Child Welfare: The Court Improvement Program
Released: 2006-04-06T00:00:00

Introduction

The Court Improvement Program (CIP) (Section 438 of the Social Security Act), first authorized in 1993 ( P.L. 103-66 ), provides grants to highest state courts intended to improve their handling of child welfare cases. As authorized for FY2006, these grants are for three purposes: to assess handling of child abuse and neglect cases and make needed improvements (FY2006 fundingâ$12.9 million); to train judges, legal personnel, and attorneys in handling of child welfare cases (FY2006 fundingâ$10 million); and to improve timeliness of decisions regarding safety, permanence, and well-being of children (FY2006 fundingâ$10 million).

The latter two grants were first authorized and funded by the Deficit Reduction Act of 2005 ( P.L. 109-171 ), which authorized and funded them through FY2010. Funding under the CIP grant for assessing and improving court handling of child welfare cases was first made available in FY1995, and is provided as a set-aside from appropriations made for services to children and families under Title IV-B, Subpart 2 of the Social Security Act (now called the Promoting Safe and Stable Families program); that funding is set to expire with FY2006.

The 109 th Congress may consider whether to extend funding for this initial CIP grant, whether to add to the relatively limited instructions provided in the Deficit Reduction Act regarding purposes of the two newest grants, and whether additional court-related measures intended to improve court performance on behalf of children in child abuse and neglect cases are needed.

Legislative History

As first enacted in 1993 ( P.L. 103-66 ), Court Improvement Program grants were made to permit state highest courts to

assess their "role, responsibilities, and effectiveness" in carrying out required court processes in federal and state child welfare law (including regarding determinations about foster care placement, termination of parental rights, and placement for adoption or another permanent living arrangement), and implement changes deemed necessary from that assessment.

Funding was provided (as a set-aside from Title IV-B, Subpart 2) at $5 million for FY1995 and $10 million for each of FY1996-FY1998. Eligible state highest courts with an approved application for a CIP grant were entitled to receive $75,000 (rising to $85,000 in FY1996 and each subsequent year), plus a share of the remaining CIP set-aside based on their state's relative share of the population under age 21.

The Adoption and Safe Families Act (ASFA, P.L. 105-89 ) continued the set-aside funding for the Court Improvement Program at $10 million annually through FY2001. The Promoting Safe and Stable Families Amendments of 2001 ( P.L. 107-133 ) extended CIP through FY2006, made clear that the funds could be used to implement improvements made necessary by ASFA, as well as any made necessary by a "corrective action plan" required of a state child welfare agency following a federal Child and Family Services Review (CFSR). Finally, that law authorized up to $16.6 million in annual set-aside funding from what is now called the Promoting Safe and Stable Families (PSSF) program. (This amount is the sum of the previous $10 million set-aside from the mandatory PSSF program funding plus 3.3% of any funds appropriated under the new $200 million annual PSSF discretionary funding authorization. Congress has never provided the full discretionary funding authorized for the PSSF, and the discretionary set-aside for the CIP has never been more than $3.3 million.) See Table 1 for program funding history.

The Deficit Reduction Act of 2005 ( P.L. 109-171 ) expanded the CIP and provided new, independently appropriated funds for the program. The law appropriates $20 million in each of FY2006-FY2010 (a total of $100 million over five years) for two new kinds of CIP grants:

to ensure that the safety, permanence, and well-being needs of children are met in a timely and complete manner, and to provide for the training of judges, attorneys and other legal personnel in child welfare cases.

These grants are in addition to the previously authorized CIP grant (currently authorized through FY2006 and funded via a set-aside from the Promoting Safe and Stable Families program).

Current Program Structure

In FY2006. state highest courts may apply for one or more of the three grants now authorized under the Court Improvement Program. Courts must submit a separate application for each grant and must meet certain requirements.

Applications

P.L. 109-171 provides that an application for any of the three grant programs must demonstrate "meaningful and ongoing collaboration" between the courts, the state child welfare agency (or any other agency under contract with the state child welfare agency to administer child welfare programs authorized under the Social Security Act), and Indian tribes (where applicable). In an application for funds related to the newly authorized grant for improving timely and complete actions on behalf of children, a state highest court must include a description of how it and the child welfare agencies (on the local and state levels) jointly plan for the collection and sharing of all relevant data and information. In an application for training funds under the CIP, a state highest court must demonstrate that at least part of the grant will be used for cross-training initiatives jointly planned and carried out with the state child welfare agency (or an agency underÂ contract with the state agency). Finally, as was previously required for receipt of CIP funds,Â in each of the grant applications, a state highest court would need to supply any additionalÂ information or assurances that the Department of Health and Human Services (HHS) might require.

Formula and Entitlement

P.L. 109-171 followed the formula established in prior law for the CIP grant: each state highest court with an approved application is entitled to receive a minimum grant of $85,000 and a portion of any of the remaining set-aside funds that is equal to its state's share of individuals under 21 years of age (compared to all states with an approved application for the grant). This same formula is applied to each of the new grant programs. Thus, if a state highest court successfully applies for all three grants, it will receive three minimum allotments of $85,000 (total of $255,000) and a share of the remaining funds for each grant program based on the size of its state's population under 21 years of age (relative to all states whose highest court has an approved application for each of the grants).

Program Funding

Table 1 shows total funds authorized and appropriated for the Court Improvement Program for FY1995 (first year of funding authority) through FY2006. Table 2 shows funds authorized and appropriated for the Court Improvement Program for FY2006-FY2010 (by the grant purpose). For FY1995 to FY2005 all of the funding authority and funds appropriated were for a single grantÂ purpose and were provided as a set-aside of funds out of the appropriation for the Promoting Safe an Stable Families program (Title IV-B, Subpart 2 of the Social Security Act). Unless Congress acts to extend funding authority for the PSSF and to continue the set-aside for the CIP, funding authority will expire with FY2006. However in the Deficit Reduction Act of 2005 ( P.L. 109-171 ), Congress separately and independently appropriated a total of $100 million ($20 million for each of fiscal years FY2006-FY2010) for two separate grant purposes under the Court Improvement Program.

Context for Recent Changes to the Court Improvement Program

In May 2004, after a little more than one year of study and deliberation, the Pew Commission on Children in Foster Care released its recommendations related to federal financing of child welfare services and improving court oversight of child welfare proceedings. The court-related suggestions made by the Commission were largely incorporated in legislation introduced earlier in the 109 th Congress: in the Senate ( S. 1679 by Senators DeWine and Rockefeller) and in the House ( H.R. 3758 by Representative Schiff) and many of the recommendations were incorporated in the Deficit Reduction Act.

The Commission noted that in order for states to ensure "children's rights to safety, permanence and well-being are met in a timely and complete manner" courts must be able to track children's progress, identify which children need attention and identify sources of delay in court proceedings. To address this issue they recommended states adopt performance measures for their activities on behalf of children, that judges and judicial leadership use performance data collected to ensure accountability and inform decisions about resource allocation and finally, that Congress appropriate $10 million in the first years (additional sums as necessary) to help states build the capacity to track and analyze their caseload.

Second, the Commission urged that child welfare agencies and courts be required to demonstrate effective collaboration on behalf of children. The commission recommended that HHS require collaboration as part of developing a variety of service and program improvement plans and in collecting and sharing relevant data between the child welfare agencies and courts. Further, it asked that Congress appropriate $10 million to train court personnel and that a portion of this funding should be designated for joint training of court personnel and child welfare agency staff, and others involved in protecting and caring for children. It also called on HHS to require states to establish broad-based state commissions on children in foster care that would be led by the state's child welfare agency director and the state chief justice.

Substantial parts of these first two sets of recommendations are included in the Deficit Reduction Act. For instance, while state highest courts are not required to develop performance measures, they may apply for their allotment of an annual $10 million fund (for each of FY2006-FY2010) intended to help improve their timely and complete decision making on behalf of children. State highest courts may also apply for funds (out of a separate $10 million grant for each of FY2006-FY2010) to improve training of court personnel. As noted earlier, to receive a CIP grant for any purpose, courts must be able to demonstrate "meaningful and ongoing collaboration" between themselves and child welfare agencies. In addition, to receive CIP funding to improve timely decision-making on behalf of children, courts must describe how they will collaborate with child welfare agencies to collect and share relevant data; finally, to receive training funds courts must assure that a part of the grant will be used to provide cross-training of court personnel and child welfare agency workers. Further, the Deficit Reduction Act also requires state child welfare agencies (as a condition of certain federal funding) to involve the courts in information gathering, program planning and program improvement efforts.

The Pew Commission proposed a third set of recommendations intended to ensure that children's best interests are represented and that the voices of children and their parents are heard in dependency court proceedings. These provisions are not included in the Deficit Reduction Act. They include an additional $5 million in federal funds to expand the Court Appointed Special Advocates (CASA) program; adoption of standards of practice, preparation, education, and compensation for attorneys practicing child dependency law; and funds for loan forgiveness or other demonstration programs intended to attract and retain dependency court attorneys. Finally the commission urged law schools, bar associations and law firms to help build the pool of qualified attorneys available to practice in dependency courts.

There are a number of proposals in Congress that would fund a student loan forgiveness programÂ for child welfare attorneys ( S. 1431 , Senator DeWine; S. 1679 , Senators DeWine and Rockefeller; and H.R. 3758 , Representative Schiff), but none of these have been acted on. In addition Congress recently reauthorized the CASA program ( P.L. 109-162 ) but did not raise the program funding authorization (nor its actual funding) above the $12 million annually authorized in prior law.

With regard to ensuring sound standards of practice and qualified attorneys acting on behalf of children in abuse and neglect courts, the National Association for Counsel of Children (using grant money provided by HHS, September 2002-September 2005) has developed a national certification for child welfare lawyers. The American Bar Association (ABA) has granted approval of this certification process and of the National Association for Counsel of Children as a certifying agency. A certification exam was piloted in 2005 and attorneys in a limited number of states may now apply for this certification. (National dissemination of the certification is also planned.) Finally, S. 1679 , as introduced in July 2005, would require states to "develop and encourage the implementation of practice standards for all attorneys representing the State or local agency administering the program under this part [Title IV-E of the Social Security Act], including standards regarding the interaction of such attorneys with other attorneys who practice before an abuse and neglect court."

The fourth and last set of recommendations are directed to chief justices and state court leadership and urge them to act as champions of children in their court systems and leaders ofÂ reform.

Legislative History of Court Role in Federal Child Welfare Policy

Court Improvement Program funds recognize the integral role courts must play if states are to achieve the federal goals of keeping children safe and finding them permanent homes. State lawsârelated to determinations of safety and the need to remove a child from the home (e.g. what is child abuse and neglect), termination of parental rights, and placement for adoptionâare key operating contexts for the state child welfare agency; state courts implement (or ratify agency decisions) based on these state laws. Federal child welfare policy both affects these state laws and assumes active involvement of the court with child welfare agencies in achieving the primary goals of safety, permanence and well-being for children. However, federal child welfare funding is to a very large extent directed toward state child welfare agencies and these agencies are held accountable for adhering to and achieving a range of court-related procedures and outcomes.

Courts have played an explicit role in federal child welfare policy at least since 1961, when the first federally authorized reimbursement of state foster care costs was conditioned, in part, on a court finding that remaining in the home would be "contrary to the welfare" of the child ( P.L. 97-31 ). The Adoption and Child Welfare Assistance Act of 1980 ( P.L. 96-272 ), which largely established the framework for current federal child welfare policies and programs, extended and expanded the significance of courts in federal child welfare policy. In addition to "contrary to the welfare" findings, federal foster care funding to state child welfare agencies was further conditioned on a court finding that "reasonable efforts" had been made both to preserve a child's family (in order to prevent removal), and, once a child had been removed, that reasonable efforts had been made to enable the child and his/her family to be reunited.

Further, to receive full foster care and child welfare funding, P.L. 96-272 required state child welfare agencies to establish a case review system for children in foster care that ensured each foster child a court hearing within 18 months of his/her entry into foster care and "periodically" thereafter. At each of these "dispositional" hearings, P.L. 96-272 stated that the court was to consider the "future status of the child (including, but not limited to, whether the child should be returned to the parent, should be continued in foster care for a specified period, should be placed for adoption, or should, (because of the child's special needs or circumstances) be continued in foster care on a permanent or long-term basis)."

In 1997 the Adoption and Safe Families Act (ASFA. P.L. 105-89 ) revised federal child welfare policy in ways that give special urgency to timeliness of court actions in child welfare proceedings and that also emphasize safety as a key determining factor in all of its decisions. ASFA changed the name of the "dispositional hearing" to a "permanency hearing," insisted that such a hearing must be held no later than 12 months after a child enters foster care (and every 12 months thereafter). At this hearing the court must determine the plan for the child's permanent placement (reunification, adoption, legal guardianship, placement with a "fit and willing" relative or, if none of these plans would be in the child's best interest, placement in "another planned permanent living arrangement").

In keeping with its emphasis on safety, ASFA amended the statute to provide that "reasonable efforts" to preserve or reunite a family are not needed in cases where a child is determined (under state law) to be an abandoned infant, been subjected to state-defined "aggravated circumstances" or where the child's parent has committed certain, specified egregious crimes (e.g., murder of another of the parent's children). At the same time, it required the child welfare agency to initiate court proceedings necessary to terminate the parental rights of any such abandoned infant or child whose parent had committed a specified egregious crime. Further state agencies were required to initiate the same termination of parental rights proceedings on behalf of any child who has been in foster care for the last 15 out of 22 months (unless specified situations are met, or a child welfare agency can document to a court why this would not be in a child's best interest). Like the earlier court-related requirements, all of the new ASFA requirements were also made as conditions of federal funding to child welfare agencies.

Other Court-related Child Welfare Funding

At various times and somewhat in sync with this legislative history, Congress has acted to authorize projects intended to improve court handling of child welfare cases. However, funding to support these projects has not always been appropriated and, even before the recent amendments and expanded program funding provided by the Deficit Reduction Act ( P.L. 109-171 ), the Court Improvement Program represented the largest single source of funding and program authority related to court performance in child welfare proceedings.

Victims of Child Abuse Act

Citing both an increase in abuse and neglect cases attributed to drug-related maltreatment of children and the new requirements placed on juvenile and family courts by the Adoption Assistance and Child Welfare Act of 1980 ( P.L. 96-272 ), the Victims of Child Abuse Act of 1990 (Title II, P.L. 101-647 ) required the Department of Justice's Office of Juvenile Justice and Delinquency Prevention (OJJDP) to "provide expanded technical assistance and training to judicial personnel and attorneys ... to improve the judicial system's handling of child abuse and neglect cases with specific emphasis on the role of the courts in addressing reasonable efforts that can safely avoid unnecessary and unnecessarily prolonged foster care placement." The statute authorized grants for these purposes to be made to 1) national organizations to develop model technical assistance and training programs; and 2) juvenile and family courts.

Congress has never appropriated separate funds under this authority for grants to state courts. However funding to develop model technical assistance and training programs has been provided to the National Council of Juvenile and Family Court Judges in every year beginning with FY1992. Over that time funding has risen gradually from $500,000 to just over $2 million. The National Council has primarily used this funding to develop its Model Courts Initiative, through which it provides training, technical assistance and other resources intended to permit courts to test new ways to continually improve their handling of child welfare cases. There are some 31 Model Courts (located in 23 states and the District of Columbia), currently a part of this initiative, and with this funding the National Council has developed publications, and provides technical assistance and training programs to improve handling of child abuse and neglect cases.

Strengthening Abuse and Neglect Courts Act

In 2000, the Strengthening Abuse and Neglect Courts Act (SANCA, P.L. 106-314 ) cited the increased demands on courts expected to flow from ASFA when it authorized several grant programs intended to improve the efficiency with which courts handled child abuse and neglect related cases. These includedâ

a $10 million authorization for FY2001 and FY2002 for grants to state and local courts to reduce backlogs in handling of child abuse and neglect related cases (to be administered by the Department of Justice in consultation with HHS); and $10 million for FY2001 through FY2005 for grants to state and local courts to develop, implement or enhance computer data collection and case-tracking systems (to be administered by the Department of Justice).

Congress made one appropriation of funds ($2 million in FY2002) to support the purposes of SANCA. (Funding authority for SANCA has since expired.) Although the appropriation did not specify which grant program was to be funded, the Department of Justice, Office of Juvenile Justice and Delinquency Prevention awarded grants to local or state courts in six states (Colorado, Georgia, Idaho, Florida, New Jersey and Virginia) to develop, improve or enhance their automated case tracking grant program.