When Child Protective Services (CPS) removes child(ren) and places them in a different setting (foster care, kinship care or institutionalization), CPS often tells the court that despite their ‘reasonable efforts’ to keep the family together, they were unable to keep the child(ren) safe in the home. Therefore, removal was necessary. This is the typical narrative when CPS files a motion in the family court for a custody order and it’s usually granted. Many parents question whether the efforts made by CPS in their case were reasonable at all, but what exactly does CPS mean by ‘reasonable efforts?’
Reasonable efforts is a legal standard- and a low standard at that. The reasonable efforts standard does not require CPS to make every reasonable effort to keep the family together (this applies to removal and reunification). CPS may not take deliberate steps to prevent the possibility of keeping the family together, but it is only obligated to make reasonable efforts up to the point of uncertainty about successfully keeping the family together (what constitutes uncertainty is neither consistent, nor clear). It also does not require CPS to go against its own interests. If CPS has done all of this, then they have legally met the standard and this bare minimum is why the courts so often side with the efforts of CPS as sufficient.
When most people question the reasonable efforts standard, it’s because they’re not clear on what constitutes reasonable. Even the courts occasionally struggle with this and when you’re prepared, it leaves room for at least some debate in court. It sounds fairly subjective if you don’t know the legal definition in the context of CPS. As people tend to prioritize family more than a contract between businesses and place higher value on what’s at stake, they tend to think efforts that are reasonable should reflect that in the context of a CPS case. While that may sound unreasonable, the reasonable efforts standard is not limited to CPS cases- it’s used in many other contexts and the definition doesn’t change based on what’s at stake.
Unlike the reasonable efforts standard, the best efforts standard imposes a higher level of requirements to meet the standard. CPS, however, does not use the best efforts standard in any respect. If CPS did use best efforts, they would be required to take any and all reasonable steps to keep the child(ren) safe without separating the family. Once again, however, CPS would not have to ignore its own interests in the pursuit of best efforts. The best efforts standard is often what parents assume is meant by reasonable efforts and this is one of many reasons why the courts siding with CPS can be such a shock.
There are situational exclusions in which the reasonable efforts standard does not apply. Since the introduction of the Adoption & Safe Families Act in 1997, the following situations do not require CPS to make reasonable efforts to preserve or reunify a family in all 50 states and Washington, D.C. (there may be additional state-specific exclusions where you live; please check with your child welfare consultant for the full list as it applies to your jurisdiction):
- CPS has determined a parent subjected the child(ren) to aggravated circumstances as defined by the State- such as abandonment, torture, chronic abuse or sexual abuse.
- The parent committed murder of another child or parent.
- The parent committed voluntary manslaughter of another child of the parent.
- The parent aided or abetted, attempted, conspired, or solicited for commission of a murder or other voluntary manslaughter.
- The parent committed felony assault that resulted in serious bodily injury to the child(ren) or another child of the parent.
- The parental rights of the parent to a sibling of the child were terminated involuntarily.
Additionally, the Indian Child Welfare Act (ICWA) has a provision that requires CPS to use the active efforts standard when a child has Native American heritage or tribal affiliation, which is used in place of the reasonable efforts standard in applicable cases. The Indian Child Welfare Act defines active efforts as the following: “Active efforts are affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family.” While active efforts are not best efforts, they are more than reasonable efforts.
At Heartwork Defense, this is why we so often emphasize the problems around how terms such as the minimum standard of care, are defined in the practice of child welfare. They are often subjective and open to interpretation. Legal definitions can also differ from assumptions made based on how the term sounds. It is the lack of understanding parents often have of what these terms mean and CPS’ better understanding of them that alleged subjects in CPS cases to inaccurately assess their risk and ultimately, end up in a much worse situation. In our experience, reasonable efforts is once of the least understood terms. Even the courts are not always consistent in their understanding of it and if CPS is making the better prepared argument, the courts are more likely to side with them- a decision with consequences, that at minimum can last months and at worst, can result in termination of parental rights.
The reasonable efforts standard means that CPS can try to develop a safety plan and make suggestions that may not be easy to implement on a dime and if those don’t work and they say a child is still unsafe at a level they believe warrants removal, they can do so while meeting the reasonable efforts standard. In that example, CPS has made some efforts toward keeping the family together and uncertainty of the child(ren)’s safety remains. However, when you know what reasonable efforts means, it’s easier to argue they didn’t meet it. That initial hearing can be the difference between the court remanding your child(ren) to the custody of CPS or returning your child(ren) to you. The more you know, the better you can preserve your rights and protect your family- even in the face of a CPS case.