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Effective: 5/5/2020

11.8 Judicial Determination of Reasonable Efforts and Aggravated Circumstances

Legal Authority

Introduction

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From the moment of the initial contact with the family, the SSW and the department are obligated under federal and state law to make reasonable efforts to keep families intact whenever possible, and in removal situations, to make reasonable efforts to reunify children with their families.  Only the court has the legal authority to determine if reasonable efforts have been made or are perhaps not required based on the case specific situation.

During removal situations, the worker demonstrates to the court’s satisfaction that either services were provided to prevent removal, or that the lack of services was necessary for the immediate safety of the child.  In open out-of-home care (OOHC) cases, the worker demonstrates that the agency has and is making reasonable efforts to reunify the family or finalize another permanent placement for the child. Federal law also recognizes specific situations in which a waiver of reasonable efforts may be sought from the court, infants considered abandoned under state law or children entering or living in foster care where aggravated circumstances exist in the case of origin.  To obtain a waiver of reasonable efforts, the worker is responsible for demonstrating to the court’s satisfaction that a legitimate exemption exists and request a waiver of reasonable efforts from the court. 

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Practice Guidance

  • Only a judge may grant an exception to reasonable efforts being made with a family if the court determines that one of the conditions exist as outlined in this SOP.
  • Practice related to aggravated circumstances is guided by KRS 600.020 and KRS 610.127:
    • The parent has not attempted or has not had contact with the child for a period of not less than ninety (90) days;
    • The parent is incarcerated and will be unavailable to care for the child for a period of at least one (1) year from the date of the child's entry into foster care and there is no appropriate relative placement available during this period of time;
    • The parent has sexually abused the child and has refused available treatment;
    • The parent has sexually abused the child or is required to register on a sex offender registry under 42 USC sec. 16913, of the Adam Walsh Child Protection and Safety Act of 2006;
    • The parent has a criminal conviction of having caused or contributed to the death of another child of the parent;
    • The parent has committed a felony assault resulting in serious bodily injury to the child or another child of the parent;
    • The parent has had their parental rights to another child involuntarily terminated;
    • The parent has been found by the cabinet to have engaged in abuse of the child that required removal from the parent's home two (2) or more times in the past two (2) years;
    • The parent has engaged in a pattern of conduct/behavior, for a period of not less than ninety (90) days, due to alcohol or other drug abuse that has rendered the parent incapable of meeting the child’s needs and has refused or failed to complete available treatment;
    • The parent has caused the child serious physical injury;
    • The parent is not able to protect the child from substantial risk of physical or emotional injury even with services, for twelve (12) months, due to mental illness, intellectual disability or other developmental disability; and
    • Other circumstances that may exist that are inconsistent with the best interest of the child and with the permanency plan for the child.


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Procedure

At the time of removal, the SSW:

  1. Completes a DSS-1266 Affidavit of Reasonable Efforts, and files it with the court clerk’s office the next working day to show that all reasonable efforts have been made to prevent the removal of a child from their home;
  2. Forwards a copy of the DSS-1266 to the child benefits worker (CBW) within ten (10) working days of removal to apply for title IV-E benefits, which is required to meet requirements of P.L. 96-272, title IV-E eligibility;
  3. Completes the Waiver of Reasonable Efforts Checklist and consults with FSOS at the following points in the case:
    1. Ten (10) day conference/first family team meeting/initial case plan;
    2. Periodic review case plan at six (6) months;
    3. Nine (9) months after removal (during pre-perm with regional attorney); and
  4. Consults with the regional attorney about the appropriateness of requesting a waiver of reasonable efforts through the court, if any of the criteria in the checklist are selected/apply to the case. 1  
At any point in the protection case, the SSW:

  1. May request a waiver of reasonable efforts from the court if the child is subject to aggravated circumstances, or if the child has been found to be an abandoned infant under state law.
 
At the annual permanency hearing, the SSW:

  1. Obtains judicial orders pertaining to reasonable efforts and forwards a copy to the CBW.
 
For all judicial orders pertaining to reasonable efforts or waiver of efforts, the SSW:

  1. Forwards a copy of the court’s orders on the AOC forms to the CBW within ten (10) days of issuance;
  2. Maintains a copy of all judicial determinations and orders in the hard copy; and
  3. Documents the outcome of court hearings in the appropriate TWIST screens.



Contingencies and Clarification

​​The SSW:

  1.  After a waiver or reasonable efforts is received:
    1. Completes a pre-permanency meeting with the regional attorney within thirty (30) days;
    2. Schedules a new case plan conference and a written notice is provided to the parents; 2
    3. Shifts focus of the case plan to transitioning the child to adoption;
    4. Develops case planning tasks with the parents which include continuing to work with service providers to reduce high-risk behaviors in the event the parents' appeal is in their favor or TPR is granted;
    5. Assesses the level of service provision on a case by case basis based on safety considerations and circumstances of the family; 3
    6. Prepares the child for adoption. 4
  2. May continue to send written notice to the parents to demonstrate the provision of reasonable efforts to locate a parent's address if previously unknown;
  3. Enters a new case plan with a goal of adoption in TWIST and begins work on the DSS-161 packet so the regional attorney may proceed with filing the termination of parental rights petition, once a waiver of reasonable efforts is ordered.

Footnotes

  1. ​​SSWs can request a waiver of reasonable efforts based on the checklist criteria at any point in the case; however, they should complete the checklist at each of the four (4) points listed in this section.
  2. Case planning tasks are developed with the parents and child.
  3. The parents may still have case plan tasks related to supporting the child, preparing the child for adoption, and continuing to work independently on their high-risk behaviors.


Documents

Revisions