July 01, 2013 Articles

POINT: Embracing Full Participation of Foster Parents in the System

By Shari Shink

The responsibility of foster parents to ensure the safety and well-being of their foster children does not end at the courthouse door. Foster parents, who have the most timely, relevant, and critical information, must be granted the right to participate fully in legal proceedings in order to achieve successful outcomes for the children in their care. To function properly, the system must embrace the full participation of foster parents— not shut them out.

In Santosky v. Kramer, 455 U.S. 745, 53–54 (1982), the U.S. Supreme Court recognized:

The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state . . . If anything, persons faced with the forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

While the Supreme Court's recognition of the natural parents' rights is so well grounded as to be basic, this "does not include the right to be the gatekeeper of 'detrimental' evidence."vIn re A.M., No. 10CA0522 (Colo. App. 2010) Jones, J., dissenting). Thus, a natural parent's interest in maintaining its familial structure does not preclude participation by other key stakeholders, including foster parents. Granting foster parents the right to intervene does not inherently weaken a natural parent's rights or interests. Rather it provides additional information and insight into a child's life at a critical time. When the process is transparent, and no one is hiding/excluding information, then the judge can do a better job of determining the best interests of the child. 

Placement decisions, reunification, termination, and adoption are life-changing events for a child, and no one person, including a parent, holds the key to the best decision. Further, the notion that the recognition of one party's constitutional rights necessarily requires the compromise of another's is fundamentally flawed. Children have constitutional rights, too. So while it is crucial that we safeguard the rights of parents, we must not ignore those of their children.

Colorado Got It Right
In a recent Colorado Supreme Court decision (A.M. v. A.C., No. 11SC53 (Colo. Feb. 25, 2013), the court found that foster parents who properly intervened in a dependency action are afforded the same degree of participation as all other parties at a termination hearing. In addition, the court found that parents' due process rights are not impacted by the full participation of foster parents in the termination hearing. "Indeed, as the immediate caregivers of the child, foster parents are often uniquely positioned to provide a juvenile court up-to-date status of the child and the child's well-being."

Due process is ultimately rooted in the concept of fundamental fairness. Because the specific components of fundamental fairness are situational in nature, foster parent participation must be viewed in the context of all protections afforded the parents.

Parents are entitled to notice. They have the right to an adjudicatory hearing in which they can contest the state's authority to intercede in the familial relationship. In most states they have the following due process rights: They have the right to counsel; if indigent, they have the right to court-appointed counsel. They have the right to call witnesses and experts, and to cross-examine others' witnesses. With rare exceptions, they have the right to participate in treatment planning and to seek rehabilitation and reunification with their children. In termination trials, they benefit from a heightened standard of proof. Thus, the parents' rights to due process are protected without barring foster parents.

The Colorado Supreme Court applied the three-factor framework in Mathews v. Eldridge, 424 U.S. 319 (1976) which considers (1) the private interests at stake; (2) the risk of the erroneous deprivation of that interest; and (3) the government's interest. In this case, the parents argued that (1) their interest in maintaining the parent-child relationship is paramount; (2) the cumulative effect of allowing foster parents and other intervenors alongside the guardian ad litem poses a substantial risk of erroneous terminations; and (3) the government's interest in terminating their parental rights is minimal.

The court acknowledged that the private interest in the continuation of the parent-child relationship was commanding. However, as to the second factor, the court determined that the foster parents had valuable information to share about their foster children, and that limiting their role would actually diminish the accuracy of decisions by withholding admissible, highly relevant information from consideration merely because it comes from a foster parent. Such would heighten, not mitigate, the risk of an erroneous decision.  

Turning to the third factor, the General Assembly of Colorado has declared that "the safety and protection of children" is a matter of "statewide concern" and the state has a significant interest in ensuring that proceedings are "accurate and just." Because of its role in securing both the child's welfare and a just outcome at the juvenile proceeding, the government's interests are substantial. The court concluded that full participation by foster parent intervenors does not undermine the fundamental fairness of the termination hearing. It is important to note that even though this case addressed the foster parent's right to intervene in the termination hearing, the reasoning applies to other parts of the process as well.

The Stakes Are High: Why We Should Care
We have a complicated child-welfare system. It is designed to protect children when they are abused or neglected, and then return them if/when the parents are able to care for them in a reasonable manner. While our goal is noble, the reality is sobering. This system costs the United States $124 billion annually, yet it has the worst record in the industrialized world, losing five children every day to abuse-related deaths. Each year, there are 3.3 million documented reports of child abuse involving nearly 6 million children. Approximately 400,000 of these children end up in foster care. What do we know about the future of these children?

According to Childhelp, a national non-profit organization dedicated to helping victims of child abuse and neglect,

  • they are 59 percent more likely to be arrested as a juvenile;
  • 30 percent will later abuse their own children, continuing the cycle;
  • 25 percent are more likely to experience teen pregnancy;
  • almost 50 percent of youth who emancipate from the system at 18 will be homeless or in jail within two years; and
  • two-third of adults in treatment for drug abuse reported being abused as children.

All of us are affected by the successes and failures of our child-welfare system. It is our responsibility to prevent these foster children from becoming a grim statistic. Thus, each stakeholder in the system must rely on complete and accurate information and seek out resources and treatment to best serve the needs of children. Granting foster parents the right to intervene can only help those entrusted to decide the best interests of these children Under-resourced caseworkers juggling emergencies and guardians ad litem with excessive caseloads cannot alone provide the court with sufficient information. The participation of interested foster parents is critical to the successful resolution of these cases.

The system cannot both entrust foster parents with the physical, emotional, and social well-being of a child and yet fail to entrust them with providing reliable and critical information about the child. Surely the insight gained by caring for these children outside the courthouse is a powerful insight for what should be decided inside the courthouse.

Further, because (in some states) children do not have full participation rights in the court process, foster parent intervention takes on added importance. Children sometimes suffer grave harms and face numerous physical and emotional risks while in state custody. This sobering reality led the Tenth Circuit in Yvonne L., 959 F. 2d 883, 892 (10th Cir. 1992), to recognize that children have a constitutional right to be free from harm while in the state's care. This right derives from the "special relationship" to protect the child. In Currier, 242 F.3d at905, 923 (10th Cir. 2001), the Tenth Circuit held that even without a special relationship, a state could be liable for affirmative acts that create or increase a child's vulnerability to danger.

Children often face preventable danger from decisions that return them to birth families prematurely or place them in homes that are inappropriate. In the recent Colorado case of Shirk v. Forsmark, O'Donnell & Lytle (No. 10CA2141 (Colo. App. 2012), the court refused to recognize a qualified immunity defense for injuries suffered by children for the "reckless, conscious, shocking" conduct that placed children at substantial risk. The case settled with a $6.75 million award to the three children harmed by the agency's decisions.

To deny foster parents the right to participate fully irrationally impairs the trial court's ability to gather all of the facts necessary to ensure the safety of children . . . the hallmark of the child-protection system. We cannot rely on assumptions regarding the care and placement of children in the state's system. No one holds the monopoly on "caring," knowing what is "best" for a child, or the "right" decisions. Only through a full and comprehensive evidentiary hearing, participated in by foster parents, can a judge make the best and most informed decision for a child.

The entire judicial system is reliant on the presumption that judges are capable of determining the admissibility of relevant evidence and the weight it deserves. If we are not going to promote and rely on alternative methods of conflict resolution, like mediation, we have no choice but to trust that the triers of fact know what they are doing. Further, it is misguided to think that the inclusion of foster parents in the judicial process will promote discord while their exclusion will boost consensus.

For more than a hundred years we have relied on foster parents to care for abused and neglected children when their parents could not. These foster parents are expected to provide both the ordinary care children need on a daily basis and the extraordinary care necessitated by the trauma they experience. In this role, foster parents are indispensable partners in the community that is the child-welfare system.  

It is unrealistic to expect that the professionals in these cases will intimately know and effectively present information to which foster parents are uniquely privy. Only by engaging this community and valuing foster parents can we meet our obligations to our children, the intended beneficiaries of the child-protection system, while honoring the rights of parents.

Keywords: litigation, children's rights, foster care, foster parents, full participation, child-welfare system

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Shari Shink – July 1, 2013