Bench and Bar Toolkit

Why Was the Toolkit Developed?

This Toolkit was developed to provide timely and useful information and resources for best practice implementation. The bench and bar represent key stakeholders who have an important role in ensuring the child welfare system prioritizes the preservation and permanency of connections to family, community and tribes.

The toolkit supports the ongoing efforts of family finding for counties opting into the Excellence in Family Finding, Engagement, and Support (EFFES) Program.

Bench and Bar are key partners in all areas of child welfare practice, and this site contains essential materials to assist with the establishment and maintenance of a kin-first culture as well as fidelity to existing laws and practices, including the Indian Child Welfare Act (ICWA), where kin-first culture has been the gold standard and practice since its passage.

A kin-first approach refers to:

• child welfare and juvenile justice policies and practices that prioritizes contacts and placement with relatives or close friends.
• identifying and engaging kin in a way that creates a culture that truly values kin families.
• understanding that “every child needs a family.”

Children and youth placed with their own relatives and extended family members have greater placement stability, fewer emotional and behavioral problems and more connections to their biological families and social-cultural communities.

Who Is the Audience?

County leadership including Child Welfare and Juvenile Justice Directors, Judges, and Attorneys who want to implement and support a kin-first culture including aligning resources, tools, and practices that reflect the value of kin families.

How to Use This Toolkit

Information and resources in this toolkit may be utilized by child welfare and juvenile justice leadership to train their bench and bar stakeholders to support courtroom practices that prioritize a kin-first approach and improve permanency outcomes for children and youth in care.

Legislation has reflected best practice and has codified key activities which prioritize kinship best practices. Child welfare jurisdictions are bound by law to prioritize relatives and give them preferential consideration for placement when a child is separated from their parents. The Bench and Bar can both promote the law and best practices, and hold child welfare accountable for their practices. Below are key laws to keep in mind.

Juvenile Justice and Juvenile Dependency Detention Hearings

• If a child is taken into temporary custody, the social worker or probation officer must immediately release the child to the custody of a parent, guardian, or relative unless the circumstances in Welfare and Institutions Code sections 309(a) or 628(a) apply.
• If the child cannot be returned home, the court must determine if the child can be placed with a relative or nonrelative extended family member (NREFM). § 319(h)(1)(A). Certain relatives are to be given preferential consideration for placement. § 319(h)(2).
• Within 30 days of a child being taken into temporary custody, the social worker or probation officer must exercise due diligence to identify and locate relatives or NREFMs and provide notice that the child has been removed to all adult relatives. §§ 309, 628; rule 5.637.
• Due diligence requires the social worker or probation officer to: (A) Ask the child, in an age-appropriate manner and consistent with the child's best interests, about the identity and location of kin; (B)  Use a computer-based search engine and internet-based search tools to locate kin identified as support for the child and their family; and (C) Contact the Indian child's tribe to identify kin, if it is known or there is reason to know the child is an Indian child as defined by section 224.1. §§ 309, 628; rule 5.637.
• Emergency Placement: If a relative or NREFM requests temporary placement, the social worker or probation officer must initiate an emergency placement assessment pursuant to WIC section 361.4 or 727.05. The child may be placed on an emergency basis upon completion of an assessment pursuant to section 361.4 or 727.05. which includes review of California Law Enforcement Telecommunications System (CLETS), Child Abuse Central Index (CACI), and a home walk-through. §§ 309(d) and 361.4(a). The social worker or probation officer must ensure a fingerprint clearance check is done within 10 calendar days of the CLETS or 5-business days of making an emergency placement, whichever is sooner. § 361.4(c); 727.05.
  • See criminal history exclusions and exemptions - § 361.4.
  • Emergency placements can be made 

Dependency only:

• At the detention hearing, the social worker has a duty to assess relatives (under section § 361.4,) and indicate whether the relatives are able and willing to take temporary custody of the child (section 309). Further, the court must order the parents to disclose to the social worker the names, residences, and any identifying information of relatives. § 319(h)(3).
• Emergency Placement: If a relative or NREFM requests temporary placement, the social worker must initiate an emergency placement pursuant to WIC section 361.4. The child may be placed on an emergency basis upon completion of an assessment pursuant to section § 361.4, which includes review of California Law Enforcement Telecommunications System (CLETS), Child Abuse Central Index (CACI), and a home walk-through. §§ 309(d) and 361.4(a). The social worker must ensure a fingerprint clearance check is done within 10 calendar days of the CLETS or 5-business days of making an emergency placement, whichever is sooner. § 361.4(c).
  • See criminal history exclusions and exemptions - § 361.4.
• The Juvenile Court can also authorize the placement of a child in the home of their kin regardless of criminal history, resource family approval, or other barriers if the court finds that placement of the child with that kin does not pose a risk to the health and safety of the child. § 319(h)(3); §727.05.

Juvenile Justice and Juvenile Dependency Dispositional Hearing

• From detention to disposition, the social services agency and probation department must continue to exercise due diligence by utilizing several search techniques--including internet searches--to identify, locate, and notice relatives and continue the preferential consideration for placement with relatives. §§ 309 and 628. When determining if the social worker or probation officer has exercised due diligence, the Court may consider efforts as outlined in rules 5.695(e), 5.637(d), and 5.790(f). 
• At the dispositional hearing, the court must make a finding regarding whether the agency has exercised due diligence to identify and locate relatives. If the Court finds that the agency has not exercised due diligence, the court may order the agency to conduct an investigation to identify, locate, and notify the child’s relatives. The court must make this due diligence finding at several points in the case. Rule 5.695(e).
• The social worker or probation officer has a continued obligation to assess all relatives or NREFM’s suitability for emergency placement § 309, 628.
• The agency must also initiate an assessment under section § 361.3 of any relative to be considered for continuing placement. § 319(h)(3).
• Each relative whose name has been submitted to the agency must be evaluated. (FAM § 7950(a)(1), WIC §§ 319(h) 361.3(d), In re Isabelle G (2016) 246 Cal.App.4th 708, Rule 5.740 (b)(3) (B), 5.695(e), ACL 17-65).
• The dispositional hearing report must address the appropriateness of any relative. §§§ 358.1, 361.3, 727. The report should identify the efforts utilized by the agency to locate and involve family. §§ 309, 628; rule 5.637.

Placement Changes

• After the dispositional hearing, whenever a new placement of the child must be made, consideration for placement shall again be given to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements. Social worker must use same requirements as provided under 361.3 and the county social worker shall consider whether the relative has established and maintained a relationship with the child. § 361.3 (d).
• Whenever a new placement of the child/youth needed to be made, consideration for placement was again given to relatives who have not been found to be unsuitable and who will fulfill the child/youth’s reunification or permanent plan requirements. § 361.3(d).
• Probation officers and agencies need to understand that once a Court takes jurisdiction over a minor, the Court has the power to make out of home placement orders. When this happens, in essence, the child becomes eligible for foster care reimbursement funding, just like a child taken into foster care. The enabling statutes and rules that describe this can be found under WIC 726, 727(a)(3); and rule 5.790(h)(2). To become eligible for this funding, probation departments, who bear the cost of care, must understand current eligibility and invoicing requirements.   

Reunification Review Hearings (366.21(e),(f), 366.22) and Post-Permanency Hearings

• Case law in dependency proceedings and state policy through All County Letters indicate that the relative placement preference and duty to assess relatives is required by the agency. In re Isabelle G (2016) 246 Cal.App.4th 708; ACL 17-65.
• During the reunification period, placement with a relative or NREFM can be made as an emergency placement or based on a compelling reason. § 361.3(f); All County Letter No. 08-43.
• At any permanency hearing in which the court terminates reunification services, or at any post-permanency hearing for a child not placed for adoption, the court shall find that the agency or entity to which this subdivision applies has made diligent efforts to locate an appropriate relative and that each relative whose name has been submitted to the agency or entity as a possible caretaker, either by the relative or by other persons, has been evaluated as an appropriate placement resource. Family Code Section 7950(a)(1); §§ 309, 628; rule 5.637.

Special Considerations for Previously Adopted Children

• When a child returns to the foster care system after an adoption, the child welfare agency may search for a biological “relative” of the child and provide that relative with identifying information about the child, if it is believed that the child’s welfare would be promoted by furnishing this information. § 361.3(f); All County Letter No. 08-43.
• A "Relative" includes a member of the child's birth family and NREFMs, regardless of whether the parental rights were terminated, provided that both of the following are true: 
  • No appropriate potential caregiver is known to exist from the child's adoptive family, including NREFMs of the adoptive family.
  • The child was not the subject of a voluntary relinquishment by the birth parents pursuant to Family Code section 8700 and Health and Safety Code section 1255.7.
• "Kin" means any relative as defined in rule 502(34), and any nonrelative extended family member of the child or the child's relatives. Rule 5.637(a)(2).

ICWA

As mentioned before, ICWA serves as the Gold Standard for child welfare practice. Below are key resources regarding ICWA Laws, Regulations and Rules:

• The United States Code, Federal Register, State Statutes, and ICWA-Related California Rules of Court through the California Courts website
• The California ICWA Desk Reference Guide, which serves as a framework and quick reference resource for the practitioner.

How to Create a Kin-first Culture in the Courtroom

• In the article, Creating a Kin-first Culture, Jennifer Miller, American Bar Association, outlines the seven steps to creating a kin-first courtroom culture.
• Three Bench Cards have been developed to promote child welfare best practice in the Courtroom. 
  • The National Institute for Permanent Family Connectedness at Seneca and the California Judicial Council created both a Kin-first Detention Hearing Bench Card and a Disposition Hearing Bench Card as tools to facilitate the prioritization of placement with kin.
  • The California Judicial Council created these three Permanency Bench Cards and their accompanying appendices were developed to assist judicial officers when making permanency decisions to focus on the findings and orders to be made at each hearing and what evidence/information is needed in orders to make those orders.
  • This bench card offers inquiries judges can make to ensure they have all relevant and necessary information to guide decision-making when an institutional care placement is proposed. Institutional Placement Decisions in the Dependency System A Bench Card for Judges and Legal Partners

Why Kin-first? Supporting Research

• In this memo, Benefits of Kinship Placement the American Bar Association details the research which supports kinship placement preferences and provides resources and talking points which can be used in motions, petitions and memorandums, for example, motions for custody, petitions for a kinship resource, permanency plans, appellate briefs.

The Center for Excellence in Family Finding

• All County Letter 23-12: Excellence In Family Finding, Engagement, And Support Program And The Center For Excellence In Family Finding, Engagement, And Support (Document already in hyperlink)
  • ACL 23-12 summarizes the creation and goals of the Center for Excellence in Family Finding
• Center for Excellence in Family Finding, Engagement and Support (Link already in hyperlink)

Child welfare, juvenile justice, and judicial leaderships play a principal role in advancing a kin-first approach in daily practice and as stakeholders, have a profound impact in improving practice outcomes. As child welfare agencies refine their practice to engage in upfront family finding, judicial leadership must also hold the agency accountable in prioritizing kin-first placements and ensuring that children and youth maintain family connections.

Child Welfare and Juvenile Justice Leadership Responsibilities

Our commitment for kin-first culture and relative placement preference:

• Recognize and prioritize that the Court is required to consider adult relatives or non-relative caregivers when determining placement.
• Child Welfare and Juvenile Justice Directors and Managers will hold all levels of staff accountable for playing their part in kin-first culture.
• Lead with kin-first philosophy and mindset that every child has a family and they can be found if we try.
• Develop and implement policy and protocols that reflect equity for kin placement.
• When kin cannot be an initial placement option, they are engaged or continually supported to have contact and remain involved with the youth.
• Recognize unique circumstances of each family and provide that information to the Court.
• Diligently search for and engage family beginning at the Hotline response and continuing throughout the court proceedings.
• Meet the statutory requirements to provide court with documentation necessary at or before disposition.
• Provide kin information to the court.
• Build a network of support for youth and kin placement.
• Implement emergency placement protocols so kin can be the first placement.
• Eliminate barriers to emergency placement approvals.
• Support kin placement providers with training, resources, financial and strong community support.
• Identify kin at every step of the court process.
• Work collaboratively with court system partners as well as key agency partners to shift practice to kin-first.

Court and Justice Partners Leadership

Leaders, including judges and attorneys can:

• Promote the belief that children belong with and deserve family.
• Send a message that placement with kin should always be first priority.
• Demand that everyone is held accountable for living out the kin-first philosophy.
• Judge must be prepared to hold the agency accountable for identifying and noticing the engagement of kin.
• Judge can require the agency to use due diligence to identify and engage kin (early and often) as required by Federal/State law and by employing reasonable efforts to prevent removal and facilitate reunification tools, the court can ensure agency compliance.
• Work collaboratively to shift practice change.
• Judicial inquiry during hearings may influence where a child is temporarily placed during the case and the type of permanent home a child receives at the end of the case.
• When judges ask questions, more topics may be discussed during the hearing.
• Judicial inquiry is important because greater breadth of discussion could reduce the time children spend in temporary care and increase the likelihood that a child will reunify with their parents.

The Bench and Bar need to ensure that:

• The Courtroom welcomes family members, invites their perspectives and ensures they understand the court process and decisions made.
• Children, youth, and families are invited, engaged and heard in the courtroom as it is critical to successful outcomes in the case.
  • Judges can engage parents, children, youth and ensure their rights are protected, especially at the first hearing, then continue to inquire on progress of engaging kin at each subsequent hearing.
  • High quality discussion when judges ask:
    • Direct questions
    • Follow-up questions
    • About different topics
    • Expand discussion on topics
    • Relevant questions
  • Judge asking the child/youth’s wish
  • When judges seek parent input during hearings:
    • Child may be more likely to be placed temporarily with family and achieve permanency faster.
    • Parents more likely to keep attending hearings.
    • Topics discussed increased when parents attend hearing.
  • Relevant evidence is received to make findings and orders – specify what is needed and how to relay information (oral, reports, additional)
  • Oversight of agency (see list of questions the court can ask – Role of the Court in Building Kin-first Culture in the Courtroom)
  • Relative information sheet

Training

UC Davis, Resource Center for Family-Focused Practice offers workforce development, including on the topic of Complex Care. To watch recorded webinars, enroll for future webinars, or for more information on working with youth with complex care trauma and needs please see the UC Davis RCFFP Complex Care Webinars

Tools and Resources

• American Bar Association - Benefits of Kinship Placement
• All County Letter 23-12: Excellence In Family Finding, Engagement, And Support Program And The Center For Excellence In Family Finding, Engagement, And Support
• Bench and Bar Kin-first Resource Summary
• Center for Excellence in Family Finding, Engagement and Support
• Child Welfare Hearing Quality Research: What Legal Professionals Should Know
• Conceptual Model of Judicial Decision – Making and Hearing Quality in Child Welfare
• Creating a Kin First Culture by Jennifer Miller
• Detention Hearing - Placement Priorities Kin-first Approach
• Due Diligence Resources (Courtesy: Seneca Family of Agencies)
  • Due Diligence Webinar
  • Article: Demystifying Due Diligence
  • Supplemental Handout: Suggested Opportunities and Questions to Gather Additional Information to Build the Network of Support
• How Court Practices and Resources Relate to Judicial Decision-Making and Hearing Quality in Child Welfare Cases
• Information Sheet 19 – Requirements Regarding Relatives (update coming soon!)
• UC Davis RCFFP Complex Care Webinars

This section will be updated as new ACLs, information, and resources on kin-first approaches become available for the Bench and Bar Toolkit.