Federal law requires states to undertake some action to prevent the removal of a child and if already removed then action to reunify the family. This standard is referred to as “Reasonable Efforts.”
Unfortunately, in the State of Texas, reasonable efforts is usually a mere statement in the removal paperwork presented to the judge, ie “Reasonable efforts have been made to prevent the removal of this child” with no further explanation provided by CPS. There is no requirement for a judge to ask CPS to state the exact reasonable efforts that were undertaken to prevent the removal. There is no requirement for the state to backup what they have stated in an official court document, although Texas has repeatedly been sanctioned by the federal government CFSR (Child Family Service Reviews) for not proving that reasonable efforts were made. There is no requirement for an attorney ad litem representing the legal interests of a child to explore whether their client’s family was provided any reasonable efforts. There is no requirement for a CASA advocate representing the best interests of a child to affirm whether they child’s family received or is receiving services that constitute reasonable efforts that would be in the best interest of the child.
A better way already exists under the Indian Child Welfare Act (ICWA). Parents identified with Native American heritage are afforded a higher standard of help and intervention at every step of a child welfare case. The Institute believes the same high standard should be required for ALL parents. One of the key differences between what non-Native and Native parents are offered to fulfill reasonable efforts is called “active efforts.” For instance, under regular non-ICWA cases, reasonable efforts provided for a parent might be a list of places they can go for parenting classes, but under “active efforts” of the ICWA standard, the caseworker is required to find the right class at a time that works for the family and even sets up the appointment or registers the parent for the class and might even arrange for transportation if the parents needs it. This is a much higher standard of help that ALL parents deserve, especially when their parental rights are threatened and the sanctity of the family is in jeopardy.
Another key difference is the standard of evidence used under ICWA. Instead of clear and convincing as the bar for terminating parental rights, ICWA requires the beyond a reasonable doubt standard to demonstrate the proof necessary for a family to be destroyed.
This ensures that a high standard is met to prevent an unnecessary removal of a child from their home. It also ensures that CPS does their due diligence in providing services safely IN the home to alleviate the need for unnecessary trauma that results in any removal of a child from their home (see Evidence policy). The Institute believes that ICWA parity for ALL parents is the best policy change to stop the child welfare system from harming the children it seeks protect.