Article Why have our nation’s
juvenile courts been unable to achieve timely permanency for
foster children? I believe it is because court systems do not
prioritize child protection cases. That is unfortunate because
in no other area of the law do the courts have a greater
responsibility. In child protection cases federal and state
legislatures mandate that courts determine whether child abuse
or neglect is so serious that state intervention is necessary;
protect the child; provide due process of law to children and
parents who appear in court; oversee the provision of services
to those families; and ensure that children are provided with a
permanent home in a timely manner. These cases may not be as
prestigious as cases involving criminal charges or high-stakes
civil matters, but they have to do with children’s lives and
family integrity.
For a number of reasons, achieving timely permanency for foster
children is a critical goal for the courts. Moreover, it is a
goal that can be reached as long as judges prioritize child
protection cases and follow the best practices that have been
developed over the past decade. Five reasons to give special
attention to these cases stand out:
- Timely permanency is required by both federal and state
law.
- Child development experts remind us that children can’t
wait. To a child removal from their home, however neglectful,
is a crisis.
- Case management standards mandate that courts move cases
along in a timely fashion. These standards instruct judges
that the court system should no longer permit the attorneys or
parties to control the pace of litigation. Instead, the court
system—including judges and administrators—must control
case-flow management.
- Judicial canons of ethics mandate that judges perform
their duties “impartially and diligently” and “promptly
dispose of their court’s business.” (Canon 3 – emphasis
added).
- For the past seven years, the federal Department of Health
and Human Services has examined each state’s child welfare
agency to determine whether children under state-agency
protection have been protected, provided permanent homes in a
timely fashion and ensured their well-being. A state’s failure
to provide these outcomes can and has resulted in the state
losing federal monies. Of these measures, the failure to
provide foster children permanent homes in a timely manner is
an outcome that courts are largely responsible for. Thus, even
though the courts are not officially being reviewed, they can
be directly responsible for the loss of state revenue if they
fail to ensure that children reach timely permanency.
Fortunately, timely permanency can be achieved. Through a
combination of judicial leadership and implementation of best
practices, some courts have been successful in managing their
cases so that children reach permanency within the statutory
framework. This success has come from a variety of innovations
and practices.
First, state legislators or court leaders should establish a
time frame for processing child protection cases. The time
frame should include an early shelter care hearing; an
adjudicatory hearing within 30 days maximum (20 days is
preferable); a dispositional hearing following immediately
after the adjudication in the majority of cases; and review
hearings set within statutory timelines. If the state
legislature is unable or unwilling to set such timelines,
court leaders should establish them through court rules.
Second, the initial hearing must be comprehensive. This
recommendation comes from the
Resource Guidelines: Improving Court Practice in Child Abuse
and Neglect Cases, a 1995 publication in which the
National Council of Juvenile and Family Court Judges
recommends that the court dedicates an hour to initial or
shelter care hearings. For courts that have 20 or 30 matters
on a docket each morning or afternoon, such a policy
recommendation seemed unrealistic, but many courts have been
able to shift resources so that they are capable of devoting
sufficient judicial time to addressing all of the critical
issues at the beginning of a child protection case. As an
alternative, some courts have implemented second shelter care
hearings that take place a few days after the initial hearing
and are scheduled in order to address the issues that could
not be resolved at the initial hearing.
Third, judges and court administrators need to provide the
parties the opportunity to discuss resolution of legal and
social issues outside of the courtroom. Using such practices
as court-based mediation, many courts have developed effective
programs that offer the parties a non-adversarial environment
to resolve their issues. Some courts also use pretrial and
settlement conferences before setting any case for contested
hearing.
Fourth, judges must take control of their dockets.
Continuances must be limited, cases set for trial must go to
trial, and trials must continue until they are completed.
Fifth, judges must examine carefully the details surrounding
case-flow management. For example, attorneys for indigent
parties should be appointed before the initial hearing; cases
should not be delayed due to a pending criminal trial; notice
must be sent in a timely fashion; and the next hearing should
be set before the parties leave the courtroom.
To implement most of these suggestions requires judicial
leadership. Judges must recognize that child protection cases
deserve their special attention and, judges must take an
active role to ensure that court practice changes so that
these cases will reach a timely conclusion. It can be done as
some courts have demonstrated. Now the challenge is to
increase the number of courts that ensure timely permanency
for children.
A more complete discussion of these issues including footnotes
is available from the
link above.
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