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July 01, 2013 Articles

COUNTERPOINT: For Children's Sake

By David J. Lansner

The harsh reality is that child-welfare cases are not about doing what is best for children. The deck is stacked, the dice are loaded, and the playing field we call the family or juvenile court is tilted— against you. If you are a child in foster care or a parent with a child in foster care, the last thing you need is for the foster parents to appear as a party to add to the weight preventing the reunification of your family.

The child and the court do not need foster parent intervention. One of the primary arguments for allowing foster parents to intervene in termination of parental rights hearings is that foster parents have a lot of information about the child, some of it exclusive, and the court should have that information. However, even if that claim is true, that is not sufficient reason for granting them party status.

  • Their information is evidence that can—and should—be presented by the other parties calling foster parents as witnesses so that they can be subject to cross-examination.
  • While foster parents may possess some information that no one else does (because of the restrictions on parental contact with their children and their children's schools, doctors, etc., and because of agency indifference to obtaining the information), there has been no showing that the information that the foster parents possess exclusively is of any importance in the termination proceeding. Termination proceedings are based on the failure of the parents to be able to obtain reunification and provide permanency.
  • Judges should not be determining the "best interest" of the child during a termination proceeding. Termination of children's rights to their families can only be made based on unfitness, not on best interests. 
  • During proceedings when a judge is focused on a child's best interest, how is a child's best interest determined? Everyone has a personal view. Many (including this author) might argue that it is always in a child's best interests to remain with his or her family, even if extensive services, such as live-in assistance, are necessary.

Constitutional Rights of Children
The statement that children also have constitutional rights does not support foster parent intervention. (Why do children's "advocates" always cite the rights of children against the children's families, not for them?) Children and parents have a constitutionally protected liberty interest right to their families. Santosky v. Kramer, 455 U.S. 745, 760–61 (1982). Children do not have a constitutional right to remain in foster care or subsidized adoption (at public expense, no less), Rodriguez v. McLoughlin,214 F.3d 328 (2d Cir. 2000), cert. denied 532 U.S. 1051 (2001), or permanency, or to be removed from their homes. Deshaney v. Winnebago Cnty., 489 U.S. 189 (1989). Children also have a constitutional right to be protected from harm in foster care. Doe v. DSS, 649 F.2d 134 (2d Cir. 1981). Foster parents and foster children do not have a constitutional right to stay together. 

Why There Is Foster Care
Foster care is not a place for our children. It is a place for Native Americans and immigrants, for Latinos and African Americans, for the unconventional and uncooperative and unsubmissive, for those who don't speak English well. And especially, for the poor.

There have been studies that show that, except for the most extreme abuse or neglect, the very small minority of foster children, all of these foster children would have better outcomes if they stayed at home, even if their parents didn't get the services they should be given. Joseph J. Doyle Jr., Causal Effects of Foster Care: An Instrumental-Variables Approach (Jan. 2011).

So why are all of these children in foster care? Foster care, despite its outrageous cost, is still cheaper for the government to provide than the decent housing, safe neighborhoods, good schools, and decent health care that would make home lives better. Foster care is big business that makes a lot of money for a lot of people. The United States has a history of taking away children in order to "improve" them. For example, in the nineteenth century with the orphan trains. 

Children are often placed in foster care because courts don't receive all the relevant information in cases, including exculpatory explanations, because parents' attorneys are frequently overwhelmed with high caseloads and insufficient resources to hire investigators and expert witnesses or to even to hire an expert to review medical records. (Fortunately, the ABA Center on Children and the Law's National Project to Improve Representation for Parents Involved in the Child Welfare System is helping to improve that representation.)

The Tilted Playing Field
The argument that granting foster parents the right to intervene does not inherently weaken a natural parent's rights or interests is incorrect. Strengthening one side weakens the other. When foster parents appear as a party, the case moves from one concerning the unfitness of the parent and the rights of the child and the parent to be reunified, to a contest between the parent and the foster parent, a battle that is seriously skewed against a parent who has been accused of abusing or neglecting his or her child.

The state is already pushing for termination and adoption, potentially by the foster parent who is attempting to intervene. Allowing the foster parent to be a party makes the case two against one. Because lawyers, guardians ad litem, CASA, or whoever else "represents" the child may tend to side with the agency, it is more often three against one.

Parents in child-welfare cases are overwhelmingly poor. Foster parents tend to be better off financially, not least because the government pays foster parents, but not parents, to care for children. Because of their better economic situation, foster parents may be able to retain better counsel than parents can.

The parent has already been found to be inadequate, while the foster parent is certified by an official agency as being well qualified to care for the child. Parents are not even recognized as parents, and their importance is often discounted.  They are referred to by the demeaning term of "biological parents," implying that they are simply breeding machines.  This further tilts the field by reducing the importance of parents.

The foster parent promises to provide "permanency," while the parent has already failed to provide it (thanks to the state's interference). ("Permanency" is almost always used to support termination of a child's right to his or her parents, an action that interferes with permanency.) But because foster parents have no right to keep a foster child, there may be a quick end to the permanency. And adoption may not actually establish permanency either, as so many children adopted from foster care are thrown out by their adoptive parents, run away (either to the streets or back home to their parents), land in jail, or are returned to foster care. Dawn J. Post & Brian Zimmerman, The Revolving Doors of Family Court: Confronting Broken Adoptions, 40 Capital Univ. L. Rev. 437 (Spring 2012).

Our legal system skews hearings in favor of children remaining in foster care, which is not in their best interests, violates the constitutional rights of children and their parents, and results in bad outcomes for many children. Allowing foster parents, who have no constitutional rights, to be parties just skews the system even more, and hurts the children the most.

Keywords: litigation, children's rights, foster care parents, intervention, child-welfare cases, constitutional rights, parental rights hearings

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David J. Lansner – July 1, 2013