September 01, 2011

Reasonable Efforts in Child Welfare Cases: New Jersey Supreme Court Gives Guidance

Jey Rajaraman

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Reasonable efforts are one of the most hotly debated issues in the child welfare arena. The principle of maintaining families and avoiding separation is clearly expressed in child welfare laws and policies, but exactly what constitutes reasonable efforts or what services and actions fulfill this statutory duty varies from case to case.  

In New Jersey, where I practice, three recent state supreme court cases clarify and emphasize the importance of the child welfare agency’s duties to provide reasonable efforts. These cases are highlighted here along with practice tips. Even if you do not practice in , you likely encounter cases like these. They address reasonable efforts in three common contexts – before moving to terminate parental rights, when a family’s finances have caused a child’s removal, and when sibling bonds must be maintained.


Federal law has long required state agencies to show reasonable efforts have been made to (1) prevent children from being removed from their homes and placed in out-of-home placements, and (2) support the goal of reunification for children who have been removed. The Adoption and Safe Families Act of 1997 (ASFA), requires agencies to make reasonable efforts to prevent out-of-home placement of children, and make reasonable efforts to reunify children with their biological families.

Current New Jersey law requires that “in any case in which the Division of Youth and Family Services (“Division”) accepts a child in care or custody, the division shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home. After placement, the division shall make reasonable efforts to make it possible for the child to safely return to his home.” N.J.S.A. 9:6-8.8. (2). 

Case Law

Termination of parental rights

In 2010, the New Jersey Supreme Court held that the state’s child welfare agency failed to meet its statutory obligations to provide reasonable efforts in two cases. First, in Division of Youth & Family Services v. I.S., the trial court terminated the parental rights of a 56-year-old father to his previously unknown son from an affair with the birth mother, holding he had failed to provide a safe and stable home. 202 N.J. 145, 168 (2010). 

For eight months, the parent had suggested relatives and friends as possible placements for the child before finally presenting himself as a caregiver.  The court held that the agency woefully failed to meet the third prong of a termination inquiry requiring that it make diligent efforts to help the parent correct and overcome the circumstances leading to out-of-home placement.  No services were offered beyond an inappropriate and untimely parenting class.  The agency violated its own regulations when it restricted the parent, without cause, to inadequate one-hour weekly supervised visits. 

The supreme court held that a trial court cannot terminate parental rights when the only risk of harm to the child is that a blameless parent did not offer the agency a suitable placement for eight months. It concluded the agency failed to provide reasonable efforts, services, information, or visitation. 

Practice Tips:

When representing the nonaccused parent, such as the father in this case:

  • file a motion for custody of the child immediately. This will require the court to review placement of the child with the non-targeted parent and determine any specific concerns with placement.
  • file a motion or application to be dismissed from the abuse or neglect proceeding. Here, the father had not abused or neglected the child and so the child should have been placed with him upon his request.
  • file a motion for specific individualization of services.  For example, here the father had raised several children into adulthood and did not need parenting classes. 
  • file motions or applications for increased visitation. Parent-child visitation must be significantly greater than 1 hour weekly to be reasonable and sufficient enough to achieve reunification.

When assisting your client interact with the agency in and outside of the court room, suggest  that the parent be more involved in drafting the service plan. This will empower the parent and early involvement ensures appropriate services are determined sooner.

Family finances

In Division of Youth & Family Services v. P.W.R., the trial court found the father and stepmother of a teenage girl neglected their daughter by lacking central heat in the home, taking her to Planned Parenthood instead of a pediatrician, delaying visits to the orthodontist, and requiring the child to financially contribute to the household.  The supreme court found that absent any evidence that the parents could financially afford house repairs and doctors visits but refused to provide them for the well-being of their daughter, the trial court could not find that the parents failed to exercise the minimum degree of care.  205 N.J. 17 (2011).   

The supreme court found that the agency’s failure to help the family with secure heating directly violated the reasonable efforts statutory requirements.  The supreme court further held that a family’s tight financial situation is not a proper basis to remove a child from the home.  The lack of comfortable financial means to support a child should not be the basis for a removal from the home, especially when the agency fails to offer any assistance to remedy the problem as statutorily required.

Practice Tips:

  • Advise clients to identify social service needs immediately. If the case is in litigation, file a motion on behalf of the client requesting reasonable efforts by the agency. The agency should assist the client to identify resources for their needs including securing health care.  
  • Ask the agency to assist the client with financial needs. If the client needs rent assistance, ask the agency to provide financial help.  Also distinguish for the court that financial needs of the client do not give rise to the level of neglect required for removal.  

Sibling bonds

In In re D.C., the adult sibling of two twin girls was denied visitation after the foster mother protested to the child welfare agency. 203 N.J. 545 (2010). The parental rights of the biological parents had already been terminated, and the foster mother was in the process of adopting the twins.  The lower courts held that adoptive parents have the same fundamental rights as biological parents to raise their children as they see fit, which encompassed the right to reject all third-party visitation. 

The supreme court reversed the lower court’s holding, emphasizing the importance of the sibling bond in a disrupted family and the agency’s responsibility to promote that bond as codified in the Child Placement Bill of Rights (N.J.S.A. 9:6B-4(f)) and the agency’s regulations.  The court held that the agency must take responsibility for sibling visitation, even when it has not been specifically requested.  Adoptive parents possess the same rights as biological parents, and are held to the same standards and review by the court.    

Under the exceptional circumstances standard, a sibling is entitled to visitation if it would avoid harm to the children.  At a minimum, an evidentiary hearing should have been held and a bonding evaluation conducted before the agency rejecting sibling visitation pre- or postadoption.  While the “avoidance of harm” standard is stringent it is satisfied if there is a strong connection between the siblings.   The agency has the full responsibility to facilitate sibling visitation up until adoption is finalized, and siblings should be granted visitation postadoption if it will prevent harm to the child.  

Practice Tips:

If your client’s child is not placed with a relative while in out-of-home placement, file a motion requesting a placement change. In that motion, cite to federal or your own state law requiring placement with relatives and/or siblings.   Placement with relatives will assist with parent reunification because typically, relative placements will assist in visitation between the child and the biological parents.   Additionally, cite to current social science showing the benefits of relative and sibling visitation and placement for children in out-of-home placements. 

Reasonable efforts must be made to preserve and reunify families before placing a child in foster care by preventing or eliminating the need for removal through supports and services.  For children who have been removed, reasonable efforts mean supports and services that promote reunification.  These three recent cases provide guidance on the child welfare agency’s statutory duty to provide reasonable efforts. They clarify the nature of these efforts in three important contexts and serve as guidance to practitioners in and beyond.   

Jey Rajaraman, JD, is the supervising attorney of the Family Representation Project at Legal Services of New Jersey.