The last two constructs that help define a high-quality hearing are competent legal representation and appropriate and detailed judicial findings on the record.

Competent Legal Representation

“Each party must be competently and diligently represented in order for juvenile and family courts to function effectively” (ERGs, page 42).

Critical decisions must be made at each court hearing and attorneys have the ability to ensure that appropriate information is presented to the judge. Attorneys can also play a key role in helping parents to navigate the complexities of the child welfare court process, by helping them to understand the process, what occurs at hearings, and what the decisions on the case mean for them. Attorneys can be an important component of meaningfully engaging parents in the process. High-quality attorney practice can be defined in many ways.

The American Bar Association offers guidance in the way of Standards of Practice for attorneys, specific to child abuse and neglect cases. These include:

• Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases
• Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases
• Standards of Practice for Lawyers Representing Child Welfare Agencies

In a court hearing, competent legal representation may be identified by the attorney’s actions within the hearing. These could include a combination of:

• Being present at the hearings
• Conferring with the client during and after the hearing
• Ensuring that the party they are representing has an opportunity to be heard
• Contributing to the discussion by raising important topics that have not been discussed (e.g., visitation, placement, relative resources)
• Advocating in court for their client (e.g., for visitation, placement, and services)

Research has shown that attorney adherence to practice standards was related to timelier permanency on a case.¹⁰

Appropriate and Detailed Judicial Findings on the Record

At every hearing, the judge must make a series of important decisions and required findings on the record related to the case.

The judge must make critical decisions about the child and family at each child welfare court hearing. These decisions vary depending on the focus of the hearing. Here are some of the required federal laws that judges must consider in their decision-making for child welfare cases.

For each case, the courts must determine whether the Indian Child Welfare Act (ICWA) applies (25 U.S.C. § 1912(e)).

Federal law requires that the court make a finding regarding the legal threshold for removal. Specifically, the court must determine that there is probable cause that continued residence in the home is contrary to the welfare of the child (45 C.F.R § 1356.21(b)(1)).

If a child is removed from the home, the court has to make a determination of whether the agency made reasonable efforts to prevent the unnecessary removal of the child from the home (45 C.F.R. § 1356.21(b)(1)). This finding has to be made within 60 days of removal from the home.

If a child is removed from the home, the court must determine, within 12 months of the child entering foster care, whether the agency has made reasonable efforts to finalize permanent placement of the child (45 C.F.R. § 1356.21(b)(2).

In addition to federal requirements, the courts must also comply with state laws, making findings statutorily required in a given state. Courts also must make orders for the parties in the case. This could include ordering a specific placement for the child, visitation for the child, services for the parents, or for the agency to engage in specific tasks to help accomplish permanency for the child.

Findings are only required to made somewhere on the record (either paper record of the process or verbally at the hearings). Providing detail in the findings, however, is another engagement strategy, as it helps the families to better understand why this decision was made, or the basis of the finding.

Best practices recommend making the finding both verbally on the record and on a paper order that is provided to all parties at the conclusion of the hearing. This allows all parties (parents and representation) to know what the judge has ordered for next steps and what findings have been made. This is essential so that parties are able to question or dispute findings.

Research on judicial findings and orders in child welfare cases is limited. One study found a relationship between jurisdictions who were more likely to make a verbal reasonable efforts finding at the permanency hearing and the likelihood of children aging out of care. Jurisdictions that made the finding verbally on the record had lower rates of youth aging out.¹¹