Permanency Planning Mediation

Contributed by:
Kate Cleary

mother and son

In 1999, the California Department of Social Services and Consortium for Children partnered to launch an innovative new program—Permanency Planning Mediation. The partners were looking for an effective way to use openness to shorten a child’s time in foster care by avoiding costly and time-consuming contested termination of parental rights hearings while also helping maintain important connections for children. What began as a short-term pilot has now been operating successfully for 15 years and is offered to all of California’s 58 counties.

What Is Permanency Planning Mediation?

Permanency Planning Mediation can happen in the 120-day period between when the court ends reunification services for a child who is in foster care and when any court ruling regarding termination of parental rights has been made. During this period, Consortium for Children uses classic mediation techniques to move away from the adversarial nature of the child welfare system and to focus all parties on the needs of the child or children involved. The goal of mediation is to help avoid a contested termination of parental rights hearing as well as to determine the child’s need after adoption or guardianship. The process usually concludes with the development of a Post Adoption or Post Guardianship Con­tact Agreement, which is filed with the court during the adoption or guardianship process and becomes a binding court order.

The parties to the mediation are the prospective permanent family and others important to the child; this may include the birth mother and father, grandparents, aunts, uncles, siblings, and other significant people in the child’s life. Generally, the referring professional provides Consortium for Children with the list of individuals to contact. Other parties can be added to the mediation if it is later determined this would be in the child’s or children’s best interests. When there are multiple parties, it is common that the prospective permanent family will enter into several separate agreements, with each planned to best support the child’s or children’s unique relationship with that individual.

Two aspects of mediation—confidentiality and neutrality—make it a highly effective tool for working with birth families and prospective permanent families. The mediator is completely neutral, providing a structure for the process, but neither determining discussion content nor making decisions about the agreement. Since Consort­ium for Children is contracted by the state of California, the agency has no fiscal relationship or responsibility to the California counties it serves. This helps ensure mediators are neutral about the outcome, and allows parties to relax and not feel pressured by their worker, attorney, or others to come to an agreement. Workers and attorneys are given the opportunity before, during, and after mediation to provide input for the parties’ consideration, but the signing parties solely determine the content of any agreement.

By law in California, all communication during any mediation process is completely confidential, and the content of mediation sessions have never successfully been made part of a court record or disclosed during a hearing. This confidentiality allows all parties to fully explore their concerns, fears, and hopes about the future and about each other without concern about disclosure to the child welfare agency, the court, or any other party.

Deciding on Mediation

A child welfare worker, child’s attorney, parent’s attorney, Court Appointed Special Advocate, or bench officer may refer families for mediation when a termination of parental rights hearing is being contested, and the professional believes a continuing connection to birth family or other important individual could be in a child’s best interest. Social workers, in particular, are encouraged to make a referral for any child who might benefit. In many counties, this results in a large percentage of families receiving mediation services.

During the referral process, Con­sortium for Children receives para­meters of any safety issues for those involved in the mediation and how the involved professionals view future contact. Consortium for Children does not ask about the circumstances under which a child has been removed from the family because that information might bias the mediator.

When Consortium for Children receives a referral, the case is assigned to a mediator. All have a master’s or higher degree in social work, law, or a related field, five years of experience working in child welfare, and two years of adoption experience. Before they begin work, mediators attend a three-day basic family law mediation training and a two-day permanency planning mediation training provided by Consortium for Children. Mediators are closely supervised by mediation coordinators, and Consortium for Children provides regular advanced training so mediators can continually expand their skill set.

The assigned mediator reaches out to each of the parties to begin the process. Participation is voluntary; any of the parties may decline. Consortium for Children has a two-contact rule—after a phone discussion with a party who is reluctant to participate, a mediator will re-contact them once to offer an additional chance to mediate. If the person decides not to proceed, Consortium for Children notifies the primary parties, the child welfare workers, and any attorneys that mediation will not proceed. The letter does not indicate the reason the mediation was ended or who ended the process.

The referring professional and mediators initially explain to the prospective adoptive family and birth family members that a post-adoption or post-guardianship agreement can be of great benefit. With this information, approximately 84 percent of referred families will attempt to complete the mediation process. Prospective permanent parents come to understand that birth family connections can be very important to a child’s emotional well­-being. The connections can reinforce that the child is still loved and not forgotten, and can give older children more peace about the transition to a new family, potentially stabilizing the placement.

The benefits for birth parents and extended family center around continuing to know how the child is doing—through updates and pictures and, sometimes, direct contact. A continued connection to their child also helps ease some of the sense of loss for a birth parent. Many times birth parents come to realize, primarily through the mediation process, that maintaining a positive relationship between adoptive and birth parents may be the only way that any post-placement contact will occur. It is this understanding that guides some birth parents to not extend the court process and to be more supportive of the adoption once it is clear the child will not be returning home. Protracted court proceedings ultimately delay permanency, sometimes for years. A successful mediation can thus save court costs, expedite adoption finalization, and maintain important family relations for children—a set of circumstances in which everyone can benefit.

Birth families and prospective permanent parents are also motivated to find a means to maintain connections because it is in the long-term best interests of everyone involved. Children who know their adoptive parents have maintained some relationship with their birth family often realize it is okay to ask questions, share feelings, and talk openly about their past. This can minimize the need of the adopted child to covertly search for birth parents. Adoptive parents and guardians who have a relationship with birth families also tend to know more about their children’s histories and cultural and ethnic connections, and have a direct way to update important family medical and genetic information.

How the Process Works

To respect the confidentiality of the participants, mediators use a caucus style of mediation to begin the process—meeting with each party separately. To ensure parties are comfortable, mediation sessions occur in the party’s home, church, or neighborhood. Department or court offices do not feel like a neutral space for the parties and may inhibit successful participation. Any participants may invite friends, family members, attorneys, or others to attend their mediation sessions, but only the parties themselves are allowed to participate in the conversations.

Since the parties are making agreements that need to last for years, mediation may take up to 90 days to complete with the provision of up to 30 hours of services. All parties must fully understand what they are agreeing to and be committed to the process and the outcome. This is the primary reason why the program does not have one long mediation session. Typically a mediator will alternate meeting with each party for many shorter one-on-one meetings at different locations on different days, sharing only what each party has agreed may be shared. If post-adoption or post-guardianship visits are to be part of the agreement and there are no safety concerns, the mediator encourages the parties to meet together for the contact portion of the process.

Children are included in the process when it is age-appropriate and agreed upon by the child welfare worker and the child’s attorney. The method of participation varies: some children choose to participate by writing a letter for the other parties to read, others by drawing pictures of how they feel they would like their life to proceed, and others by asking the mediator to share their desires for them. Children typically meet one-on-one with the mediator, rather than with other parties. Children are never included in a group mediation process unless they specifically ask to. If the child makes such a request, the child welfare worker and the child’s attorney must agree before the child would be included in group mediation. This has only happened a few times with older children or teenagers.

Developing an Agreement

Although one goal of the process is the development of a post-adoption or post-guardianship contact agreement, mediation does not start there. Initially, the mediator focuses participants on and the child’s needs and connections to the parties. Every agreement begins with what the parties have agreed upon as their hopes and dreams for the child, as well as how each party describes the child and the child’s needs, relationships, likes and dislikes, hobbies, and more. Below is a sample.

There are some qualities in every human being that stand out even at an early age. Joshua’s exuberance and ability to connect with others are two of the most striking qualities that have revealed themselves in full force. Joshua is described by those who cherish him as an “old soul” and “his own person with a strong spirit…a kid that is very special.” At two months old, Joshua held his own bottle, laughed often, and now at the age of two years old sings his ABCs (although not always in the right order). Moreover, Joshua enacts the love in his heart. He often runs up to babies he meets and kisses them; he greets and engages with strangers on the street and pours affection on those closest to him.

Gina talks about the joy she experienced being pregnant and being a mom. Out of her love of her son, Gina wants a better life for her Joshua than she was provided as a child. She is taking the necessary steps to become healthy and self-sufficient so she can be a positive support and model for Joshua.

Helen [Joshua’s prospective adoptive parent] says she has received nothing but love from Joshua and has grown to deeply love him. Helen also recognizes the importance of Joshua being the recipient of as much love and support that he can receive. Helen talks about the clear bond between Gina and Joshua. She mentions how Joshua will run into Gina’s arms when he sees her and Helen wants Joshua to continue to develop a strong connection with his birth mother.

Thus Helen and Gina, out of their mutual love for Joshua, have united to develop a plan to support their ongoing relationships.

Once parties begin to think about the child as an individual, they are then ready to consider how to safely decide—together—what type of contact best meets the child’s needs. Almost all parties who work cooperatively to develop a child section, like the one above, will continue to try to develop a post-adoption or post-guardianship contact plan. Under Per­manency Planning Mediation, agreements identify the minimal level of contact so that the parties can and will follow the agreement as the child matures. Parties can choose to have more contact than their agreement reflects. In fact, evaluations have noted about 80 percent of those who have a filed agreement eventually exceed the agreed-upon amount of contact.

Contact covers a wide range of possibilities for maintaining connections and can vary greatly. Contact agreements may include anything from use of non-identifying email addresses, through which parties provide annual updates, to regularly planned visits between child and birth family members. Every agreement has provisions under which the contact can be modified or temporarily suspended. The agreement also notes that parties can ask Consortium for Children for help complying with the agreement or to request additional mediation services. Both families value the ongoing support because Consort­ium for Children’s help may be the only remaining resource to help resolve difficulties after the adoption is finalized.

Once the parties have successfully mediated a draft agreement, the mediator asks if they will allow it to be circulated to the child welfare worker, the adoption worker, the parent’s attorney, and the child’s attorney. Feedback is requested from all secondary parties. If any of the professionals feel an agreement goes too far or does not go far enough, the mediator brings that information back to the primary parties for discussion and possible modification. Once everyone has approved the agreement’s content, the primary parties sign a final version. The agreement is also signed by the child, if he or she is 12 years or older, and the child’s attorney.

In California, a contact agreement is a legally enforceable document filed with the court. Once an adoption is finalized, the court retains jurisdiction only over the agreement—no adoption or guardianship can be overturned nor fiscal penalties levied because an agreement is not being followed. Before the parties can have the court review issues about a filed agreement, California law requires them to participate in mediation to try to resolve differences. If additional mediation does not resolve the issue, the parties must indicate to the bench officer why the enforcement or lack of enforcement of the agreement is in the child’s best interest. It is then up to a bench officer to make a ruling. In the 15 years the program has been in existence, only a handful of enforcement hearings have been held. In most cases where disputes occur, Consortium for Children’s further mediation services successfully resolve the dispute so there is no need for court involvement.

Conclusion

Over the past 15 years, Consortium for Children has successfully mediated more than 18,000 agreements. This work has saved public agencies millions of dollars by avoiding costly termination of parental rights proceedings and shortening stays in foster care for thousands of children. When families receive support that helps them become collaborative rather than adversarial, they often feel no need to contest or appeal the termination of parental rights. Mediation sessions have also helped families reach agreement about what level of contact is right for each child. Unquestionably, children benefit when their birth and adoptive families can jointly focus on the children’s best interests. Adoption should be about expanding a child’s family, and Permanency Planning Mediation can help make that happen. Through mediation, families develop relationships with rules, boundaries, and limitations that allow all of a child’s family—new and old—to play a very important role in providing the best for the child’s future.

About Kate Cleary:

Kate Cleary is executive director of the Consortium for Children.

Categories: Achieving Permanency, Adoption Practice, Birth Family Connections, Parenting

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