As part of the Omnibus Budget Reconciliation Act of 1993, also known as the Family Preservation and Support Act, Congress set aside $35 million in entitlement grants to state courts over a four-year period. The funding was specifically to improve court handling of abuse, neglect, foster care and adoption cases. 42 U.S.C. 670 Note, Public Law 103-66, 13711(d)(2) and 13712. (See August 4, 1993 Congressional Record, pages H6012-H6013.) A federal Program Instruction on the grants to state courts was issued on June 27, 1994 (ACYF-PI-94-12).

Under these grants, each participating state court system: conducted a detailed assessment of how state courts are handling abuse, neglect, foster care and adoption litigation, developed a plan to improve the administration of justice in foster care and adoption cases, and is now implementing the plan.

Reforms in child welfare litigation are acutely needed because of the overwhelming pressures on the nation's juvenile courts, which include:

1. rapidly escalating judicial caseloads,
   
2. more difficult cases (e.g., substance abuse) and
   
3. growing complexity of the litigation itself.

Child abuse and neglect litigation has become more complex due to statutory changes over the past two decades that require many more hearings, mandate additional types of judicial decisions and involve more parties in each case. The grants are designed to help state courts focus on these pressures and then develop and implement a plan to address them. That is, the grants are intended to help state court systems carry out the spirit as well as the letter of recent reforms.

The court improvement grants are awarded to and administered by the highest state court of each state. The grants are entitlements, which means every state court system that files a valid application receives a grant. All 50 states, the District of Columbia and Puerto Rico currently participate in the court improvement grant program.

The total original funding for all grants was $35,000,000; $5,000,000 for the first year and $10,000,000 each for three more years. With passage of the Adoption and Safe Families Act (ASFA), Pub. L. No. 105-89, the court improvement grant program was extended an additional three years. The Act reauthorized an annual $10,000,000 set-aside through fiscal year 2001 (§ 305 of ASFA).

On January 17, 2002, the President signed into law the Promoting Safe and Stable Families Amendments of 2001, Pub. L. No. 107-133, authorizing extension of the Safe and Stable Families Program, Title IV-B, Part 2 of the Social Security Act. The law extends the $10 million per year set-aside for the court improvement program through federal fiscal year 2006. A separate appropriations bill signed into law earlier in January created an additional set-aside for court improvement of 3.3 percent of discretionary appropriations for the Safe and Stable Families Program. This added set-aside provides $2.31 million for court improvement in FY 2002 for a total of $12.31 million.

In the first years of the grant program, states assessed how well their courts were handling child abuse and neglect cases and then developed a plan for improvement. The remaining years of the grants are to implement the reforms identified in the plan. Most states are currently in this phase of the reform process.

State courts first assessed and then made recommendations to improve how they:

• fulfill federal requirements in foster care cases,
  
• make decisions whether to place children into foster care,
  
• decide whether to terminate parental rights, and
  
• authorize appropriate permanent placements, without undue delay, for children who cannot safely return home.

The federal foster care requirements include court oversight of agency "reasonable efforts" to prevent needless foster placement, court review of children in foster care, judicial permanency planning hearings, procedural safeguards for parents (e.g., when children are moved out of state), and court review of voluntary placements.

In many states, a lack of understanding has prevented state court systems from providing juvenile courts the resources, training and oversight needed to cope with the new demands placed on the juvenile courts and to allow timely, full and fair proceedings for children and their families. One of the reasons the federal grants are channeled to the highest state courts-those with responsibility for administering state court systems-is that the grants will not only assist courts to assess their performance and develop plans for improvement, but they will also contribute to long-term knowledge and commitment to this area of the law.

Initially the states identified state laws (statutes, court rules, appellate case law, rules of ethics, agency regulations, and agency policies) that are pertinent to court improvement. These include any state laws that implement the federal requirements described above. In addition, other state laws that control judges' decisions concerning children in foster care-decisions whether to place or continue children in foster care, whether to terminate parental rights, and whether to secure permanent placements for foster children-were included. With passage of ASFA, court improvement projects are also working to ensure the states comply with its requirements and the accompanying regulations issued in January 2000.

A key task of the assessment was to evaluate the procedural fairness with which these functions are being performed. Accordingly, the state laws that set out the procedures to be used when courts decide cases involving children in foster care were examined. These include state laws that ensure competent legal representation of all parties, guarantee parties the opportunity to present witnesses, and set deadlines for court decisions.

After carefully identifying the pertinent state laws, the assessments evaluated the performance of the courts in carrying out those laws and in conducting timely, fair and decisive hearings. For example, the assessments determined:

(a) how consistently state courts really adhere to federal and state requirements concerning foster children;

(b) the seriousness of delays in abuse and neglect trials, court reviews, and termination of parental rights proceedings;

(c) whether enough court time is made available to allow judges to implement federal requirements fully (e.g., time for the judge to carefully determine whether agencies have made reasonable efforts and time for the parties to make arguments and offer evidence concerning reasonable efforts);

(d) whether parties are introducing evidence and calling witnesses, when appropriate, concerning judicial determinations of reasonable efforts and during judicial foster care review hearings - and if not, why not;

(e) whether judges' caseloads are preventing them from fulfilling federal and state requirements in a timely, thorough, and fair manner; and

(f) whether parents and children are receiving adequate legal representation, and if not, why not.

The conference report accompanying the original federal law spells out some of the types of improvements the state court systems could include in their plans. The non-exclusive list of possible improvements includes such reforms as:

• implementing modern techniques of judicial time management in foster care cases ("judicial caseflow management");
  
• improving judicial staffing for foster care cases (judges and support staff);
  
• enhancing judicial data collection;
  
• reforming state laws, policies, and procedures for foster care proceedings;
  
• upgrading selection and training of juvenile court judges; and
  
• improving the manner of selection and training of advocates for parents and children.
  

Each year, the ABA conducts telephone surveys to find out how the states are progressing with their reform efforts. The results, published in a Court Improvement Progress Report, include both a national overview and a state-by-state progress description. The report describes implementation activities on the quality and depth of hearings, legal representation of parties, timeliness of decisions, use of technology, training and education, state legislation and court rules, relationships between courts and agencies, and other topics. Many courts are pursuing:

• diversion and mediation programs,
• training,
• pilot and model projects,
• judicial and government support,
• legislative reform,
• data collection and technology, and
• development of local plans of action and work groups.

Mark Hardin or Eva J. Klain
ABA Center on Children and the Law
740 15th Street, NW
Washington, DC 20005-1022
(202) 662-1755 (fax)
markhardin@staff.abanet.org or klaine@staff.abanet.org
(202) 662-1750 (Mark) or (202) 662-1681 (Eva)