Asserting, Arguing, and Appealing the Constitutional Rights of Children in Foster Care

The legal proceedings that govern children’s time in foster care have a profound impact on their lives: determining where they live; how often they see their parents; whether they live with, or even see, their siblings; where they go to school; and the type of permanency—or lack of permanency—they will have. Throughout their legal cases, children possess constitutional rights. These include the rights to safety, family integrity, and timely permanency. But without trained lawyers asserting and arguing to protect children’s rights, and appealing from adverse decisions, their rights are too often ignored and thus unenforced.

Based on my own experience as a foster parent, and my pro bono work representing children, parents, foster parents, and kinship placements as an attorney with the Center for the Rights of Abused Children, I authored a practice manual, Asserting, Arguing, and Appealing the Constitutional Rights of Children in Foster Care, for lawyers who represent children in foster care to help them plead, preserve, and present on appeal their young clients’ constitutional rights. These are rights that are implicated in the “everyday” decisions and arguments children’s lawyers must make. I want to put that practice manual into the hands of as many child advocates as possible to help them root their everyday legal arguments in the soil of the U.S. and state constitutions.

Below, I’ll tell you a little about my journey through the foster care system, explain how children’s attorneys can raise constitutional arguments throughout the legal proceedings that govern a foster child’s life, and conclude with some practice tips and an invitation to reach out to the attorneys at the Center for the Rights of Abused Children if we can be of assistance to you or your clients.

My Foster Care Journey

In the fall of 2012, my wife and I were doing a final walk-through of our new home. Our four boys were looking forward to sharing the two bedrooms connected by a “jack-and-jill” bathroom. Not one of them was interested in the single bedroom down the hall—the bedroom with sky-blue paint, a bright pink ceiling, and a fairy-tale forest mural, complete with pink flowers and butterflies flitting about the branches.

As we descended the stairs, I said to my wife, “Perhaps that fairy-tale room is God’s way of giving us a daughter.” Not missing a beat, my bride rejoined, “Not from this womb.” God did indeed give us a daughter. In fact, God gave us many daughters. Mostly foster daughters. He also gave us one foreign exchange student, who later married my oldest son, thus giving us one daughter-in-law as well. While we’re open to it, adoption is not (yet, at least) a part of our story.

We’ve seen the foster care system function well, with timely services and successful reunification. And we’ve seen the foster care system function poorly, with children languishing in the system for years, only to experience the severance of parental rights. One of the worst cases we witnessed involved a young girl we will call Emma. We met Emma when she was eight years old. We had been asked to care for her for a couple of weekends to give her foster family a bit of a fall break. She did well in our house, though she was not around a lot due to supervised visits with her parents and siblings.

The day before Thanksgiving, we got a call asking if we’d consider caring for Emma for two weeks. We were open to the idea and asked when. The foster family needed the care to begin that night. The night before Thanksgiving. With eyebrows raised, we said yes. The familiar minivan pulled up to our curb just as the sun dipped into the horizon. Emma’s foster dad exited the van, opened the rear of the vehicle, then plunked down an enormous cardboard box on our sidewalk. Emma popped out of the sliding side door. Her foster mom stayed in the van, refusing to make eye contact with us. Emma’s foster dad said nothing. He returned to the driver’s seat, put the van in gear, and drove off into the sunset. My wife and I looked at each other. The message was clear. They weren’t coming back. Indeed, that night, we received confirmation that the family was disrupting. We became Emma’s new foster home.

We learned Emma had been placed in foster care when she was three years old, alongside her seven siblings. We were her ninth placement. And only the second family she had been placed with. All her other placements had been shelters or group homes, as the state tried to keep the siblings together. The termination of parental rights trial that occurred early the next year caused much trauma to Emma. We did our best, but she was our toughest foster daughter. She was later adopted by experienced adoptive parents who had just become empty nesters. Everyone agreed she needed something different than what we could give her. It seemed like a fairy-tale ending. And while her story is still being written, as I pen this article, Emma (now a pre-teen) is in a residential treatment center due to serious mental health issues and dangerous behavioral concerns. We’re praying for healing and restoration.

From Foster Parent to Legal Advocate

Emma’s case spurred my desire to do more for kids in foster care. I had come to believe that the state is a bad parent. I wanted to do something to effect systematic change. My chance came when my longtime friend, and the founder of the Center for the Rights of Abused Children, invited me to coffee. A foster and adoptive mom, Darcy Olsen was on the brink of founding the center after hearing a judge say at the start of a hearing that “Mom’s rights are constitutional while baby’s rights are merely statutory.” Darcy and I share strong convictions that children possess constitutional rights and that securing those rights offers the promise of positive, tangible, and lasting impacts on children’s safety and well-being.

So I left my practice of nearly 20 years and became the legal director for the Center for the Rights of Abused Children. As I settled into my new role, representing children, parents, foster parents, and kinship placements, one thing became clear: The system does in fact operate as if children do not possess rights of their own. But case law is clear: “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976); see also In re Gault, 387 U.S. 1, 13 (1967) (holding that the Fourteenth Amendment is not “for adults alone”).

Raising “Everyday” Constitutional Arguments in Juvenile Court Proceedings

Feeling a desperate need to change the legal culture, earlier this year, I published the practice manual mentioned above for attorneys who represent children in foster care. It is designed to encourage and help attorneys ground their everyday legal arguments in children’s constitutional rights. It outlines some of the most important and consistently recognized constitutional rights that children in foster care possess, including the following:

• the right to safety
• the right to family integrity
• the right to permanency in a timely manner

The practice manual includes a brief discussion of each right, an inexhaustive list of ideas for when lawyers might assert the right, and numerous citations to federal and state cases supporting the existence and protectability of the right. Its purpose is to make it easy for attorneys to plead, protect, and preserve for appeal children’s constitutional rights at all stages of the child protection system.

Let’s take a brief look at these three rights and when you might assert them.

The right to safety. Although the U.S. Supreme Court has never recognized the right to safety, every federal circuit court of appeals recognizes that children in foster care have a right to be safe while in state custody. E.g., Connor B. ex rel. Vigurs v. Patrick, 774 F.3d 45 (1st Cir. 2014); Doe v. N.Y. City Dep’t of Soc. Servs., 649 F.2d 134 (2d Cir. 1981); Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) (en banc); Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163 (4th Cir. 2010); M.D. ex rel. Stukenberg v. Abbott, 907 F.3d 237 (5th Cir. 2018); Meador v. Cabinet for Human Res., 902 F.2d 474 (6th Cir. 1990); Reed v. Palmer, 906 F.3d 540 (7th Cir. 2018); Norfleet ex rel. Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289 (8th Cir. 1993); Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833 (9th Cir. 2010); Gutteridge v. Oklahoma, 878 F.3d 1233 (10th Cir. 2018); H.A.L. ex rel. Lewis v. Foltz, 551 F.3d 1227 (11th Cir. 2008); Smith v. District of Columbia, 413 F.3d 86 (D.C. Cir. 2005).

Reduced to its essence, children in foster care have the right to be protected from physical, sexual, and emotional abuse; the right to adequate shelter; the right to minimally nourishing food; and the right to basic medical and emotional care.

Examples of when to assert the right to safety:

• When asking for a safety plan or a safety monitor to keep children home with their parents.
• When seeking a change of physical custody because a current caregiver is suspected of abuse or maltreatment.
• When opposing a change of physical custody because there are concerns about a prospective caregiver’s protective capacity.
• When seeking to prevent placement in congregate care.
• When trying to move children out of congregate care.
• When asking for reunification because the basis for the out-of-home placement has been addressed. (Extended time in the state’s custody may have a negative impact on a child’s well-being!)
• When arguing against reunification due to concerns about the children’s safety.

The right to family integrity. The rights of parents to the care and custody of their own children are firmly established. E.g., Santosky v. Kramer, 455 U.S. 745 (1982). Yet, to date, the U.S. Supreme Court has not recognized children’s reciprocal rights to live with, be raised by, and to know their biological parents. See Michael H. v. Gerald D., 491 U.S. 110, 130 (1989) (noting that the Court has “never had occasion to decide whether a child has a liberty interest, symmetrical with that of her parent, in maintaining her filial relationship”). However, numerous lower courts have recognized the reciprocal nature of the right to family integrity. Southerland v. City of New York, 680 F.3d 127 (2d Cir. 2011); Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999); Jordan ex rel. Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994); Wooley v. City of Baton Rouge, 211 F.3d 913 (5th Cir. 2000); Berman v. Young, 291 F.3d 976 (7th Cir. 2002);  Keates v. Koile, 883 F.3d 1228 (9th Cir. 2018); J.B. v. Washington County, 127 F.3d 919 (10th Cir. 1997); Franz et al. v. United States, 707 F.2d 582 (D.C. Cir. 1983). When and where appropriate, lawyers should argue that children in foster care have a reciprocal right to their own mother and father and to know, visit, and be placed with siblings.

Examples of when to assert the right to family integrity:

• Prior to removal, if the children can remain safely at home.
• When seeking to increase the quantity or duration of parental or sibling visitation.
• When seeking services to facilitate reunification, including services for parents.
• When filing a motion to return children to the custody of their parents.
• When opposing a motion to terminate parental rights.
• On appeal, when arguing that removal was unnecessary or that parental rights were erroneously severed.
• When seeking to place children with suitable relatives or individuals with whom the child has a significant relationship (i.e., fictive kin).
• When seeking to have siblings placed together.
• When seeking permanent guardianships to avoid the termination of parents’ rights and thereby preserve familial relationships.

The right to permanency in a timely manner. Children need permanency to thrive. See Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S. 502, 513–14 (1982) (“It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current ‘home,’ under the care of his parents or foster parents, especially when such uncertainty is prolonged.”). To protect their physical, mental, and emotional health, lawyers must assert that children have a right to timely court proceedings and to permanency without undue delay. Whenever possible, children should be reunified with safe parents as soon as possible. But children whose parents are deemed unfit also deserve timely permanency. For children whose parents’ rights have been terminated, this right must include the opportunity to find and form a new family. Attorneys should argue that the state has an affirmative duty to make reasonable, if not diligent or even active, efforts to recruit adoptive families and to match legally freed children with willing, able, safe, understating, capable, and trauma-informed parents.

Examples of when to assert the right to permanency in a timely manner:

• When holding the child welfare agency accountable to provide appropriate and timely reunification services to the children’s parents.
• When opposing unnecessary continuances that delay permanency.
• When filing motions to return children to the custody of their parents.
• When seeking permanent guardianship for children.
• When arguing that termination of parental rights is in the children’s best interests.
• When opposing post-termination case plans that will increase the likelihood that children will age out of foster care without a family.

Of course, children possess other constitutional rights that attorneys can assert. For example, as discussed in my practice manual, children have rights to emotional security and to an adequate education. See also Barbara J. Elias-Perciful, J.D., Constitutional Rights of Children 22–24 (Texas Lawyers for Children 2017) (discussing, among other rights, the constitutional rights of children in foster care to “not be discriminated against based on race, religion, sex, sexual orientation, or gender identity”). To paraphrase our nation’s founders, this article’s enumeration of certain rights is not intended to deny or disparage the existence of other constitutional rights retained by children.

A Few Nuts and Bolts

The good people at True North Child Advocates argue that lawyers who represent children in foster care need to take responsibility for the direction and pace of the legal proceedings. See True North Child Advocates, “Objection! No One is Leading,” Children’s Law Podcast, May 24, 2024. They assert that children’s lawyers should see themselves as the lead counsel in the children’s legal proceedings. Id. I agree.

I also agree with their position that children in foster care have one overriding legal problem: They are in the custody of the state when they need to be in the custody of a family. See True North Child Advocates, “One Legal Problem,” Children’s Law Podcast, Sept. 5, 2023. For that reason, attorneys who represent children must adopt permanency-focused and rights-based advocacy methods. See id.

Below are three concrete ways to sharpen your practice on behalf of the children you represent:

• Assert rights under both the state and federal constitutions.
• File written motions.
• Initiate and participate in appeals, including interlocutory appeals.

Assert constitutional rights under both state and federal constitutions. State constitutions were intended to be the first bulwark to protect individual rights.  See Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 179 (2018). Too often, and to our clients’ detriment, lawyers ignore state constitutional arguments. Lawyers should think about, research, and assert state constitutional arguments whenever possible. State constitutional arguments should arise from the text of your state’s constitution, as informed by local history and culture, which means doing your homework. It also means exercising caution when relying on out-of-state precedent. Be sure you explain why a case from another jurisdiction bears on the interpretation of your state’s constitution. Of course, if your particular provision was modeled on another state’s constitution, then out-of-state precedent might be particularly relevant.

Make your arguments in writing when possible. Children’s attorneys spend a lot of time in the courtroom. Their calendars are filled with periodic review hearings, evidentiary hearings, and severance trials. In the evenings, you might find them meeting with or calling their clients, reviewing court or service-provider reports, or preparing exhibits for trial. Their schedules do not leave much time for writing motions. But the process of writing can help lawyers clarify arguments in their own minds, work through possible objections, and marshal the best cases, statutes, facts, and evidence in support of their arguments. Written motions are also an excellent way to preserve issues for appeal.

It is not necessary to write a treatise. Juvenile court judges are busy, too. For that reason, they’re a demanding audience. As one notable best-selling author reminds us, “[t]he reader must always be your main concern.” Stephen King, On Writing: A Memoir of the Craft, 10th Anniversary Edition 124 (2010). A written motion should begin by providing the court with a brief road map of the brief’s contents and arguments. Lawyers should also make good use of topic sentences, headings, and subheadings—especially when a multiple-part test must be applied to the facts. The application of fact to law is the heart of any motion or legal brief. It is critical to connect the dots between the facts in the case and the law that governs the outcome. The legal tests or rules derived from case law interpreting your constitutional text provide a blueprint to marshal the facts as persuasively as possible. Use words like “because,” “as,” and “since” to make connections between law and fact. Wrap up your argument with a strong conclusion that reiterates your strongest points and makes clear the specific relief being sought.

If your only opportunity to raise the issue is orally, be specific enough to ensure that any transcript of the argument will sufficiently preserve the claim for later review. If proceedings typically are not transcribed, you should arrange in advance for a court reporter or for other means of recording so an appellate court can properly review the lower court proceedings.

Initiate and participate in appeals. Children who are considered parties to their child welfare proceeding should have clear standing to appeal from any order that aggrieves them. Of course, not every decision or order is appealable at the time it is issued. Typically, only “final orders” are appealable. However, state court rules of procedure often permit parties to petition appellate courts for interlocutory relief when no appeal of right is available. See Jessica E. Yates, “When to Think About an Interlocutory Appeal,” Woman Advocate, Mar. 26, 2014. Lawyers who represent children whose rights have been denied or violated should consider seeking interlocutory relief when there is no appeal of right. And even when it is not the child appealing, lawyers should be advising their young clients about the appeals process and representing their interests, their positions, and their legal rights on appeal, which may necessitate the filing of separate appellate briefs and engaging in oral arguments.

Conclusion: Feel Free to Ask for Help

The Center for the Rights of Abused Children’s mission is to help attorneys who represent children in foster care to establish a jurisprudence of children’s rights. If you have an opportunity to make a strategic or cutting-edge constitutional argument that will strengthen children’s rights—especially if your case may present an opportunity to drive an important constitutional question to a state supreme court or even to the U.S. Supreme Court—please do not hesitate to contact the center for help. The center’s attorneys are happy to consult, collaborate, co-litigate, or consider amicus filings whenever there is an opportunity to persuade appellate courts to issue favorable rulings vindicating the rights of America’s most vulnerable children.