Court Role

Courts do not have the same extensive role to play in the lives of children and families that child welfare agencies do, and consequently are likely to have fewer outcome goals. Nevertheless, courts do play a critical role in determining whether children will be removed from their homes, how long they will remain in foster care, and where they will permanently reside. Today, more than ever before, courts are playing an essential role in ensuring the safety, permanency, and well-being of abused and neglected children

Court Performance Domains

Courts have a particular interest in safety and permanency. Safety outcomes are:
• Children are, first and foremost, protected from abuse and neglect.
• Children are safely maintained in their homes whenever possible and appropriate.
Permanency outcomes are:
• Children have permanency and stability in their living situations.
• The continuity of family relationships and connections is preserved for children.
Safety measures address the status of children while they are under the jurisdiction of the court and some time thereafter. The performance outcome promoted by these measures follows from the principle of “first do no harm.” No child should be subject to maltreatment while in placement and should be maintained in their homes whenever safety is not an issue.

Permanency is achieved when children are returned to their families, without further court supervision, when children are adopted, or when children are placed with individuals who are their permanent guardians. Courts are empowered to remove children from home if they are in danger of harm, but also have other alternatives, including removing the alleged perpetrator and placing the child with members of the extended family.

Due process measures address the extent to which individuals coming before the court are being provided basic protections. Due Process refers to the right of all parties to participate in court proceedings. Among other things, courts must ensure that family members have notice of the proceedings as well as a fair opportunity to present testimony and express their point of view. These rights apply at all stages of the court process.

The performance area addressed by these measures is the enhancement of due process by deciding cases impartially and thoroughly, based on evidence brought before the court. This performance area encompasses giving each family the individual attention necessary to make effective decisions for the child and assuring that each child receives due process, including effective legal representation. The ideal is that children in similar circumstances should achieve similar results regardless of the jurisdiction in which the case is heard.

Timeliness. Establishing and complying with state and federal guidelines for timely case processing are also important court process performance goals. Limiting the time required to bring litigation to a conclusion limits the exposure of families to emotionally-charged issues that can have a detrimental impact on children. Long periods of uncertainty and judicial indecision can put pressure on children and families, greatly adding to the strain of foster care. In addition, judicial timeliness is closely related to the goal of permanency. Children can be damaged by “foster care drift” – remaining too long in “temporary” foster homes. Clearly, the length of time required to resolve family issues needs to be limited and reasonable, given the potential harm from delays. Courts need guideposts to help them determine how well they are meeting the goals.

Well Being. Under ASFA, children’s well being refers to factors other than safety and permanency that relate to a child’s current and future welfare—most notably, the child’s educational achievement and mental and physical health. ASFA well being outcome goals are:
1. Families have enhanced capacity to provide for their children’s needs
2. Children receive appropriate services to meet their educational needs
3. Children receive adequate services to meet their physical and mental health needs.

The court’s role in ensuring the well being of children is more indirect. Although courts do not provide care for children directly, they do have a role in inquiring about the health, medical care, school attendance, and other indicators that children are being properly cared for. These indicators may provide cues of dysfunctional family relationships and cause the family to return to court repeatedly.

In the future, it may be helpful for courts to use child well-being measures in analyzing their own performance. To the extent that courts have the responsibility to make sure that the state is providing proper care to children in its custody, it will be useful for courts to know whether those children over whom they have jurisdiction are receiving a good education and are physically and emotionally healthy. If a local court learns, for example, that children in court supervised foster care are substantially behind educationally, the court may decide to ask more penetrating questions about children’s educational attainment. The court may decide to demand more documentation concerning the child’s education, may instruct guardian ad litem’s to check into children’s educational progress, and may even decide to join in meetings with school officials to discuss the educational needs of children in foster care and how best to address them

That being said, it is premature at this time to have courts adopt measures of well-being when consensus does not exist on measures for which courts have direct responsibility. Although it may be premature to address the court’s role in well being to the extent of that no key measures are being proposed here, we can discuss what form a well being measure may take. The Jackson County Court uses an instrument to examine the strength of families and it is contained in Well Being, Additional Measure 1 below.