December 01, 2015

Child in Foster Care Lacked Right to Attend Parents’ Termination Hearing

Eva Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

K.D. v. Hoffman, 2015 WL 5612912 (Ariz. App. Ct.).

Child in foster care did not have an absolute right to be present and testify at the termination of parental rights hearings of her parents. Neither the state Bill of Rights for Children and Youth in Foster Care Act nor the juvenile court rules of procedure supported such an absolute right. Rather, the juvenile court was entitled to consider her best interests in deciding whether to allow her to attend the hearings and testify.

The child welfare agency initiated dependency and termination of parental rights proceedings, which were consolidated, against the parents of the 13-year-old petitioner, K.D., and her 10-year-old sibling. Through her counsel, K.D. asked to attend the consolidated hearings and testify. Two mental health professionals—K.D.’s therapist and an agency psychologist—advised the court that attending and testifying at the hearings would be contrary to K.D.’s best interests because it would undermine the stability and safety she had developed in her placement and cause significant regression. K.D. did not present any evidence to counter these assessments.

The juvenile court ruled that it would not allow K.D. to attend or testify at the hearings based on her best interests but would reconsider her request to appear at hearings later in the year. K.D. argued she has an absolute right to attend and testify and thus the juvenile court was not entitled to consider her best interests in denying her request. She relied on the Bill of Rights for Children and Youth in Foster Care Act as codified in state statute, which states that a child in foster care has the right to “attend the child’s court hearing and speak to the judge.”

However, the Act also provides that it “does not establish any legally enforceable right or cause of action on behalf of any person.” Furthermore, the Act’s legislative history shows the legislature did not intend to give children in foster care absolute rights. Similarly, the court found its own rules of procedure also recognize that a child’s right to attend and testify at hearings is not absolute. Although the rules authorize a child in foster care to attend court hearings and speak to the judge, they also direct that all juvenile court rules be interpreted to protect the best interests of the child, with paramount consideration given to health and safety.

The court pointed out that even though a parent has a fundamental liberty interest in the care and custody of a child, that right can also yield to the child’s best interests. For example, previous rulings established that parents do not have the absolute right to call young children as witnesses to challenge their statements at termination hearings. That right must be weighed and balanced against the child’s best interests.

K.D.’s right to attend the termination proceeding was therefore not absolute, and the juvenile court was required to consider her best interests in ruling on her request to attend and testify at the consolidated hearings.