Timely Permanency and the Appellate Process

The child welfare system has a problem that is rarely mentioned in the literature. Children wait too long for permanency, and the problem is exasperated by the age of the children. Most of the children involved in the child welfare system are young – many are newborns. We know that children can’t wait. They need permanency as soon as possible. The child’s sense of time is different from that of an adult.

Yet the law is deliberate. Attorneys must be appointed by the court, hearings may drag on for months, continuances of the case are frequent, judicial decisions can be appealed and appellate proceedings involve the creation of reporter and clerk transcripts. Many appellate decisions are issued years after removal of the child. How can the legal system accommodate for the special needs of young children to have a process that provides timely permanency?

With the passage of the Adoption and Safe Families Act (ASFA) in 1997, the federal government added a third reasonable efforts mandate to join “reasonable efforts to prevent removal” and “reasonable efforts to effect the safe reunification of the child and family” (if temporary out-of-home placement is necessary to ensure the immediate safety of the child). Because many children were languishing in foster care and not receiving timely permanency, Congress instructed that the agency make reasonable efforts to make and finalize alternate permanency plans for each foster child in a timely fashion.

As with the original “reasonable efforts” mandates, the courts were instructed to make specific findings whether the agency provided reasonable efforts or failed to do so.

Important financial implications for the local children’s services agency follow the required reasonable efforts findings. If the court makes a “no reasonable efforts finding,” the agency receives no federal funding for the support of that child while in foster care. Local government must pay for any such services.

A dependency case is not over after parental rights have been terminated. The child must be placed in a permanent home and the case dismissed. Even when a child is placed in a pre-adoptive home, the social worker still must visit the home and the adoptive parents and the child. These visits can result in discomfort for that family and fear in the child that she will be removed from that home.

Only a few state judiciaries have addressed this issue. There are less than five published appellate decisions nationwide addressing timely permanency, though New York has several appellate decisions where the issue was addressed on appeal.

The California appellate courts have implemented an additional process to hasten timely permanency, and these courts have prioritized the resolution of dependency cases. Instead of waiting years for the appellate decision on a termination of parental rights case, they issue written opinions usually within 120 days. Moreover, they will hear extraordinary writs as well as appeals during the pendency of a dependency case. Thus, the parties will be able to raise and resolve issues before a termination of parental rights takes place.

This is important, since more than 95 percent of all dependency appellate cases are heard after a termination of parental rights, usually years after the child was removed from his or her home. California statutes include language that appeals from dependency proceedings “shall take precedence over all other cases in the court to which the appeal is taken.”

Informal discussions with California appellate justices by the author confirm that these justices recognize the importance of giving precedence to dependency appeals.

To meet the developmental needs of dependent children, we need to look to innovations that will reduce the time that judicial decisions are made, particularly appellate decisions. A simple statute such as the one noted above could reduce the time for permanency to be achieved.

Leonard Edwards is a retired judge from Santa Clara County, California. Read more of his work here.

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