Library: Family Preservation

Facilitated Decision-Making
and Outcome-Based Advocacy in Child Protection Cases

Given the national focus on timely movement of children from foster care to permanent homes, practitioners in the child welfare field must gain new knowledge and skills to help achieve this goal within the current limits of budget and resources. With the passage of P.L. 105-89 in 1998, which requires entry of a permanent plan within twelve months of a child's placement in foster care, the professionals and the families in these cases have been given a daunting task. Without timely access to the courts for judicial decision-making, and usually without the assistance of trained mediators, timely decisions must be made by the social workers, attorneys, child advocates and parents of the abused or neglected child. Failure to reach a decision will inevitably result in delays in achievement of a safe and permanent home for the child.

As has been learned in the divorce arena, the use of formal mediation can greatly assist in the resolution of family disputes short of a trial. This third-party neutral, the mediator, joins a group which is in conflict to assist in problem resolution. Mediation in child protection cases is gradually gaining acceptance among the judiciary, as well as the social work and legal community. Unfortunately, the use of professional mediators in child protection cases is still extremely limited. Additional funds need to be generated to pay for mediation services. To be useful to the process, the mediator needs knowledge of federal and local laws controlling the child protection case. Some jurisdictions are reluctant to use 'outsiders' in these confidential proceedings, and many parents are intolerant of yet one more professional meddling in their lives. The issue of power imbalance among the mediation participants is irresolvable in child protection cases. The governmental entity which possesses custody of the child will inherently exert greater authority than the parent participating in mediation. Intra-family violence, which sadly is at the core of every child protection proceeding, is an area in which many mediators refuse to tread. Despite these challenges, universal access to skilled and highly-trained professional mediators should continue to be the goal for every child protection case.

Until such a comprehensive service is available, the current participants in child protection proceedings can borrow and refine many mediation skills to facilitate decision-making in their cases. Implementing this decision-making process does not involve the use of the mediator, rather an interested-party in the case can take on the role of a facilitator of communication and decision-making. While similar skills may be used, it is important to note that this process is NOT mediation, nor can a participant in a dispute fulfill the role of a third-party neutral mediator.

The role of facilitator is easily performed by the child's advocate, such as a guardian ad litem or a Court Appointed Special Advocate, the child's foster parent or the child's counselor. The child protection social worker, or his/her attorney, may also find this role an easy fit. It becomes more challenging for the parent's attorney to take the lead role in this process given the ethical responsibility to zealously represent the client's position. Even so, as has been learned in the practice of domestic relations law, the attorney can utilize many of these skills and still effectively represent the parent.

The participant facilitator's role is to evaluate, engage and energize the parties in this decision-making process. S/he may be the person to organize the meeting, handle logistics and set the initial agenda. In the evaluative role, the facilitator will, for example, identify the parties motivations to reach, or not reach, a decision. For example, it may be to a parent's advantage, in his/her mind, to keep the parties in the case running in circles and never developing a case plan. With this awareness, the facilitator can be sure to elicit from the parties, especially the social worker and his/her attorney, the negative outcome which might occur if no decision is ever reached. It is important that the facilitator assess the underlying and ongoing relationships between the parties. For example, knowing that the mother's attorney had recently dissected the social worker on the witness stand, and that these two professionals are now quite irritated with each other, the facilitator might suggest the presence of their supervisors to help keep the conversation focused on the current case, not old history.

Engaging the parties in the decision-making process is a critical role for the facilitator. Recognizing the incredible stakes in child protection litigation, and the highly charged emotions of the parties, forces the facilitator to become the 'good host' for the meeting. S/he needs to exude empathy, help build mutual understanding between the parties, and support the expression and management of strong feelings which inevitably arise in these cases. For example, a father may feel the need to 'tell his story' before he is able to move forward and commit to a case plan. Completely polarized parties are always able to find some area of agreement, no matter how tiny, and the facilitator can express these commonalties. Everyone in a case, for example, can usually agree, that the parent loves his child or that people want the child to be safe and happy. In this role, the facilitator can also help set boundaries for appropriate communication, model positive listening and communication skills and keep the parties focused on their underlying interests not ultimatums.

Energizing the group to reach a decision is the final role of the facilitator. There are a multitude of solutions to personal, family and social problems. As the facilitator, it is important to encourage brainstorming of multiple options, flexibility and creativity. The facilitator can help the parties identify their best and worst alternatives to reaching a mutually agreeable solution. For example, the worst alternative to a compromise agreement may be that the parties remain in limbo for six months awaiting a trial date. For the parent, the child advocate and the social worker this may be an unacceptably long wait, the knowledge of which may motivate more diligent efforts towards a negotiated decision. Clarifying the issues, reframing issues as interests and summarizing agreements are the key skills in this role. If a mother demands immediate return of the child to her care (the issue), the facilitator can help the parent express the underlying concerns (interests) behind the ultimatum. For example, the parent may fear for the child's safety in the foster home, the child may have expressed extreme sadness over the separation, the parent may realize she is losing her housing and income due to the child's removal from her care. Instead of polarizing the parties in two extreme 'solutions', this allows the facilitator, and the parties, to actively address the parent's interests concurrent with preserving the best interests and safety of the child.

Virtually any issue can present an opportunity for facilitated decision-making. Settlement of legal issues, such as adjudication or disposition, can be negotiated. Facilitated decision-making may occur with case planning, treatment, placement and visitation issues. Basically, any disagreement might be able to be resolved by this process. For example, a mother has a substance abuse problem. Her child is in foster care. She's been assessed and a recommendation has been made for inpatient treatment. The social worker wants the mother to enter residential treatment. There's a four month wait for admission to the program. The mother wants to try outpatient treatment so that she can begin immediately and be able to keep her job. Through the facilitated decision-making process, with the guardian ad litem acting as the facilitator, the parties compromise and agree that the mother will immediately enter outpatient treatment, and be monitored with urinalysis. If she fails in this program or has a 'dirty UA', the mother agrees to enter residential treatment. This decision is timely, does not place the child at risk of harm and addresses both the social worker's and the mother's interests.

The facilitator can take the lead in scheduling the meeting, creating an initial agenda and circulating any written information relevant to the topic of discussion. At the onset of the meeting, the facilitator should clarify the agenda items with each of the parties. If there are many issues to discuss, the facilitator will encourage the group to limit the immediate discussion to only one or two topics. Initially, the areas of dispute can be identified by each of the parties. Depending upon the dynamics of the group, the facilitator may need to be a bit of the 'traffic cop', encouraging parties to express their thoughts without interruption or evaluative comments from others. The facilitator can help each party clarify the interests behind his/her initial position on an issue. After the group members have identified the dispute and each of their interests, the facilitator can lead them through areas of consensus and disagreement. One by one, discussion of compromises can occur. During all of this, the facilitator continually focuses the group on the decision-making task by reframing issues as interests, clarifying communication, highlighting agreements rather than disagreements and recapping decisions that are reached. It is strongly suggested that the facilitator create a written document, even if it is informal and handwritten, for each of the participants to carry with them as they leave the meeting. This "to do list" outlines the decisions reached and the agreements made,, as well as the activities which each of the parties have committed to do prior to the next meeting.

Adding to this facilitated decision-making process, is the need to create "dual track" case plans for families so that the ultimate goal, of achieving a safe and permanent home for the child, can be accomplished as soon as possible. This outcome can be accomplished by returning the child home to a parent who has resolved the problems which placed the child at risk of harm, or by placement of the child in an appropriate, alternate permanent home. All case plans and services need to concurrently focus on these two possible goals. Too often, the case plans to obtain the goal of a safe, permanent home are sequential. First, the parent works a case plan towards reunification. Then, if that is not successful, another case plan is developed which guides the parties towards an alternate permanent home for the child. This sequential planning results in lengthy permanency delays for the child. For example, a father who has over-used corporal punishment and caused injury to the child has agreed to attend a parenting class, as well as participate in anger management counseling. If he successfully completes these services, the risk of harm to the child has diminished and reunification may occur. If he does not complete the services, the case for termination of parental rights is concurrently made. The case plan shows the child protection agency has made active and/or reasonable efforts to promote family reunification, the client's concurrence with the plan is clear, and the timeframes for completion are obvious. By creating comprehensive, mutually-agreeable and time-specific plans, documenting services, regular review and decision-making by the parties, and maintaining an active presence of the court, either outcome can be achieved more expeditiously.

By using the facilitated decision-making process, and focusing on the ultimate outcome of a safe and permanent home for children, the parties in child protection cases may well be able to meet the "twelve months to permanency" goal set by P.L. 105-89. This facilitative process may also initiate transformative potential within the group as they internalize the values and skills necessary to conduct the process without the assistance of a facilitator.

Copyright Pamela R. Montgomery A.C.S.W. Inc. and Elizabeth D. Still, M.A., Inc.