Reaching Your Peak: Reasonable Efforts and Children’s Attorneys

Mountain Climber

Photo by Maria Ly is licensed under CC BY-SA 2.0


Children’s attorneys are not raising the reasonable efforts issue in court. In the research for my recently published book entitled Reasonable Efforts: A Judicial Response, I made a number of discoveries. First, most reasonable efforts issues are raised by parents after a termination of parental rights judgment. Second, parties rarely litigate the reasonable efforts early in the case. Third, children’s attorneys (GALs) almost never raise the reasonable efforts issue.

These are significant problems. Raising the reasonable efforts issue after the termination is too late. The case is usually several years old and the child has been out of the home for most if not all of that time. The child will suffer trauma no matter the outcome of the case. The reasonable efforts issue needs to be raised early in the case. For example, the federal and state requirement that “reasonable efforts to prevent removal” is rarely litigated. It should be.  Removing a child is a critical event – one that deserves much more than the brief court hearing that usually follows the physical removal. The Resource Guidelines recommend that the shelter care hearing take an hour of court time. Moreover, the 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)” should be addressed early and often. Dependency cases are emergencies and waiting around for months and years does not serve the child or family well.

The attorney/GAL for the child should be active in reasonable efforts litigation. This is not an issue between the parents and the agency as some children’s attorneys tell me. The child’s attorney should be demanding that reasonable efforts be expended to identify, find, and engage the father, for example. After all, he represents 1/2 of the child’s relatives. The child’s attorney should be insisting on frequent and meaningful visitation. The studies are clear that the child is better served if there is regular visitation, even if parental rights are ultimately terminated.

The child’s attorney sometimes seems to forget that the first goal in dependency proceedings is family reunification. To that end, good quality services delivered in a timely fashion will serve that goal and their client’s interests. For example, most children are traumatized by the removal and subsequent placement. The child usually needs therapeutic services. Obtaining quality therapy in a timely fashion is a reasonable efforts issue that the attorney for the child should pursue aggressively. Often parent-child therapy is helpful in the reunification process as the child’s behavior may be a barrier to reunification. Children’s attorneys should argue these and other issues in trial court and in the appellate courts.

Children’s attorneys should be active participants in fulfilling a principle goal of the federal and state dependency laws: holding the social services agency accountable for providing services to the child and family throughout the case. Appropriate and timely services to the parents will also serve the child’s best interests.

Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

Judge Leonard P. Edwards

Judge Leonard Edwards is a retired Superior Court Judge now working as a consultant and teacher. In his work, he provides technical assistance to the courts of California and courts across the country, particularly in areas involving children and families. Judge Edwards served for 26 years as a Superior Court Judge in Santa Clara County, California. He sat as a domestic relations judge and as a juvenile court judge. He also served for six years as Judge-in-Residence with the Center for Families, Children & the Courts, a division of the California Administrative Office of the Courts. During his judicial career, Judge Edwards founded and was the first president of the Juvenile Court Judges of California, founder of the Santa Clara County Domestic Violence Council, founder of Kids In Common, and founder of the Child Advocates of Santa Clara County. Judge Edwards was the President of the National Council of Juvenile and Family Court Judges in 2002-2003. He has taught at the University of Santa Clara Law School, Stanford Law School, and the California Judicial College. He has provided judicial trainings in over 48 states and 11 foreign countries, and has written widely including recent books entitled The Role of the Juvenile Court Judge: Practice and Ethics and Reasonable Efforts: A Judicial Response. Judge Edwards has received many awards, including the 2004 William H. Rehnquist Award for Judicial Excellence. Many of his articles and videos can be seen on his website:

  1. This is a very important topic. The Tennessee Supreme Court heard oral arguments in August regarding In Re Kaliyah S, on review from the Tenn. Court of Appeals, and the issue, essentially, is whether reasonable efforts are required for a ground to terminate parental rights when the statute does not explicitly state that, i.e. whether the State is required to prove that it has made reasonable efforts in all cases concerning any ground. No one disputes that the State must make reasonable efforts, but is the TPR hearing the proper time to litigate that issue when RE are not explicitly required by the statute? Look for this opinion to come out sometime in the next few months.

    I agree with Judge Edwards that parents’ counsel and Guardians Ad Litem are not raising this early enough, but that may just be my experience.

  2. Dan – Thanks for the update on In Re Kaliyah S. Like you, I think a TPR hearing is a bit late in the process to initiate litigation around RE. But if the issue was raised at adjudication and subsequent hearings, raising it again at TPR seems appropriate. Dependency law is constitutional law and the procedural safeguards in a child welfare action must ensure that the fundamental rights at stake are fairly considered.

    I also very much appreciate Judge Edwards’s insistence that children’s attorneys advocate for their clients by insisting not on what is available but on what the child needs. This kind of zealous advocacy was expected in my practice as a civil rights attorney and I was shocked when I transitioned to dependency law to discover so much acquiescence. Justice is served when children are represented by well-trained, well-resourced attorneys that advocate for their client’s articulated wishes.

  3. And here is the link to that decision by the Tennessee Supreme Court, just out yesterday:

    Presents a radical change in the law. The pendulum has swung toward “best interest of child” and away from “parental rights.”

  4. I argued the case for father. The decision does represent an radical change in the law. I told the State’s attorney after oral arguments that if he got what he was asking for then DCS ought to erect a statue of him in front of their Nashville headquarters because it would be the most impactful victory for the department in the past 15 years. I was only half joking. The State’s attorney, Alex Rieger, did a good job although I disagree with the result.

    So the judge mentions raising reasonable efforts early in the case (in Kaliyah the action against father started as a termination as the State had elected to “combine the adjudicatory and termination” actions). I have been thinking about what happens if at the first review AFTER an adjudication DCS can’t prove reasonable efforts? Noting the language in T.C.A. 37-1-166 “prior to ordering a child committed to or RETAINED within the custody of the department of children’s services the court SHALL FIRST determine whether reasonable efforts have been made…” I could argue that the child must be returned to parent (can’t be retained within the custody of the department) but I don’t know of any juvenile court judge that will order that especially if my client hasn’t fully remedied the conditions which led to removal. I also don’t know of any way to appeal a NON-final order. Interlocutory appeal? What if the ruling comes from a Magistrate?
    Also what about the notice requirement? T.C.A. 37-2-403 says that notice of the definition and potential consequences of abandonment must be given to the parents. The court in several cases (including In re B.L.C. authored by the chief justice) has held that the State must prove AT TERMINATION it’s compliance with this statute if the ground is abandonment. If the rationale of Kaliyah (State does not have to prove it at termination to the extent it is not found in T.C.A. 36-1-113) holds then the State does not have to prove at termination that it gave that notice because that notice requirement is not mentioned at all in T.C.A. 36-1-113 or in the definition of abandonment found at T.C.A. 36-1-102.

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