Chapter 9 Court Improvement and Best Practices

Chapter 9
Court Improvement and Best Practices

An integrated and comprehensive approach to the complex problems of families involved with child protective services (CPS) and the courts is critical to achieving safety and permanency for children. Evolving Federal child welfare legislation has prompted CPS and the courts to implement innovative policy and programmatic changes. Thus, the pioneering efforts of court and child advocates have created a variety of inventive practices focused on accomplishing positive outcomes for families. This chapter provides an overview of the Child and Family Services Reviews (CFSRs) and the courts and information about best practices and model court programs existing throughout the country. It also provides information about the importance of judicial leadership in improving court practice.

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Child and Family Services Reviews and the Courts

The Federal CFSR process is a results-oriented, comprehensive monitoring and review system designed to assist States in improving safety, permanency, and well-being outcomes for children and families who come into contact with the nation's public child welfare systems.70 Fiscal sanctions may result from failure to meet the measures of the CFSRs, but it is the State's desire to improve practice and outcomes for the nation's most vulnerable children that has motivated States to work on comprehensive Program Improvement Plans (PIP) to correct the weaknesses and gaps identified in the CFSR.71

Although CPS and related child welfare agencies are the primary focus of the CFSR and PIP, there is a clear need for collaboration with the courts for the following reasons:

    CPS performance depends, in part, on its relationship with the courts and on court performance;
    CPS can use the legal system to learn how to overcome legal barriers that diminish its performance;
    CPS and the courts have mutual goals for achieving child welfare outcomes, especially in the area of achieving permanency;
    Court reform requires CPS and other key stakeholders' involvement;
    CPS has an interest in ensuring that the courts carry out PIP goals.72

The CSFRs evaluate CPS performance based partly on how well it works with the courts and other agencies to achieve child welfare outcomes, such as the time in care until adoption or reunification. CPS collaboration with the courts also may help overcome or mitigate court-related barriers to achieving CFSR outcomes. For instance, courts may provide CPS with strategies to work with Federal and State confidentiality requirements in order to obtain complete information about an abused child's family, which may result in an improved safety outcome for the child.73 The roles of CPS and the courts and their methods for achieving these mutual goals are most efficient and productive when a uniform, long-range plan and a cooperative relationship are established.74

Additionally, each State's Court Improvement Program (CIP) (discussed later in the chapter) is expected to help achieve PIP goals.75 The juvenile and family courts cannot effectively perform their child welfare responsibilities in isolation; CPS participation is an essential part of court reform. Specific improvements, such as strengthening case management and information systems for recording a child's court and placement history, require collaboration.76

Using the CFSRs as a catalyst, CPS can either initiate or improve upon an already existing collaborative relationship with the State juvenile and family courts in several ways, including:

    Research other States' CFSR processes, including how they collaborate with their legal system to improve their CFSR performance;
    Consider all legal and judicial issues suggested by the CFSR performance indicators, which can be prepared with the aid of the State's legal system;
    Invite the juvenile and family court judges and legal professionals to participate in meetings to plan and to organize the State's CFSR process;
    Explain the importance of the CFSR to juvenile and family court judges and legal professionals and persuade them to participate in the CFSR process;
    Include juvenile and family court judges and legal professionals in PIP development;
    Explain to the court, legislature, and caseworkers what resources are required for successful development and implementation of the PIP.77

Once CPS and the courts begin working together, they can tackle systemic problems affecting child safety, well-being, and permanency more efficiently. The agency can suggest improvements that may help courts make better decisions for children, such as:

    Improving agency court reports and testimony;
    Upgrading legal representation of the agency;
    Assisting judges to implement the Adoption and Safe Families Act (ASFA) and its regulations;
    Helping courts obtain better performance data or providing them with helpful data;
    Getting caseworkers to attend court hearings more consistently;
    Working together to improve court resources;
    Improving State law to ensure better and timelier services for families, thereby making it easier for judges to deliver timely decisions.78

These changes could help eliminate barriers the courts face, such as insufficient information, the length of time needed to resolve permanency issues, slow progress in cases, and obstacles to timely termination of parental rights. Their implementation can aid both the courts and the agencies in achieving better outcomes for children and families.79 For more on how and why agencies should work with the courts, see Appendix E, Legal and Judicial Issues Suggested by the Child and Family Services Review Performance Indicators.
Pew Commission on Children in Foster Care

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

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

    The U.S. Department of Health and Human Services (HHS) should require that the State IV-E plans, PIPs, and CIPs demonstrate effective collaboration;
    HHS should require States to establish commissions on children in foster care, ideally co-directed by the State's child welfare agency director and Chief Justice;
    Congress should appropriate $10 million to train court personnel, a portion of which should be used for joint training of child welfare agency staff and court personnel;
    Local and State courts and agencies should collaborate and plan for the collection and sharing of all relevant data and information that can aid in making better decisions and creating better outcomes for children.82

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

For additional information about CFSRs, go to the Children's Bureau website at http://www.acf.hhs.gov/programs/cb/monitoring/child-family-services-reviews. For more information about CPS and court collaboration related to CFSRs, visit the National Child Welfare Resource Center on Legal and Judicial Issues at http://www.abanet.org/child/rclji/courtimp.htmlexternal link and http://www.abanet.org/child/rclji/online.htmlexternal link.

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Best Practices

Legislative changes and CPS and judicial efforts are actualized through the daily practices of court personnel and CPS caseworkers. These practices need to incorporate proven methods that are responsive to the individual and multiple needs of families who are linked to different and complex systems. Many judges and others in the courts recognize the importance of collaborating with other systems to implement creative approaches that best serve families. The following are initiatives and legislation designed to promote the use of best practices in this area.
The State CIP

The State CIP provides grants to State courts "'to conduct assessments of their foster care and adoption laws and judicial processes and to develop and implement a plan for system improvement."85 The CIP was first authorized as part of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66, sections 13711-13712) and was first reauthorized by ASFA (P.L. 105-89) of 1997 without substantial programmatic changes. The CIP is a Federal grant program designed to improve the quality of court proceedings in handling child abuse and neglect cases. Federal funding goes to the highest court of each State, which administers the funds and directs the project. Each State has wide discretion on how to use CIP funds, but they must be used to improve the litigation process for abused and neglected children. The program was reauthorized again in 2002 by the Promoting Safe and Stable Families Amendments of 2001 (P.L. 107-133). This reauthorization expanded the program's scope to include the implementation of a PIP, as necessary, in response to findings identified in a CFSR. Through CIP, all State court systems are required to participate in the implementation of a CFSR PIP when a State court system is involved.86
New CIP Grants87

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

    A data collection and analysis grant to help ensure that foster children's needs for safety, permanency, and well-being are met in a timely and complete manner;
    A grant for training judges, attorneys, and other legal personnel in child welfare cases and conducting cross-training with child welfare agency staff and contractors.

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

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

    The law requires State court applicants to include in their applications for all three CIP grants a demonstration of meaningful and ongoing collaboration among the courts in the State, the State child welfare agency (or any other agency with which the State contracts to administer Titles IV-B or IV-E), and, where applicable, Indian Tribes.
    The law adds a Title IV-B State plan requirement for the State or Tribal child welfare agency to demonstrate substantial, ongoing, and meaningful collaboration with State courts in the development and implementation of its State plans under Titles IV-B and IV-E, as well as PIPs developed as a result of the Child and Family Services and IV-E Foster Care Eligibility Reviews.

The Model Courts Project

The Permanency Planning for Children Department (PPCD) of NCJFCJ established the Child Victims Act Model Court Project in 1992 with funding from the Office of Juvenile Justice and Delinquency Prevention.88 There are 25 model courts across the country, including those in New York, Los Angeles, and Chicago, as well as smaller communities such as Zuni, New Mexico, the site of a Tribal court. These courts and their community partners, including CPS, work with PPCD and each other to improve court practice in child abuse and neglect cases. They identify barriers to permanency and other successful outcomes for children in their court and social services systems and develop and implement strategies for overcoming those barriers. Annual status reports outlining the goals and accomplishments of each of these communities are available from PPCD at http://www.ncjfcj.org/content/view/81/145/external link and are an excellent starting point for identifying successful resolutions of problems encountered by judges and CPS personnel.
The Strengthening Abuse and Neglect Courts Act

In FY 2001, Congress enacted the Strengthening Abuse and Neglect Courts Act (SANCA) (P.L. 106-314) and funded it for the first time in FY 2002. The purpose of SANCA is to award grants to State and local courts to enable them to develop and to implement automated data collection and case-tracking systems so that they can eventually use such systems to evaluate court performance. To date, grants have been made to six States (Colorado, Florida, Georgia, Idaho, New Jersey, and Oregon) to pilot the implementation of suggested performance measures developed by the American Bar Association, NCJFCJ, and the National Center for State Courts. (See http://www.ncsconline.org/WC/Publications/KIS_FamJusSANCAProject.pdfexternal link (PDF - 376 KB) for an overview.) The Act makes financial resources available to qualifying courts "'for the purpose of developing, implementing and maintaining automated information systems that enable the nation's abuse and neglect courts to effectively and efficiently meet the intended goals of the Adoption and Safe Families Act." Courts that apply must have "'a demonstrated history of collaborative planning and court improvement'" and "must have full support from [their] collaborative partners," including CPS.91
Tribal Courts

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

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

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

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

In FY 2003, the Children's Bureau funded a project to help courts develop a viable approach to engaging in continuous quality improvement with regard to the handling of dependency cases. The American Bar Association, the National Center for State Courts, and the NCJFCJ are working together to help courts improve their performance by addressing the two most critical and challenging areas of court reform: court performance measurement and judicial workload. Utilizing a guide and toolkit recently developed by these organizations under a grant from the David and Lucile Packard Foundation, the groups are providing targeted technical assistance to help six project courts achieve increased accountability and better performance. The final products of this project will be an updated guidebook and toolkit that will provide revised instrumentation and procedures based on lessons learned during the implementation study, as well as a report on the implementation of a time-study and workload assessment at the local court level.

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Judicial Leadership

Strong judicial leadership is essential to successful implementation of reforms and improvements in how CPS and the courts process child maltreatment cases. Communities that have embraced ASFA and accomplished timely permanency for abused and neglected children have, without exception, benefited from judicial leadership. While judges alone cannot initiate change, their support and leadership are critical to reforming court practice.

Many communities across the country are fortunate to have judicial leaders in juvenile court who are committed to optimizing the ability of CPS and the courts to address effectively the needs of abused and neglected children and their families. Communities with model courts and strong State CIPs are good examples.

Like all effective leaders, judges must have a vision for what can and should be accomplished. For child abuse and neglect cases, that vision will include the timely achievement of safe, permanent homes for the children. The vision and how it is communicated by the words and actions of the judge and others who share it can motivate juvenile court practitioners and can provide meaning and value to their work. Areas in which judges' leadership can be exercised include court operations, interactions with other stakeholders, and advocacy for abused and neglected children.
Examples of Court Reform Projects

For examples of successful projects, see NCJFCJs' Technical Assistance Bulletin, State Court Improvement Projects "Bragging Rights" at http://www.ncjfcj.org/images/stories/dept/ppcd/pdf/braggingrights.pdfexternal link (PDF - 7620 KB) and the National Court Improvement Progress Report and Catalog maintained by the National Child Welfare Resource Center on Legal and Judicial Issues at http://www.abanet.org/child/cipcatalog/home.htmlexternal link.
Court Operations

Through the hearing and management of cases, judges set a standard for court operations, which includes the judges':

    Knowledge and skill in hearing, monitoring, and resolving individual cases;
    Commitment to timely proceedings and decisions;
    Enforcement of rules;
    Participation in training opportunities;
    Style of interacting with families and professionals.

This is important because good administrative leadership of court operations ensures that:

    The court has rules of procedure to guide practitioners;
    Petitions and other pleadings and documents are maintained in an orderly and accessible way;
    Cases are scheduled and decided on a timely basis, before the same judge, and at intervals that minimize waiting and inconvenience to participants;
    Continuances are rare;
    Decisions and orders are entered and distributed promptly.

Interactions With Other Stakeholders

Judicial leaders "'must encourage and promote collaboration and mutual respect among all participants in the child welfare system'," and "'should regularly convene representatives from [it] to improve operations of the system."92 All effective juvenile courts are characterized by successful partnerships with CPS and with other community and system stakeholders. Judges meet regularly with these partners and work cooperatively with them to identify and resolve systemic problems, to plan training events, to strategize about new services to fulfill unmet needs, to address resource and funding issues, to improve service delivery and court processes, and to share their successes. These collaborative efforts create "'a synergy in which the contributions of the various partners enhance and magnify their individual effects."93
Court Management Information Systems

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

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

Both are published by the PPCD of the NCJFCJ and are available at http://www.ncjfcj.org/content/blogcategory/358/427/external link.
Advocacy for Abused and Neglected Children

Judicial leaders from the juvenile court should take an active role in educating policymakers and the public about the needs of child maltreatment victims. This includes new or expanded resources and services that are necessary to meet those needs, the importance of the work being done in the juvenile court, and the statutory changes necessary to enhance that work. Because of their position within the child welfare community, judges experienced in child maltreatment cases can be particularly effective in bringing about useful changes.

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Conclusion

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