January 01, 2016

Child Welfare Agency has No Duty to Place Children with Paternal Grandparents

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.

Lorenz v. State, 2015 WL 8115325 (Ariz. Ct. App.).

Paternal grandparents filed civil complaint against child welfare agency alleging deprivation of federal and state constitutional rights and negligence. Federal court dismissed all but the negligence claims. On remand, the state court dismissed the negligence claims and grandparents appealed. Appellate court ruled agency has no duty to provide for placement of dependent children with grandparents.

The child welfare agency placed the child with foster parents after the mother signed a 90–day voluntary foster care agreement. The agency later filed a dependency petition, stating it had attempted to identify placement with the child’s grandparent or extended family but that such a placement was not in the child’s best interests because the search was ongoing. 

Despite the grandparents’ prior visits with the child before paternity was established and their calls to a caseworker, the agency did not contact the grandparents to determine if they were interested in becoming the child’s placement. The grandparents contended the agency misled the juvenile court by stating no family placement was available and failing to disclose their interest and involvement.

The agency later invited the child’s foster parents to adopt the child and told them no family members had come forward. When the juvenile court changed the permanency goal to adoption, the grandparents successfully moved to intervene and expressed their interest in adopting. The grandparents and foster parents filed separate adoption petitions, and the juvenile court granted the adoptive parents’ petition. Grandparents appealed that ruling, which the appellate court affirmed.

 As a result, the grandparents filed a civil complaint, alleging deprivation of federal and state constitutional rights and negligence based on a breach of a duty that arises from statutes and regulations governing juvenile dependency and placement preferences outlined in an internal child welfare agency manual. The case was removed to federal court, which dismissed all but the negligence claim. On remand to state court, the negligence claim was dismissed and the grandparents appealed.

The grandparents alleged the agency had “a nondelegable duty to provide for appropriate and lawful placement of dependent children with grandparents if adoption is contemplated.” The appellate court disagreed, finding the grandparents failed to establish the existence of a legal duty owed to them by the agency and dismissal of their negligence claim was proper. 

The “primary purpose” of the child welfare agency as identified by the state legislature is to protect children. Consistent with this overarching purpose, the court found each of the statutes and regulations grandparents cited made clear that the intent is to protect dependent children, not the interests of potential foster or adoptive placements. For example, the agency is statutorily directed to place dependent children “in the least restrictive type of placement available, consistent with the needs of the child” and lists placement preferences, but the court previously held that the statute delineates preferences, not mandates.

Likewise, the statute establishing a kinship foster care program to “promote the placement of the child with the child’s relative” was designed to meet the child’s health and safety needs and best interests. Nothing in the statute suggests that relatives are the intended beneficiaries of the kinship foster care program. The applicable regulations and agency manual also are intended to protect and further the best interests of dependent children, not the listed categories of potential placements.