Abuse and Neglect Mediation

Mediation in Abuse and Neglect cases is usually in the best interest of all parties since it provides all parties an opportunity to meet in an informal setting before holding a contested formal hearing. The informal setting allows the mediator, a non-attached professional, to evaluate and screen the matter, identify the issues of concern and discuss possible solutions. It helps the parents understand the legal process they are about to go through as well as their respective rights. Mediation should be held as soon as possible in a case, preferably before the show cause hearing in cases seeking TIA and before the adjudication hearing when TLC petitions are filed. Furthermore, Mediation should be utilized prior to any hearing for extension of TLC and before any contested termination hearing. A qualified Mediator can address and resolve many issues that may occur in cases involving families and their constitutional right to live as a family. Such as:

• Child Safety:  Assist in evaluating whether the child is safe.
• Child’s Placement: Review the child’s current placement and identify additional family placements or possible concurrent placements that are readily available.
• Visitation Schedule:  If the child is removed, the child needs an appropriate visitation schedule established that the child’s parents can follow.  The visitation schedule should be established based on the best interest of the child as well as the resources available to CFS.  Any disputed issues with regards to visitation should be formally addressed with the Court during the next hearing or by special motion if need be.
• Event Schedule:  Formulate and draft a schedule of events the child has, (school related, sports, religion related, etc…) and whether one or both of the parents can attend.
• Contact Schedule:  Formulate and draft a contact schedule enumerating the different means and different times that the parents may contact the child, (i.e. phone call, text message, email, written letter…)
• Informal Methods of Providing Safety:  Review what informal methods of providing safety were attempted and discuss reasons why they failed.  If none were tried, enquire into what programs should be tried with or without a formal proceeding.
• Safety Agreement:  Review the details of any and all safety agreements and/or safety plans that CFS employed in an attempt to provide safety without unnecessary trauma to the child.
• Support Team:  Draft a group contact document that enumerates the many different support providers’ names and specific duties of support which may will help the parents succeed with their treatment plans.  (see example in Bench Cards)
• TIA vs TLC:  Discuss whether TIA or TLC is being sought and the pros and cons of each.
• Investigation Plan:  In cases where TIA is being sought, help the parties enumerate an investigation plan that includes dates and times for the investigation to be conducted and completed.
• Examinations and Evaluations: Discuss the different exams and evaluations that the child should undergo before the next hearing.  Discuss the different exams and evaluations that the parents may want to participate in before the next hearing.
• Treatment Plan:  Enumerate specific goals and objectives and custom tailor the Treatment Plan for each party.  This helps ensure success if accepted and stipulated to, and if not, it assists CFS in communicating their expectations of the parties if CFS prevails at the Show Cause Hearing.
• Assistance Programs:  Discuss the many different governmental and local non-profit organizations that may be able to assist the family.
• Transition Plan:  Enumerate a plan which creates a gradual and safe transition for the child when he/she is reunited with the parents.
• Reunification Conditions: Compile a list of clearly stated conditions which the parent must successfully perform before reunification will occur.  It is important to eliminate parental confusion about what is expected of them and what they must do in a timely manner in order to increase the chances of reunification.
• Legal Rights / Attorney Representation:  Ensure that the parents have met with their attorneys and understand their legal rights.  Help determine whether the child needs an attorney and if so, establish which party is going to motion the court for said appointment.
• Notice of Contested Hearing:  Ensure that the parents’ right to a contested show cause hearing has been preserved by their attorneys’ filing the required notice within the statutory time period.
• Stipulations:  Stipulations entered into and filed with the Court before a contested Show Cause Hearing help all parties narrow their focus of evidence and can reduce the number of witnesses called during the hearing.
• Judicial Findings and Hearing Order:  In uncontested cases, help the parties draft a judicial findings of fact and conclusion of law and proposed order that they can submit to the court at the close of the hearing.
• Procedural Review:  Mediator can review the file to ensure that all statutory procedures and requirements have been satisfied, (ie: proper service of process or publication).
• ICPC:  Discuss the possibility of an out-of-state kinship placement, and if probable, talk with CFS about starting the ICPC procedure.
• Permanency Plan:  Mediation can be helpful in evaluating the possibility of a future permanency plan being drafted.  If so, the mediation session can help identify whether the CFS should investigate the possibility of placing the child with: a noncustodial parent; kinship placement; should an ICPC be initiated; guardianship; planned permanent living arrangement; long-term foster care placement or a residential care facility.
• Guardianship, Funded vs Non-Funded:  Discuss the advantages and disadvantages of a guardianship over termination and evaluate whether said guardianship would be funded or non-funded.
• Planned Permanent Living Arrangement:  Discuss the different reasons why a planned permanent living arrangement should be used in place of a guardianship or termination and adoption.
• Process / System Explained:  Explain the process the parents may go through either via stipulation and/or if CFS prevails at a contested hearing.
• Time Frame before Termination: Explain that CFS by statute must seek termination if the child has been in foster care for 15 of the most recent 22 months.
• Voluntary Relinquishment:  Discuss the different pros and cons of voluntarily relinquishing ones parental rights and if so, assist in scheduling the required counseling or ensure a waiver of counseling has been discussed and signed.
• Collaboration:  During mediation, it should be stressed that all parties should interact with one another in a collaborative fashion.  This approach can help identify and address legitimate safety concerns as well as promote an appropriate treatment plan and timely reunification.
• ICWA:  During mediation, it should be identified whether the child qualifies as an Indian child under ICWA, and if so, that the additional ICWA requirements and procedures are understood and followed.

Mediation addressing the above topic areas can reduce the number of contested hearings held in a case and help the hearings be conducted in a more efficient manner. Mediation should also help ensure that all parties are on the same page, increase the transparency and accountability of all parties and therefore speed up the rehabilitation period and subsequent reunification process. It is a win – win – win in abuse and neglect cases.