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September 01, 2012

A New Focus on Reasonable Efforts to Reunify

Amelia S. Watson

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.

You represent Joannie who agrees that her bipolar mental illness put her children at risk. At the dispositional hearing, Joannie agrees that her children should remain in foster care and that she will undergo a mental health assessment and follow all recommendations.

Before the first review hearing, you learn the state is asking she be found noncompliant for her behaviors at visits. After speaking with Joannie, you realize she was on a waitlist for over a month to receive an evaluation from the mental health provider and now she is on a waitlist to receive the recommended treatment. You realize with frustration that Joannie’s children have been in foster care for five months and she is not currently being provided any services to address her bipolar.

The social worker for the state agency tells you there is nothing she can do. Budget cuts have left everyone with fewer treatment options. You wonder if the caseworker/agency is really working with your client toward reunification. How can Joannie ever have a chance to address her problems and get her children back if she can’t get the critical services she needs?

Across the nation, a shift is occurring regarding reasonable efforts enforceability since the economic crisis has impacted child welfare funding streams. Debate has surrounded reasonable efforts requirements since they were introduced in the Adoption Assistance and Child Welfare Act of 1980 (AACWA) and refined by the Adoption and Safe Families Act of 1997 (ASFA). The current economic climate adds a new dimension to the debate.

As parent’s counsel,1 how do you ensure services are provided when referrals for services are delayed, waitlists grow, and claims of lack of funding for services abound? The question is pronounced since child welfare cases typically involve poor parents and families who cannot afford services without state agency2 support. What should be done when the state agency is not making reasonable efforts to reunify a family?

Unfortunately, the problem of lack of reasonable efforts typically is contemplated at review hearings or termination trials, if at all. As such, attempts to address the problem routinely come too late in the life of a child welfare case and need to be addressed sooner. This article:

  • discusses federal statutes and regulations that can be used to help frame a reasonable efforts definition;
  • provides strategies for reasonable efforts enforcement; and
  • highlights how parent’s counsel can investigate and respond to lack of funding claims at the initial stages of a family’s involvement with the child welfare system.

Understanding Reasonable Efforts

To assure states offer preventive and rehabilitative services to parents involved with the child welfare agency, the federal government requires that states make “reasonable efforts” to prevent or eliminate the need to remove the child from their home. If the child is removed, the state is required to make reasonable efforts to make it possible for a child to return home.4  Finally, the state is required to make reasonable efforts to finalize a permanent plan.

The federal government did not define reasonable efforts. Federal law notes that when determining reasonable efforts the child’s health and safety shall be the top concern.6 The federal government has stated that a federal definition of reasonable efforts would go against the intent that reasonable efforts be considered case-by-case or would be too broad to be effective.7

The common sense interpretation of reasonable efforts when contemplating reunification is that the state agency must help. For example, the agency must attempt to address the parent’s problems to prevent the need for removal. If removal is necessary, the state agency must attempt to address the parent’s problems so the child can return home.  Like the invisible line where the parent is unfit such that removal is necessary, the state has a similar invisible reasonable efforts line that must be met to show they tried to prevent the removal and later tried to make it possible forthe child to return home.

A judicial finding in a child’s case that such reasonable efforts were made to prevent removal is necessary for a state to be eligible to receive Title IV-E foster care maintenance payments for that child.8 When a court makes a judicial finding that the state agency made no reasonable efforts to prevent removal in a child’s case, that child is forever ineligible for IV-E foster care maintenance payments, thereby reducing the overall pool of money the state should receive from the federal government.9

A judicial finding that the state agency made reasonable efforts to finalize the permanent plan (for example, a permanent plan of reunification) is also necessary to receive IV-E foster care maintenance payments in a child’s case.10 However, while this may limit funds to the state agency during a period where there has been a finding that reasonable efforts were not made to finalize the permanent plan, the agency can cure the problem. The child’s case can again become IV-E eligible if there is a later finding that the state agency made reasonable efforts to finalize a permanent plan.11

Finally, while reasonable efforts to ensure the child’s safe return home are required under federal law, they are not required to make the child IV-E eligible.12 Rather, the court would need to make a judicial finding that the state agency did not make reasonable efforts to finalize the permanent plan of reunification to implicate IV-E eligibility; as stated above, the state agency can “fix the problem” and the child can become IV-E eligible.

After-the-Fact Reasonable Efforts Enforcement

One reality in advocating for a lack of reasonable efforts finding is that a court may view it as a nuclear option. Judicial officers may be concerned that such a finding will result in reduced funding to the state agency and may view this reality as adding fuel to the fire. You may have difficulty documenting what actually occurred after the fact as “he said, she said” sets in between the parent and the state agency. This may leave judicial officers feeling compelled to compare the efforts and good faith of the state agency to that of the parent.13  

Additionally, even if you succeed, the problem has already happened. The services were not offered early when the parent was potentially more trusting of the process, and more motivated to engage. The state loses funding and time is wasted at the expense of a child’s life. This delay in permanence may result in a feeling by some that the child has “waited long enough” for the parent to get it together despite the parent’s lack of opportunity to truly engage in services. The state may start termination proceedings even though the parent has had little time to make life changes, putting the parent at a disadvantage if the case goes to trial.

A New Reasonable Efforts Paradigm

Parent’s counsel should focus on and encourage other participants in a family’s case to think about reasonable efforts at the start of the case and continue the focus as the case progresses. Recognize that a basis for reunification must be built over the life of the case. What can you get today that will make reunification a more likely outcome in the future?

Meet with parents at the initial removal stage and consider whether advising a parent to contest removal or a lack of reasonable efforts to prevent removal is warranted. Has the state tried to stop the case from entering court, such as following the agreed safety plan and offering critical services? Has the parent made efforts to improve, such as staying sober or seeking services on their own despite no referrals?

Such factual findings might help the court see the parent is willing to engage in services and therefore make needed changes. This could humanize your client and set the stage for more favorable court rulings at this initial stage or in the future. It could also make a parent feel heard. Even if the judge rules against the parent following a contested hearing, the client often feels heard by the process, which can help the parent stay focused during the child welfare case.

After the initial removal hearing, meet with the parent to discuss needed services. Advise parents that their participation or lack of participation in services and visitation may color how the court and other case participants view them. Discuss how the parent can document participation in the case plan. For example, encourage the parent to keep a calendar of the case that can be offered to the court as evidence of the parent’s participation, or send email updates to the state social worker. Advise parents to check in regularly to share any barriers to accessing services and progress in services.

Schedule a meeting with the parent and the state agency early in the case. Try to reach an understanding of what services will address the need for removal, and the timing of services. A negotiated case plan can make the parent and the state agency work more cooperatively as the case progresses. Make sure the plan makes sense and is thorough.

  • Has the state agency identified the parent’s deficiencies?
  • Do the recommended services tie back to those deficiencies?
  • Are there services that should be referred now rather than waiting until the next court hearing?
  • Is your client going to be able to access the services?
  • How will the state agency address obstacles to services such as waitlists, unavailability, or funding problems for services?
  • Does this seem like a road map to reunification? If not, be clear about what services are necessary and propose an alternate plan. 

If you have access to your own parent or defense social worker, consider having them help you create a plan before meeting with the state agency. Alternatively, expert funds can be used for this purpose, if available. This is when your client is set up to succeed or fail.

If a written agreement cannot be reached, consider a contested fact finding and/or dispositional hearing on whether the state’s plan will amount to reasonable efforts.  Don’t ask the court for a finding of lack of reasonable efforts now; ask the court to make a finding of whether the plan will amount to reasonable efforts in the future. Ask the court whether the department’s plan makes sense and be prepared with an alternate plan if you believe the state agency plan will not work. This means that during the negotiation stage you know what concessions you will make. Be prepared to discuss services your client is willing to participate in to address the state’s identified parental deficiencies. But steer clear of factual discussions of whether the parent concedes to having a parental deficiency.

Be prepared to make a record for the trial judge and, if necessary, an appeal. Document the need for the service, the availability and cost of the service, need for funding, parent’s willingness to participate, and evidence of what the parent has already done. Compare those costs to the reality that not offering needed services timely will likely delay permanency for the child, cost the state and the court more, and will not be in the best interest of the child.  Whether the court rules against you or in your favor, be prepared to revisit these arguments with the state agency and the court as the case progresses to the review hearing stage. To make this discussion fruitful, educate the court on what reasonable efforts means.

Evaluating Reasonable Efforts

In the absence of clearly egregious actions by the state agency, courts may be at a loss when defining reasonable efforts. However, some federal guidance provides a roadmap to advocating for and evaluating reasonable efforts.

Questions for Courts When Analyzing Reasonable Efforts

First, the Children’s Bureau’s Child Welfare Policy manual suggests questions courts may consider when analyzing whether reasonable efforts were made based on the state agency’s actions. Some of these include:

  • Was the service plan customized to the individual needs of the family or was it a standard package of services?
  • Did the agency provide services to ameliorate factors present in the child or parent, i.e., physical, emotional, or psychological, that would inhibit a parent’s ability to maintain the child safely at home?
  • Do limitations exist regarding service availability, including transportation issues? If so, what efforts did the agency undertake to overcome these obstacles?14

The manual provides clear guidance on reasonable efforts. Services should be specialized to address the issue(s) that made removal necessary for the child(ren) to be safe. Most important during this time of economic difficulty, services should be accessible and courts should consider whether barriers to services were addressed by the state agency.

Principles Governing State Provision of Services

Additionally 45 C.F.R.§ 1355.25 Principles of Child and Family Services, lists principles to guide states in “developing, operating and improving” services for children and families. Some of these principles include that:

  • Services are focused on the family as a whole; service providers work with families as partners in identifying and meeting individual and family needs; family strengths are identified, enhanced, respected, and mobilized to help families solve the problems which compromise their functioning and well-being.
  • Services are timely, flexible, coordinated, and accessible to families and individuals, principally delivered in the home or the community, and are delivered in a manner that respects and builds on the strengths of the community and cultural groups.
  • Services are organized as a continuum, designed to achieve measurable outcomes, and are linked to a variety of supports and services that meet families’ and children’s needs, such as housing, substance abuse treatment, mental health, health, education, job training, child care, and informal support networks.
  • A family or an individual does not need to be in crisis to receive services.15

These principles suggest services should be designed to engage families early, and be provided in a way that addresses the individual needs of a family on a continuum. The principles also suggest that basic needs of parents and concrete services should be addressed. 

Practice tips:

  • Advocate that the state agency allow the parent and parent’s counsel to help create the case plan.
  • Ask the state agency to explain how the services will address identified parental deficiencies.
  • Have the court identify which services are priorities.
  • Ask the court to order a timeline for offering services.
  • Ask that the state agency be required to come back if the services are not offered due to unavailability, wait lists or lack of funding. Remind the court that for a permanent plan of reunification to be possible, a parent must be given the opportunity to participate in needed services.
  • Have a clear understanding of what the parent is already doing so you can highlight your client’s willingness to participate to the parties and the court.

State Plan Requirements for Time-limited Family Reunification Services

Finally, 42 U.S.C.A. § 629a (7) defines “time-limited family reunification services” to include services and activities that facilitate the safe and timely return of the child home that are offered within the first 15 months of the child entering foster care.16  State plans include the requirement that states assure they are providing time-limited family reunification services,17 which include:

(i) Individual, group, and family counseling

(ii) Inpatient, residential, or outpatient substance abuse treatment services

(iii) Mental health services

(iv) Assistance to address domestic violence

(v) Services designed to provide temporary child care and therapeutic services for families, including crisis nurseries

(vi) Peer-to-peer mentoring and support groups for parents and primary caregivers

(vii) Services and activities designed to facilitate access to and visitation of children by parents and siblings

(viii) Transportation to or from any of the services and activities described in this subparagraph18

State plans must include assurances that their child welfare programs will offer the above services and activities, including transportation. If you know that certain services are not available due to lack of transportation, wait lists, or lack of funding, advocate for the state agency to address these obstacles. Advocate that the case plan include timing for referrals and assurances about funding. If the state agency is unwilling, consider a contested dispositional hearing as discussed above.

Funding and Budget Basics

When facing state agency lack of funding claims, parent’s counsel should be prepared to take the following steps:

  • Educate the court on the state agency’s duty to provide services and what the state agency must prove to establish a lack of funding. For example, in Washington State, indigent parents are entitled to services under state law. The court can order the state agency to provide such services where those services are for the “specific purpose of making reasonable efforts to remedy parental deficiencies identified in a dependency proceeding…”19  Parents are also entitled to priority access for such services and the state agency is required to notify the court if such services are not available.20
  • Investigate what duties the state agency has to provide services and what the state must show when a duty exists. A general concern that there are not enough funds will not suffice.21 Rather, the state agency must document a lack of funds, such as showing a change in legislative appropriations, how the change in appropriations has impacted its ability to carry out its statutory duty, and how it is prioritizing work.22
  • Be prepared to argue that a statement from a state agency worker that the agency lacks funds is not evidence. Such claims should not excuse the state agency from its responsibility to provide services. Make the court aware of any priority court-involved parents should be given to services under state law as compared to non-court involved parents. Advocate that the court find such refusals to provide services amount to a lack of reasonable efforts.23 This lets the court put the agency on notice that it could lose state funding if it does not provide court-ordered services.
  • Remind courts that not providing funding for services can delay permanency, costing the state more money due to delay, and is not in the child’s best interest. Point out that reasonable efforts by the court are a powerful tool to ensure families get needed services.24 Argue that the court refuse to order evaluations that are not needed or services which are not evidence-based. This can save the state money that can be used on another case or for another needed service.
  • Learn the basics of funding appropriations for the state agency to educate the court about the state agency’s budget. Many states now have websites to inform citizens of the budget process.25  Another avenue is making public disclosure requests for funding information. Either in conjunction or alternatively, you can also use the discovery process to demand depositions. This can include requesting managing agent depositions if you don’t know who you need to depose but want to learn more about a specific issue, such as funding. 
            For example, what funding is restricted by the legislature for a specific purpose and what funding is discretionary? One difficulty in this approach may be that such investigations can result in a lot of financial information that may be specialized and difficult for you to digest. 
            However, some part of this approach may allow you to answer big questions like “Was the budget really cut in half?” For more nuanced issues, if you have access to expert funds, identifying a financial expert (such as a former supervisor of the child welfare agency) or an attorney with past experience in public disclosure requests may help get you up to speed on how funding appropriations for the state agency work.

Road Map to Permanency and Reasonable Efforts

As suggested by Judge Leonard P. Edwards, trial counsel should “…treat each case as though it were an emergency”26 and encourage the court and all other participants to have the same mindset. “It is difficult for participants in the juvenile court to remember that every case before the court is an emergency for the families involved. Children and families are in trauma as the result of social services and court intervention. The longer the process takes, the more extensive the trauma.”27

Often at initial meetings, parent clients will say, “I love my child. What can I do to get my child back?” Part of your job is to humanize the client for the court and case participants. Let them know your client was willing to make needed changes, but that such change is only possible if he or she receives the needed support to make those changes. At its heart, that is a reasonable efforts argument—a focus that needs to begin at the beginning of the case. 

Amelia S. Watson, JD, is the Parents Representation Managing Attorney at the Office of Public Defense in Olympia, WA.


1 While this article focuses on steps parent’s counsel can take to focus on reasonable efforts, other participants in child welfare cases may find that they can use these concepts as well.

2 “State agency” refers to the governmental agency charged with managing child welfare cases based on my experience practicing in Washington State.  Some states may have county agencies or more than one state agency that serve a similar role. 

3 42 U.S.C.A 671(a)(15)(B)(i). For an in-depth critique of AACWA and ASFA Crossley, Will L., “Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation,” Boston University Public Interest Law Journal 12, 2003, 259.

4 42 U.S.C.A 671(a)(15)(B)(ii).

5 45 C.F.R. § 1356.21(b)(2).

6 42 U.S.C.A. § 671 (a)(15)(A). 

7 Administration for Children and Families, Child Welfare Policy Manual, Section 8.3C.4 Title IV-E. Foster Care Maintenance Payments Program, State Plan/Procedural Requirements, Reasonable Efforts. Available at:

8 45 C.F.R § 1356.21(b)(1).

9 Ibid.

10 45 C.F.R. § 1356.21(b)(2).

11 Ibid.

12 45 C.F.R. § 1356.21.

13 For a survey of state court reasoning trends in reasonable efforts cases, including cases looking at good faith on behalf of the state agency and on behalf of the parent, see: Bean, Kathleen S. “Reasonable Efforts:  What State Courts Think.” University of Toledo Law Review 36, 2005, 321.

14 Administration for Children and Families, Child Welfare Policy Manual, Section 8.3C.4 Title IV-E. Foster Care Maintenance Payments Program, State Plan/Procedural Requirements, Reasonable Efforts. Available at:

15 45 C.F.R. § 1355.25.

16 42 U.S.C.A. § 629a.

17 42 U.S.C.A. § 629b.

18 42 U.S.C.A. § 629a.

19 RCW 13.34.025(d).

20 Ibid.

21 See Our Lady of Lourdes Hospital v. Franklin County, 842 P.2d. 956 (1993) and Cunningham v. Community College Dist. No.3, 489 P.2d 891 (1971). 

22 Hillis v. State Dep’t of Ecology, 932 P.2d 139 (1997).

23 Washington State Coalition for the Homeless et. al. v. Dep’t of Social and Health Servs. et. al., 949 P.2d 1291 (1997).   

24 National Council of Juvenile and Family Court Judges.  Judicial Responsibility in a Budget Crisis Environment, 2009.  Available at 

25 See, e.g., Budget Division, Office of Financial Management, State of Washington, “Washington State Budget Process,” June 2012. 

26 Edwards, Judge L.P. “Improving Juvenile Dependency Courts.” Juvenile and Family Court Journal 48(4), November 1997, 1.

27 Ibid. at 10. Internal endnote in quotation omitted.