- Learn how visitation should be structured.
- Learn the key conditions that should be established for a return home.
From Child Safety: A Guide for Judges and Attorneys
An out-of-home safety plan becomes necessary whenever an in-home safety plan is not sufficient, feasible or sustainable. The out-of-home safety plan occurs with a relative, foster home, or other court-ordered placement.
An out-of-home safety plan poses two issues the court must decide:
- What kind and amount of contact will there be?
- What are the minimum expectations or conditions for the child to return home?
This article will help judges consider visitation and the conditions for return home within the framework of safety decision-making.
Visitation: Contact Between Children and Family
Immediate and frequent contact between the child and parent(s) helps maintain the child’s identity and reduces trauma. It also influences future safety decision-making. Visitation is less helpful to future safety decisions when it is identical in every case, such as:
- supervised regardless of need for, or level of, supervision
- carried out at same location, such as the CPS agency
- has the same frequency
Cookie-cutter visitation plans often place needless restrictions on parent-child contact, and miss opportunities to achieve safety expediently. CPS, parties, and the judge should use visits to assess and develop parental protective capacities; this could make the child safe at home without the state intervening. Judges should bear in mind why the child had to be removed when deciding visitation.
Visitation Should, at Minimum, Include:
- Face-to-face contact between child and parent (unless shown why not) no more than five days after placement. Contact should occur weekly and, in many cases, more frequently.
- Face-to-face contact between siblings at least once per month.
- Arrange other contacts including phone calls, letters, email, text messaging, attending church, school, and other appointments together.
- A court order or visitation document, provided to everyone involved in visitation, specifying times, duration, location, and conditions of supervision.
- Assure frequency or length of visits will not be used as punishment or reward, but is a right of all family members unless child safety is jeopardized.
- CPS will oversee visitation, including logistics, and will ensure the child’s safety.
- Steps to maintain parent-child attachment and help parents practice or learn greater protective capacity.
- Dates when visitation terms will be routinely reviewed.
- Ideally, visits will take place in the foster home providing a more natural setting and letting the foster parent model parenting techniques.
Determining Visitation: Checklist for Judges
- Organize visits to occasionally allow parents to learn or practice the protective capacities they lack. Can visit length and location help make this happen?
- Arrange visits so CPS or another service provider can evaluate whether parents’ protective capacities are improving. Can visit length and location help with this?
- Reasons visits may or may not be supervised are based on:
Threats of danger: some threats may be more difficult to manage without supervision than others. Unmanageable threats may include violence, child’s intense fears, premeditated harm, extreme negative perception of the child, and likelihood of fleeing with the child.
The volatility of the threat and how difficult it would be to manage without supervision. Analyze volatility by considering when and how the threats emerge, parent’s impulsivity, whether home environment is unpredictable, or safety could be maintained only through 24-hour in-home help.
Whether significant information is lacking about the parent, due to parent unwillingness or other obstacles.
Are parent’s or children’s functioning deteriorating during visits so threats of danger must be reconsidered?
- Is allowable contact spelled out, including email, text messages, and phone?
- Is there reason not to include parents at appointments, school, and church events?
- Are the requirements and logistics for visits and contacts provided in writing to parents and other visitation participants? Are they clear to all, not just legal parties?
- Are participants clear that visits will not be used as punishment or reward?
- Set dates when visitation terms and contacts will be reconsidered.
Conditions for Return: Establishing Clear Objectives
Conditions for return are what must happen for the child to return home. The judge and CPS must be clear on what these conditions are, and this information must be provided to parents. This is consistent with federal law requiring the court to hold annual permanency hearings (administrative reviews every six months), and determine:
- Safety of the child;
- Continuing necessity for and appropriateness of the placement;
- Extent of compliance with the case plan;
- Extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and
- A likely date by which the child may be returned to and safely maintained in the home or placed for adoption or legal guardianship. 42 U.S.C. 675(5)(B).
Having unclear, imprecise, vague conditions for the child’s return produces bad outcomes. Parents being confused about what they must do or accomplish creates barriers to the child’s safe and timely return. Failing to identify and explain conditions for return leads to lower rates of reunification.
Some courts and agencies decide to reunify based entirely on parents following case plan requirements such as attending service classes, or appointments. More important is whether parents participating in classes or counseling changes their skills, behavior, attitudes, and conditions that brought the family before the court. Perfect attendance may do nothing to make the home safe. Or a parent may not attend services and yet still satisfy conditions for return.
The judge can use the safety decision-making process as the logical foundation for identifying conditions for return. Conditions for return are the benchmarks for reunification. Conditions for return should be detailed in a court order, including the circumstances that must exist within a child’s home before that child can return. Circumstances should include, for example, the parents’ behaviors, skills, understandings, emotions, and attitudes as well as other conditions that must be met.
The conditions for return, as stated in the court order, will be used by the court, CPS, the attorneys and others in the decision-making process as benchmarks guiding feasibility of reunification. These benchmarks guide services, provide clarity for parents, and help parties focus on whether safety can be achieved in the home, not whether treatment programs were completed or treatment goals accomplished.
Using Safety-Related Information and Logical Decision-Making When Establishing Conditions for Return
Conditions for return are based on what is needed for the child to be safe, with a sufficient, feasible and sustainable in-home safety plan. What happens when threats of danger and gaps in protective capacities have been identified, and an analysis shows an in-home safety plan is insufficient? Knowing why an in-home safety plan cannot work suggests what circumstances or conditions must change for the child to return. What must change in the home to be safe now becomes the condition for return.
Can Return Be Made Safe?
Conditions for return should not be confused with long-term service needs or what must change over time. It is not necessary to wait until the family is able to protect the child before returning the child home. Threats of danger do not have to be eradicated—they need to be controlled—before children can be reunified with families. Likewise, parents do not have to change before children can be reunified. When deciding to return a child, focus on whether return can be made safe, not on parents complying, completing or even improving with treatment.
Specify the people, behaviors, and circumstances (including alternatives and options) that, if in place and active, would resolve why an in-home safety plan was insufficient.
For additional examples of conditions for return, refer to the book, Appendix D, page 77.
Checklist for Judges: Establishing Conditions for Return
The judge should expect CPS and the legal parties to use the following process to identify the conditions for return to include in the court’s order. (The following builds on the decision process needed to determine whether to remove a child from home, as discussed in Chapter 6 of the book.)
- Carefully review exactly why an in-home safety plan was originally determined to be insufficient, unfeasible or unsustainable.
- Ask the following questions regarding each threat of danger (including any new threats that may have emerged):
How does the threat emerge, including its intensity, frequency, duration, etc?
Can it be controlled with the children in the home and, if so, how?
Can anyone substitute for the parent within the home to provide sufficient protective capacity to assure control of the threat of danger?
- Based on the answers to the above questions, discuss what is needed to control threats of danger. Referring to the analysis that led to the original decision that an in-home safety plan would not work, identify what circumstances must be different. Answer the following questions (discussed more fully in Chapter 6 of the book):
Were the parents’ capacity, attitude, awareness, etc. factors in the original decision that an in-home safety plan would be insufficient?
Do any of these factors need to change before the child can return home with an effective in-home safety plan?
What is the potential for other threatening parents or persons leaving home?
- Specify the acceptable people, behaviors, situations, and circumstances (including alternatives and options) that, if in place and active, would resolve the reasons an in-home safety plan was originally determined to be insufficient.
- Always include as a condition for return that the family agree to a court-ordered in-home safety plan.
Reprinted with permission from Child Safety: A Guide for Judges and Attorneys. Published by the American Bar Association Center on Children and the Law.