a parent who engages in criminal conduct could endanger the children's safety.”

With respect to the children's current foster placements at the time of trial, the caseworker testified: “The children are all in separate placements. They are all in foster homes. [L.A.A.-M.] is close to Austin and the other two children are in Harris and Fort Bend County.” She confirmed that “the children are doing well in each of their placements,” and she testified that “all of their needs are being met in each individual placement.” With specific reference to L.A.A.-M., the caseworker confirmed that he “has special needs.” She testified: “He has moderate hearing loss in one ear, severe hearing loss in the other ear. He's not completely deaf, but there is severe hearing damage.” She agreed with the Department's lawyer's suggestion that “his current placement is able to, in fact, much better than any other placement, address those needs.” She concluded by agreeing with the lawyer that termination of parental rights “would provide more permanency for the children.” There were no objections to any of the caseworker's direct testimony.

On cross-examination by the father's lawyer, the caseworker conceded that she had not ever “personally spoken with the father.”

She then was asked about the father's receipt of the family plan of service:

Q. And do you have any evidence that he actually received the family plan of service besides just putting it in the mail?

A. We do mail certified.

Q. Did you, by chance, bring a receipt of the certified mail?

A. No. But I did speak with his sister as well as—

Attorney: Objection, Judge. Hearsay.

A. Oh, okay.

Q. So we don't have any evidence for the Court to see that he actually got his service plan, do we?

A. No.

(Emphasis supplied.⁸ )

No other questions were asked of the caseworker by the father's lawyer, or by the guardian ad litem for the children.

The second and final witness at the termination trial was Barbara Grimmer, who testified when the Department called “Child Advocates” as a witness. Grimmer's precise role and the basis for her personal knowledge about the case were not explained.⁹ The Department's lawyer asked: “Barbara how long have you been on this case?” She testified: “We began working on this case November 13th of 2015.”¹⁰ The Department asked: “You've seen the kids in their different placements?” Grimmer responded: “Yes, between my volunteer and I.” The Department then asked, “And have you seen their current placements?” Grimmer responded, “The volunteer has seen the two children here,” referencing B.D.A. and J.X.A. She further testified that Child Advocates had not “been to the Austin placement” for L.A.A.-M. Instead, Grimmer said that the volunteer had “been communicating on a regular basis with the public school there, the school for the deaf, the caregiver, and the educator on his special school placement here and making sure that they are all in touch with one another.”

Grimmer testified that termination of both parents' parental rights was in the best interest of all three children. She explained:

We did work with the mother, and she wasn't able to alleviate any of the concerns that brought the children into care including drug use, instability, emotional instability, lack of a support system.

She does have a pattern of CPS involvement and of running from CPS and not following through although she did work hard initially on this case, she wasn't able to keep up that stability and that sobriety. The kids are now—they are young. [L.A.A.-M.] is in a placement that ․ hopefully will become adoptive. It can meet all of his needs and the other two children are basic level children that deserve to find permanency.

On cross-examination, the mother's lawyer asked: “Do the children know what's going on?” Grimmer responded that they knew they were removed from their mother, “the caregiver explained to them that Mom was sick,” and she did not know if the children knew “anything beyond that.” She testified that Child Advocates agreed there should be “a goodbye visit between mother and the children,” to provide “good closure for the kids.”

Grimmer asked that the court retain Child Advocates on the case “[u]ntil permanent placements are found.” She gave no testimony about the father, and the father's lawyer did not cross-examine her.

The father had no witnesses and rested his case without offering any evidence.

In its closing argument, the Department argued that the father's criminal conduct endangered the children. The lawyer further asserted: “He has not written, called, or financially supported his children since they've been in the Agency's care. He failed to do any services on the family service plan that was ordered by this Court.” The Department also argued that the father would remain in prison more than two years from the beginning of the case.

The father's attorney argued that the court should make no findings pertaining to the father, suggesting there could be no basis for an endangerment finding against the father because he had been incarcerated since 2013, before the children were removed from their mother's care.

The trial court found that the father had committed the predicate acts of endangerment, constructive abandonment, failure to comply with a court order, and having been convicted of an offense resulting in imprisonment and inability to care for his children for not less than two years from the date of filing the petition.¹¹ The trial court also found that termination of the father's parental rights was in the best interest of the children.¹² Having made these findings, the trial court terminated the father's parental rights to B.D.A., L.A.A.-M., and J.X.A.¹³ The Department was named sole managing conservator of the children.

Two weeks after the entry of the trial court's final decree of termination, the father's appointed trial counsel filed a motion to withdraw and for appointment of appellate counsel. On the same date, he filed a notice of appeal. These were the only two filings made by the father's appointed trial lawyer and included in the appellate record.

The trial court appointed a new attorney ad litem to represent the father on appeal. The father and the Department submitted appellate briefs, and the appeal was set for oral argument. In the course of oral argument, the father's appellate lawyer conceded that he had never communicated with the father about the appeal.¹⁴ We abated the appeal and remanded the matter for the district court judge to hold a hearing in which the father would participate. We ordered the judge to determine whether the father wished to pursue an appeal, and to make any findings of fact, conclusions of law, or other recommendations that the trial court deemed appropriate. The father participated in the hearing by telephone and confirmed his desire to appeal. We reinstated the appeal the next day. There have been no post-submission filings by the father's appellate counsel.

Analysis

On appeal, the father challenges the legal and factual sufficiency of the evidence to support the termination of his parental rights. As relief, he requests a reversal of the trial court's judgment and a remand “for the sole purpose of conducting an evidentiary hearing on the issue of conservatorship.” Because of the natural family connections at stake,¹⁵ we strictly scrutinize termination proceedings on appeal.¹⁶

In proceedings to terminate the parent-child relationship, the Department must establish by clear-and-convincing evidence that the parent committed one of the acts or omissions listed in Family Code Section 161.001(b)(1) and that termination is in the best interest of the child.¹⁷ Both elements must be established, and the failure to prove either a predicate act or that termination is in the best interest of the child will prove fatal to the Department's case.¹⁸ The same evidence may be probative of both a predicate act and the best interest of the child.¹⁹ In the parental-termination context, the clear-and-convincing standard is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”²⁰ A lack of evidence will not satisfy this burden, and “conjecture is not enough.”²¹

The purpose of the State's initiation of proceedings to terminate the parent-child relationship is “to protect the best interests of the children, not to punish parents for their conduct.”²² “[I]n securing what is in the best interests of the child, the State is not pursuing a retributive or punitive aim, but a ‘purely remedial function: the protection of minors.’ ”²³

The father asserts that the evidence was legally and factually insufficient to support the trial court's decree terminating his parental rights. “When presented with legal and factual sufficiency challenges, the reviewing court first reviews the legal sufficiency of the evidence.”²⁴

In a legal-sufficiency review of a decree terminating parental rights, we consider “the evidence in the light most favorable to the judgment,” meaning that we “must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.”²⁵ We “disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.”²⁶ If “no reasonable factfinder could form a firm belief or conviction” that the matter on which the State bears the burden of proof is true, then we “must conclude that the evidence is legally insufficient.”²⁷

The scope of our sufficiency review includes evidence admitted at trial, as well as any matter the trial court properly could have judicially noticed.²⁸ We may presume that the trial court took judicial notice of its record without any request being made and without announcement that it has done so.²⁹ This judicial notice encompasses the facts that “documents in the file are a part of the court's files, that they were filed with the court on a certain date, and that they were before the court at the time of the hearing.”³⁰ However, the “trial court may not take judicial notice of the truth of factual statements and allegations contained in the pleadings, affidavits, or other documents in the file.”³¹ In addition, a judge may not take judicial notice of a fact that he has learned over the course of litigation.³² “Personal knowledge is not judicial knowledge.”³³

I. Best interest of the child

The father contends that the Department failed to prove by clear-and-convincing evidence that termination of his parental rights is in the children's best interest. He argues the evidence that the children were placed in separate foster homes and that the caseworker had never spoken with him demonstrated that “the Department failed to place family reunification as the main goal.”

The Department argues that evidence was sufficient to prove the best-interest element. Based on the father's 15-year sentence for aggravated assault with a deadly weapon, it argued that his conviction when all three children were aged three or younger, combined with his lengthy incarceration, meant he would be unable to provide for them during the “vast majority of their childhoods.” Also, the father's incarceration left the children without the benefit of his care when their mother endangered them, leading to their removal and placement in foster care.

The Department further contends that the evidence shows that the father “made no effort” during the time his children were in its care “to contact or communicate with the children in any way.” It contends that based on the absence of evidence of the father's effort to contact the children, the court reasonably could conclude that the father “had no relationship or bond with them.” Relying on the return of service and the caseworker's testimony, the Department asserts that the father was served with notice of the suit, provided a family service plan, and mailed a letter notifying him of the case. Because the father participated in DNA testing as required by the plan, the Department argues the trial court reasonably could have concluded that the father received and understood the plan. Because the caseworker testified that the father had not “reached out” to her and, to her knowledge, had not sent any letters or cards to his children, the Department also argues there was no evidence that the father “participated in any meaningful services offered him,” or that he “demonstrated any ability to care for the children or meet their needs.”

Finally, the Department argues that the finding that termination of the father's parental rights was in the best interest of the children was supported by evidence that showed their needs were being met in their current, separate placements, and that L.A.A.-M.'s placement was addressing his hearing loss “much better than any other placement.” The Department asserts that this supported a conclusion that it had made plans for the children which were meeting their needs.

In determining whether the evidence in this case would permit a reasonable factfinder to form a firm belief or conviction that termination of the father's parental rights was in the children's best interest, we consider the nonexclusive Holley factors. These include (1) the children's desires, (2) the current and future emotional and physical needs of the children, (3) the current and future physical danger to the children, (4) the parental abilities of the person seeking custody, (5) whether programs are available to assist the person seeking custody in promoting the best interests of the children, (6) plans for the children by the person seeking custody, (7) stability of the home, (8) acts or omissions of the parent that may indicate that the parent-child relationship is improper, and (9) any excuse for acts or omissions of the parent.³⁴ The Department was not required to prove all of these factors, and the absence of evidence about some factors would not preclude the factfinder from reasonably forming a strong conviction that termination is in the children's best interest, particularly if the evidence was undisputed that the parental relationship endangered the safety of the child.³⁵ Some cases, however, will present complex facts in which “paltry evidence” relevant to each Holley factor would not suffice to uphold a factfinding that termination is required.³⁶

The Holley factors provide structure for a child-focused best-interest analysis, and in the over 40 years since Holley was decided, there have been significant advances in the law and public policy governing child-protection cases. The last decade has seen special emphasis placed on promoting placement of removed children with relatives, known as “kinship placements,” as a preferred alternative to placing children with unrelated caregivers. There also has been a new emphasis on keeping siblings together when possible. While these concerns always would have been relevant to an analysis using the Holley factors, recent legislation has given these considerations given additional definition and focus.

Concern for the emotional and physical needs of children removed from their parents led to the passage in 2008 of the federal Fostering Connections to Success and Increasing Adoptions Act.³⁷ Two of the Fostering Connections Act's primary goals were to improve outcomes for children by promoting kinship placements and helping removed children maintain connections with their siblings.³⁸

Title I of the Fostering Connections Act encourages and supports kinship placements as the first option for removed children. The Act provides federal funds to be used by the states to support kinship placements.³⁹ Use of these funds is conditioned upon states adopting the Fostering Connections requirements, including its kinship- and sibling-placement requirements.⁴⁰ The Act requires participating states to exercise due diligence to identify and notify within 30 days of removal all adult relatives of the child, including any identified by the child's parents, of their right to participate in the care and placement of the child.⁴¹ With respect to sibling placement, the Act requires participating states to make reasonable efforts to place siblings together unless the state documents that it was not in the best interest of one or more of the siblings.⁴²

Texas subsequently enacted a statute directing the Department to establish a Permanency Care Assistance (PCA) program as contemplated by the Fostering Connections Act to support kinship placement, and to adopt rules to “ensure that the program conforms to the requirements for federal assistance as required by” the Act so that Texas could receive and use federal funds available to support the PCA program.⁴³ The Legislature amended the Family Code to require identification and notification of relatives about placement eligibility within 30 days of removal.⁴⁴ The Department then adopted rules governing the PCA program consistent with the requirements of the Fostering Connections Act,⁴⁵ and it updated the Child Protective Services Handbook to include the notification requirements related to identification and notification of relatives about placement eligibility within 30 days of removal, and the sibling-placement requirements.⁴⁶

II. Evaluation of Holley factors

Our strict scrutiny of this appeal requires us to consider the evidentiary record in light of the Holley factors, to evaluate whether the State carried its burden to prove, by clear-and-convincing evidence, the best interest of the children was served by terminating their father's parental rights.

A. Holley factor (1): The desires of the children

At the time of trial, the children's ages ranged from four to seven, and they had been in the temporary managing conservatorship of the Department for more than a year. No evidence was introduced about any desires expressed by the children. The Department argues that the record established that the father “had no contact with the children,” and therefore the trial court could conclude “that he had no relationship or bond with them.”

The father has been incarcerated for much of his children's lives, including the entire time since J.X.A.'s birth, which could suggest that the children may not be bonded to him. But there was no evidence about the children's connection with him or lack thereof. There also was no evidence that the children bonded to any surrogate parent with whom they might be presumed to desire to establish a “forever home.”⁴⁷ And although it was referenced in permanency reports to the court,⁴⁸ there was no evidence at trial about the children's bonds with each other, which could be relevant to their desires in light of the Department putting them in separate foster placements.

The Department relies on In re A.H.L.⁴⁹ to argue that the father's lack of contact with the children would permit the trial court to conclude he had no relationship or bond with them, and that this is relevant to evaluating evidence of the children's desires. The evidence in A.H.L. was materially different and distinguishable, as the child in that case was “bonded to his foster parents,” who had “cared for him and provided for his continuing special medical and developmental needs” and with whom the child had been “since he was discharged from the hospital as an infant.”⁵⁰ In contrast, this case lacked evidence about bonding or continuity of care in a foster family,⁵¹ nor was there evidence that the father had no bond with his children, particularly the two who were born before he was imprisoned.

The burden of proof at trial was on the Department, and while there was no evidence of communications between the father and the children, the evidence likewise did not show a lack of contact between the father and his children. The only evidence in this regard was the caseworker's testimony that she had no personal knowledge that the father sent “any letters, any cards” to the children. The caseworker's testimony did not establish the extent of her personal familiarity with the children. The factfinder could not infer from the caseworker's lack of personal knowledge about any letters or cards from the father that there were none. Moreover, the caseworker's testimony did not address whether the father communicated with the children by means other than letters or cards.⁵² Combined with the lack of evidence that the children had bonded to their foster parents with whom they had been placed for an unspecified period of time, the evidence viewed in the light most favorable to the judgment did not support any inferences about the children's desires.

B. Holley factor (2): The emotional and physical needs of the children now and in the future

The evidence of the children's current and future emotional and physical needs was sparse. The caseworker was asked if the children were “doing well in each of their placements.” She testified: “Yes. All of their needs are being met in each individual placement.”

As evidenced by reports filed with the trial court and included in the appellate record, the caseworker had worked on this case for more than a year by the time of the termination trial in December 2016. She had filed progress reports prior to status hearings that addressed the medical, social, educational, and mental-health status of each of the children.⁵³ The caseworker did testify that L.A.A.-M. had “moderate hearing loss in one ear, severe hearing loss in the other ear. He's not completely deaf, but there is severe hearing damage.” This was evidence of one child's specific physical need, and the caseworker agreed with the Department's lawyer's suggestion that “his current placement is able to, in fact, much better than any other placement, address those needs.” She did not testify about any particular emotional or physical needs of the other two children.

The Child Advocates representative's testimony similarly lacked any detail about the children's emotional and physical well-being at the time of trial. With respect to L.A.A.-M., the witness testified that a volunteer had communicated “on a regular basis with the public school there, the school for the deaf, the caregiver, and the educator on his special school placement ․ making sure that they are all in touch with one another.” There was no evidence about the duration of the current placement or its successes or challenges, other than to assert it could “meet all of his needs.” Nothing specific was said about the other two children. The volunteer had “seen” them, but no evidence was provided about their particular physical or emotional needs, other than a characterization of them as “basic level children that deserve to find permanency.”

No other evidence was elicited at trial about the specific emotional or physical needs of the children, whether they enjoyed a special bond with each other, or other information that was included in the progress reports filed with the court. The reports are part of the clerk's record, and their contents presumably were known to the judge and all participants in the trial, but because they were not admitted into evidence the court as factfinder was not free to consider those facts in making its determination.⁵⁴ Similarly, despite what knowledge the trial participants may have shared, the witnesses did not testify about whether L.A.A.-M. was still diagnosed as autistic (as mentioned in the family service plan), the severity of that condition, the scope of his special needs in that regard, or, importantly, the degree to which that impacted the Department's ability to place him with his siblings. There was no evidence about the emotional effect of separating the three children, and no evidence that any of the foster parents had expressed any desire to adopt any of them.

Thus, there was evidence that in L.A.A.-M.'s current placement hearing loss was being addressed “much better than any other placement,” and more generally, “all” of the children's needs were being met in each individual placement. But considered in light of the Department's clear-and-convincing evidentiary burden, the evidence relating to this factor was paltry.⁵⁵

C. Holley factor (3): The emotional and physical danger to the children now and in the future

The Department argues that the father endangered his children by committing “a serious and dangerous felony” when they were young, vulnerable, and in need of care. The children were thus subjected to the risk of being left without the care of a father, which especially endangered them when their mother could not care for them and now that she has relinquished her parental rights.

Children who are not looked after by either of their parents “undeniably” are “in serious danger of physical and emotional injury.”⁵⁶ Imprisonment is a factor to be considered by the trial court on the issue of endangerment,⁵⁷ and it also factors into evaluating the best interest of a child.⁵⁸

At trial, the Department introduced the judgment of the father's conviction for aggravated assault with a deadly weapon. There was no evidence that any child was endangered directly by the father's criminal conduct, nor was there evidence that the father had engaged in any pattern of repeated criminal activity.⁵⁹ The judgment of conviction did not include any enhancement allegations.

The evidence showed that the father was serving a 15-year prison term for aggravated robbery with a deadly weapon and would not be eligible for release until 2027 at the earliest. The father could not care for his children directly until his release. An incarcerated parent may provide support or care for his children through another person, such as a relative or friend “who has agreed to assume the incarcerated parent's obligation to care” for the children,⁶⁰ but the record lacks any information about the availability, or unavailability, of a surrogate who could care for the children on the father's behalf.

Additionally, the caseworker testified that the father did not correspond with his children by cards or letters, and he did not “reach out” to her. To the extent that failure to communicate with the children or the Department could have suggested a lack of fatherly concern about the children, which can be considered endangering behavior,⁶¹ the record before us shows only that the father did not reach out to caseworker Sharkey. There was no evidence that if the father reached out to the Department, he would have done that through her. Indeed, the evidence suggests to the contrary. The family service plan listed another person, Deitra E. Smith, as the person for him to contact for information about the plan or his children, and it provided her phone number. Sharkey did not testify that the father never contacted the Department, only that the father never reached out to her. There was no evidence that Sharkey made any effort to determine whether the father contacted Smith or any other representative of the Department.

D. Holley factors (4) & (6): Parental abilities and plans for the children by individuals or agency seeking custody

The Holley factors include consideration of the parental abilities of the “individuals seeking custody,” as well as the plans for the children “by these individuals or by the agency seeking custody.”⁶² The Department argues there was no evidence that the father “demonstrated any ability to care for the children or meet their needs,” and he failed to present any evidence that he had a plan for the children's care. The father's incarceration significantly constrains his parental abilities.

The lack of evidence about the father's plans is a significant concern, but it remained the Department's burden to present clear-and-convincing evidence that his parental rights should be terminated. At least as troubling as the father's failure to present evidence of his plans, for our purposes, is the Department's “failure to present evidence concerning the children while in foster care as well as its future plans” for them.⁶³ Although the Supreme Court of Texas has held that “the lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor,” it nevertheless has acknowledged that evidence about placement plans and adoption is “relevant to best interest.”⁶⁴

The Department sought to assume permanent custody of the three children, yet there was no evidence at trial about the placement histories of the children, or that the Department is generally successful in its role as a surrogate parent.⁶⁵ There also was no evidence introduced at trial about the people who were caring for the children at the time of trial. The appellate record does not include any information about the parental abilities of the children's caregivers or the nature of the environments they provided for the children. The record also did not show that the current placements were seeking continued custody of the children.

As to the children's future, the Department presented no clear evidence of its plans. The caseworker did testify to a belief that “the children's best interest would be to stay in the placements that they are in and eventually become adoptive into a permanent placement where they will be stable and their needs can be met,” suggesting that the Department planned for the children to remain in their current foster homes pending some future “permanent placement.” Similarly, the Child Advocates representative expressed views that L.A.A.-M.'s placement would “hopefully become adoptive” and that B.D.A. and J.X.A. “are basic level children that deserve to find permanency.”⁶⁶

The lack of evidence of a plan to achieve permanency does not imply that the children would be destined to lengthy foster placements. But as children age, it becomes more difficult to place them and to keep siblings together.⁶⁷ It was the Department's burden to prove by clear-and-convincing evidence that termination of the father's rights was in the children's best interests, but it “offered no evidence regarding its plan for placement of the children,” suggesting “it is as likely as not that the children will remain in long-term foster care or even be separated” if their father's rights are terminated.⁶⁸

In sum, the evidentiary record contains essentially no positive information about the parental abilities of any person seeking custody. The father's current incarceration is a negative indication about his parental abilities now and for the period of time relevant to these children, and the record is silent about the availability of a surrogate to provide care on behalf of the father during his incarceration. The evidentiary record is silent about the parental abilities of the Department in general, and of the current foster parents more specifically (other than the caseworker's general and conclusory opinion that “all” of the children's “needs are being met”), though there is no evidence that the current foster parents themselves are seeking custody. The lack of evidence about a plan for the children raises serious doubts that their circumstances will improve by terminating the rights of the father, although termination would be a necessary precondition to achieving permanency by way of adoption by non-relatives.

E. Holley factor (5): Availability of programs to assist the person seeking custody in promoting the best interests of the children

The Department contends that the father failed to participate in “any meaningful services offered him,” but the evidence suggests an absence of services offered to the father. In the “Tasks and Services” section of the family service plan, the father was assigned only one task: to “submit to DNA testing,” which he did.⁶⁹

The plan did not contemplate that the Department would administer its typical services to the father,⁷⁰ apparently due to his incarceration. Indeed, the plan stated: “Services will be requested if there is a sooner release date.” Significantly, there was no evidence about services that are designed specifically for incarcerated parents and their children,⁷¹ or that any such services were offered to the father and his children.⁷²

Although there was no evidence presented about it at trial, we take judicial notice that the Legislature has required the Department to provide other programs that promote the best interest of the children by attempting to place them with relatives, when appropriate.⁷³ When a child is removed from her home and taken into the State's care, the Department has an affirmative duty to identify the child's adult relatives, and to inform them about the case and how they can provide support or care for the child.⁷⁴ In particular, the Family Code imposes a nondiscretionary duty on the Department to “use due diligence to identify and locate” the child's relatives within the third degree of consanguinity and to seek information from each parent and relative of the child.⁷⁵ To facilitate the search for potential kinship placements, the Family Code requires that as “soon as possible after initiating an investigation of a parent,” the Department must give the parent information relating to the investigation procedure, including a child placement resources form to identify potential “relative caregivers or designated caregivers.”⁷⁶ Once relatives are identified, a variety of programs are available in Texas to provide financial and psychosocial support to adults who become caregivers to their minor relatives in the foster care system.⁷⁷

The clerk's record reflects that on July 9, 2015, the trial court entered a temporary order following an adversary hearing. The order noted that the mother appeared in person and through her attorney of record, but the father was not notified and did not appear. The trial court found that the mother had submitted the child placement resources form but the father had not. It ordered “each parent” to submit the form if it had not been provided previously. Finally, it ordered the Department to “continue to evaluate substitute caregiver options” until it identified “a relative or other designated individual qualified to be a substitute caregiver.” Every subsequent status hearing order noted that the father appeared only through his attorney of record and that he had not completed the child placement resources form, filed it with the court, or submitted it to the Department.⁷⁸

The Department presented no evidence at trial about its efforts, if any, to satisfy its duty under the Family Code to investigate potential kinship placements for the benefit of the children. The only evidence in the record about what was sent to the father is the return of service from when he was served with the petition, and the caseworker's trial testimony. She was asked if she had “reached out” to the father, and she replied only that he “was mailed a family plan of service as well as a letter to notify him of the case.” The caseworker's letter was not offered into evidence, and there was no proof that the father received it. She testified that she never spoke to him.

Although there are programs available to facilitate and assist placement of the children with their relatives, the Department presented no evidence that they were utilized, and no evidence to explain why not. The family service plan entered into evidence made reference to “a cousin” who had kept the children previously and an initial “relative placement” for B.D.A. and J.X.A.; the Department provided no evidence about whether services were offered to those relatives or why these or other relative placements are not available to the children now. In her testimony, the caseworker referenced the father's “sister,” yet the record includes no evidence about whether that aunt of the children was considered as a possible kinship placement, and whether services were offered to her.⁷⁹

Finally, as previously noted, the Department sought permanent custody of the children and there was no evidence that any of the current foster placements are seeking custody. The Department presented no evidence of programs that would be available to it or to assist the foster parents or future adoptive parents.

F. Holley factor (7): The stability of the home or proposed placement

The Department argued that evidence concerning stability of the home weighs in favor of termination because of the father's incarceration and his failure to make an effort to provide the children with a safe and stable environment. The father's prison sentence prevents him from personally caring for the children. The Department also contends that the evidence that the children are doing well in their respective placements demonstrates that it “had made plans for the children which were meeting their needs.”

The father's incarceration is not the only factor destabilizing the home lives of these children. The evidence presented at trial did not address the duration of the then-current placements of the children, which the caseworker concluded were meeting “all” of the children's needs. The Child Advocates representative expressed no opinion about the stability of the separate homes where B.D.A. and J.X.A. had been placed; she said only that they “deserve to find permanency.” She also said that the placement for L.A.A.-M. “hopefully will become adoptive.”

Simply put, the Department presented evidence that the children's immediate needs were being met in their separate foster placements, but it did not present evidence of stability, either in the current placements or in any proposed permanent placement.⁸⁰ No party offered evidence about any stability proposed to be achieved by the termination of the father's parental rights.⁸¹

G. Holley factors (8) & (9): Acts or omissions of the parent that may indicate that the parent-child relationship is improper, and any excuse for such acts or omissions

The father was serving a 15-year sentence for aggravated robbery, making him unavailable to care for his children. The caseworker testified that, to her knowledge, the father did not send his children cards or letters while the case was pending. As previously noted, this limited evidence did not prove the father did not communicate with his children, and this is not proof of an improper relationship.

The Department also relies on the fact that the father did not appear at any of the status hearings or at trial to present evidence on his own behalf. The father was incarcerated at the time of all of those hearings, and his participation would have required a bench warrant or court permission for him to participate by phone. The father's failure to participate in the trial could be perceived as inconsistent with a proper parent-child relationship, but that did not diminish the Department's burden to prove its case at trial, and it made no evidentiary record to demonstrate the absence of good cause for the father's non-participation. As the father presented no evidence at trial, there was no indication of his excuses, if any, for failing to participate in the proceedings.

III. Application of Holley factors

In light of the foregoing analysis of evidence presented relating to the Holley factors, we must determine whether a reasonable factfinder could form a firm belief or conviction that termination of the father's parental rights was in the best interest of the children.⁸² Our explanation of our conclusion is based on the particular deficiencies of the record in this case, and it should not be misconstrued as a holding that the Department is required, to satisfy its burden, to prove all the kinds of evidence discussed below in every case.

It bears repeating that termination of parental rights is not a civil punishment that may be meted out to any incarcerated parent. Depending on the circumstances, termination of parental rights ultimately may be a consequence of a crime, but the children in this case were entitled to due process, reasonable efforts to facilitate the preservation of the natural connection to their family, and a trial where the State was held to its burden of proof.

We acknowledge the inherent limits of our appellate review, and the possibility, even the likelihood, that there may be additional facts and circumstances in this case that, if proved at trial, could have justified the termination of parental rights. But the Department, the attorneys ad litem, and the trial court also must understand the same limitations of appellate review. When the termination of parental rights is justified to create an opportunity for a child to have a chance for a better life with a new forever family because it is in her best interest, to accomplish that result, the judges and officers of the court must respect due process by documenting a sufficient measure of evidence in a record that supports that outcome.

On the face of this appellate record, there is no meaningful evidence that the Department, the guardian ad litem, the trial court, or even the father's own attorneys ad litem ensured that services which might have been available actually were offered to the father. Such services were not only important for the father to protect his rights as a parent, they were important to protect the children's right to maintain bonds with their family. The services could have been provided but not documented. From the appellate record, we can't know.

More importantly, there is no meaningful evidence that other services and programs intended to help the plight of the three children involved in this case were utilized. The Department did not prove that it investigated potential kinship placements on both the mother's and father's sides of the family. This was important not only to protect the rights of the parents, but also to protect the rights of the children to an opportunity to maintain their natural family bonds to each other and to relatives who are more likely than unrelated foster parents to provide the permanency these children deserve.

Reviewing the evidence presented to the trial court, there was no basis upon which to conclude that the children, at this stage, desire termination of their father's parental rights.

Terminating the incarcerated father's parental rights was not shown to improve the outlook for the current and future emotional and physical needs of the children. At the time of trial, the current placements had the three siblings separated from one another. The Department did not show why this was necessary, and it presented no evidence that it planned to keep the siblings together to the extent possible. The Department did not show that even with available services, such as Fostering Connections, there was no kinship placement could serve the children's needs at least as well as any foster placement.

Terminating the incarcerated father's parental rights was not shown to reduce any current or future physical danger to the children.

The Department and its foster placements were not shown to have better parental abilities than any possible kinship placement.

There was not sufficient evidence at trial for a reasonable factfinder to form a firm belief that the Department exercised reasonable efforts to render appropriate services to the father, or to offer Fostering Connections or other services to potential kinship placements. There also was no evidence about services that were available to foster parents or unidentified future adoptive parents.

The Department presented no evidence about the likelihood that it could find permanent unrelated placements for any of the children. It presented no evidence about the children's placement history, by which the prospect of a future permanent placement might be evaluated. It presented no meaningful evidence that terminating the father's parental rights would increase the likelihood that the children would be placed in a stable home.

The father's criminal activity that has rendered him ineligible to serve as a day-to-day parent is an important consideration that has contributed significantly to his children's unfortunate circumstance. But there was no evidence of a pattern of criminal behavior, nor was there evidence that his criminal behavior directly endangered any child. There was no direct evidence from the father of any excuse for not participating in services or offering a substantive defense at trial, but the Department, which bore the burden of proof, did not present any evidence to negate an appearance that the father's non-involvement could be attributable to a systemic failure to offer him a meaningful opportunity to defend his interest in preserving a connection to his children.

The Department's arguments rely heavily on the father's failure to produce evidence relating to various Holley factors, but a lack of evidence contradicting a finding does not constitute evidence supporting the finding.⁸³ The Department bore the burden of proof at trial by clear-and-convincing evidence, and the termination decree cannot be justified merely by blaming the father for his past failures. The objective of the proceeding was to achieve the best outcome for the children. In the absence of evidence that the Department adequately sought out kinship placements, so as to justify placing these children with unrelated foster parents instead, and in the absence of any evidence of an intention to keep the siblings together to the extent possible or a justification for the three separate placements at the time of trial, the evidence that termination is in the children's best interest at the time of trial was not clear and convincing.

Conclusion

Considering the evidence and the Holley factors, and despite the fact of the father's incarceration, we conclude that on the record before us, no rational factfinder could form a firm belief or conviction that termination of the appellant father's parental rights was in the best interest of B.D.A., L.A.A.-M., and J.X.A.⁸⁴ We reverse the judgment of the trial court, render partial judgment denying the Department's petition,⁸⁵ and remand this case to the trial court for further proceedings.

American Bar Association

Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases

Introduction

These standards promote quality representation and uniformity of practice throughout the country for parents' attorneys in child abuse and neglect cases. These standards became official ABA Policy when approved by the ABA House of Delegates in 2006. The standards were written with the help of a committee of practicing parents' attorneys and child welfare professionals from different jurisdictions in the country. With their help, the standards were written with the difficulties of day-to-day practice in mind, but also with the goal of raising the quality of representation. While local adjustments may be necessary to apply these standards in practice, jurisdictions should strive to meet their fundamental principles and spirit.

The standards are divided into the following categories:

1. Summary of the Standards

2. Basic Obligations of Parents' Attorneys

3. Obligations of Attorney Manager

4. The Role of the Court

The standards include “black letter” requirements written in bold. Following the black letter standards are “actions.” These actions further discuss how to fulfill the standard; implementing each standard requires the accompanying action. After the action is “commentary” or a discussion of why the standard is necessary and how it should be applied. When a standard does not need further explanation, no action or commentary appears. Several standards relate to specific sections of the Model Rules of Professional Conduct, and the Model Rules are referenced in these standards. The terms “parent” and “client” are used interchangeably throughout the document. These standards apply to all attorneys who represent parents in child abuse and neglect cases, whether they work for an agency or privately.

As was done in the Standards of Practice for Attorneys Representing Child Welfare Agencies, ABA 2004, a group of standards for attorney managers is included in these standards. These standards primarily apply to parents' attorneys who work for an agency or law firm – an institutional model of representation. Solo practitioners, or attorneys who individually receive appointments from the court, may wish to review this part of the standards, but may find some do not apply. However, some standards in this section, such as those about training and caseload, are relevant for all parents' attorneys.

As was done in the Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, ABA 1996, a section of the standards concerns the Role of the Court in implementing these Standards. The ABA and the National Council of Juvenile and Family Court Judges have policies concerning the importance of the court in ensuring that all parties in abuse and neglect cases have competent representation.

Representing a parent in an abuse and neglect case is a difficult and emotional job. There are many responsibilities. These standards are intended to help the attorney prioritize duties and manage the practice in a way that will benefit each parent on the attorney's caseload.

SUMMARY: ABA Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases

Basic Obligations: The parent's attorney shall:

General:

1. Adhere to all relevant jurisdiction-specific training and mentoring requirements before accepting a court appointment to represent a parent in an abuse or neglect case.

2. Acquire sufficient working knowledge of all relevant federal and state laws, regulations, policies, and rules.

3. Understand and protect the parent's rights to information and decision making while the child is in foster care.

4. Actively represent a parent in the pre-petition phase of a case, if permitted within the jurisdiction.

5. Avoid continuances (or reduce empty adjournments) and work to reduce delays in court proceedings unless there is a strategic benefit for the client.

6. Cooperate and communicate regularly with other professionals in the case.

Relationship with the Client:

7. Advocate for the client's goals and empower the client to direct the representation and make informed decisions based on thorough counsel.

8. Act in accordance with the duty of loyalty owed to the client.

9. Adhere to all laws and ethical obligations concerning confidentiality.

10. Provide the client with contact information in writing and establish a message system that allows regular attorney-client contact.

11. Meet and communicate regularly with the client well before court proceedings. Counsel the client about all legal matters related to the case, including specific allegations against the client, the service plan, the client's rights in the pending proceeding, any orders entered against the client and the potential consequences of failing to obey court orders or cooperate with service plans.

12. Work with the client to develop a case timeline and tickler system.

13. Provide the client with copies of all petitions, court orders, service plans, and other relevant case documents, including reports regarding the child except when expressly prohibited by law, rule or court order.

14. Be alert to and avoid potential conflicts of interest that would interfere with the competent representation of the client.

15. Act in a culturally competent manner and with regard to the socioeconomic position of the parent throughout all aspects of representation.

16. Take diligent steps to locate and communicate with a missing parent and decide representation strategies based on that communication.

17. Be aware of the unique issues an incarcerated parent faces and provide competent representation to the incarcerated client.

18. Be aware of the client's mental health status and be prepared to assess whether the parent can assist with the case.

Investigation:

19. Conduct a thorough and independent investigation at every stage of the proceeding.

20. Interview the client well before each hearing, in time to use client information for the case investigation.

Informal Discovery:

21. Review the child welfare agency case file.

22. Obtain all necessary documents, including copies of all pleadings and relevant notices filed by other parties, and information from the caseworker and providers.

Formal Discovery:

23. When needed, use formal discovery methods to obtain information.

Court Preparation:

24. Develop a case theory and strategy to follow at hearings and negotiations.

25. Timely file all pleadings, motions, and briefs. Research applicable legal issues and advance legal arguments when appropriate.

26. Engage in case planning and advocate for appropriate social services using a multidisciplinary approach to representation when available.

27. Aggressively advocate for regular visitation in a family-friendly setting.

28. With the client's permission, and when appropriate, engage in settlement negotiations and mediation to resolve the case.

29. Thoroughly prepare the client to testify at the hearing.

30. Identify, locate and prepare all witnesses.

31. Identify, secure, prepare and qualify expert witness when needed. When permissible, interview opposing counsel's experts.

Hearings:

32. Attend and prepare for all hearings, including pretrial conferences.

33. Prepare and make all appropriate motions and evidentiary objections.

34. Present and cross-examine witnesses, prepare and present exhibits.

35. In jurisdictions in which a jury trial is possible, actively participate in jury selection and drafting jury instructions.

36. Request closed proceedings (or a cleared courtroom) in appropriate cases.

37. Request the opportunity to make opening and closing arguments.

38. Prepare proposed findings of fact, conclusions of law and orders when they will be used in the court's decision or may otherwise benefit the client.

Post Hearings/Appeals:

39. Review court orders to ensure accuracy and clarity and review with client.

40. Take reasonable steps to ensure the client complies with court orders and to determine whether the case needs to be brought back to court.

41. Consider and discuss the possibility of appeal with the client.

42. If the client decides to appeal, timely and thoroughly file the necessary post-hearing motions and paperwork related to the appeal and closely follow the jurisdiction's Rules of Appellate Procedure.

43. Request an expedited appeal, when feasible, and file all necessary paperwork while the appeal is pending.

44. Communicate the results of the appeal and its implications to the client.

Obligations of Attorney Managers:

Attorney Managers are urged to:

1. Clarify attorney roles and expectations.

2. Determine and set reasonable caseloads for attorneys.

3. Advocate for competitive salaries for staff attorneys.

4. Develop a system for the continuity of representation.

5. Provide attorneys with training and education opportunities regarding the special issues that arise in the client population.

6. Establish a regular supervision schedule.

7. Create a brief and forms bank.

8. Ensure the office has quality technical and support staff as well as adequate equipment, library materials, and computer programs to support its operations.

9. Develop and follow a recruiting and hiring practice focused on hiring highly qualified candidates.

10. Develop and implement an attorney evaluation process.

11. Work actively with other stakeholders to improve the child welfare system, including court procedures.

Role of the Court

The Court is urged to:

1. Recognize the importance of the parent attorney's role.

2. Establish uniform standards of representation for parents' attorneys.

3. Ensure the attorneys who are appointed to represent parents in abuse and neglect cases are qualified, well-trained, and held accountable for practice that complies with these standards.

4. Ensure appointments are made when a case first comes before the court, or before the first hearing, and last until the case has been dismissed from the court's jurisdiction.

5. Ensure parents' attorneys receive fair compensation.

6. Ensure timely payment of fees and costs for attorneys.

7. Provide interpreters, investigators and other specialists needed by the attorneys to competently represent clients. Ensure attorneys are reimbursed for supporting costs, such as use of experts, investigation services, interpreters, etc.

8. Ensure that attorneys who are receiving appointments carry a reasonable caseload that would allow them to provide competent representation for each of their clients.

9. Ensure all parties, including the parent's attorney, receive copies of court orders and other documentation.

10. Provide contact information between clients and attorneys.

11. Ensure child welfare cases are heard promptly with a view towards timely decision making and thorough review of issues.

Basic Obligations: The parent's attorney shall:

General 86

1. Adhere to all relevant jurisdiction-specific training and mentoring requirements before accepting a court appointment to represent a parent in an abuse or neglect case.

Action: The parent's attorney must participate in all required training and mentoring before accepting an appointment.

Commentary: As in all areas of law, it is essential that attorneys learn the substantive law as well as local practice. A parent's fundamental liberty interest in the care and custody of his or her child is at stake, and the attorney must be adequately trained to protect this interest. Because the stakes are so high, the standards drafting committee recommends all parents' attorneys receive a minimum of 20 hours of relevant training before receiving an appointment and a minimum of 15 hours of related training each year. Training should directly relate to the attorney's child welfare practice.⁸⁷ This is further detailed in Attorney Managers Standard 5 below. In addition, the parent's attorney should actively participate in ongoing training opportunities. Even if the attorney's jurisdiction does not require training or mentoring, the attorney should seek it. Each state should make comprehensive training available to parents' attorneys throughout the state. Training may include relevant online or video training.

2. Acquire sufficient working knowledge of all relevant federal and state laws, regulations, policies, and rules.

Action: Parents' attorneys may come to the practice with competency in the various aspects of child abuse and neglect practice, or they need to be trained on them. It is essential for the parent's attorney to read and understand all state laws, policies and procedures regarding child abuse and neglect. In addition, the parent's attorney must be familiar with the following laws to recognize when they are relevant to a case and should be prepared to research them when they are applicable:

• Titles IV-B and IV-E of the Social Security Act, including the Adoption and Safe Families Act (ASFA), 42 U.S.C. §§ 620-679 and the ASFA Regulations, 45 C.F.R. Parts 1355, 1356, 1357

• Child Abuse Prevention Treatment Act (CAPTA), P.L.108-36

• Indian Child Welfare Act (ICWA) 25 U.S.C. §§ 1901-1963, the ICWA Regulations, 25 C.F.R. Part 23, and the Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67, 584 (Nov. 26, 1979)

• State Indian Child Welfare Act laws

• Multi-Ethnic Placement Act (MEPA), as amended by the Inter-Ethnic Adoption Provisions of 1996 (MEPA-IEP) 42 U.S.C. § 622 (b)(9) (1998), 42 U.S.C. § 671(a)(18) (1998), 42 U.S.C. § 1996b (1998).

• Interstate Compact on Placement of Children (ICPC)

• Foster Care Independence Act of 1999 (FCIA), P.L. 106-169

• Individuals with Disabilities Education Act (IDEA), P.L. 91-230

• Family Education Rights Privacy Act (FERPA), 20 U.S.C. § 1232g

• Health Insurance Portability and Accountability Act of 1996 (HIPPA), P. L., 104-192 § 264, 42 U.S.C. § 1320d-2 (in relevant part)

• Public Health Act, 42 U.S.C. Sec. 290dd-2 and 42 C.F.R. Part 2

• Immigration laws relating to child welfare and child custody

• State laws and rules of evidence

• State laws and rules of civil procedure

• State laws and rules of criminal procedure

• State laws concerning privilege and confidentiality, public benefits, education, and disabilities

• State laws and rules of professional responsibility or other relevant ethics standards

• State laws regarding domestic violence

• State domestic relations laws

Commentary: Although the burden of proof is on the child welfare agency, in practice the parent and the parent's attorney generally must demonstrate that the parent can adequately care for the child. The parent's attorney must consider all obstacles to this goal, such as criminal charges against the parent, immigration issues, substance abuse or mental health issues, confidentiality concerns, permanency timelines, and the child's individual service issues. To perform these functions, the parent's attorney must know enough about all relevant laws to vigorously advocate for the parent's interests. Additionally, the attorney must be able to use procedural, evidentiary and confidentiality laws and rules to protect the parent's rights throughout court proceedings.

3. Understand and protect the parent's rights to information and decision making while the child is in foster care.

Action: The parent's attorney must explain to the parent what decision-making authority remains with the parent and what lies with the child welfare agency while the child is in foster care. The parent's attorney should seek updates and reports from any service provider working with the child/family or help the client obtain information about the child's safety, health, education and well-being when the client desires. Where decision-making rights remain, the parent's attorney should assist the parent in exercising his or her rights to continue to make decisions regarding the child's medical, mental health and educational services. If necessary, the parent's attorney should intervene with the child welfare agency, provider agencies, medical providers and the school to ensure the parent has decision-making opportunities. This may include seeking court orders when the parent has been left out of important decisions about the child's life.

Commentary: Unless and until parental rights are terminated, the parent has parental obligations and rights while a child is in foster care. Advocacy may be necessary to ensure the parent is allowed to remain involved with key aspects of the child's life. Not only should the parent's rights be protected, but continuing to exercise as much parental responsibility as possible is often an effective strategy to speed family reunification. Often, though, a parent does not understand that he or she has the right to help make decisions for, or obtain information about, the child. Therefore, it is the parent's attorney's responsibility to counsel the client and help the parent understand his or her rights and responsibilities and try to assist the parent in carrying them out.

4. Actively represent a parent in the prepetition phase of a case, if permitted within the jurisdiction.

Action: The goal of representing a parent in the prepetition phase of the case is often to deter the agency from deciding to file a petition or to deter the agency from attempting to remove the client's child if a petition is filed. The parent's attorney should counsel the client about the client's rights in the investigation stage as well as the realistic pros and cons of cooperating with the child welfare agency (i.e., the parent's admissions could be used against the client later, but cooperating with services could eliminate a petition filing). The parent's attorney should acknowledge that the parent may be justifiably angry that the agency is involved with the client's family, and help the client develop strategies so the client does not express that anger toward the caseworker in ways that may undermine the client's goals. The attorney should discuss available services and help the client enroll in those in which the client wishes to participate. The attorney should explore conference opportunities with the agency. If it would benefit the client, the attorney should attend any conferences. There are times that an attorney's presence in a conference can shut down discussion, and the attorney should weigh that issue when deciding whether to attend. The attorney should prepare the client for issues that might arise at the conference, such as services and available kinship resources, and discuss with the client the option of bringing a support person to a conference.

Commentary: A few jurisdictions permit parents' attorneys to begin their representation before the child welfare agency files a petition with the court. When the agency becomes involved with the families, it can refer parents to attorneys so that parents will have the benefit of counsel throughout the life of the case. During the prepetition phase, the parent's attorney has the opportunity to work with the parent and help the parent fully understand the issues and the parent's chances of retaining custody of the child. The parent's attorney also has the chance to encourage the agency to make reasonable efforts to work with the family, rather than filing a petition. During this phase, the attorney should work intensively with the parent to explore all appropriate services.

5. Avoid continuances (or reduce empty adjournments) and work to reduce delays in court proceedings unless there is a strategic benefit for the client. 88

Action: The parent's attorney should not request continuances unless there is an emergency or it benefits the client's case. If continuances are necessary, the parent's attorney should request the continuance in writing, as far as possible in advance of the hearing, and should request the shortest delay possible, consistent with the client's interests. The attorney must notify all counsel of the request. The parent's attorney should object to repeated or prolonged continuance requests by other parties if the continuance would harm the client.

Commentary: Delaying a case often increases the time a family is separated, and can reduce the likelihood of reunification. Appearing in court often motivates parties to comply with orders and cooperate with services. When a judge actively monitors a case, services are often put in place more quickly, visitation may be increased or other requests by the parent may be granted. If a hearing is continued and the case is delayed, the parent may lose momentum in addressing the issues that led to the child's removal or the parent may lose the opportunity to prove compliance with case plan goals. Additionally, the Adoption and Safe Families Act (ASFA) timelines continue to run despite continuances.

6. Cooperate and communicate regularly with other professionals in the case. 89

Action: The parent's attorney should communicate with attorneys for the other parties, court appointed special advocates (CASAs) or guardians ad litem (GALs). Similarly, the parent's attorney should communicate with the caseworker, foster parents and service providers to learn about the client's progress and their views of the case, as appropriate. The parent's attorney should have open lines of communication with the attorney(s) representing the client in related matters such as any criminal, protection from abuse, private custody or administrative proceedings to ensure that probation orders, protection from abuse orders, private custody orders and administrative determinations do not conflict with the client's goals in the abuse and neglect case.

Commentary: The parent's attorney must have all relevant information to try a case effectively. This requires open and ongoing communication with the other attorneys and service providers working with the client and family. Rules of professional ethics govern contact with represented and unrepresented parties. In some states, for instance, attorneys may not speak with child welfare caseworkers without the permission of agency counsel. The parent's attorney must be aware of local rules on this issue and seek permission to speak with represented parties when that would further the client's interests.

Relationship with the Client 90

7. Advocate for the client's goals and empower the client to direct the representation and make informed decisions based on thorough counsel. 91

Action: Attorneys representing parents must understand the client's goals and pursue them vigorously. The attorney should explain that the attorney's job is to represent the client's interests and regularly inquire as to the client's goals, including ultimate case goals and interim goals. The attorney should explain all legal aspects of the case and provide comprehensive counsel on the advantages and disadvantages of different options. At the same time, the attorney should be careful not to usurp the client's authority to decide the case goals.

Commentary: Since many clients distrust the child welfare system, the parent's attorney must take care to distinguish him or herself from others in the system so the client can see that the attorney serves the client's interests. The attorney should be mindful that parents often feel disempowered in child welfare proceedings and should take steps to make the client feel comfortable expressing goals and wishes without fear of judgment. The attorney should clearly explain the legal issues as well as expectations of the court and the agency, and potential consequences of the client failing to meet those expectations. The attorney has the responsibility to provide expertise, and to make strategic decisions about the best ways to achieve the parent's goals, but the client is in charge of deciding the case goals and the attorney must act accordingly.

8. Act in accordance with the duty of loyalty owed to the client.

Action: Attorneys representing parents should show respect and professionalism towards their clients. Parents' attorneys should support their clients and be sensitive to the client's individual needs. Attorneys should remember that they may be the client's only advocate in the system and should act accordingly.

Commentary: Often attorneys practicing in abuse and neglect court are a close knit group who work and sometimes socialize together. Maintaining good working relationships with other players in the child welfare system is an important part of being an effective advocate. The attorney, however, should be vigilant against allowing the attorney's own interests in relationships with others in the system to interfere with the attorney's primary responsibility to the client. The attorneys should not give the impression to the client that relationships with other attorneys are more important than the representation the attorney is providing the client. The client must feel that the attorney believes in him or her and is actively advocating on the client's behalf.

9. Adhere to all laws and ethical obligations concerning confidentiality. 92

Action: Attorneys representing parents must understand confidentiality laws, as well as ethical obligations, and adhere to both with respect to information obtained from or about the client. The attorney must fully explain to the client the advantages and disadvantages of choosing to exercise, partially waive, or waive a privilege or right to confidentiality. Consistent with the client's interests and goals, the attorney must seek to protect from disclosure confidential information concerning the client.

Commentary: Confidential information contained in a parent's substance abuse treatment records, domestic violence treatment records, mental health records and medical records is often at issue in abuse and neglect cases. Improper disclosure of confidential information early in the proceeding may have a negative impact on the manner in which the client is perceived by the other parties and the court. For this reason, it is crucial for the attorney to advise the client promptly as to the advantages and disadvantages of releasing confidential information, and for the attorney to take whatever steps necessary to protect the client's privileges or rights to confidentiality.

10. Provide the client with contact information in writing and establish a message system that allows regular attorney-client contact. 93

Action: The parent's attorney should ensure the parent understands how to contact the attorney and that the attorney wants to hear from the client on an ongoing basis. The attorney should explain that even when the attorney is unavailable, the parent should leave a message. The attorney must respond to client messages in a reasonable time period. The attorney and client should establish a reliable communication system that meets the client's needs. For example, it may involve telephone contact, email or communication through a third party when the client agrees to it. Interpreters should be used when the attorney and client are not fluent in the same language.

Commentary: Gaining the client's trust and establishing ongoing communication are two essential aspects of representing the parent. The parent may feel angry and believe that all of the attorneys in the system work with the child welfare agency and against that parent. It is important that the parent's attorney, from the beginning of the case, is clear with the parent that the attorney works for the parent, is available for consultation, and wants to communicate regularly. This will help the attorney support the client, gather information for the case and learn of any difficulties the parent is experiencing that the attorney might help address. The attorney should explain to the client the benefits of bringing issues to the attorney's attention rather than letting problems persist. The attorney should also explain that the attorney is available to intervene when the client's relationship with the agency or provider is not working effectively. The attorney should be aware of the client's circumstances, such as whether the client has access to a telephone, and tailor the communication system to the individual client.

11. Meet and communicate regularly with the client well before court proceedings. Counsel the client about all legal matters related to the case, including specific allegations against the client, the service plan, the client's rights in the pending proceeding, any orders entered against the client and the potential consequences of failing to obey court orders or cooperate with service plans. 94

Action: The parent's attorney should spend time with the client to prepare the case and address questions and concerns. The attorney should clearly explain the allegations made against the parent, what is likely to happen before, during and after each hearing, and what steps the parent can take to increase the likelihood of reuniting with the child. The attorney should explain any settlement options and determine whether the client wants the attorney to pursue such options. The attorney should explain courtroom procedures. The attorney should write to the client to ensure the client understands what happened in court and what is expected of the client.

The attorney should ensure a formal interpreter is involved when the attorney and client are not fluent in the same language. The attorney should advocate for the use of an interpreter when other professionals in the case who are not fluent in the same language as the client are interviewing the client as well.

The attorney should be available for in-person meetings or telephone calls to answer the client's questions and address the client's concerns. The attorney and client should work together to identify and review short and long-term goals, particularly as circumstances change during the case.

The parent's attorney should help the client access information about the child's developmental and other needs by speaking to service providers and reviewing the child's records. The parent needs to understand these issues to make appropriate decisions for the child's care.

The parent's attorney and the client should identify barriers to the client engaging in services, such as employment, transportation, and financial issues. The attorney should work with the client, caseworker and service provider to resolve the barriers.

The attorney should be aware of any special issues the parents may have related to participating in the proposed case plan, such as an inability to read or language differences, and advocate with the child welfare agency and court for appropriate accommodations.

Commentary: The parent's attorney's job extends beyond the courtroom. The attorney should be a counselor as well as litigator. The attorney should be available to talk with the client to prepare for hearings, and to provide advice and information about ongoing concerns. Open lines of communication between attorneys and clients help ensure clients get answers to questions and attorneys get the information and documents they need.

12. Work with the client to develop a case timeline and tickler system.

Action: At the beginning of a case, the parent's attorney and client should develop timelines that reflect projected deadlines and important dates and a tickler/calendar system to remember the dates. The timeline should specify what actions the attorney and parent will need to take and dates by which they will be completed. The attorney and the client should know when important dates will occur and should be focused on accomplishing the objectives in the case plan in a timely way. The attorney should provide the client with a timeline/calendar, outlining known and prospective court dates, service appointments, deadlines and critical points of attorney-client contact. The attorney should record federal and state law deadlines in the system (e.g., the 15 of 22 month point that would necessitate a termination of parental rights (TPR), if exceptions do not apply).

Commentary: Having a consistent calendaring system can help an attorney manage a busy caseload. Clients should receive a hard copy calendar to keep track of appointments and important dates. This helps parents stay focused on accomplishing the service plan goals and meeting court-imposed deadlines.

13. Provide the client with copies of all petitions, court orders, service plans, and other relevant case documents, including reports regarding the child except when expressly prohibited by law, rule or court order. 95

Action: The parent's attorney should provide all written documents to the client or ensure that they are provided in a timely manner and ensure the client understands them. If the client has difficulty reading, the attorney should read the documents to the client. In all cases, the attorney should be available to discuss and explain the documents to the client.

Commentary: The parent's attorney should ensure the client is informed about what is happening in the case. Part of doing so is providing the client with written documents and reports relevant to the case. If the client has this information, the client will be better able to assist the attorney with the case and fulfill his or her parental obligations. The attorney must be aware of any allegations of domestic violence in the case and not share confidential information about an alleged or potential victim's location.

14. Be alert to and avoid potential conflicts of interest that would interfere with the competent representation of the client. 96

Action: The parent's attorney must not represent both parents if their interests differ. The attorney should generally avoid representing both parents when there is even a potential for conflicts of interests. In situations involving allegations of domestic violence the attorney should never represent both parents.

Commentary: In most cases, attorneys should avoid representing both parents in an abuse or neglect case. In the rare case in which an attorney, after careful consideration of potential conflicts, may represent both parents, it should only be with their informed consent. Even in cases in which there is no apparent conflict at the beginning of the case, conflicts may arise as the case proceeds. If this occurs, the attorney might be required to withdraw from representing one or both parents. This could be difficult for the clients and delay the case. Other examples of potential conflicts of interest that the attorney should avoid include representing multiple fathers in the same case or representing parties in a separate case who have interests in the current case.

In analyzing whether a conflict of interest exists, the attorney must consider “whether pursuing one client's objectives will prevent the lawyer from pursuing another client's objectives, and whether confidentiality may be compromised.”⁹⁷

15. Act in a culturally competent manner and with regard to the socioeconomic position of the parent throughout all aspects of representation.

Action: The parent's attorney should learn about and understand the client's background, determine how that has an impact on the client's case, and always show the parent respect. The attorney must understand how cultural and socioeconomic differences impact interaction with clients, and must interpret the client's words and actions accordingly.

Commentary: The child welfare system is comprised of a diverse group of people, including the clients and professionals involved. Each person comes to this system with his or her own set of values and expectations, but it is essential that each person try to learn about and understand the backgrounds of others. An individual's race, ethnicity, gender, sexual orientation and socioeconomic position all have an impact on how the person acts and reacts in particular situations. The parent's attorney must be vigilant against imposing the attorney's values onto the clients, and should, instead, work with the parents within the context of their culture and socioeconomic position. While the court and child welfare agency have expectations of parents in their treatment of children, the parent's advocate must strive to explain these expectations to the clients in a sensitive way. The parent's attorney should also try to explain how the client's background might affect the client's ability to comply with court orders and agency requests.

16. Take diligent steps to locate and communicate with a missing parent and decide representation strategies based on that communication. 98

Action: Upon accepting an appointment, the parent's attorney should communicate to the client the importance of staying in contact with the attorney. While the attorney must communicate regularly with the client, and be informed of the client's wishes before a hearing, the client also must keep in contact with the attorney. At the beginning of the representation, the attorney should tell the client how to contact the attorney, and discuss the importance of the client keeping the attorney informed of changes in address, phone numbers, and the client's current whereabouts.

The parent's attorney should attempt to locate and communicate with missing parents to formulate what positions the attorney should take at hearings, and to understand what information the client wishes the attorney to share with the child welfare agency and the court. If, after diligent steps, the attorney is unable to communicate with the client, the attorney should assess whether the client's interests are better served by advocating for the client's last clearly articulated position, or declining to participate in further court proceedings, and should act accordingly. After a prolonged period without contact with the client, the attorney should consider withdrawing from representation.

Commentary:

Diligent Steps to Locate: To represent a client adequately, the attorney must know what the client wishes. It is, therefore, important for parents' attorneys to take diligent steps to locate missing clients. Diligent steps can include speaking with the client's family, the caseworker, the foster care provider and other service providers. It should include contacting the State Department of Corrections, Social Security Administration, and Child Support Office, and sending letters by regular and certified mail to the client's last known address. The attorney should also visit the client's last known address and asking anyone who lives there for information about the client's whereabouts. Additionally, the attorney should leave business cards with contact information with anyone who might have contact with the client as long as this does not compromise confidentiality.

Unsuccessful Efforts to Locate: If the attorney is unable to find and communicate with the client after initial consultation, the attorney should assess what action would best serve the client's interests. This decision must be made on a case-by-case basis. In some cases, the attorney may decide to take a position consistent with the client's last clearly articulated position. In other cases the client's interests may be better served by the attorney declining to participate in the court proceedings in the absence of the client because that may better protect the client's right to vacate orders made in the client's absence.

17. Be aware of the unique issues an incarcerated parent faces and provide competent representation to the incarcerated client.

Action:

Adoption and Safe Families Act (ASFA) Issues: The parent's attorney must be particularly diligent when representing an incarcerated parent. The attorney must be aware of the reasons for the incarceration. If the parent is incarcerated as a result of an act against the child or another child in the family, the child welfare agency may request an order from the court that reasonable efforts toward reunification are not necessary and attempt to fast-track the case toward other permanency goals. If this is the case, the attorney must be prepared to argue against such a motion, if the client opposes it. Even if no motion is made to waive the reasonable efforts requirement, in some jurisdictions the agency may not have the same obligations to assist parents who are incarcerated. Attorneys should counsel the client as to any effects incarceration has on the agency's obligations and know the jurisdiction's statutory and case law concerning incarceration as a basis for TPR. The attorney should help the client identify potential kinship placements, relatives who can provide care for the child while the parent is incarcerated. States vary in whether and how they weigh factors such as the reason for incarceration, length of incarceration and the child's age at the time of incarceration when considering TPR. Attorneys must understand the implications of ASFA for an incarcerated parent who has difficulty visiting and planning for the child.

Services: Obtaining services such as substance abuse treatment, parenting skills, or job training while in jail or prison is often difficult. The parent's attorney may need to advocate for reasonable efforts to be made for the client, and assist the parent and the agency caseworker in accessing services. The attorney must assist the client with these services. Without services, it is unlikely the parent will be reunified with the child upon discharge from prison.

If the attorney practices in a jurisdiction that has a specialized unit for parents and children, and especially when the client is incarcerated for an offense that is unrelated to the child, the attorney should advocate for such a placement. The attorney must learn about available resources, contact the placements and attempt to get the support of the agency and child's attorney.

Communication: The parent's attorney should counsel the client on the importance of maintaining regular contact with the child while incarcerated. The attorney should assist in developing a plan for communication and visitation by obtaining necessary court orders and working with the caseworker as well as the correctional facility's social worker.

If the client cannot meet the attorney before court hearings, the attorney must find alternative ways to communicate. This may include visiting the client in prison or engaging in more extensive phone or mail contact than with other clients. The attorney should be aware of the challenges to having a confidential conversation with the client, and attempt to resolve that issue.

The parent's attorney should also communicate with the parent's criminal defense attorney. There may be issues related to self-incrimination as well as concerns about delaying the abuse and neglect case to strengthen the criminal case or vice versa.

Appearance in Court: The client's appearance in court frequently raises issues that require the attorney's attention in advance. The attorney should find out from the client if the client wants to be present in court. In some prisons, inmates lose privileges if they are away from the prison, and the client may prefer to stay at the prison. If the client wants to be present in court, the attorney should work with the court to obtain a writ of habeas corpus/bring-down order/order to produce or other documentation necessary for the client to be transported from the prison. The attorney should explain to any client hesitant to appear, that the case will proceed without the parent's presence and raise any potential consequences of that choice. If the client does not want to be present, or if having the client present is not possible, the attorney should be educated about what means are available to have the client participate, such as by telephone or video conference. The attorney should make the necessary arrangements for the client. Note that it may be particularly difficult to get a parent transported from an out-of-state prison or a federal prison.

18. Be aware of the client's mental health status and be prepared to assess whether the parent can assist with the case.

Action: Attorneys representing parents must be able to determine whether a client's mental status (including mental illness and mental retardation) interferes with the client's ability to make decisions about the case. The attorney should be familiar with any mental health diagnosis and treatment that a client has had in the past or is presently undergoing (including any medications for such conditions). The attorney should get consent from the client to review mental health records and to speak with former and current mental health providers. The attorney should explain to the client that the information is necessary to understand the client's capacity to work with the attorney. If the client's situation seems severe, the attorney should also explain that the attorney may seek the assistance of a clinical social worker or some other mental health expert to evaluate the client's ability to assist the attorney because if the client does not have that capacity, the attorney may have to ask that a guardian ad litem be appointed to the client. Since this action may have an adverse effect on the client's legal claims, the attorney should ask for a GAL only when absolutely necessary.

Commentary: Many parents charged with abuse and neglect have serious or long-standing mental health challenges. However, not all of those conditions or diagnoses preclude the client from participating in the defense. Whether the client can assist counsel is a different issue from whether the client is able to parent the children, though the condition may be related to ability to parent. While the attorney is not expected to be a mental health expert, the attorney should be familiar with mental health conditions and should review such records carefully. The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the client seems unable to assist the attorney in case preparation, the attorney should seek an assessment of the client's capacity from a mental health expert. If the expert and attorney conclude that the client is not capable of assisting in the case, the attorney should inform the client that the attorney will seek appointment of a guardian ad litem from the court. The attorney should be careful to explain that the attorney will still represent the client in the child protective case. The attorney must explain to the client that appointment of a GAL will limit the client's decision-making power. The GAL will stand in the client's shoes for that purpose.

Investigation 99

19. Conduct a thorough and independent investigation at every stage of the proceeding.

Action: The parent's attorney must take all necessary steps to prepare each case. A thorough investigation is an essential element of preparation. The parent's attorney can not rely solely on what the agency caseworker reports about the parent. Rather, the attorney should contact service providers who work with the client, relatives who can discuss the parent's care of the child, the child's teacher or other people who can clarify information relevant to the case. If necessary, the attorney should petition the court for funds to hire an investigator.

Commentary: In some jurisdictions, parents' attorneys work with social workers or investigators who can meet with clients and assist in investigating the underlying issues that arise as cases proceed. The drafting committee recommends such a model of representation. However, if the attorney is not working with such a team, the attorney is still responsible for gaining all pertinent case information.

20. Interview the client well before each hearing, in time to use client information for the case investigation. 100

Action: The parent's attorney should meet with the parent regularly throughout the case. The meetings should occur well before the hearing, not at the courthouse just minutes before the case is called before the judge. The attorney should ask the client questions to obtain information to prepare the case, and strive to create a comfortable environment so the client can ask the attorney questions. The attorney should use these meetings to prepare for court as well as to counsel the client concerning issues that arise during the course of the case. Information obtained from the client should be used to propel the investigation.

Commentary: Often, the client is the best source of information for the attorney, and the attorney should set aside time to obtain that information. Since the interview may involve disclosure of sensitive or painful information, the attorney should explain attorney-client confidentiality to the client. The attorney may need to work hard to gain the client's trust, but if a trusting relationship can be developed, the attorney will have an easier time representing the client. The investigation will be more effective if guided by the client, as the client generally knows firsthand what occurred in the case.

Informal Discovery 101

21. Review the child welfare agency case file.

Action: The parent's attorney should ask for and review the agency case file as early during the course of representation as possible. The file contains useful documents that the attorney may not yet have, and will instruct the attorney on the agency's case theory. If the agency case file is inaccurate, the attorney should seek to correct it. The attorney must read the case file periodically because information is continually being added by the agency.

Commentary: While an independent investigation is essential, it is also important that the parent's attorney understands what information the agency is relying on to further its case. The case file should contain a history about the family that the client may not have shared, and important reports and information about both the child and parent that will be necessary for the parent's attorney to understand for hearings as well as settlement conferences. Unless the attorney also has the information the agency has, the parent's attorney will walk into court at a disadvantage.

22. Obtain all necessary documents, including copies of all pleadings and relevant notices filed by other parties, and information from the caseworker and providers.

Action: As part of the discovery phase, the parent's attorney should gather all relevant documentation regarding the case that might shed light on the allegations, the service plan and the client's strengths as a parent. The attorney should not limit the scope as information about past or present criminal, protection from abuse, private custody or administrative proceedings involving the client can have an impact on the abuse and neglect case. The attorney should also review the following kinds of documents:

• social service records

• court records

• medical records

• school records

• evaluations of all types

The attorney should be sure to obtain reports and records from service providers.

Discovery is not limited to information regarding the client, but may include records of others such as the other parent, stepparent, child, relative and non-relative caregivers.

Commentary: In preparing the client's case, the attorney must try to learn as much about the parent and the family as possible. Various records may contradict or supplement the agency's account of events. Gathering documentation to verify the client's reports about what occurred before the child came into care and progress the parent is making during the case is necessary to provide concrete evidence for the court. Documentation may also alert the attorney to issues the client is having that the client did not share with counsel. The attorney may be able to intercede and assist the client with service providers, agency caseworkers and others.

Formal Discovery 102

23. When needed, use formal discovery methods to obtain information.

Action: The parent's attorney should know what information is needed to prepare for the case and understand the best methods of obtaining that information. The attorney should become familiar with the pretrial requests and actions used in the jurisdiction and use whatever tools are available to obtain necessary information. The parent's attorney should consider the following types of formal discovery: depositions, interrogatories (including expert interrogatories), requests for production of documents, requests for admissions, and motions for mental or physical examination of a party. The attorney should file timely motions for discovery and renew these motions as needed to obtain the most recent records.

The attorney should, consistent with the client's interests and goals, and where appropriate, take all necessary steps to preserve and protect the client's rights by opposing discovery requests of other parties.

Court Preparation 103

24. Develop a case theory and strategy to follow at hearings and negotiations.

Action: Once the parent's attorney has completed the initial investigation and discovery, including interviews with the client, the attorney should develop a strategy for representation. The strategy may change throughout the case, as the client makes or does not make progress, but the initial theory is important to assist the attorney in staying focused on the client's wishes and on what is achievable. The theory of the case should inform the attorney's preparation for hearings and arguments to the court throughout the case. It should also help the attorney decide what evidence to develop for hearings and the steps to take to move the case toward the client's ultimate goals (e.g., requesting increased visitation when a parent becomes engaged in services).

25. Timely file all pleadings, motions, and briefs. Research applicable legal issues and advance legal arguments when appropriate.

Action: The attorney must file petitions, motions, discovery requests, and responses and answers to pleadings filed by other parties that are appropriate for the case. These pleadings must be thorough, accurate and timely.

When a case presents a complicated or new legal issue, the parent's attorney should conduct the appropriate research before appearing in court. The attorney must have a solid understanding of the relevant law, and be able to present it to the judge in a compelling and convincing way. The attorney should be prepared to distinguish case law that appears to be unfavorable. If the judge asks for memoranda of law, the attorney will already have done the research and will be able to use it to argue the case well. If it would advance the client's case, the parent's attorney should present an unsolicited memorandum of law to the court.

Commentary: Actively filing motions, pleadings and briefs benefits the client. This practice puts important issues before the court and builds credibility for the attorney. In addition to filing responsive papers and discovery requests, the attorney should proactively seek court orders that benefit the client, e.g., filing a motion to enforce court orders to ensure the child welfare agency is meeting its reasonable efforts obligations. When an issue arises, it is often appropriate to attempt to resolve it informally with other parties. When out-of-court advocacy is not successful, the attorney should not wait to bring the issue to the court's attention if that would serve the client's goals.

Arguments in child welfare cases are often fact-based. Nonetheless, attorneys should ground their arguments in statutory, regulatory and common law. These sources of law exist in each jurisdiction, as well as in federal law. Additionally, law from other jurisdictions can be used to sway a court in the client's favor. An attorney who has a firm grasp of the law, and who is willing to do legal research on an individual case, may have more credibility before the court. At times, competent representation requires advancing legal arguments that are not yet accepted in the jurisdiction. Attorneys should be mindful to preserve issues for appellate review by making a record even if the argument is unlikely to prevail at the trial level

26. Engage in case planning and advocate for appropriate social services using a multidisciplinary approach to representation when available.

Action: The parent's attorney must advocate for the client both in and out of court. The parent's attorney should know about the social, mental health, substance abuse treatment and other services that are available to parents and families in the jurisdiction in which the attorney practices so the attorney can advocate effectively for the client to receive these services. The attorney should ask the client if the client wishes to engage in services. If so, the attorney must determine whether the client has access to the necessary services to overcome the issues that led to the case.

The attorney should actively engage in case planning, including attending major case meetings, to ensure the client asks for and receives the needed services. The attorney should also ensure the client does not agree to undesired services that are beyond the scope of the case. A major case meeting is one in which the attorney or client believes the attorney will be needed to provide advice or one in which a major decision on legal steps, such as a change in the child's permanency goal, will be made. The attorney should be available to accompany the client to important meetings with service providers as needed.

The services in which the client is involved must be tailored to the client's needs, and not merely hurdles over which the client must jump (e.g., if the client is taking parenting classes, the classes must be relevant to the underlying issue in the case).

Whenever possible, the parent's attorney should engage or involve a social worker as part of the parent's “team” to help determine an appropriate case plan, evaluate social services suggested for the client, and act as a liaison and advocate for the client with the service providers.

When necessary, the parent's attorney should seek court orders to force the child welfare agency to provide services or visitation to the client. The attorney may need to ask the court to enforce previously entered orders that the agency did not comply with in a reasonable period. The attorney should consider whether the child's representative (lawyer, GAL or CASA) might be an ally on service and visitation issues. If so, the attorney should solicit the child's representative's assistance and work together in making requests to the agency and the court.

Commentary: For a parent to succeed in a child welfare case the parent must receive and cooperate with social services. It is therefore necessary that the parent's attorney does whatever possible to obtain appropriate services for the client, and then counsel the client about participating in such services. Examples of services common to child welfare cases include:

• Evaluations

• Family preservation or reunification services

• Medical and mental health care

• Drug and alcohol treatment

• Domestic violence prevention, intervention or treatment

• Parenting education

• Education and job training

• Housing

• Child care

• Funds for public transportation so the client can attend services

27. Aggressively advocate for regular visitation in a family-friendly setting.

Action: The parent's attorney should advocate for an effective visiting plan and counsel the parent on the importance of regular contact with the child. Preservation of parent-child bonds through regular visitation is essential to any reunification effort. Courts and child welfare agencies may need to be pushed to develop visiting plans that best fit the needs of the individual family. Factors to consider in visiting plans include:

• Frequency

• Length

• Location

• Supervision

• Types of activities

• Visit coaching – having someone at the visit who could model effective parenting skills

Commentary: Consistent, high quality visitation is one of the best predictors of successful reunification between a parent and child. Often visits are arranged in settings that are uncomfortable and inhibiting for families. It is important that the parent's attorney seek a visitation order that will allow the best possible visitation. Effort should be made to have visits be unsupervised or at the lowest possible level of supervision. Families are often more comfortable when relatives, family friends, clergy or other community members are recruited to supervise visits rather than caseworkers. Attorneys should advocate for visits to occur in the most family-friendly locations possible, such as in the family's home, parks, libraries, restaurants, places of worship or other community venues.

28. With the client's permission, and when appropriate, engage in settlement negotiations and mediation to resolve the case.

Action: The parent's attorney should, when appropriate, participate in settlement negotiations to promptly resolve the case, keeping in mind the effect of continuances and delays on the client's goals. Parents' attorneys should be trained in mediation and negotiation skills and be comfortable resolving cases outside a courtroom setting when consistent with the client's position. When authorized to do so by the client, the parent's attorney should share information about services in which the parent is engaged and provide copies of favorable reports from service providers. This information may impact settlement discussions. The attorney must communicate all settlement offers to the client and discuss their advantages and disadvantages. It is the client's decision whether to settle. The attorney must be willing to try the case and not compromise solely to avoid the hearing. The attorney should use mediation resources when available.

Commentary: Negotiation and mediation often result in a detailed agreement among parties about actions the participants must take. Generally, when agreements have been thoroughly discussed and negotiated, all parties, including the parents, feel as if they had a say in the decision and are, therefore, more willing to adhere to a plan. Mediation can resolve a specific conflict in a case, even if it does not result in an agreement about the entire case. Negotiated settlements generally happen more quickly than full hearings and therefore move a case along swiftly. The attorney should discuss all aspects of proposed settlements with the parent, including all legal effects of admissions or agreements. The attorney should advise the client about the chances of prevailing if the matter proceeds to trial and any potential negative impact associated with contesting the allegations. The final decision regarding settlement must be the client's.

A written, enforceable agreement should result from any settlement, so all parties are clear about their rights and obligations. The parent's attorney should ensure agreements accurately reflect the understandings of the parties. The parent's attorney should schedule a hearing if promises made to the parent are not kept.

29. Thoroughly prepare the client to testify at the hearing.

Action: When having the client testify will benefit the case or when the client wishes to testify, the parent's attorney should thoroughly prepare the client. The attorney should discuss and practice the questions that the attorney will ask the client, as well as the types of questions the client should expect opposing counsel to ask. The parent's attorney should help the parent think through the best way to present information, familiarize the parent with the court setting, and offer guidance on logistical issues such as how to get to court on time and appropriate court attire.

Commentary: Testifying in court can be intimidating. For a parent whose family is the focus of the proceeding, the court experience is even scarier. The parent's attorney should be attuned to the client's comfort level about the hearing, and ability to testify in the case. The attorney should spend time explaining the process and the testimony itself to the client. The attorney should provide the client with a written list of questions that the attorney will ask, if this will help the client.

30. Identify, locate and prepare all witnesses.

Action: The parent's attorney, in consultation with the parent, should develop a witness list well before a hearing. The attorney should not assume the agency will call a witness, even if the witness is named on the agency's witness list. The attorney should, when possible, contact the potential witnesses to determine if they can provide helpful testimony.

When appropriate, witnesses should be informed that a subpoena is on its way. The attorney should also ensure the subpoena is served. The attorney should subpoena potential agency witnesses (e.g., a previous caseworker) who have favorable information about the client.

The attorney should set aside time to fully prepare all witnesses in person before the hearing. The attorney should remind the witnesses about the court date.

Commentary: Preparation is the key to successfully resolving a case, either in negotiation or trial. The attorney should plan as early as possible for the case and make arrangements accordingly. Witnesses may have direct knowledge of the allegations against the parent. They may be service providers working with the parent, or individuals from the community who could testify generally about the family's strengths.

When appropriate, the parent's attorney should consider working with other parties who share the parent's position (such as the child's representative) when creating a witness list, issuing subpoenas, and preparing witnesses. Doctors, nurses, teachers, therapists, and other potential witnesses have busy schedules and need advance warning about the date and time of the hearing.

Witnesses are often nervous about testifying in court. Attorneys should prepare them thoroughly so they feel comfortable with the process. Preparation will generally include rehearsing the specific questions and answers expected on direct and anticipating the questions and answers that might arise on cross-examination. Attorneys should provide written questions for those witnesses who need them.

31. Identify, secure, prepare and qualify expert witness when needed. When permissible, interview opposing counsel's experts.

Action: Often a case requires multiple experts in different roles, such as experts in medicine, mental health treatment, drug and alcohol treatment, or social work. Experts may be needed for ongoing case consultation in addition to providing testimony at trial. The attorney should consider whether the opposing party is calling expert witnesses and determine whether the parent needs to call any experts.

When expert testimony is required, the attorney should identify the qualified experts and seek necessary funds to retain them in a timely manner. The attorney should subpoena the witnesses, giving them as much advanced notice of the court date as possible. As is true for all witnesses, the attorney should spend as much time as possible preparing the expert witnesses for the hearing. The attorney should be competent in qualifying expert witnesses.

When opposing counsel plans to call expert witnesses, the parent's attorney should file expert interrogatories, depose the witnesses or interview the witnesses in advance, depending on the jurisdiction's rules on attorney work product. The attorney should do whatever is necessary to learn what the opposing expert witnesses will say about the client during the hearing.

Commentary: By contacting opposing counsel's expert witnesses in advance, the parent's attorney will know what evidence will be presented against the client and whether the expert has any favorable information that might be elicited on cross-examination. The attorney will be able to discuss the issues with the client, prepare a defense and call experts on behalf of the client, if appropriate. Conversely, if the attorney does not talk to the opposing expert in advance, the attorney could be surprised by the evidence and unable to represent the client competently.

Hearings

32. Attend and prepare for all hearings, including pretrial conferences.

Action: The parent's attorney must prepare for, and attend all hearings and participate in all telephone and other conferences with the court.

Commentary: For the parent to have a fair chance during the hearing, the attorney must be prepared and present in court. Participating in pretrial proceedings may improve case resolution for the parent. Counsel's failure to participate in the proceedings in which all other parties are represented may disadvantage the parent. Therefore, the parent's attorney should be actively involved in this stage. Other than in extraordinary circumstances, attorneys must appear for all court appearances on time. In many jurisdictions, if an attorney arrives to court late, or not at all, the case will receive a long continuance. This does not serve the client and does not instill confidence in the attorney. If an attorney has a conflict with another courtroom appearance, the attorney should notify the court and other parties and request a short continuance. The parent's attorney should not have another attorney stand in to represent the client in a substantive hearing, especially if the other attorney is unfamiliar with the client or case.

33. Prepare and make all appropriate motions and evidentiary objections.

Action: The parent's attorney should make appropriate motions and evidentiary objections to advance the client's position during the hearing. If necessary, the attorney should file briefs in support of the client's position on motions and evidentiary issues. The parent's attorney should always be aware of preserving legal issues for appeal.

Commentary: It is essential that parents' attorneys understand the applicable rules of evidence and all court rules and procedures. The attorney must be willing and able to make appropriate motions, objections, and arguments (e.g., objecting to the qualification of expert witnesses or raising the issue of the child welfare agency's lack of reasonable efforts).

34. Present and cross-examine witnesses, prepare and present exhibits.

Action: The parent's attorney must be able to present witnesses effectively to advance the client's position. Witnesses must be prepared in advance and the attorney should know what evidence will be presented through the witnesses. The attorney must also be skilled at cross-examining opposing parties' witnesses. The attorney must know how to offer documents, photos and physical objects into evidence.

At each hearing the attorney should keep the case theory in mind, advocate for the child to return home and for appropriate services, if that is the client's position, and request that the court state its expectations of all parties.

Commentary: Becoming a strong courtroom attorney takes practice and attention to detail. The attorney must be sure to learn the rules about presenting witnesses, impeaching testimony, and entering evidence. The attorney should seek out training in trial skills and observe more experienced trial attorneys to learn from them. Even if the parent's attorney is more seasoned, effective direct and cross-examination require careful preparation. The attorney must know the relevant records well enough to be able to impeach adverse witnesses and bring out in both direct and cross examinations any information that would support the parent's position. Seasoned attorneys may wish to consult with other experienced attorneys about complex cases. Presenting and cross-examining witnesses are skills with which the parent's attorney must be comfortable.

35. In jurisdictions in which a jury trial is possible, actively participate in jury selection and drafting jury instructions.

Commentary: Several jurisdictions around the country afford parties in child welfare cases the right to a jury trial at the adjudicatory or termination of parental rights stages. Parents' attorneys in those jurisdictions should be skilled at choosing an appropriate jury, drafting jury instructions that are favorable to the client's position, and trying the case before jurors who may not be familiar with child abuse and neglect issues.

36. Request closed proceedings (or a cleared courtroom) in appropriate cases.

Action: The parent's attorney should be aware of who is in the courtroom during a hearing, and should request the courtroom be cleared of individuals not related to the case when appropriate. The attorney should be attuned to the client's comfort level with people outside of the case hearing about the client's family. The attorney should also be aware of whether the case is one in which there is media attention. Confidential information should not be discussed in front of the media or others without the express permission of the client.

Commentary: In many courts, even if they have a “closed court” policy, attorneys, caseworkers, and witnesses on other cases listed that day may be waiting in the courtroom. These individuals may make the client uncomfortable, and the parent's attorney should request that the judge remove them from the courtroom. Even in an “open court” jurisdiction, there may be cases, or portions of cases, that outsiders should not be permitted to hear. The parent's attorney must be attuned to this issue, and make appropriate requests of the judge.

37. Request the opportunity to make opening and closing arguments.

Action: When permitted by the judge, the parent's attorney should make opening and closing arguments to best present the parent's attorney's theory of the.

Commentary: In many child abuse and neglect proceedings, attorneys waive the opportunity to make opening and closing arguments. However, these arguments can help shape the way the judge views the case, and therefore can help the client. Argument may be especially critical, for example, in complicated cases when information from expert witnesses should be highlighted for the judge, in hearings that take place over a number of days, or when there are several children and the agency is requesting different services or permanency goals for each of them. Making opening and closing argument is particularly important if the case is being heard by a jury.

38. Prepare proposed findings of fact, conclusions of law and orders when they will be used in the court's decision or may otherwise benefit the client.

Action: Proposed findings of fact, conclusions of law, and orders should be prepared before a hearing. When the judge is prepared to enter a ruling, the judge can use the proposed findings or amend them as needed.

Commentary: By preparing proposed findings of fact and conclusions of law, the parent's attorney frames the case and ruling for the judge. This may result in orders that are more favorable to the parent, preserve appellate issues, and help the attorney clarify desired outcomes before a hearing begins. The attorney should offer to provide the judge with proposed findings and orders in electronic format. If an opposing party prepared the order, the parent's attorney should review it for accuracy before the order is submitted for the judge's signature.

Post Hearings/Appeals

39. Review court orders to ensure accuracy and clarity and review with client.

Action: After the hearing, the parent's attorney should review the written order to ensure it reflects the court's verbal order. If the order is incorrect, the attorney should take whatever steps are necessary to correct it. Once the order is final, the parent's attorney should provide the client with a copy of the order and should review the order with the client to ensure the client understands it. If the client is unhappy with the order, the attorney should counsel the client about any options to appeal or request rehearing on the order, but should explain that the order is in effect unless a stay or other relief is secured. The attorney should counsel the client on the potential consequences of failing to comply with a court order.

Commentary: The parent may be angry about being involved in the child welfare system, and a court order that is not in the parent's favor could add stress and frustration. It is essential that the parent's attorney take time, either immediately after the hearing or at a meeting soon after the court date, to discuss the hearing and the outcome with the client. The attorney should counsel the client about all options, including appeal (see below). Regardless of whether an appeal is appropriate, the attorney should counsel the parent about potential consequences of not complying with the order.

40. Take reasonable steps to ensure the client complies with court orders and to determine whether the case needs to be brought back to court.

Action: The parent's attorney should answer the parent's questions about obligations under the order and periodically check with the client to determine the client's progress in implementing the order. If the client is attempting to comply with the order but other parties, such as the child welfare agency, are not meeting their responsibilities, the parent's attorney should approach the other party and seek assistance on behalf of the client. If necessary, the attorney should bring the case back to court to review the order and the other party's noncompliance or take other steps to ensure that appropriate social services are available to the client.

Commentary: The parent's attorney should play an active role in assisting the client in complying with court orders and obtaining visitation and any other social services. The attorney should speak with the client regularly about progress and any difficulties the client is encountering while trying to comply with the court order or service plan. When the child welfare agency does not offer appropriate services, the attorney should consider making referrals to social service providers and, when possible, retaining a social worker to assist the client. The drafting committee of these standards recommends such an interdisciplinary model of practice.

41. Consider and discuss the possibility of appeal with the client. 104

Action: The parent's attorney should consider and discuss with the client the possibility of appeal when a court's ruling is contrary to the client's position or interests. The attorney should counsel the client on the likelihood of success on appeal and potential consequences of an appeal. In most jurisdictions, the decision whether to appeal is the client's as long as a non-frivolous legal basis for appeal exists. Depending on rules in the attorney's jurisdiction, the attorney should also consider filing an extraordinary writ or motions for other post-hearing relief.

Commentary: When discussing the possibility of an appeal, the attorney should explain both the positive and negative effects of an appeal, including how the appeal could affect the parent's goals. For instance, an appeal could delay the case for a long time. This could negatively impact both the parent and the child.

42. If the client decides to appeal, timely and thoroughly file the necessary post-hearing motions and paperwork related to the appeal and closely follow the jurisdiction's Rules of Appellate Procedure.

Action: The parent's attorney should carefully review his or her obligations under the state's Rules of Appellate Procedure. The attorney should timely file all paperwork, including a notice of appeal and requests for stays of the trial court order, transcript, and case file. If another party has filed an appeal, the parent's attorney should explain the appeals process to the parent and ensure that responsive papers are filed timely.

The appellate brief should be clear, concise, and comprehensive and also timely filed. The brief should reflect all relevant case law and present the best legal arguments available in state and federal law for the client's position. The brief should include novel legal arguments if there is a chance of developing favorable law in support of the parent's claim.

In jurisdictions in which a different attorney from the trial attorney handles the appeal, the trial attorney should take all steps necessary to facilitate appointing appellate counsel and work with the new attorney to identify appropriate issues for appeal. The attorney who handled the trial may have insight beyond what a new attorney could obtain by reading the trial transcript.

If appellate counsel differs from the trial attorney, the appellate attorney should meet with the client as soon as possible. At the initial meeting, appellate counsel should determine the client's position and goals in the appeal. Appellate counsel should not be bound by the determinations of the client's position and goals made by trial counsel and should independently determine his or her client's position and goals on appeal.

If oral arguments are scheduled, the attorney should be prepared, organized, and direct. Appellate counsel should inform the client of the date, time and place scheduled for oral argument of the appeal upon receiving notice from the appellate court. Oral argument of the appeal on behalf of the client should not be waived, absent the express approval of the client, unless doing so would benefit the client. For example, in some jurisdictions appellate counsel may file a reply brief instead of oral argument. The attorney should weigh the pros and cons of each option.

Commentary: Appellate skills differ from the skills most trial attorneys use daily. The parent's attorney may wish to seek training on appellate practice and guidance from an experienced appellate advocate when drafting the brief and preparing for argument. An appeal can have a significant impact on the trial judge who heard the case and trial courts throughout the state, as well as the individual client and family.

43. Request an expedited appeal, when feasible, and file all necessary paperwork while the appeal is pending.

Action: If the state court allows, the attorney in a child welfare matter should always consider requesting an expedited appeal. In this request, the attorney should provide information about why the case should be expedited, such as any special characteristics about the child and why delay would harm the relationship between the parent and child.

44. Communicate the results of the appeal and its implications to the client.

Action: The parent's attorney should communicate the result of the appeal and its implications, and provide the client with a copy of the appellate decision. If, as a result of the appeal, the attorney needs to file any motions with the trial court, the attorney should do so.

Obligations of Attorney Managers 105

Attorney Managers are urged to:

1. Clarify attorney roles and expectations.

Action: The attorney manager must ensure that staff attorneys understand their role in representing clients and the expectations of the attorney manager concerning all staff duties. In addition to in-office obligations staff attorneys may attend meetings, conferences, and trainings. The attorney may need to attend child welfare agency or service provider meetings with clients. The manager should articulate these duties at the beginning of and consistently during the attorney's employment. The manager should emphasize the attorney's duties toward the client, and obligations to comply with practice standards.

Commentary: All employees want to know what is expected of them; one can only do a high quality job when the person knows the parameters and expectations of the position. Therefore, the attorney manager must consistently inform staff of those expectations. Otherwise, the staff attorney is set up to fail. The work of representing parents is too important, and too difficult, to be handled by people who do not understand their role and lack clear expectations. These attorneys need the full support of supervisors and attorney managers to perform their highest quality work.

2. Determine and set reasonable caseloads for attorneys. 106

Action: An attorney manager should determine reasonable caseloads for parents' attorneys and monitor them to ensure the maximum is not exceeded. Consider a caseload/workload study, review written materials about such studies, or look into caseload sizes in similar counties to accurately determine ideal attorney caseloads. When assessing the appropriate number of cases, remember to account for all attorney obligations, case difficulty, time required to prepare a case thoroughly, support staff assistance, travel time, experience level of attorneys, and available time (excluding vacation, holidays, sick leave, training and other non-case-related activity). If the attorney manager carries a caseload, the number of cases should reflect the time the individual spends on management duties.

Commentary: High caseload is considered a major barrier to quality representation and a source of high attorney turnover. It is essential to decide what a reasonable caseload is in your jurisdiction. How attorneys define cases and attorney obligations vary from place-to-place, but having a manageable caseload is crucial. The standards drafting committee recommended a caseload of no more than 50-100 cases depending on what the attorney can handle competently and fulfill these standards. The type of practice the attorney has, e.g., whether the attorney is part of a multidisciplinary representation team also has an impact on the appropriate caseload size. It is part of the attorney manager's job to advocate for adequate funding and to alert individuals in positions of authority when attorneys are regularly asked to take caseloads that exceed local standards.

3. Advocate for competitive salaries for staff attorneys.

Action: Attorney managers should advocate for attorney salaries that are competitive with other government and court appointed attorneys in the jurisdiction. To recruit and retain experienced attorneys, salaries must compare favorably with similarly situated attorneys.

Commentary: While resources are scarce, parents' attorneys deserve to be paid a competitive wage. They will likely not stay in their position nor be motivated to work hard without a reasonable salary. High attorney turnover may decrease when attorneys are paid well. Parents' rights to effective assistance of counsel may be compromised if parents' attorneys are not adequately compensated.

4. Develop a system for the continuity of representation.

Action: The attorney manager should develop a case assignment system that fosters ownership and involvement in the case by the parent's attorney. The office can have a one-attorney: one-case (vertical representation) policy in which an attorney follows the case from initial filing through permanency and handles all aspects of the case. Alternatively, the cases may be assigned to a group of attorneys who handle all aspects of a case as a team and are all assigned to one judge. If a team approach is adopted, it is critical to establish mechanisms to aid communication about cases and promote accountability.

The attorney manager should also hire social workers, paralegals and/or parent advocates (parents familiar with the child welfare system because they were involved in the system and successfully reunited with their child), who should be “teamed” with the attorneys. These individuals can assist the attorney or attorney team with helping clients access services and information between hearings, and help the attorney organize and monitor the case.

Commentary: Parents' attorneys can provide the best representation for the client when they know a case and are invested in its outcome. Continuity of representation is critical for attorneys and parents to develop the trust that is essential to high quality representation. Additionally, having attorneys who are assigned to particular cases decreases delays because the attorney does not need to learn the case each time it is scheduled for court, but rather has extensive knowledge of the case history. The attorney also has the opportunity to monitor action on the case between court hearings. This system also makes it easier for the attorney manager to track how cases are handled. Whatever system is adopted, the manager must be clear about which attorney has responsibility for the case preparation, monitoring, and advocacy required throughout the case.

5. Provide attorneys with training and education opportunities regarding the special issues that arise in the client population.

Action: The attorney manager must ensure that each attorney has opportunities to participate in training and education programs. When a new attorney is hired, the attorney manager should assess that attorney's level of experience and readiness to handle cases. The attorney manager should develop an internal training program that pairs the new attorney with an experienced “attorney mentor.” The new attorney should be required to: 1) observe each type of court proceeding (and mediation if available in the jurisdiction), 2) second-chair each type of proceeding, 3) try each type of case with the mentor second-chairing, and 4) try each type of proceeding on his or her own, with the mentor available to assist, before the attorney can begin handling cases alone.

Additionally, each attorney should attend at least 20 hours of relevant training before beginning, and at least15 hours of relevant training every year after. Training should include general legal topics such as evidence and trial skills, and child welfare-specific topics that are related to the client population the office is representing, such as:

• Relevant state, federal and case law, procedures and rules

• Available community resources

• State and federal benefit programs affecting parties in the child welfare system (e.g., SSI, SSA, Medicaid, UCCJEA)

• Federal Indian Law including the Indian Child Welfare Act and state law related to Native Americans

• Understanding mental illness

• Substance abuse issues (including assessment, treatment alternatives, confidentiality, impact of different drugs)

• Legal permanency options

• Reasonable efforts

• Termination of parental rights law

• Child development

• Legal ethics related to parent representation

• Negotiation strategies and techniques

• Protection orders/how domestic violence impacts parties in the child welfare system

• Appellate advocacy

• Immigration law in child welfare cases

• Education law in child welfare cases

• Basic principles of attachment theory

• Sexual abuse

• Dynamics of physical abuse and neglect

«¢̨ Shaken Baby Syndrome

«¢̨ Broken bones

«¢̨ Burns

«¢̨ Failure To Thrive

«¢̨ Munchausen's Syndrome by Proxy

• Domestic relations law

Commentary: Parents' attorneys should be encouraged to learn as much as possible and participate in conferences and trainings to expand their understanding of child welfare developments. While parents' attorneys often lack extra time to attend conferences, the knowledge they gain will be invaluable. The philosophy of the office should stress the need for ongoing learning and professional growth. The attorney manager should require the attorneys to attend an achievable number of hours of training that will match the training needs of the attorneys. The court and Court Improvement Program ¹⁰⁷ may be able to defray costs of attorney training or may sponsor multidisciplinary training that parents' attorneys should be encouraged to attend. Similarly, state and local bar associations, area law schools or local Child Law Institutes may offer education opportunities. Attorneys should have access to professional publications to stay current on the law and promising practices in child welfare. Child welfare attorneys benefit from the ability to strategize and share information and experiences with each other. Managers should foster opportunities for attorneys to support each other, discuss cases, and brainstorm regarding systemic issues and solutions.

6. Establish a regular supervision schedule.

Action: Attorney managers should ensure that staff attorneys meet regularly (at least once every two weeks) with supervising attorneys to discuss individual cases as well as any issues the attorney is encountering with the court, child welfare agency, service providers or others. The supervising attorney should help the staff attorney work through any difficulties the attorney is encountering in managing a caseload. Supervising attorneys should regularly observe the staff attorneys in court and be prepared to offer constructive criticism as needed. The supervising attorney should create an atmosphere in which the staff attorney is comfortable asking for help and sharing ideas.

Commentary: Parents' attorneys function best when they can learn, feel supported, and manage their cases with the understanding that their supervisors will assist as needed. By creating this office environment, the attorney manager invests in training high quality attorneys and results in long-term retention. Strong supervision helps attorneys avoid the burnout that could accompany the stressful work of representing parents in child welfare cases.

7. Create a brief and forms bank.

Action: Develop standard briefs, memoranda of law and forms that attorneys can use, so they do not “reinvent the wheel” for each new project. For example, there could be sample discovery request forms, motions, notices of appeal, and petitions. Similarly, memoranda of law and appellate briefs follow patterns that the attorneys could use, although these should always be tailored to the specific case. These forms and briefs should be available on the computer and in hard copy and should be centrally maintained. They should also be well indexed for accessibility and updated as needed.

8. Ensure the office has quality technical and support staff as well as adequate equipment, library materials, and computer programs to support its operations.

Action: The attorney manager should advocate for high quality technical and staff support. The office should employ qualified legal assistants or paralegals and administrative assistants to help the attorneys. The attorney manager should create detailed job descriptions for these staff members to ensure they are providing necessary assistance. For instance, a qualified legal assistant can help: research, draft petitions, schedule and prepare witnesses and more.

The attorney manager should ensure attorneys have access to working equipment, a user-friendly library conducive to research, and computer programs for word processing, conducting research (Westlaw or Lexis/Nexis), caseload and calendar management, Internet access, and other supports that make the attorney's job easier and enhances client representation.

Commentary: By employing qualified staff, the attorneys will be free to perform tasks essential to quality representation. The attorneys must at least have access to a good quality computer, voice mail, fax machine, and copier to get the work done efficiently and with as little stress as possible

9. Develop and follow a recruiting and hiring practice focused on hiring highly qualified candidates.

Action: The attorney manager should hire the best attorneys possible. The attorney manager should form a hiring committee made up of managing and line attorneys and possibly a client or former client of the office. Desired qualities of a new attorney should be determined, focusing on educational and professional achievements; experience and commitment to representing parents and to the child welfare field; interpersonal skills; diversity and the needs of the office; writing and verbal skills; second language skills; and ability to handle pressure. Widely advertising the position will draw a wider candidate pool. The hiring committee should set clear criteria for screening candidates before interviews and should conduct thorough interviews and post-interview discussions to choose the candidate with the best skills and strongest commitment. Reference checks should be completed before extending an offer.

Commentary: Hiring high quality attorneys raises the level of representation and the level of services parents in the jurisdiction receive. The parent attorney's job is complicated and stressful. There are many tasks to complete in a short time. It is often difficult to connect with, build trust and represent the parent. New attorneys must be aware of these challenges and be willing and able to overcome them. Efforts should be made to recruit staff who reflect the racial, ethnic, and cultural backgrounds of the clients. It is particularly important to have staff who can communicate with the clients in their first languages, whenever possible.

10. Develop and implement an attorney evaluation process.

Action: The attorney manager should develop an evaluation system that focuses on consistency, constructive criticism, and improvement. Some factors to evaluate include: communicating with the client, preparation and trial skills, working with clients and other professionals, complying with practice standards, and ability to work within a team. During the evaluation process, the attorney manager should consider:

• observing the attorney in court;

• reviewing the attorney's files;

• talking with colleagues and clients, when appropriate, about the attorney's performance;

• having the attorney fill out a self-evaluation; and;

• meeting in person with the attorney.

Where areas of concern are noted, the evaluation process should identify and document specific steps to address areas needing improvement.

Commentary: A solid attorney evaluation process helps attorneys know what they should be working on, management's priorities, their strengths and areas for improvement. A positive process supports attorneys in their positions, empowers them to improve and reduces burnout.

11. Work actively with other stakeholders to improve the child welfare system, including court procedures.

Action: The attorney manager should participate, or designate someone from the staff to participate, in multidisciplinary committees within the jurisdiction that are focused on improving the local child welfare system. Examples of such committees include: addressing issues of disproportional representation of minorities in foster care, improving services for incarcerated parents, allowing parents pre-petition representation, drafting court rules and procedures, drafting protocols about outreach to missing parents and relatives, removing permanency barriers and delays, and accessing community-based services for parents and children. Similarly, the attorney manager should participate in, and strongly encourage staff participation in, multidisciplinary training.

Commentary: Working on systemic change with all stakeholders in the jurisdiction is one way to serve the parents the office represents as well as their children. Active participation of parents' attorneys ensures that projects and procedures are equitably developed, protect parents' interests, and the attorneys are more likely to work on them over the long term. Collaboration can, and generally does, benefit all stakeholders.

Role of the Court:

The court is urged to:

1. Recognize the importance of the parent attorney's role.

Commentary: The judge sets the tone in the courtroom. Therefore, it is very important that the judge respects all parties, including the parents and parents' counsel. Representing parents is difficult and emotional work, but essential to ensuring justice is delivered in child abuse and neglect cases. When competent attorneys advocate for parent clients, the judge's job becomes easier. The judge is assured that the parties are presenting all relevant evidence, and the judge can make a well-reasoned decision that protects the parents' rights. Also, by respecting and understanding the parent attorney's role, the judge sets an example for others.

2. Establish uniform standards of representation for parents' attorneys.

Commentary: By establishing uniform representation rules or standards, the judge can put the parents' attorneys in the jurisdiction on notice that a certain level of representation will be required for the attorney to continue to receive appointments. The rules or standards should be jurisdiction specific, but should include the elements of these standards.

3. Ensure the attorneys who are appointed to represent parents in abuse and neglect cases are qualified, well-trained, and held accountable for practice that complies with these standards.

Commentary: Once the standards are established, the court must hold all parents' attorneys accountable to them. A system should be developed that would delineate when an attorney would be removed from a case for failure to comply with the standards, and what actions, or inactions, would result in the attorney's removal from the appointment list (or a court recommendation to an attorney manager that an attorney be disciplined within the parent attorney office). The court should encourage attorneys to participate in educational opportunities, and the judge should not appoint attorneys who have failed to meet the minimum annual training requirements set out in the rules or standards.

4. Ensure appointments are made when a case first comes before the court, or before the first hearing, and last until the case has been dismissed from the court's jurisdiction.

Commentary: The parent is disadvantaged in a child abuse and neglect case if not represented by a competent attorney throughout the life of the case. The attorney can explain the case to the parent, counsel the parent on how best to achieve the parent's goals with respect to the child, and assist the parent access necessary services. In most child welfare cases, the parent cannot afford an attorney and requires the court to appoint one. The court should make every effort to obtain an attorney for that parent as early in the case as feasible – preferably before the case comes to court for the first time or at the first hearing. In jurisdictions in which parents only obtain counsel for the termination of parental rights hearing, the parent has little chance of prevailing. A family that may have been reunified if the parent had appropriate legal support is separated forever.

5. Ensure parents' attorneys receive fair compensation.

Commentary: While resources are scarce, parents' attorneys deserve a competitive wage. They should receive the same wage as other government and court-appointed attorneys for other parties in the child abuse and neglect case. Parents' rights to effective assistance of counsel may be compromised if parents' attorneys are not adequately compensated. In most jurisdictions, the court sets the attorneys' fees and individual judges can recommend to court administration that parents' attorneys should be well compensated.

6. Ensure timely payment of fees and costs for attorneys.

Commentary: Often judges must sign fee petitions and approve payment of costs for attorneys. The judges should do so promptly so parents' attorneys can focus on representing clients, not worrying about being paid.

7. Provide interpreters, investigators and other specialists needed by the attorneys to competently represent clients. Ensure attorneys are reimbursed for supporting costs, such as use of experts, investigation services, interpreters, etc.

Commentary: Attorneys can not provide competent representation for parents without using certain specialists. For instance, if the client speaks a language different from the attorney, the attorney must have access to interpreters for attorney/client meetings. Interpreter costs should not be deducted from the attorney's compensation. A parent should be permitted to use an expert of the parent's choosing in some contested cases. If the expert charges a fee, the court should reimburse that fee separate and apart from what the court is paying the attorney.

8. Ensure that attorneys who are receiving appointments carry a reasonable caseload that would allow them to provide competent representation for each of their clients.

Commentary: The maximum allowable caseload should be included in local standards of practice for parents' attorneys. This committee recommends no more than 50-100 cases for full time attorneys, depending on the type of practice the attorney has and whether the attorney is able to provide each client with representation that follows these standards. Once this number has been established, the court should not appoint an attorney to cases once the attorney has reached the maximum level. Attorneys can only do high quality work for a limited number of clients, and each client deserves the attorney's full attention. Of course, the caseload decision is closely tied to adequate compensation. If paid appropriately, the attorney will have less incentive to overextend and accept a large number of cases.

9. Ensure all parties, including the parent's attorney, receive copies of court orders and other documentation.

Commentary: The court should have a system to ensure all parties receive necessary documentation in a timely manner. If the parent and parent attorney do not have the final court order, they do not know what is expected of them and of the other parties. If the child welfare agency, for example, is ordered to provide the parent with a certain service within two weeks, the parent's attorney must know that. After two weeks, if the service has not been provided, the attorney will want to follow up with the court. In some jurisdictions, copies of court orders are handed to each party before they leave the courtroom. This is an ideal situation, and if it is not feasible, the court should determine what other distribution method will work.

10. Provide contact information between clients and attorneys.

Commentary: Often parties in child welfare cases are difficult to locate or contact. Some parents lack telephones. The court can help promote contact between the attorney and parent by providing contact information to both individuals.

11. Ensure child welfare cases are heard promptly with a view towards timely decision making and thorough review of issues.

Commentary: Judges should attempt to schedule hearings and make decisions quickly. Allotted court time should be long enough for the judge to thoroughly review the case and conduct a meaningful hearing.

When possible, judges should schedule hearings for times-certain to avoid delaying attorneys unnecessarily in court. When attorneys are asked to wait through the rest of the morning calendar for one brief review hearing, limited dollars are spent to keep the attorney waiting in hallways, rather than completing an independent investigation, or researching alternative placement or treatment options.

Judges should avoid delays in decision making. Delays in decision making can impact visitation, reunification and even emotional closure when needed. If a parent does not know what the judge expects, the parent may lack direction or motivation to engage in services.

These standards were drafted with the input of the following individuals:

Valerie Adelson

Staff Director

ABA Standing Committee on Substance Abuse

Chicago, IL

Kris Berliant

ABA Judicial Division Staff

Chicago, IL

Sharon Biasca

Managing Attorney

Juvenile Court Project

Pittsburgh, PA

Terry Brooks

Staff Director

ABA Standing Committee on Legal Aid and Indigent Defendants

Chicago, IL

Joanne Brown

Consultant

ABA Center on Children and the Law

Washington, DC

Shante Bullock

Program Administrator

ABA Center on Children and the Law

Washington, DC

Kate Chester

Director

Family Preservation Law Center

Siler City, NC

Claire Chiamulera

Communications Manager/Legal Editor

ABA Center on Children and the Law

Washington, DC

Andy Cohen

Staff Counsel

Children and Family Program

Committee for Public Counsel Services

Boston, MA

Emily Cooke

Special Assistant for Court Improvement

Children's Bureau

Washington, DC

Howard Davidson

Director

ABA Center on Children and the Law

Washington, DC

Alicia Davis

Family Issues Unit Supervisor

Division of Planning and Analysis

Colorado State Court Administrator's Office

Denver, CO

Amanda Donnelly

Staff Attorney

National Association of Counsel for Children

Denver, CO

Patsy Engelhard

Staff Director

ABA Litigation Division

Chicago, IL

Debby Freedman

Director, Family Advocacy Unit

Community Legal Services

Philadelphia, PA

Chris Gottlieb

Co-Director

NYU Family Defense Clinic

New York, NY

Judge Ernestine Gray

Orleans Parish Juvenile Court

Representative, ABA Judicial Division

New Orleans, LA

Bill Grimm

Senior Attorney

Child Welfare/Foster Care

National Center for Youth Law

Oakland, CA

Ann Haralambie

Representative for ABA Family Law Division

Tucson, AZ

Mark Hardin

Director, Child Welfare

ABA Center on Children and Law

Washington, DC

Sue Jacobs

Executive Director

Center for Family Representation

New York, NY

Judge William Jones

Consultant

ABA Center on Children and the Law

Charlotte, NC

Candice Maze

Representative, ABA Steering Committee on the

Unmet Legal Needs of Children

Miami, FL

Moreen Murphy

Staff Director

ABA Steering Committee on the

Unmet Legal Needs of Children

Joanne Moore

WA State Office of Public Defense

Olympia, WA

Christina Plum

ABA Young Lawyer's Division Chair

PO Box 11756

Milwaukee, WI

Jennifer Renne

Assistant Director, Child Welfare

ABA Center on Children and the Law

Washington, DC

Professor Catherine J. Ross

George Washington University Law School

Representative for ABA Individual

Rights and Responsibilities Section

Washington, DC

Don Saunders

Director, Civil Legal Services

National Legal Aid and Defender Association

Washington, DC

Tanya Terrell-Collier

Staff Director

ABA Individual Rights and Responsibilities Section

Washington, DC

Marvin Ventrell

Executive Director

National Association of Counsel for Children

Denver, CO

Mary Walker

Nashville, TN

Judge Joyce Warren

Tenth Division Circuit Court

Little Rock, AR

Sylvia Young

Washington, DC

Their input was essential to this project, and their willingness to assist was extraordinary.

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Submission in Response to Senator Gordon Smith's July 26, 2007 Call For Papers to Examine the Needs of Grandparent and Other Relative Caregivers

by Tiffany Conway and Rutledge Q. HutsonSeptember 10, 2007What is Kinship Care?

More than 2.5 million children are being raised by grandparents and other relatives because their parents are unable—for a variety of reasons—to care for them.¹⁰⁸ These families are quite heterogeneous—comprised of a variety of members and forming for a range of reasons – yet they often face similar challenges and have similar needs. In this paper, the term “kinship care” or “kinship families” will be used to refer to all families where a child is being raised by a grandparent or other relative and “kinship caregiver” will be used to refer to the relative caregiver.¹⁰⁹ child protective services investigation in which there was a finding or indication of maltreatment are often referred to as “formal” kinship care. However, many kinship families not involved with the child welfare system are uncomfortable being referred to as “informal” —as if their relationship means less. For the purposes of this paper, those kinship families that are not involved with the child welfare system are referred to as “outside” of the system while families that have on-going contact with the child welfare agency are described as being “inside” or “within” the child welfare system. Some kinship caregivers within the child welfare system are caring for children who have not been legally removed from the custody of their parents (they are not in foster care) but for whom the child welfare agency remains involved through on-going supervision and provision of services. Other kinship caregivers involved with the child welfare system are caring for children who are in the legal custody of the state— that is, they are in foster care. Accordingly, these caregivers will be referred to as “kinship/relative foster parents.” Those foster parents who are not related to the child they are caring for will be referred to as “non-relative foster parents.” To summarize, for the purposes of this paper, the following terminology is used:

Kinship or kinship care families - All families in which a child is being raised by a relative without either parent present

Inside/within - Those kinship care families who are involved with the child welfare system though not necessarily as part of the foster care system.

Kinship/relative foster parents - Kinship caregivers who are caring for a child in foster care.

Non-relative foster parents - Foster parents who are not related to the children they are caring for.

Outside - Those kinship care families who are not involved with the child welfare system.

Kinship care—whether inside or outside of the child welfare system—can help children to, among other things, maintain family—and oftentimes community—connections. A growing body of research points to a number of benefits associated with placing children with kinship foster parents rather than non-relative foster parents.¹¹⁰ Additionally, kinship care is consistent with national policy preferences espoused in both the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the Adoption and Safe Families Act of 1997.¹¹¹ Still, some wonder whether kinship care is a good thing—and how we know this.

What the Research Shows

Children living with kinship foster parents are safe.

In selecting a foster placement there is, arguably, nothing more important than ensuring the child's safety. The rates of abuse or neglect of children in foster care are extremely low—.44 percent ¹¹² —of course, no abuse or neglect of children removed for their safety is acceptable. Research shows that the rates for children living with kinship foster parents are as low as—or, according to some studies, lower than—the rates for children living with non-relative foster parents. So, children living with kinship foster parents are as safe or safer than children living with non-relative foster parents.¹¹³

Children placed with kinship foster parents experience greater stability.

Children in foster care often experience a great deal of instability. On average they will experience one or two placements per year ¹¹⁴ with approximately 18 percent of children who are in care for less than a year and 40 percent of those in care between one and two years experiencing two or more placements ¹¹⁵ – these moves mean not only a new “family” but, oftentimes, also a new school, a new neighborhood, a new doctor and the need to make new friends. Such instability can compromise a child's ability to form strong attachments,¹¹⁶ contribute to a number of behavioral problems ¹¹⁷ and, among other things, compromise a child's educational attainment.¹¹⁸ Minimizing placement disruption is an essential component of reducing the likelihood of negative outcomes for children in foster care; a point that is clearly recognized in the Child and Family Services Review (CFSR).¹¹⁹ Children placed with kinship foster parents experience fewer placement changes than children placed with non-relative foster parents do.¹²⁰ Not surprisingly, children who live with kinship foster parents are less likely to report having changed schools than those children who are placed with non-relative foster parents or in group care settings.¹²¹

Stability can be conceptualized and experienced in a variety of ways. Beyond placement constancy, children can also derive a sense of stability from being placed with their siblings. Placing siblings together when they must be removed from their home is often beneficial. There will be no one better able to understand and empathize with their situation than a brother or sister who experienced much the same. Children in foster care are more likely to live with their siblings if they are placed with kin.¹²²

The transience that children in foster care experience isn't just within the system, from placement to placement; some children also, unfortunately, cycle in and out of the system, returning to foster care even after being reunified with their parent. Nationally, an average of just under 11 percent of children who enter foster care do so within 12 months of a previous foster care episode.¹²³ The repeated maltreatment and removal from one's home can be extremely traumatic for a child and every effort should be made to prevent revicitimization. Research indicates that children who re-unify with their birth parent(s) after living with kinship foster parents are less likely to re-enter foster care than those who had been in non-relative foster placements or in group care facilities.¹²⁴

Children living with kinship foster parents report more positive perceptions of their placement and have fewer behavioral problems.

Children who have experienced maltreatment are more likely to have a number of behavioral problems and emotional challenges. Post-traumatic stress disorder, anxiety and depression have all been reported among child victims. Studies also indicate that, children who have experienced maltreatment are at greater risk of poor peer relationships, violence and other problem behaviors.¹²⁵ Not surprisingly, the bulk of children in care, by virtue of having been maltreated ¹²⁶ have worse outcomes and greater incidences of behavioral and emotional problems than do their peers in the general population.

Although children who have been abused and neglected are at-risk for poorer outcomes, placement with a loving and known caregiver, such as a grandparent or other relative may help mitigate the risk of harm. Children living with kinship foster parents score better on a range of physical, cognitive and skill-based domains than do children who are in non-relative foster care or group care.¹²⁷ That children with kinship foster parents do better in these domains is likely explained, at least in part, by the fact that they also have more positive perceptions of their placements. Children living with kinship foster parents are more likely to report liking who they live with, wanting their current placement to be their permanent home,¹²⁸ and that they “always felt loved.”¹²⁹ They are less likely to report having tried to leave or run away.¹³⁰ Furthermore, both teachers and caregivers tend to rate children living with kinship foster parents as having fewer behavioral problems than do their peers in other out-of-home placement settings.¹³¹

At this point research cannot establish a causal link between placement with relatives and better outcomes.¹³² However, because evidence demonstrates that children with kinship foster parents are at least as safe and have greater stability and feel more comfortable in their homes than do children with non-relative foster parents, placing children with relatives is often the best course of action.¹³³

Recommendations for Additional Research

A growing body of quality research on kinship care lends empirical support to what cultural traditions and personal experiences have long suggested—that kinship care is beneficial for children. Although the research demonstrates that children placed with kinship foster parents do better than children placed with non-relative foster parents, the vast majority of children (millions) being raised by relatives are outside of the formal child welfare system and there is little information about the well-being of these children.

There are a number of studies and datasets that collect information on families within the child welfare system such as the National Survey of Child and Adolescent Well-being (NSCAW) and the Adoption and Foster Care Analysis and Reporting System (AFCARS) but, because they are not involved with any particular system, children being raised by relatives outside the system are rarely represented in these datasets. One can assume that the benefits of living with relatives applies to both those inside and outside the child welfare system, but it would be useful to have empirical data to demonstrate that such assumptions are accurate.

Many relatives raising children outside of the child welfare system have questioned why, when they stepped in before abuse or neglect occurred to care for a relative's child, they shouldn't be eligible for financial assistance and other services, just as their counterparts raising children within the child welfare system are. Should relative caregivers be forced to wait until maltreatment has occurred in order to get assistance in meeting the child's needs? Such a requirement is untenable. A few states have attempted to address this paradox by offering subsidies and other supports to relative caregivers both inside and outside of the child welfare system. However, such programs are limited in scale and the potential for expanding them is questionable. That said, if kinship care outside of the child welfare system is, in fact, correlated with the same outcomes as kinship care within the system, then it behooves policymakers to invest in supporting a broader contingent of children being raised by relative caregivers.

Additional research is needed. The research would, ideally, be longitudinal and would answer at least the following questions:

What circumstances precipitate kinship care arrangements outside of the child welfare system?

What are the demographic characteristics of children being raised by relatives outside of the child welfare system?134

What are the demographic characteristics of kinship caregivers caring for children outside of the child welfare system?135

What percentage of children living with relatives outside of the child welfare system are subjects of a child abuse/neglect investigation? How many of those cases are substantiated? How many enter foster care?

How stable are kinship care arrangements outside of the child welfare system?

What are the educational, behavioral, health, emotional and socioeconomic outcomes for children living with relatives outside of the child welfare system?

For each of these items it will be vital to consider how the outcomes for children living with relatives outside the child welfare system compare to those of children in kinship foster care and non-relative foster care.

As was previously noted, it may be difficult to gather data on kinship care families outside of the child welfare system as they are not tied to any one system in particular. However modification of existing studies could elicit the data needed to answer these questions. For example, the NSCAW is a national study of children who are at risk of abuse or neglect or are in the child welfare system.¹³⁶ It collects longitudinal data; a distinct advantage in interpreting causality and sequencing of events. However, at present, the NSCAW sample consists only of those children who come in contact with the child welfare system and the majority of children living with relatives have not had such contact. Obtaining data on kinship families outside the child welfare system may be possible with amendments to the sampling methodology. For example, the Urban Institute's National Survey of American Families (NSAF), while not longitudinal, has a sample representative of all families in the United States. Consultation with national child-welfare research experts would be vital.

Another option worth considering for obtaining the much needed and lacking data on children being raised by relatives outside the child welfare system is a federal demonstration project with a strong evaluation component. Allowing states, political subdivisions of states and tribes to provide subsidies to relative caregivers who step in before the child experiences maltreatment and become legal guardians of the child—if coupled with a rigorous evaluation, would help furnish a more robust body of research. Evaluations of the Illinois Title IV-E subsidized guardianship waiver, in particular, provided crucial information on the value of placing children with relatives when they have to be removed from their homes.¹³⁷

Challenges and State Efforts to Address Them

Research shows that relatives can help improve outcomes for children and a number of states have a statutory preference for placing children with kin when appropriate.¹³⁸ However, in spite of this preference, if a person is unaware that a relative's child is in need of care, he or she cannot step forward to care for that child. Geography, familial misunderstandings or a lack of communication may lead to a situation in which a grandfather is unaware that his granddaughter is in need of a foster placement though, were he aware, he would gladly step forward to care for her. Acknowledging this, a few states have enacted notification laws, requiring that adult relatives be notified when a child is removed from his or her parent's custody.

Notification laws

While, in practice, many states make some attempt to locate and notify adult relatives of children being removed from their parent's custody, these attempts are often only cursory —when confronted with overwhelming caseloads, a caseworker may choose to place a child with an immediately available non-relative foster family rather than expend her limited time and energy notifying relatives. In addition to depriving the child of the stability and continuity that placement with a relative could provide, bypassing the notification of relatives can prove quite tragic should someone later seek to adopt the child. All too often, a diligent search for relatives occurs only at the time parental rights are terminated and adoption is underway. At this point the child may have bonded with non-relative foster parents so that placement with relatives would require another painful separation. In addition, relatives sometimes do not learn of a child's placement until after an adoption is finalized. To help avoid these outcomes a couple of states have enacted laws requiring that adult relatives be notified within when a child is removed from his or her parent's custody.¹³⁹

Medical and educational consent laws

Beyond the challenges associated with notification and placement, relative caregivers may face obstacles in raising the children in their care due to a lack of legal custody. The consent of a legal guardian is required for a host of common childhood activities—from enrolling in school, to getting an annual check-up at the doctor's office, to going on a class field trip to the zoo. If the child is living with a kinship foster parent then anything requiring the consent of a legal guardian must be signed by the state (most often the child's caseworker, sometimes a judge). The situation is more complicated if the child is living with the relative outside of the child welfare system; generally the child's parents are still the legal guardians and, therefore, are the ones that must enroll the children in school, consent to medical procedures and authorize extracurricular activities. A number of states have recognized this: 29 states (including the District of Columbia) have medical consent laws and 21 states have educational consent laws that provide mechanisms to empower relative caregivers to give needed consent.¹⁴⁰

Navigator programs

Even when relative caregivers have authority to consent to medical care and educational activities, they can have difficulty accessing services for the children in their care. Lack of information about these systems is one of the challenges most often cited by relative caregivers. For example, there are a number of services and supports that kinship families may be eligible for, however, caregivers are often unfamiliar with these programs. In addition, workers in these programs often have a poor understanding of how the programs can be accessed by kinship care families. Several states have developed kinship care navigator programs to assist relative caregivers in navigating the often complex array of social service systems that impact the lives of the children they are caring for. These programs, via a variety of means, (including, in some cases, a toll-free hotline and/or Web site), offer relative caregivers comprehensive information that can aid them in accessing services to best meet the needs of the children in their care. Ohio, New Jersey, Connecticut, New York and Washington are the only states that have comprehensive, statewide kinship navigator systems.¹⁴¹ Additionally, this year both Indiana and Minnesota have considered kinship navigator legislation.¹⁴² It should also be noted that some kinship caregiver groups offer navigator-like services.

Few kinship caregivers anticipated that they would need to raise the children in their care and few planned for the associated expenses. Thus, relative caregivers often need financial assistance and supports in order to address the needs of the children they are raising. See Tough Question #2 for details on existing supports and associated challenges.

Confronting the Myths and Tough Questions

In spite of considerable anecdotal evidence and a growing body of research to support the practice of placing children with relatives when appropriate, myths remain. These myths warrant attention and a balanced response.

Myth #1: Kinship care is a new approach.

This statement is simply inaccurate. In a number of cultures—including many communities of color—the family and home are understood to include the extended family, and in some cases the community. Kinship care is a valued feature that, in most cases, has endured for centuries. In American Indian and Alaskan Native communities, for example, child-rearing is often thought to be the responsibility of the entire family as well as the larger tribal community. Kinship care and involvement of the extended family are notable features and strengths of many Latino families as well, with close geographic proximity and commitment to family being stressed. Similarly, many African American communities embrace the African proverb, “it takes a whole village to raise a child.”¹⁴³

Tough question #1: If kinship care has been around forever then why do relative caregivers need support now?

There has been increasingly greater attention given—in the media, by Congress and by advocacy groups—to the needs of children being raised by relative caregivers. This may seem a bit counterintuitive in light of the lengthy history and cultural value of kinship care detailed above. One might ask, “if kinship care is common practice in a number of cultures and if states and communities have been trying to find ways to help support these caregivers for a number of years then why is there a need for greater support?” Simply put, the context in which relative caregivers are raising children and the needs of the children have changed dramatically.

Many can remember a time when it was not uncommon for children to be sent outside to play with the other children in the neighborhood, giving the caregiver—be it a parent or otherwise—much needed respite. Responsibility for “keeping an eye on” the children was often shared and the potential threats seemed less imminent and somewhat more manageable. In most neighborhoods today—low-, middle- and high-income alike—this sense of community and the safety that it fosters no longer exists. Furthermore, the “bad guys” of today are ever more capable of getting to children in their homes via means that older relatives in particular may be less familiar with, such as cell phones, e-mail and social networking websites.

Additionally, the events that necessitate the formation of a kinship care arrangement have changed considerably over the years. Years ago a grandma in Alabama might have stepped in as the primary caregiver so that Mom could move up north to find a job and send money back home until she could secure housing and some measure of financial security that would enable her to have the children join her.¹⁴⁴ This arrangement is, to a certain extent, mirrored by that of a number of today's military families. In families where the parent is (or parents are) deployed, relatives often step in to care for the children until (and assuming) the parents return. However, military families account for a relatively small number of today's kinship families; instead the predominant precursors of kinship care include parental substance abuse, mental health issues and incarceration. In addition to confronting the emotional and behavioral challenges associated not only with a child being separated from his or her parents, relative caregivers are increasingly having to manage those challenges associated with exposure to a parent's drug use, mental health struggles or criminal behavior.

Tough question #2: Regardless of whether the needs have changed, aren't there supports that are already available? What about welfare?

It is true that services and supports exist that could assist some relative caregivers in caring for the children they are raising, including Temporary Assistance for Needy Families (TANF), foster care maintenance payments, adoption assistance payments, social security benefits, tax credits and exemptions, health insurance programs, nutrition assistance and, in some states, guardianship subsidies. This list may seem abundant however, there are a number of general challenges, as well as some that are specific to the particular programs, that prevent these services and supports from adequately addressing the needs of children being raised by relatives, including the following:

Lack of information - Caregivers are often unfamiliar with the multiple programs that offer assistance and may not know where they can access information (see details on kinship navigator programs above).

Distrust/fear of child welfare and other systems - Relatives may fear that if they seek services that it will be assumed that they are unable to appropriately care for the child and, consequently, the child will be taken from their care.

TANF child-only grants - While virtually all children being raised by relatives are eligible for the TANF child-only grant,145 few relative caregivers access any form of public assistance.146 Furthermore, the TANF child-only grant amounts, on average, to under 60 percent of the anticipated cost of raising a child.147

TANF family grants - TANF family grants are based on the income of the family and, unlike the child-only grants, impose work requirements and time limits. Relative caregivers, particularly grandparents, may be retired and therefore unable to comply with the work requirements and limiting the time support is available is contrary to the goal of permanency for children.

Foster care maintenance payments - Foster care payments are available to help support only those children who are involved with the child welfare system and, therefore, children being cared for by relatives who stepped in before abuse or neglect took place are generally not eligible for this assistance. Furthermore, even if a child is placed with a relative caregiver by the child welfare system, that relative caregiver must be licensed as a foster parent in order to receive federally funded payments. This is important because some states deny foster care payments to caregivers who are not licensed and instead tell them to apply for the TANF child-only grant which is typically much less than the foster care payment. Of the over half-million children living in foster care, approximately one-quarter are placed with relatives though there is insufficient data on how many of these are receiving foster care payments and how many are receiving TANF payments.

Adoption assistance payments - Adoption assistance payments are available only to those relatives who adopt eligible children from foster care. As with foster care payments, involvement with the child welfare system is necessary; children adopted from kinship placements outside of the child welfare system are generally ineligible for adoption assistance payments. It should also be noted that adoption isn't a suitable option for some families for a variety of reasons—for example, an older child may not wish to cut parental ties with his mentally disabled parent yet recognizes that she cannot care for him. In such situations, legal guardianship gives a loving relative the ability to make decisions and provide care to the child without permanently severing the legal relationship of the mother and child.

Subsidized guardianship- Many states have recognized that placing children with relatives permanently via legal guardianship is an appropriate option when reunification with parents and adoption are not. Thirty-nine states and DC have also recognized the importance of supporting these families and have implemented subsidized guardianship programs.148 These programs vary considerably but typically require that the child was in foster care for a period of time and that reunification and adoption be ruled out. In addition, these programs typically require little court or agency oversight and allow the children to grow up without the intrusiveness that the child welfare system can bring. Unfortunately, few states have been able to support many children living with relatives with these programs because of a lack of funding.149

Other - Other forms of assistance including Social Security Benefits, tax credits and exemptions, health insurance programs and nutrition assistance programs may provide meager assistance to some kinship care families but fall far short of adequate.150

Myth #2: The apple doesn't fall far from the tree.

This myth is usually voiced as, “if they couldn't raise their own children how can they raise their grandchildren?” The truth is, as every parent knows, some things are simply beyond a parent's control; substance use disorders and mental health problems, for example, strike children of even the most conscientious parents. There is also the assumption that a parent who maltreats his children learned that behavior from his own parents and, therefore, placing a child with the relative of the parent that was responsible for the maltreatment is unsafe. Research suggests that this is not the case. While every placement must be considered on a case by case basis in order to ensure the child's safety, research shows that children living with relatives are no more likely—and are perhaps less likely—than children living with non-kin foster parents to experience abuse or neglect after being removed from their homes. A 1997 study found that non-kin foster parents were twice as likely as licensed kinship foster parents to have a confirmed report of maltreatment. Furthermore, Illinois found that children in kinship foster care are at lower risk for maltreatment than are children in either specialized or non-relative foster care.¹⁵¹

Myth #3: Kinship caregivers shouldn't receive assistance to care for their children; it's their “moral responsibility” to do so.

Few would agree more than the relative caregivers themselves that caring for kin is a moral obligation. Grandparents and other relatives step in when they see their relative children in need precisely because they feel responsible—perhaps as a result of morals, a sense of duty or the way that they conceptualize family. Unfortunately, a sense of responsibility and love are not always enough. In most cases relative caregivers didn't plan on raising a relative's child and, certainly, they hadn't budgeted for it. Relative caregivers often have limited and/or, particularly in the case of grandparents, fixed incomes and meeting the needs of a child can prove financially challenging. Based on estimates from the United States Department of Agriculture, it costs at least $7,000 per year to raise a child—a prohibitive figure for many families.¹⁵² While the vast majority of children living with relative caregivers are eligible for the Temporary Assistance for Needy Families (TANF) child-only grant, a full 70 percent of relative caregivers access neither TANF nor foster care payments.¹⁵³ Furthermore, the TANF child-only grant amounts to, on average, just over $4,000 per year ¹⁵⁴ so, even when caregivers access this assistance, approximately 43 percent of the anticipated cost of raising a child must be derived from other sources—perhaps savings that were intended for retirement or medical bills.

Tough question #3: If they can't afford it, why should a relative get Federal money to raise a child?

Few relative caregivers would ever describe raising their relative's child as providing a public service but, in fact, that is exactly what they are doing. Relatives who step in prior to the involvement of the child welfare system can prevent not only impending or ongoing maltreatment of the child but also a range of expenses associated with child welfare system involvement, saving taxpayers and the child welfare system considerably. Furthermore, there is evidence to suggest that, when a child must be taken into state custody, a kinship foster care placement can provide a number of benefits compared to placement with a non-relative foster parent (see What the Research Shows above). Obtaining a permanent home for children in foster care is a crucial job of the child welfare system. Legal guardianship by kinship caregivers provides permanent homes for children for whom reunification and adoption are not appropriate. Subsidized guardianship can support children in legal guardianships—just as adoption subsidies help children in adoptive families—and increase permanency for more children.¹⁵⁵ Federal dollars are already used to provide assistance to foster and adoptive parents to aid them in providing for the children they are raising; it only makes sense that relative caregivers receive similar support.

Conclusion

Despite the myths and concerns about kinship care, the research indicates that living with relative caregivers is good for children. Living with relative foster parents provides children safety, stability and is associated with better outcomes than those experienced by children placed with non-relative foster parents. Additional research on the outcomes for children living with relative caregivers outside the child welfare system could help bolster the case for kinship care. In addition, national policy needs to provide greater support and services to children who are being raised by relatives to maximize the positive outcomes achieved by these children.

« Additional research should be longitudinal and address at least the following questions:

o What circumstances precipitate kinship care arrangements outside of the child welfare system?

o What are the demographic characteristics of children being raised by relatives outside of the child welfare system?¹⁵⁶

o What are the demographic characteristics of kinship caregivers caring for children outside of the child welfare system?¹⁵⁷

o What percentage of children living with relatives outside of the child welfare system are subjects of a child abuse/neglect investigation? How many of those cases are substantiated? How many enter foster care?

o How stable are kinship care arrangements outside of the child welfare system?

o What are the educational, behavioral, health, emotional and socioeconomic outcomes for children living with relatives outside of the child welfare system?

CLASP encourages Congress to invest in research and demonstration projects that will help address these questions.

Many of the needed federal policy changes are found in the Kinship Caregiver Support Act (KCSA) (S. 661 and H.R.2188). This bill provides a range of supports and services children in kinship care—some to all children and some to children who are involved with the child welfare system.

« Among other things, the KCSA would help address the challenges identified in this paper by:

o Establishing a Navigator Program which will fund grants to help link relative caregivers, both inside and outside of the formal child welfare system, to a broad range of services and supports that will help them meet the needs of the children in their care. The program will also help agencies more effectively and efficiently serve kinship care families. State or local agencies, agencies serving large metropolitan areas, and Indian tribal organizations or a consortium of tribal organizations may apply for competitive grants.

o Requiring state child welfare agencies to provide notice within 60 days of the removal of a child from the custody of the child's parents, to all grandparents and other adult relatives of the child, subject to exceptions due to family or domestic violence. This provision helps facilitate the early involvement of grandparents and other relatives who may be able to care for the child or otherwise be involved in the child's life.

o Establishing a Kinship Guardianship Assistance Program that gives states the option to use federal funds for subsidized guardianship payments to certain relative caregivers on behalf of the children they are raising in foster care. State agencies must take steps to rule out return home or adoption for the child and take other steps to ensure that this placement is the best permanency alternative for the child. Varying political entities (e.g., large metropolitan areas, tribes, counties) would be permitted to seek demonstration projects that allow them to provide subsidized guardianships if their state does not elect this option.

CLASP encourages Congress to adopt the provisions of the Kinship Caregiver Support Act to provide needed support to children who are being raised by grandparents and other relatives.

CLASP commends Senators Smith and Kohl and the Special Committee on Aging for considering the plight of kinship care families. We appreciate the opportunity to highlight the successes of and challenges facing kinship care families, to describe key efforts being made across the country to address these challenges and to identify additional solutions the federal government can consider in order to support these families and enhance positive outcomes for the children in them.

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Is Kinship Care Good for Kids?

by Tiffany Conway and Rutledge Q. Hutson March 2, 2007

More than 2.5 million children are being raised by grandparents and other relatives because their parents are unable—for a variety of reasons—to care for them.¹⁵⁸ These relative caregivers are willing to care for the children—but they may require financial help in order to meet the children's needs. A number of states have utilized subsidized guardianship programs as a way of supporting such families, often called “kinship families.” Such placements help the child to, among other things, maintain family—and oftentimes community—connections. These programs provide subsidies to relatives and, in some cases, other interested, non-relative adults who are caring for and have a close emotional bond with children who are not biologically their own.

Subsidized guardianship is consistent with national policy preferences espoused in both the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the Adoption and Safe Families Act of 1997,¹⁵⁹ and there is considerable evidence of the value of subsidized guardianship programs. Still, some wonder whether kinship care is a good thing—and how we know this. This fact sheet addresses these often unasked but crucial questions.

Children in kinship care experience greater stability.

«¢̨ Children in kinship foster care have been found to experience fewer placement changes than children placed with non-kin foster parents do.¹⁶⁰

«¢̨ Multiple studies indicate the value of placing siblings together, when safe and appropriate.¹⁶¹ Perhaps equally as important, children in foster care consistently express the desire to be with their siblings. Research has shown that children in foster care are more likely to live with their siblings if they are placed with kin.¹⁶²

«¢̨ Fewer children in kinship care report having changed schools (63 percent) than do children in non-relative foster care (80 percent) or those in group care (93 percent).¹⁶³

«¢̨ Children who reunify with their birth parent(s) after kinship care are less likely to re-enter foster care than those who had been in non-relative foster placements or in group care facilities.¹⁶⁴

«¢̨ The Child and Family Services Reviews (CFSR) are designed to ensure that states are achieving safety, permanency, and child and family well-being. Kinship care bolsters states' ability to comply with federal requirements by providing children with stability and permanency.¹⁶⁵

Children in kinship care report more positive perceptions of their placements and have fewer behavioral problems.

«¢̨ Compared to children in non-relative foster care and those in group care, children in kinship care are:

✓ More likely to report liking those with whom they live (93 percent vs. 79 percent [non-relative foster care] and 51 percent [group care] )

✓ More likely to report wanting their current placement to be their permanent home (61 percent vs. 27 percent and 2 percent)166

✓ Less likely to report having tried to leave or run away (6 percent vs. 16 percent and 35 percent)167

✓ More likely to report that they “always felt loved” (94 percent vs. 82 percent [non-relative foster care] )168

«¢̨ In terms of scores in physical, cognitive, emotional, and skill-based domains, children in kinship care have scores more like those of children who are able to remain at home following a child abuse and neglect investigation than do children in foster or group care.¹⁶⁹

«¢̨ Both teachers and caregivers tend to rate children in kinship care as having fewer behavioral problems than do their peers in other out-of-home placement settings.¹⁷⁰

Kinship care respects cultural traditions and may reduce racial disparities in a variety of outcomes.

In a number of cultures—including many communities of color—the family and home are understood to include the extended family, and in some cases the community. Kinship care represents an opportunity for states to provide federally required safety and permanency to a greater number of children who come into contact with the child welfare system, while enhancing their well-being by providing them with access to their ethnic, racial, and cultural traditions.¹⁷¹

Kinship caregivers provide stability to children and youth with incarcerated parents.

According to a 2000 report from the Bureau of Justice Statistics, over 75 percent of mothers and about 18 percent of fathers incarcerated in state prisons in 1997 reported that their children were being cared for by a grandparent or other relative.¹⁷² The incarceration of a parent is often traumatic on a variety of levels for children, and living with family members can provide some measure of stability.

In spite of the numerous benefits associated with kinship care, myths remain.

Myth: “The apple doesn't fall far from the tree.”

In fact, research shows that children living with relatives are no more likely—and are perhaps less likely—than children living with non-kin foster parents to experience abuse or neglect after being removed from their homes. A 1997 study found that non-kin foster parents were twice as likely as licensed kinship foster parents to have a confirmed report of maltreatment.¹⁷³ Furthermore, Illinois found that children in kinship foster care are at lower risk for maltreatment than are children in either specialized or non-relative foster care.¹⁷⁴

Myth: “It's your moral responsibility.”

Clearly, kinship caregivers agree. They take the responsibility of raising their grandchildren, nieces, and nephews when the children's parents, for a variety of reasons, cannot. These caregivers lack neither morals nor a sense of responsibility; they do, however, lack resources. They may be living on a fixed income or be retired; whatever the reason, it is highly unlikely that they planned financially for raising a relative's child.¹⁷⁵

«¢̨ The United States Department of Agriculture estimates that it costs at least $7,000 per year to raise a child.¹⁷⁶

«¢̨ The vast majority of children living with relative caregivers are eligible for the Temporary Assistance for Needy Families (TANF) child-only grant. However, 70 percent of relative caregivers do not access TANF or any other public financial assistance.

«¢̨ Even when caregivers access TANF child-only grants, this assistance amounts to, on average, just over $4,000 per year—or about 57 percent of the anticipated cost of raising a child.¹⁷⁷

Research debunks these old fears about the risk of placing children with kin.

In fact, the research tells us that many children who cannot live with their parents benefit from living with grandparents and other family members. Supporting kinship caregivers in their efforts to address the needs of these children thus provides an opportunity to improve the lives of many children who have already experienced trauma.

DFPS RESPONSE TO THE FOSTERING CONNECTIONS FEDERAL LEGISLATION

Progress as of 10/1/13

The federal Fostering Connections to Success and Increasing Adoptions Act of 2008 will be referred to as “Fostering Connections”.

Sec. 101 Kinship Guardianship Assistance Payments

Nationally this program is called Kinship Guardianship Assistance Payments. In child custody cases in Texas, courts appoint managing conservators rather than legal guardians, so the Texas legislature selected the term “Permanency Care Assistance” or “PCA”.

DFPS received state support in the 81st Texas legislative session (2009) to have a Permanency Care Assistance (PCA) program to provide financial support to relative (or “kinship”) caregivers who take permanent legal responsibility for a child who cannot be reunited with his or her parents and for whom adoption is not an appropriate permanency option. In order to qualify for the program, kinship caregivers must, among other requirements, become verified as foster parents, care for the child as foster parents for at least six months, negotiate an agreement before receiving legal custody, and then go to court and receive legal custody.

Rules were adopted on 3/1/10 (TAC 700.1025--700.1057), and the policy became effective 9/1/10 (CPS Handbook 1600 and 4700). PCA negotiations were started 9/1/10, if eligibility requirements were met, and, if approved, PCA benefits began as of 10/01/10. The maximum amounts and process for negotiating the monthly PCA payment are identical to the amount and process for negotiating the adoption assistance payment in Texas.

As of 8/31/13, there were 1,271 children who exited to permanency through the kinship family receiving legal custody (permanent managing conservatorship or PMC) with the support of monthly PCA benefits.

Sec. 102 Family Connections Grants

DFPS applied for a federal Family Connections grant in 2009 involving kinship diligent searches and family group conferencing, but was not awarded the grant.

In October 2011, DFPS entered into a partnership with Casey Family Programs, The Kempe Center for the Prevention of Child Abuse and Neglect (formerly American Humane Association), and two child welfare agencies in Larimer County, Colorado and South Dakota to participate in a federal Family Connection grant, No Place Like Home. This grant is one of seven three-year federal grants from the U.S. Department of Health and Human Services, Administration for Children & Families, to implement and evaluate Family Group Decision Making in child welfare. The grant began in October 2011 and concludes in September 2014. On October 29, 2012, data collection for the evaluation began in Texas. Data collection is expected to continue through calendar year 2013. Because data collection for the grant is localized in Dallas and Tarrant Counties, Family Based Safety Services (FBSS) and Family Group Decision Making (FGDM) staff from these counties received extensive training from The Kempe Center over the summer 2012. In addition, regional and state office staff participated in two peer networking meetings with Larimer County, Colorado and South Dakota child welfare staff in June and September 2012.

Sec. 103 Notification of Relatives

DFPS updated policy (CPS Handbook 2540 and 6123) to require staff to have the family help identify all grandparents and other adult relatives, not just three relatives who might be considered for placement. A notification form letter was developed with attachments regarding the notice of removal and options to become a:

• Kinship foster parent,

• Kinship unverified caregiver, or a

• Permanency resource who supports the child in placement by participation in the service planning for the child.

The form letter has now been put in the DFPS automated system, where such notices can be tracked.

Senate Bill (SB) 993 from the Texas 82nd legislative session amended the Texas Family Code provisions regarding notification of adult relatives to include the Fostering Connections requirements on this issue and to clarify that this notice must be provided to all adult relatives related to the child within the 3rd degree of consanguinity (i.e. all grandparents, great-grandparents, aunts, uncles, nieces, nephews, and siblings).

The notification letter and attachment information were revised in August 2011 to incorporate the requirements in SB 993.

Sec. 104 Licensing Standards for Kinship Placements

Kinship families wanting to become foster homes are required to meet the same standards for foster home verification as non-kinship families, though all applicants may be eligible for a waiver of variance, depending on the circumstances of the home. The DFPS Child Care Licensing (CCL) Program processes Child-Placing Agency (CPA) requests for waiver/variances on minimum standards for both kinship foster homes and unrelated foster homes on a case-by-case basis. The relationship between the child in care and the kinship family is one factor considered when assessing requests for waiver/variances on minimum standards for kinship foster home applicants.

The DFPS automation system for the Child Protective Services (CPS) program and the automation system for the CCL Program were updated in order to improve reporting on the home verification process; the standards for which waivers/variances were requested and granted; the number and percentage of children in verified kinship foster homes, kinship homes declining verification; and kinship homes not completing verification.

DFPS, which has its own CPA program called the Foster / Adoptive Home Development (FAD) program, strengthened policy and efforts to support kinship foster home verification. A shortened foster home training program was developed for kinship families who, because of their relationship with the child, did not need all the training provided to new prospective families who might be approved to care for unrelated children in foster care. The FAD training program exceeds minimum standards. The kinship training program meets or exceeds minimum standards.

Sec. 201 Extended Definition of Child/Extended Benefits

Fostering Connections provided states the option of extending foster care for young adults between the ages of 18 and 21. The Texas Legislature authorized DFPS in the 81st legislative session (2009) to expand the Extended Foster Care program as described below. The legislature also approved extending adoption assistance (AA) and PCA benefits up to person's 21st birthday if the AA negotiated agreement or PCA negotiated agreement is signed after a CPS youth turns 16.

Extended foster care

Prior to the passage of Fostering Connections, an Extended Foster Care program and a Return to Care program were in place for young adults turning 18 while in care. However, both programs were limited to a fairly narrow range of educational and vocational activities: specifically high school, a program leading to a high school diploma, GED programs, limited scholastic breaks, or vocational/technical training.

Following the passage of Fostering Connections, the Texas legislature authorized DFPS to allow young adults to remain in Extended Foster Care if they are participating in any of the preceding activities--or attending college, working 80 hours per month or engaged in a program or activity designed to remove barriers to employment, or are incapable of performing these activities due to a documented medical condition.

Rules for the expansion of the Extended Foster Care program (TAC 700.316) were adopted on 3/1/10 and the policy (CPSH 1561.7, 1584, and 11400) became effective 10/1/10.

Federal guidance on Fostering Connections was issued on 7/9/10. Youth in Extended Foster Care must continue to meet IV-E case planning and case review requirements. Youth leaving care on turning 18 or afterwards have a six months trial independence period (up to 12 months, if court ordered) during which they can return for Extended Foster Care and resume foster care eligibility. Texas legislation was passed and the extended court jurisdiction statutes were updated for these issues on 9/28/11. The statute changes allow for federal funding to continue while a youth is in Extended Foster Care and if youth returns during the trial independence period for Extended Foster Care. Rules were revised and took effect 2/12/12 and the handbook policies were updated 3/1/12.

Supervised Independent Living (SIL)

In 2009 DFPS began the design of a supervised independent living (SIL) program in anticipation of the federal regulations. The core concept is for young adults to practice independent living skills within a safety network that provides minimal supervision. DFPS released a Request for Information (RFI) in 2009, and a number of great ideas were presented. These ideas were discussed in a public forum on November 23, 2009. Following the meeting, DFPS began to work on implementation plans. However, in March 2010 those plans had to be put on hold, as the federal guidance had not yet been issued that would allow states to begin drawing down federal funds for this program.

The federal guidance, issued on 7/9/10, also gave states permission to start an SIL program without having to wait for federal regulations. DFPS resumed efforts to implement an SIL program in light of the federal instructions. SIL Rates were adopted effective 12/1/10. Rules were adopted effective 2/12/12, and policy became effective 11/1/12. DFPS chose to procure private providers to offer the SIL settings. A Request for Proposal (RFP) was posted for public comment in 2012 and the tentative awardees were announced in January 2013. The first contracts were signed in April 2013 and placements began in May 2013.

Sec. 202 Transition Planning

DFPS policy in CPS Handbook 10122 already required the development of a Transition Plan for a youth when the youth turn 16 while in DFPS care. As a result of the Fostering Connections legislation, this policy was amended to require a transition plan meeting within 90 days of a youth turning 18 in care and within 90 days of a young adult leaving Extended Foster Care.

Additional information about DFPS transition planning can be found in CPS Handbook 10100 and on the DFPS Website.

Sec. 203 Short Term Training (court, attorneys, kinship, CASA)

The federal legislation allows states to claim federal reimbursement for short-term training related to foster care and adoption assistance programs. The bill phases in the federal reimbursement for training costs starting at 55 percent in federal fiscal year 2009 and increasing by 5 percent annually until it reaches 75 percent in FFY 2013.

The law requires that the state portion of the training costs be made from publicly allocated funds. This has prevented a number of groups from applying for this training money.

DFPS amended its Title IV-E training contracts to allow for their use under this statute. This resulted in a contract with the Texas Court Appointed Special Advocates program to train its advocates and with Texas Agri-Life Extension Services to train relative and fictive kin applicants interested in fostering and adopting children in CPS custody.

Sec. 204 Education Stability

Education specialists serve each of the DFPS 11 regions as well as an education policy specialist located in state office. Policy requires the use of an education portfolio (green binder) to go with the child when placements are changed.

DFPS amended its policy in CPS Handbook 4121 and 15110 to strengthen requirements to help ensure a child is maintained in his or her school when a removal takes place or, if in care, when a placement change takes place. The education section of the Child Service Plan was amended to ask staff specifically to address education stability issues. The permanency and placement review hearing court reports were updated to address education stability.

Memos and training have been provided to staff on this topic.

Like other aspects of the foster care payment, transportation costs are captured on an aggregate level through cost reports and calculated into the foster care reimbursement rate measured using the Health and Human Service Commission's (HHSC;s) pre-existing rate setting methodology.

In 2011 the Texas Supreme Court Permanent Judicial Commission for Children, Youth, and Families set up a committee to review educational issues for children in DFPS care and make recommendations. A report entitled, “The Texas Blueprint: Transforming Education Outcomes for Children and Youth in Foster Care,” which contained final committee recommendations was published in March 2012. The report can be accessed at: http://texaschildrenscommission.gov/. The Judicial Commission created an implementation task force that includes DFPS, in December 2012 to work to implement the Blueprint recommendations.

In 2013 DFPS assisted the Texas Education Agency in finalizing a resource guide that was developed with community partners. TEA posted the guide on their Web site in August 2013: http://www.tea.state.tx.us/FosterCareStudentSuccess/resource-guide.pdf.

Sec. 205 Health Care Oversight and Coordination Plan

DFPS has been meeting this requirement through its STAR Health Program, which began 4/1/08.

Children in DFPS conservatorship and extended foster care receive Medicaid services through the STAR Health Program. Youth who have transitioned out of DFPS care at age 18 receive Medicaid services until they turn 21 through STAR Health, unless they opt out.

Sec. 206 Placing Siblings Together/Maintaining Relationships

DFPS policy in CPS Handbook 4121 requires staff to attempt to place siblings together when appropriate and to maintain regular contact when siblings are separated. This policy has been strengthened over the last couple of years.

Sec. 301-302 Tribal Issues

DFPS initiated quarterly meetings with representatives of the three federally recognized tribes in Texas in October 2009 to share information and discuss collaboration building efforts, as well as provide an opportunity to articulate coordination and technical assistance needs. Meeting discussions have included further efforts for completion of Tribal State agreements and new opportunities for Tribes created with the Fostering Connections to Success and Increasing Adoptions Act. DFPS has met individually with each tribe wishing to establish a tribal State agreement. Individual meetings regarding Title IV-E State agreements have been held with interested Tribes. DFPS completed a Title IV-E agreement with the Alabama-Coushatta Tribe of Texas in April 2012. Ongoing technical assistance has been provided to the Alabama-Coushatta Tribe of Texas regarding foster home verification. Additional technical assistance will be provided as requested.

Sec. 401 Adoption Incentive / Adoption Assistance

Texas has been receiving adoption incentive funds for several years. The number of consummated adoptions has continued to grow.

Sec. 402 Promotion of Adoption with Special Needs / Eligibility Issues

DFPS has made automation changes to adjust for the gradual elimination of the Title IV-E income requirements for adoption assistance.

Sec. 403 Information on Adoption Tax Credit:

Information about adoption tax credits is provided in the PRE-service training for foster and adoptive parents. This information is also available on the DFPS public Web site.

State Plan Amendments

The Title IV-E State Plan amendment for the Guardianship Assistance Program (Sec. 101), known as the Permanency Care Assistance (PCA) program in Texas, was submitted to ACF on July 31, 2010. The approval letter from ACF was dated 4/18/11.

The Title IV-E State Plan that includes the extended foster care program (Sec. 201) was submitted to ACF on December 7, 2010. The approval letter from ACF was dated 11/22/11.

For more information, see Fostering Connections on the DFPS Public Web site.

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FOOTNOTES

1.   544 S.W.2d 367, 371–72 (Tex. 1976).

2.   See TEX. GOV'T CODE § 54.808(1) (allowing parental-termination cases in Harris County juvenile courts to be referred to a master); id. § 54.810 (establishing powers of master).

3.   The document defined the goal of “Family Reunification” as: “The parent gets the child back. This may be the parent the child was living with before DFPS care or it may be a parent the child was not living with.”

4.   The appellate record includes an “Ex Parte Order to Place Family on Child Safety Check Alert List.” See TEX. FAM. CODE § 261.3022 (requiring the Department of Public Safety to “maintain a child safety check alert list ․ to help locate a child or the child's family” for purposes of “(1) investigating a report of child abuse or neglect; (2) providing protective services to a family receiving family-based support services; or (3) providing protective services to the family of a child in the managing conservatorship of the department”).

5.   The signature page which lacked the parents' signatures included various admonitions, including the Department's determination of an emergency condition in the family requiring services, the importance of the family service plan document, the criteria for evaluating parental progress on the plan, sources of information for evaluation of parental progress, the right to request a review or a change of the plan or an evaluation of parental progress, and the right to request translation services.

6.   The father and L.A.A.-M. share the same first name. The record is ambiguous as to whether the caseworker's mention of “[L.'s] neglectful supervision” was a reference to the mother's neglectful supervision of L.A.A.-M. or to the father's neglectful supervision of the children. For purposes of our legal analysis, we view the evidence in the light most favorable to the judgment, and we therefore presume the testimony alleged the father's neglectful supervision of the children.

7.   The caseworker was not qualified as a representative of the Department for purposes of her trial testimony, and she did not testify about any review of Department records in preparation for her testimony. See, e.g., TEX. R. EVID. 803(7), (10) (hearsay exceptions permitting evidence of the absence of a record of a regularly conducted activity or the absence of a public record).

8.   The father was represented by his appointed counsel at an August 20, 2015 status hearing. At that hearing, the court found that the father had not reviewed the family service plan, that he did not understand it, and that he had not been advised that unless he was “willing and able to provide the children with a safe environment, even with the assistance of a service plan, within the reasonable period of time specified in the plan,” his parental and custodial duties and rights could be “subject to restriction or to termination” or the children might not “be returned to him.” In the same order, the family service plan, which had been filed with the court, was “incorporated by reference” into the status hearing order “by reference as if the same were copied verbatim” in the order, and expressly was made an order of the court.An attorney ad litem appointed to represent the interests of a parent has a duty “to ensure competent representation at hearings.” TEX. FAM. CODE § 107.0131(a)(1)(C). This duty includes obtaining and reviewing “copies of all court files in the suit during the attorney ad litem's course of representation.” Id. § 107.0131(a)(1)(C)(i). An attorney ad litem also has a duty to “become familiar with the American Bar Association's standards of practice for attorneys who represent parents in abuse and neglect cases.” Id. § 107.0131(a)(1)(I). Among other things, the ABA's standards require, as a basic obligation, that a parent's attorney shall “[p]rovide the client with copies of all petitions, court orders, service plans, and other relevant case documents, including reports regarding the child except when expressly prohibited by law, rule or court order.” STANDARDS OF PRACTICE FOR ATTORNEYS REPRESENTING PARENTS IN ABUSE AND NEGLECT CASES (CTR. ON CHILDREN AND THE LAW , A.B.A. 2006), https://www.americanbar.org/content/dam/aba/publications/center_on_childr en_and_the_law/parentrepresentation/ABA-Parent-Attorney-Standards.authcheckdam.pdf [hereinafter, ABA Standards] (citing MODEL RULES OF PROF'L CONDUCT r. 1.4 (AM. BAR ASS'N 2003)); Tex. Disciplinary Rules of Prof'l Conduct R. 1.03 (lawyer's duty of communication with a client).More generally, a parent's attorney also shall “be aware of the unique issues an incarcerated parent faces and provide competent representation to the incarcerated client.” ABA Standards, supra, at 17. “The parent's attorney must be particularly diligent when representing an incarcerated parent.” Id. Compliance with a family service plan is one of the “unique issues” that an incarcerated parent faces:Obtaining services such as substance abuse treatment, parenting skills, or job training while in jail or prison is often difficult. The parent's attorney may need to advocate for reasonable efforts to be made for the client, and assist the parent and the agency caseworker in accessing services. The attorney must assist the client with these services. Without services, it is unlikely the parent will be reunified with the child upon discharge from prison.Id.The lack of evidence that the Department engaged with the father in an attempt to provide him services was important. See, e.g., LEONARD EDWARDS, REASONABLE EFFORTS: A JUDICIAL PERSPECTIVE 66–68 (2014). But this issue should not have led to any implication that the father never “actually got his service plan,” in light of the attorney ad litem's duties to his client. Providing a copy to the father was at least equally the responsibility of his attorney representative.

9.   Like the caseworker, Grimmer was not formally qualified as a representative of Child Advocates for purposes of her testimony, and she did not testify about any review of records in preparation for her trial testimony.

10.   The clerk's record shows that “Child Advocates, Inc. and its designee(s)” were appointed as guardian ad litem to represent the best interest of the minor children in an order signed and filed on October 21, 2015. On the report filed by Child Associates before trial, Grimmer was shown as a “cc:” recipient and identified as an “Advocacy Coordinator.” Each Child Advocates report was signed by another person, who did not appear or testify at trial.

11.   See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), (O), (Q).

12.   See id. § 161.001(b)(2).

13.   The master signed the judgment. See TEX. GOV'T CODE § 54.816. The district court judge adopted the order of termination. See id. §§ 54.817–.818.

14.   An attorney ad litem appointed to represent the interests of a parent has a duty, within a reasonable time after the appointment, to interview the parent, unless the parent's location is unknown. TEX. FAM. CODE § 107.0131(a)(1)(A). The right to counsel under Section 107.013(a)(1) applies through the exhaustion of appeals under Section 107.016(2)(B). In re P.M., No. 15-0171, 2016 WL 1274748, at *3 (Tex. Apr. 1, 2016). Lawyers appointed to handle appeals in parental-termination proceedings are subject to the duties of an attorney ad litem for a parent, as described in Section 107.0131. See TEX. FAM. CODE § 107.0131(a)(1)(B) (attorney ad litem shall “investigate the facts of the case”); id. § 107.0131(a)(1)(G) (attorney ad litem shall “meet before each court hearing with the parent,” unless the court finds that the attorney ad litem has shown good cause why compliance is not feasible, or on a showing of good cause the attorney ad litem has been authorized to comply by conferring with the parent, as appropriate, by telephone or video conference); ABA Standards, supra note 8, at 13 (the parent's attorney shall “[p]rovide the client with contact information in writing and establish a message system that allows regular attorney-client contact,” shall “[m]eet and communicate regularly with the client well before court proceedings,” and shall “[c]ounsel the client about all legal matters related to the case”); id. at 19 (the parent's attorney shall “[i]nterview the client well before each hearing, in time to use client information for the case investigation”); id. at 31 (“Oral argument of the appeal on behalf of the client should not be waived, absent the express approval of the client, unless doing so would benefit the client.”).

15.   A parent's right to the care, custody, and control of his children has been characterized as a precious liberty interest worthy of constitutional protection. See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982). Termination of parental rights also impacts “the fundamental liberty interests of the child on whose behalf the State's action is initiated.” In re K.D., 471 S.W.3d 147, 167 (Tex. App.—Texarkana 2015, no pet.); see also Santosky, 455 U.S. at 760, 102 S. Ct. at 1398 (“the child and his parents share a vital interest in preventing erroneous termination of their natural relationship”); id. at 788 n.13, 102 S. Ct. at 1412 n.13 (Rehnquist, J., dissenting) (“The child has an interest in the outcome of the factfinding hearing independent of that of the parent.”); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (“Both the parent and the child have a substantial interest in the accuracy and justice of a decision.”). Texas courts consistently have recognized a strong presumption that a child's best interests are served by maintaining the parent-child relationship. See In re G.M., 596 S.W.2d 846, 846–47 (Tex. 1980); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex. 1966); Legate v. Legate, 87 Tex. 248, 252 (1894).

16.   See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

17.   TEX. FAM. CODE § 161.001(b).

18.   See id.; Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

19.   In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

20.   TEX. FAM. CODE § 101.007; see In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). The clear-and-convincing-evidence standard applied in parental-termination cases is grounded in constitutional due-process concerns. Santosky, 455 U.S. at 769, 102 S. Ct. at 1403; J.F.C., 96 S.W.3d at 263.

21.   In re E.N.C., 384 S.W.3d 796, 808–10 (Tex. 2012). Because the interest of the children is always of “paramount importance,” a judgment by default is not available when the State seeks to involuntarily terminate a parent's rights. Williams v. Williams, 150 S.W.3d 436, 446–47 (Tex. App.—Austin 2004, pet. denied). A parent's failure to answer is not “taken as an admission of the allegations.” Id.

22.   In re A.V., 113 S.W.3d 355, 361 (Tex. 2003); see also In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

23.   A.V., 113 S.W.3d at 361 (quoting Ex parte Cantu, 913 S.W.2d 701, 706 (Tex. App.—San Antonio 1995, writ ref'd)). “In addition, this aim is reflected in the State's duty to protect the safety and welfare of its children, a policy underlying the State's role in intervening, when necessary, in the parent-child relationship: ‘The public policy of this state is to: ․ provide a safe, stable, and nonviolent environment for the child ․’ ” Id. (quoting TEX. FAM. CODE § 153.001(a)(2)).

24.   C.T.E., 95 S.W.3d at 465 (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam)).

25.   J.F.C., 96 S.W.3d at 266. Although the Supreme Court of Texas expressly acknowledged the open question, the father has not argued that a de novo review is required by the U.S. Constitution. See id. at 268 (citing Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685–86, 109 S. Ct. 2678, 2694–95 (1989), and Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 515–16, 104 S. Ct. 1949, 1968 (1984)); see also ABA Standards, supra note 8, at 31 (on appeal, a parent's attorney's brief “should include novel legal arguments if there is a chance of developing favorable law in support of the parent's claim”).

26.   J.F.C., 96 S.W.3d at 266.

27.   Id. We do not measure clear-and-convincing evidence by counting the number of witnesses, admitted exhibits, or pages in the reporter's record. It is not the literal weight of the evidence that concerns us, but the probative force of the evidence that was before the factfinder. See In re V.V., 349 S.W.3d 548, 552–55 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc).

28.   See, e.g., In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.—San Antonio 2012, no pet.).

29.   See In re K.F., 402 S.W.3d 497, 505 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); In re K.N.D., No. 01-12-00584-CV, 2014 WL 3970642, at *7 (Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.) (mem. op.).

30.   In re C.S., 208 S.W.3d 77, 81 (Tex. App.—Fort Worth 2006, pet. denied); accord Perez v. Williams, 474 S.W.3d 408, 419 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

31.   Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

32.   See id. (discussing improper judicial notice of prior testimony in retrial of same case).

33.   Id. at 693–94 (quoting Wilson v. State, 677 S.W.2d 518, 524 (Tex. Crim. App. 1984)).

34.   Holley, 544 S.W.2d at 371–72.

35.   See C.H., 89 S.W.3d at 27.

36.   Id.

37.   Pub. L. No. 110-351, 122 Stat. 3949 (2008) (codified as amended in scattered sections of Title 42 of the United States Code).

38.   One of the bill's cosponsors noted a “growing base of research illustrating that children do better living with relative guardians than they do living in traditional foster care” and the fact that “siblings are too often split apart at the time of placement” creating a separation “[j]ust when a foster child most needs their brother or sister.” 154 CONG. REC. H8313 (daily ed. Sept. 17, 2008) (statement of Rep. McDermott); see also Executive Committee Meeting to Consider S. 3038, Improve Adoption Incentives and Relative Guardianship Support Act of 2008; S. 1070, Elder Justice Act of 2008; S. 1577, Patient Safety and Abuse Prevention Act of 2008 Before the S. Comm. on Fin., 110th Cong. 9 (2008) (statement of Sen. Chuck Grassley, Member, S. Comm. on Fin.) (referencing “analysis from the Center for Law and Social Policy” showing that “children in kinship foster care have been found to experience fewer placement changes than children placed with non-kin foster parents do”); Tiffany Conway & Rutledge Q. Hutson, Submission in Response to Senator Gordon Smith's July 26, 2007 Call For Papers to Examine the Needs of Grandparent and Other Relative Caregivers, CTR. FOR LAW AND SOCIAL POLICY 4–5 (Sept. 10, 2007), http://www.clasp.org/resources-and-publications/files/0376.pdf; Tiffany Conway & Rutledge Q. Hutson, Is Kinship Care Good for Kids?, CTR. FOR LAW & SOCIAL POLICY 1–2 (Mar. 2, 2007), https://www.clasp.org/resourcesand-publications/files/0347.pdf.

39.   See 42 U.S.C. § 670.

40.   See id. § 671.

41.   See id. § 671(a)(29).

42.   See id. § 627(a)(31); see also 40 TEX. ADMIN. CODE § 700.1309(3) (“Siblings removed from their home should be placed together unless such placement would be contrary to the safety or well-being of any of the siblings[.]”).

43.   See TEX. FAM. CODE §§ 264.852–.853.

44.   See Act of May 25, 2011, 82nd Leg. R.S., ch. 1070, § 2, 2011 Tex. Gen. Laws 2756, 2759 (consistent with section 103 of the Fostering Connections Act) (current version at TEX. FAM. CODE § 262.1095).

45.   See 40 TEX. ADMIN. CODE § 700.1025–.1057.

46.   See TEX. DEP'T OF FAMILY & PROTECTIVE SERVS., DFPS RESPONSE TO THE FOSTERING CONNECTIONS FEDERAL LEGISLATION: PROGRESS AS OF 10/1/13, (2013), https://www.dfps.state.tx.us/Child_Protection/Fostering_Connections/DFPS_response.asp (noting updates were made to then-sections 2540, 4121, and 6123 of the CPS Handbook to require staff to notify relatives about placement eligibility within 30 days of removal and to attempt to place siblings together unless CPS documented that placement was not in children's best interest); TEX. DEP'T OF FAMILY & PROTECTIVE SERVS., CHILD PROTECTIVE SERVICES HANDBOOK § 3221 (2015) (requiring caseworker to provide parents the Child Caregiver Resource form to identify possible placements for children “as soon as possible” after removal); id. § 3224 (2015) (requiring notification of relatives within 30 days); id. § 4121 (2009) (requiring placement of siblings together “whenever possible” “unless it is in the best interest of one or more of the children to be placed separately”); id. §§ 4120, 4121 (2006 & 2009) (requiring caseworkers to consider placement with siblings when evaluating possible placements); id. § 4521 (2015) (requiring caseworkers to “make every effort to ․ place the child with his or her siblings, if possible,” and to “continue to search” for a “qualified kinship caregiver” until one is found).

47.   Cf. V.V., 349 S.W.3d at 558 (in best-interest analysis, contrasting “undisputed” evidence that 11//2-year-old child had not “bonded” with her incarcerated father with evidence that child “was ‘very bonded’ with her foster family” that had cared for her for approximately one year).

48.   While we do not consider the factual allegations included in the progress reports as part of our sufficiency analysis because the trial court could not have taken judicial notice of the factual matters included in them in reaching its findings or issuing its decree, we can take note of their existence and the fact that the caseworker filed them. See Perez, 474 S.W.3d at 419. Five different permanency reports filed from November 2015 to November 2016 stated that J.X.A. “loves to follow his older sister, [B.D.A.]” and that he “appears to be really attached to his sister, often crying if he is not able to be by her in the home.” CR 124, 152, 187, 234, 271.

49.   No. 01-16-00784-CV, 2017 WL 1149222, at *5 (Tex. App.—Houston [1st Dist.] Mar. 28, 2017, pet. denied) (mem. op.).

50.   Id. at *5.

51.   See generally JOSEPH GOLDSTEIN ET AL., THE BEST INTERESTS OF THE CHILD: THE LEAST DETRIMENTAL ALTERNATIVE 9 (1996) (observing that what matters to children is “the pattern of day-to-day interchanges with the adults who take care of them and who, on the strength of such interactions, become the parent figures to whom they are attached”).

52.   Cf. TEX. DEP'T OF FAMILY & PROTECTIVE SERVS., CHILD PROTECTIVE SERVICES HANDBOOK § 6418.5 (2012) (noting “telephone, video conferencing, photo sharing” as other methods of contact between a child and an incarcerated parent).

53.   While we do not consider the factual allegations included in the progress reports as part of our sufficiency analysis because the trial could not have taken judicial notice of the factual matters included in them in reaching its findings or issuing its decree, we can take note of their existence and the fact that the caseworker filed them. See Perez, 474 S.W.3d at 419. The Department's permanency reports identified many other emotional and physical needs of the children that were not specifically addressed at trial. E.g., CR 273–75 (mental health assessments, diagnoses, and recommendations for each child).

54.   See Guyton, 332 S.W.3d at 693.

55.   Similarly, in Horvatich v. Texas Department of Protective & Regulatory Services, 78 S.W.3d 594 (Tex. App.—Austin 2002, no pet.), there was no testimony about “the current well-being of the children.” 78 S.W.3d at 601. The record contained “no testimony regarding how the children were doing in foster care, whether the children were being considered for adoption or the likelihood of their being adopted, or any testimony from anyone who had personal knowledge of the children at the time of trial.” Id. at 602. The court of appeals held that the undeveloped state of the evidence was “so weak” as to be insufficient to prove by clear-and-convincing evidence that termination of the mother's parental rights was in the best interest of her three children. Id. at 604.

56.   V.V., 349 S.W.3d at 554.

57.   Boyd, 727 S.W.2d at 533. A parent's intentional or repeated criminal activity can endanger a child. See V.V., 349 S.W.3d at 555. The evidence must show a course of conduct on the part of the parent to demonstrate that the parent has endangered the children. Boyd, 727 S.W.2d at 534.

58.   C.H., 89 S.W.3d at 28.

59.   Cf. id. (father “had an ‘extensive criminal history involving drugs and assaults' which continued unabated” after child's birth).

60.   See In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006).

61.   Cf. In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (explaining that lack of concern demonstrated by appellant's failure to maintain contact with child or to contact the Department during incarceration was endangering behavior).

62.   Holley, 544 S.W.2d at 372.

63.   Horvatich, 78 S.W.3d at 601.

64.   C.H., 89 S.W.3d at 28.

65.   Cf. M.D. v. Abbott, 152 F. Supp. 3d 684, 813 (S.D. Tex. 2015) (concluding that the inadequacy of Department's number, geographic distribution, and array of placements for children in a licensed or verified foster care setting “places children far from their home communities, separated from their siblings, and in inappropriate placements,” thus subjecting those children to an unreasonable risk of harm).

66.   See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.). In A.H., the “only evidence of best interest was offered by the caseworker who testified [that] termination of all parental rights was in the children's best interest ‘because the children need a loving family that will care for them and take care of their needs.’ ” Id. at 807. Unlike this case, the caregivers of the children in A.H. had expressed an interest in adopting them. Id. The court of appeals held that the undisputed testimony was insufficient to show that termination of the parent's rights was in the best interest of the children because it was conclusory and did not “amount to more than a scintilla of evidence.” Id. Thus, the court concluded that the evidence was legally insufficient to meet the clear-and-convincing evidence burden of proof demanded by due process and the Family Code. Id.

67.   Horvatich, 78 S.W.3d at 602.

68.   Id. (also noting that this factor “weighs strongly against a finding that termination is in the children's best interest”); see also M.D., 152 F. Supp. 3d at 828 (observing that Texas foster children in the permanent managing conservatorship of the Department “almost uniformly leave State custody more damaged than when they entered”).

69.   The “Service Plan Goals (Changes Needed to Reduce Risk)” included in the family service plan described the Department's objectives, and they did not assign specific tasks to the father.

70.   By contrast to the father's plan, the mother also had a plan of service which was approved by and made an order of the trial court. CR 113. The mother's plan included many “Tasks and Services” that provided her the opportunity to demonstrate her ability and desire to maintain her relationship with the children. CR 100–08. The mother was required to “attend all court hearings, permanency conference meetings and family visits.” The father's plan did not contemplate his participation in court hearings or permanency conferences. The mother was required to “maintain contact with her children during one hour visits, two times a month at the CPS office,” which would be “scheduled when the parent makes contact with the agency to set up her visits.” The father's plan did not require, or propose to schedule or facilitate, any visits between the father and the children. The mother was required to “participate fully in a Psycho-Social Evaluation to address her emotional needs,” paid for by the agency. She also was required to “follow all recommendations from the evaluation that may include a Psychological Evaluation, Psychiatric Evaluation, individual therapy, family therapy, and/or group therapy.” The mother was required to “participate in parenting classes in person that are at least 8 weeks long,” and then demonstrate “learned behaviors during family visits with the child/children and through discussions with the caseworker.” The father's plan did not include any of these services. Cf. TEX. DEP'T OF FAMILY & PROTECTIVE SERVS., CHILD PROTECTIVE SERVICES HANDBOOK § 6418.4 (2012) (“Engaging an Incarcerated Parent”); id. § 6418.5 (2012) (“Service Planning for the Incarcerated Parent”).

71.   See, e.g., C.T.E., 95 S.W.3d at 468 (incarcerated parent completed two parenting courses, a drug program, anger management classes, and job training classes). For example, one program that may be available to children of incarcerated parents is the Texas Department of Criminal Justice's GO KIDS program (Giving Offenders' Kids Incentive and Direction to Succeed). “The goal of the GO KIDS initiative is to help the kids of those persons under criminal justice supervision by identifying and coordinating resources that may assist them.” http://www.tdcj.state.tx.us/gokids/index.html (last accessed July 21, 2017).

72.   See In re J.K.V., 490 S.W.3d 250, 258 (Tex. App.—Texarkana 2016, no pet.) (evidence that no services were offered to parent weighed against termination).

73.   Several opinions in termination appeals have referenced relative (or fictive kin) placements who were taking advantage of “Fostering Connections” programs in Texas. See, e.g., In re J.M.I., No. 01-16-00829-CV, 2017 WL 1175568, at *4 (Tex. App.—Houston [1st Dist.] Mar. 30, 2017, no pet.) (mem. op.) (mother of terminated parent's girlfriend had not formally sought to adopt child, but she “testified that she had begun making preparations to do so by starting Fostering Connections and having the requisite background checks and inspections done”); In re A.A., No. 01-13-00542-CV, 2013 WL 6569922, at *5 (Tex. App.—Houston [1st Dist.] Dec. 12, 2013, pet. denied) (mem. op.) (children placed with aunt who had “become a licensed foster parent” and received “money from Fostering Connections to pay for the children's needs”).

74.   See TEX. FAM. CODE § 262.1095.

75.   Id. § 262.1095(a)(1), (d).

76.   Id. § 261.307(a)(2). To accomplish this notification, the Department has created the “Child Caregiver Resource Form,” Form 2625, which asks a parent to provide “names and locating information for relatives or close family friends who may want to take care of your children,” and it encourages the parent to “list the people you know your child would feel happiest with.” https://www.dfps.state.tx.us/Search/default.asp?q=child+ caregiver+resources+form. An attachment to the form requests contact information for “grandparents, great grandparents and adult aunts, uncles, siblings, nieces, and nephews ․ [and] any other relatives [or] close family friends who may be able to help while your child is in care.” Id. The obligation to investigate and identify adult relatives of children removed from their homes by the Department is mandatory, without regard to whether the parent has completed “the proposed child placement resources form.” TEX. FAM. CODE § 262.1095(e). The Department is then required to “perform a background and criminal history check of the relatives or other designated individuals identified as a potential relative or designated caregiver ․ on the proposed child placement resources form.” Id. § 262.114.

77.   See TEX. DEP'T OF FAMILY & PROTECTIVE SERVS., Kinship Manual, http://www.dfps.state.tx.us/Adoption_and_Foster_Care/Kinship_Care/documents/KinshipManual.pdf.

78.   Although the father's appointed attorney ad litem had a duty to provide the form to his client, see supra note 8, the Department had an independent duty to provide the father a copy of the form, see TEX. FAM. CODE § 261.307, and the record contains no evidence that it did.

79.   While we do not consider the factual allegations included in the clerk's record as part of our sufficiency analysis because the trial could not have taken judicial notice of the factual matters included in them in reaching its findings or issuing its decree, we can take note of their existence. See Perez, 474 S.W.3d at 419. A careful reading of the clerk's record would have provided all participants in the proceedings with clues about other possible relative placements, but the trial record has no evidence about whether they were considered and whether services were offered to them.

80.   We do not consider the factual allegations in the reports filed in the clerk's record for the truth of the statements because those are not matters that properly could be the subject of judicial notice. However, prior to each permanency hearing the Department filed a report which, among other things, identified the current placement for each child. At or after the status hearings, the trial court entered an order that, among other things, approved the children's “current placement.” Based on these filings, we can observe the procedural fact that the Department's final permanency report filed before trial on November 23, 2016 showed five separate foster placements for each of B.D.A. and J.X.A. over the course of approximately 15 months (in addition to a 3-month period when they were returned to the mother's home). If the children had not been moved again between the final report and trial on December 16, 2016 (there was no trial evidence that they weren't), the information in the report suggested that they had been in their current placements for one month, since November 16, 2016. L.A.A.-M. reportedly spent two months in an “Emergency Shelter” before being moved through a series of three different foster homes. The final permanency report stated that L.A.A.-M had been in his final reported placement for two days as of the date of the report. CR 272.

81.   See C.T.E., 95 S.W.3d at 468 (holding that frequent moves in foster care and separation of siblings from each other was evidence of instability in lives of children while under Department conservatorship); see also In re I.B., No. 13-17-00098-CV, 2017 WL 2806779, at *11 (Tex. App.—Corpus Christi June 29, 2017, no pet. h.) (mem. op.) (noting, as best-interest factors, that “children were separated from their siblings, had been moved frequently between foster placements and ․ there were no concrete plans for a more permanent placement”).

82.   J.F.C., 96 S.W.3d at 266.

83.   E.N.C., 384 S.W.3d at 808.

84.   See J.F.C., 96 S.W.3d at 266. We would reach the same conclusion applying a factual-insufficiency standard of review, undertaking an exacting review of the entire record with a healthy regard for the constitutional interests at stake. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); C.H., 89 S.W.3d at 26. In light of this conclusion, we need not address the other issues raised in this appeal. See TEX. R. APP. P. 47.1.

85.   See J.F.C., 96 S.W.3d at 266. (“Rendition of judgment in favor of the parent would generally be required if there is legally insufficient evidence.”); see also In re C.M.C., 273 S.W.3d 862, 882 n.13 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (in a reversal of a termination decree, noting inability to render a judgment that disposes of all remaining issues).

86.   Model Rules of Professional Conduct 1.1 (Competence).

87.   The National Association of Counsel for Children is accredited by the American Bar Association to certify attorneys as specialists in Child Welfare Law. The Certification Program is open to attorneys who represent children, parents, or agencies in child welfare proceedings.

88.   Model Rule 1.3 (Diligence).

89.   Model Rule 1.4 (Communication).

90.   Model Rule 2.1 (Advisor).

91.   Model Rule 1.2 (Scope of Representation and Allocation of Authority).

92.   Model Rule 1.6 (Confidentiality of Information).

93.   Model Rule 1.4 Communication

94.   Id.

95.   Id.

96.   Model Rules 1.7 (Conflict of Interest: Current Client); 1.8 (Conflict of Interest: Current Clients: Specific Rules); 1.9 (Duties to Former Clients).

97.   Renne, Jennifer L. Chapter 4, page 49, “Handling Conflicts of Interest,” Legal Ethics in Child Welfare Cases. Washington, DC: American Bar Association, 2004.

98.   Model Rule 1.3 (Diligence).

99.   Model Rules 1.1 (Competence); 1.3 (Diligence).

100.   Model Rule 1.4 (Communication).

101.   Model Rules 1.1 (Competence); 1.3 (Diligence).

102.   Id.

103.   Id.

104.   Model Rule 3.1 (Meritorious Claims and Contentions).

105.   Model Rule 5.1 (Responsibility of Partners, Managers and Supervisory Lawyers).

106.   Model Rule 1.1 (Competence).

107.   The Court Improvement Program (CIP) is a federal grant to each state's (as well as the District of Columbia and Puerto Rico) supreme court. The funds must be used to improve child abuse and neglect courts. States vary in how they allocate the dollars, but funds are often used for training, benchbooks, pilot projects, model courts and information technology systems for the courts.

108.   U.S. Department of Commerce, Bureau of the Census, 2000 Census American Fact Finder Advanced Query. Calculations by Children's Defense Fund of the number of children living in relative-headed households without either parent present.

109.   It should be noted that “kinship care” is sometimes used to describe only subsets of the larger population of families in which a child is being raised by a relative – for example, only those families resulting from child welfare system involvement or only those in which the grandparent is the caregiver.

110.   See: Conway, T. & Hutson, R. Q. Is Kinship Care Good for Kids? (Washington, D.C.: Center for Law and Social Policy, 2007). Available at: http://www.clasp.org/publications/is kinship care good.pdf

111.   The Personal Responsibility and Work Opportunity Reconciliation Act (P.L. 104-193) requires states to consider giving preference to relatives over non-related caregivers when determining a placement for a child, assuming that relative meets all relevant state child protection standards. The Adoption and Safe Families Act (P.L. 105-89) clearly establishes legal guardianship as an acceptable and appropriate permanency plan.

112.   Child Welfare Outcomes 2003: Annual Report. (Washington, D.C.: U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children's Bureau, 2004). Available at: http://www.acf.hhs.gov/programs/cb/pubs/cwo03/cwo03.pdf

113.   Zuravin, S.J., et al. “Child Maltreatment in family foster care: Foster home correlates.” In Child welfare research review. Vol. 2 J.D. Berrick, R.P. Barth. And N. Gilbert, eds. New York: Columbia University Press, 1997, pp. 189-200. A Child Welfare Research Agenda for the State of Illinois. 1999. Urbana, IL: The Children and Family Research Center, University of Illinois at Urbana-Champaign.

114.   Educational Outcomes for Children and Youth in Foster and Out-of-Home Care. (Washington, D.C.: National Working Group on Foster Care and Education, 2006). Available at: http://www.casey.org/NR/rdonlyres/A8991CAB-AFC1-4CF0-81217E4C31A2553F/1069/DataSheetForWeb12096.pdf

115.   Child Welfare Outcomes 2003

116.   Jones Harden, B. (2004). Safety and stability for foster children: a developmental perspective. Children, Families, and Foster Care. Vol. 14, No. 1, pps. 31 – 47; citing: Dozier, M., Levine, S., Stovall, K., and Eldreth, D. Atypical diurnal rhythms of cortisol production: Understanding foster children's neuroendocrine regulation. Unpublished manuscript, 2001 - http://www futureofchildren.org/information2827/information show htm?doc id=210279 )

117.   Newton, R., Litrownik, A., and Landsverk, J. Children and youth in foster care: Disentangling the relationship between problem behaviors and number of placements. Child Abuse and Neglect (2000) 24(10): 1363–74

118.   Educational Outcomes for Children and Youth in Foster and Out-of-Home Care. (Washington, D.C.: National Working Group on Foster Care and Education, 2006). Available at: http://www.casey.org/NR/rdonlyres/A8991CAB-AFC1-4CF0-81217E4C31A2553F/1069/DataSheetForWeb12096.pdf

119.   Outcome P1: Children have permanency and stability in their living situations; and, Outcome P2: The continuity of family relationships and connections is preserved for children.

120.   Testa, M. 2001. Kinship care and permanency. Journal of Social Service Research, Vol. 28 (1) pp. 25 – 43.; Chamberlain, P., et al. 2006. Who disrupts from placement in foster and kinship care? Child Abuse & Neglect, Vol. 30, pp. 409 – 424.

121.   National Survey of Child and Adolescent Well-Being (NSCAW) CPS Sample Component Wave 1 Data Analysis Report, April 2005. (Washington, D.C.: U.S. Department of Health & Human Services, Administration for Children & Families, 2005).

122.   Shlonsky, A., Webster, D., & Needell, B. 2003. The ties that bind: A cross-sectional analysis of siblings in foster care. Journal of Social Service Research, Vol. 29 (3) pp. 27 – 52.; Wulczyn, F. & Zimmerman, E. 2005. Sibling placements in longitudinal perspective. Children and Youth Services Review, Vol. 27, pp. 741-763.

123.   Child Welfare Outcomes, 2003. Measure 4.2: Percentage of children entering foster care who were re-entering within 12 months of a prior foster care episode (N = 52 States)

124.   Courtney, M. & Needell, B. “Outcomes of kinship care: Lessons from California.” In Child welfare research review. Vol. 2. J.D. Berrick, R.P. Barth and N. Gilbert, eds. New York: Columbia University Press, 1997, pp. 130 – 149.

125.   For a summary of the consequences of child abuse and neglect, see: A Coordinated Response to Child Abuse and Neglect: the Foundation for Practice. [CD-ROM Version] (Washington, D.C.: Department of Health and Human Services, Office on Child Abuse and Neglect, 2003). Available at: http://www.childwelfare.gov/pubs/usermanuals/foundation/foundationf.cfm

126.   It should be noted that a small percentage of children in out-of-home care for reasons other than maltreatment such as juvenile delinquency and voluntary relinquishment of parental rights, for example.

127.   NSCAW 2005

128.   NSCAW 2005

129.   Wilson, L. Satisfaction of 1,100 Children in Out-of-Home Care, Primarily Family Foster Care, in Illinois' Child Welfare System. Tallahassee, FL: Wilson Resources, 1996.

130.   NSCAW 2005

131.   NSCAW 2005

132.   It may be that children with fewer problems are more likely to end up in relative placements while children with more problems end up with unrelated foster parents.

133.   All placement decisions need to be made on an individualized basis to determine what is best for each individual child.

134.   Some demographic data is already collected on kinship families (for example, see the Urban Institute's National Survey of American Families)

135.   Ibid

136.   P.L. 104 – 193 § 503; 42 USC § 628b

137.   For more information on these evaluations, see the Children and Family Research Center at: http://cfrcwww.social.uiuc.edu/EVALuation.htm

138.   American Bar Association, Center on Children and the Law, Kinship Care Legal Research Center. Accessed September 10, 2007 at: http://www.abanet.org/child/kinshipcare.shtml

139.   See for example: New York Consolidated Laws, Family Court, § 1017 retrieved September 10, 2006 at: http://public.leginfo.state ny.us/menugetf.cgi and Maryland Code Annotated, Courts and Judicial Proceedings, § 3-815 (2007) retrieved on September 10, 2007 at: http://michie.lexisnexis.com/maryland/lpext.dll?f=templates&fn=main-h htm&cp

140.   American Bar Association, Center on Children and the Law, Kinship Care Legal Research Center. Accessed September 10, 2007 at: http://www.abanet.org/child/kinshipcare.shtml

141.   ibid

142.   Williams-Mbengue, N. Helping Grandparent Caregivers: Kinship Navigator Programs. (Denver, CO: National Conference of State Legislatures, 2007).

143.   Casey Family Programs. Commitment to Kin: Elements of a support and service system for kinship care. 2004

144.   Stack, C. 1996. Call to Home: African Americans Reclaim the Rural South. New York, NY: Basic Books.

145.   Eligibility for the TANF child-only grant is based on the child's income rather than the family's (as with the TANF family grant); unless a child has a trust fund or is otherwise independently wealthy, most are eligible.

146.   In 1999, over 70 percent of children in kinship care were not receiving a foster care maintenance or TANF child-only payment. Ehrle, J. & Geen, R. Children Cared for by Relatives: What Services Do They Need? (Washington, D.C.: The Urban Institute, 2002). Available at: http://www.urban.org/UploadedPDF/310511 B47.pdf

147.   See Conway, T. & Hutson, R. Q. Is Kinship Care Good for Kids? (Washington, D.C.: Center for Law and Social Policy, 2007). Available at: http://www.clasp.org/publications/is kinship care good.pdf

148.   The Kinship Caregiver Support Act (S. 661/H.R. 2188) Offers Help to Children Raised by Relatives. (Washington, D.C.: Children's Defense Fund, 2007). Available at: http://cdf.convio.net/site/DocServer/KCSA 2007 1 pager updated2.pdf?docID=4741

149.   Illinois and California are the exceptions.

150.   For more information on supports available to kinship caregivers, see: http://www.childrensdefense.org/site/PageServer?pagename=research publications kinship care

151.   Zuravin, S.J., et al. “Child Maltreatment in family foster care: Foster home correlates.” In Child welfare research review. Vol. 2 J.D. Berrick, R.P. Barth. And N. Gilbert, eds. New York: Columbia University Press, 1997, pp. 189-200; and, A Child Welfare Research Agenda for the State of Illinois. 1999. Urbana, IL: The Children and Family Research Center, University of Illinois at Urbana-Champaign.

152.   This calculation is based on the cost of raising the younger of two children in a single-parent, two-child household with a before-tax income of less than $41,700. Lino, Mark. 2005. Expenditures on Children by Families, 2004. U.S. Department of Agriculture, Center for Nutrition Policy and Promotion. Miscellaneous Publication No. 1528-2004. Retrieved 12/7/06 from http://www.cnpp.usda.gov/Publications/CRC/crc2004.pdf

153.   Ehrle, J. & Geen, R. Children Cared for by Relatives: What Services Do They Need? (Washington, D.C.: The Urban Institute, 2002). Available at: http://www.urban.org/UploadedPDF/310511 B47.pdf

154.   Table 42, Temporary Assistance for Needy Families- Active Cases, TANF Families with no adult recipients receiving cash assistance October 2003 – September 2004. Administration for Children and Families, Office of Family Assistance. Retrieved 12/6/06 from http://www.acf.hhs.gov//programs/ofa/character/FY2004/tab42 htm.

155.   Testa, M., Cohen, L., & Smith, G.2003. Illinois Subsidized Guardianship Waiver Demonstration Final Evaluation Report. Urbana, IL: Children and Family Research Center, School of Social Work, University of Illinois at Urbana-Champaign. Available at: http://cfrcwww.social.uiuc.edu/pubs/pdf.files/sgfinalreport.pdf

156.   Some demographic data is already collected on kinship families (for example, see the Urban Institute's National Survey of American Families)

157.   Ibid

158.   U.S. Department of Commerce, Bureau of the Census, 2000 Census American Fact Finder Advanced Query. Calculations by Children's Defense Fund of the number of children living in relative-headed households without either parent present.

159.   The Personal Responsibility and Work Opportunity Reconciliation Act (P.L. 104-193) requires states to consider giving preference to relatives over non-related caregivers when determining a placement for a child, assuming that relative meets all relevant state child protection standards. The Adoption and Safe Families Act (P.L. 105-89) clearly establishes legal guardianship as an acceptable and appropriate permanency plan.

160.   Testa, M. 2001. Kinship care and permanency. Journal of Social Service Research, Vol. 28 (1) pp. 25 – 43.; Chamberlain, P., et al. 2006. Who disrupts from placement in foster and kinship care? Child Abuse & Neglect, Vol. 30, pp. 409 – 424.

161.   Herrick, M. & Piccus, W. 2005. Sibling Connections: The importance of nurturing sibling bonds in the foster care system.

162.   Shlonsky, A., Webster, D., & Needell, B. 2003. The ties that bind: A cross-sectional analysis of siblings in foster care. Journal of Social Service Research, Vol. 29 (3) pp. 27 – 52.; Wulczyn, F. & Zimmerman, E. 2005. Sibling placements in longitudinal perspective. Children and Youth Services Review, Vol. 27, pp. 741-763.

163.   National Survey of Child and Adolescent Well-Being (NSCAW) CPS Sample Component Wave 1 Data Analysis Report, April 2005. (Washington, D.C.: U.S. Department of Health & Human Services, Administration for Children & Families, 2005).

164.   Courtney, M. & Needell, B. “Outcomes of kinship care: Lessons from California.” In Child welfare research review. Vol. 2. J.D. Berrick, R.P. Barth and N. Gilbert, eds. New York: Columbia University Press, 1997, pp. 130 – 149.

165.   Outcome P1: Children have permanency and stability in their living situations; and, Outcome P2: The continuity of family relationships and connections is preserved for children.

166.   NSCAW 2005.

167.    NSCAW 2005.

168.   Wilson, L. Satisfaction of 1,100 Children in Out-of-Home Care, Primarily Family Foster Care, in Illinois' Child Welfare System. Tallahassee, FL: Wilson Resources, 1996.

169.   NSCAW 2005.

170.   NSCAW 2005.

171.   Casey Family Programs. Commitment to Kin: Elements of a support and service system for kinship care. 2004; CFSR Outcome S2: Children are safely maintained in their homes whenever possible and appropriate.

172.   Mumola, C. Bureau of Justice Statistics Special Report: Incarcerated Parents and Their Children. (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, 2000).

173.   Zuravin, S.J., et al. “Child Maltreatment in family foster care: Foster home correlates.” In Child welfare research review. Vol. 2 J.D. Berrick, R.P. Barth. And N. Gilbert, eds. New York: Columbia University Press, 1997, pp. 189-200.

174.   A Child Welfare Research Agenda for the State of Illinois. 1999. Urbana, IL: The Children and Family Research Center, University of Illinois at Urbana-Champaign.

175.   Some question whether relatives who cannot afford to care for a child without assistance are appropriate placements. CLASP believes that placements with relatives, like all placements, should be made on a case-by-case basis and that when relatives offer benefits, like greater stability and less trauma, they should be supported in caring for a child.

176.   This calculation is based on the cost of raising the younger of two children in a single-parent, two-child household with a before-tax income of less than $41,700. Lino, Mark. 2005. Expenditures on Children by Families, 2004. U.S. Department of Agriculture, Center for Nutrition Policy and Promotion. Miscellaneous Publication No. 1528-2004. Retrieved 12/7/06 from http://www.cnpp.usda.gov/Publications/CRC/crc2004.pdf

177.   Table 42, Temporary Assistance for Needy Families- Active Cases, TANF Families with no adult recipients receiving cash assistance October 2003 – September 2004. Administration for Children and Families, Office of Family Assistance. Retrieved 12/6/06 from http://www.acf.hhs.gov//programs/ofa/character/FY2004/tab42.htm.

Michael Massengale Justice