April 01, 2011

Foster Parents Lacked Right to Advocate a Position at Termination Hearing

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.

People v. A.M., 2010 WL 5621076 (Colo. Ct. App.).

A trial court erred when it let foster parents participate as full intervenors in termination of parental rights proceeding. State statute permitting foster parents to fully intervene in dependency proceedings limits foster parents’ participation to dispositional hearings, not termination hearings. Foster parents also lacked a constitutional liberty interest in their relationship with foster child and thus  could not advocate a position at the termination hearing.

A baby was removed from his parents’ care and placed in foster care based on suspected abuse. The local child welfare agency filed a dependency and neglect petition and the trial court approved treatment plans for the parents.

Initial reports to the court about the parents’ progress in treatment were positive, but concerns were raised later about their mental health diagnoses and treatment. The foster parents also reported concerns about the parents’ visits with the child, including being late to or missing visits, and returning the child from visits hungry or dirty.

Two mediations between the foster parents and parents led to agreements aimed at improving visits. The parents also agreed to continue working with their therapists and treatment providers. Eventually the court ordered the parties to develop a plan for the child’s return home.

A week later, the child’s guardian ad litem (GAL) filed an emergency motion to restrict the parents’ visits with the child based on concerns by the child’s CASA and foster mother. The concerns were that the child had lost significant weight, the parents were involved in domestic violence, the father viewed pornography and had left the child alone, and the mother had left the child with an unidentified person. The court ordered supervised visits based on these allegations.

A month later, the foster parents moved to intervene in the proceedings under a Colorado statutory provision that states “. . . foster parents who have the child in their care for more than three months who have information or knowledge concerning the care and protection of the child may intervene as a matter of right following an adjudication with or without counsel.”

The mother objected, citing a conflict of interest because the foster parents wanted to adopt the child. She asked the court to remove the child from the foster parents’ home because of the conflict. The foster parents denied the conflict, claiming their only concern was promptly achieving a safe, permanent home for the child.

The GAL then moved to terminate the parents’ rights. As the case moved to trial, the foster parents moved to exercise their right to participate in the termination hearing. The agency argued the foster parents should not be permitted to advocate the termination of the parents’ rights because the goal of reunification had not yet been abandoned and therefore they lacked a constitutionally protected liberty interest in a continued relationship with the child. The agency argued the foster parents’ role should be limited to testifying about facts they personally knew about.

During the seven-day termination hearing, the foster parents explicitly advocated termination of the parents’ rights. They also opposed motions, made objections, cross-examined witnesses, and testified about the parents’ deficiencies. The agency, caseworker, and treatment providers continued to support reunification as the permanency plan. After hearing the evidence, the court terminated the parents’ rights. The parents and agency appealed.

The Colorado Court of Appeals reversed, holding the trial court erred by allowing the foster parents to fully intervene at the termination hearing. The parents and agency argued that under a provision in Colorado statute, the foster parents’ role at the termination hearing should have been limited to providing information about the child. The foster parents argued the statutory provision could be interpreted to allow them to fully participate at the termination hearing.

The court of appeals found the statute was ambiguous regarding the scope and timing of permissible foster parent intervention. It explained the statute provides foster parents an unconditional right to intervene in dependency proceedings “following adjudication.” This language raises questions over whether foster parents may participate fully in all phases of a dependency case, or whether the extent of participation depends on the issues raised at the hearings.

The appellate court held the statute provides a limited right of intervention to foster parents at termination hearings. The court emphasized the right of foster parents to be heard at all proceedings is distinct from their right to intervene in proceedings. The legislative history showed the right of foster parents to intervene was meant to be limited to the dispositional hearing of dependency proceedings.

Over the years, the Colorado legislature has expanded the role of foster parents in dependency proceedings. This has resulted in overlapping statutory provisions that give foster parents rights to be notified of hearings, be heard at hearings or reviews of a foster child’s case, and to intervene in dispositional hearings.

The statutory provision at issue in this case—the right to intervene in dependency proceedings “after adjudication”— falls within a section concerning dispositional hearings only, not a more general section covering dependency proceedings broadly. A Colorado appellate court held this statutory provision limits foster parents’ right to intervene as full participants only in dispositional hearings. While they may exercise their right to be heard during a termination hearing, they may only intervene and participate fully in a dispositional hearing.

In this case, the trial court did not limit the foster parents’ participation at the termination hearing. Rather, it let them testify in favor of terminating the parents’ rights. The court of appeals found this error was not harmless.

The foster parent’s testimony, arguments by their attorney, and cross-examination of several witnesses uncovered harmful information about the parents that was not limited to the foster parents’ personal knowledge. It also contradicted the rehabilitative purposes of the termination criteria established in Colorado’s dependency statute by encouraging the court to terminate the parents’ rights so the foster parents could adopt the child.

The court of appeals held that letting the foster parents fully participate as intervenors violated the parents’ liberty interest in their parent-child legal relationship. While parents have a fundamental liberty interest in the care, custody, and control of their children, foster parents have limited, if any, constitutional liberty interests. Further, a foster parent’s relationship with a child does not give rise to a protected liberty interest at termination hearings, particularly in this case where reunification with the parents was still the permanency goal, and there was no expectation that the foster parent-child relationship would continue. Without a constitutional liberty interest, the foster parents could not advocate termination of the parents’ rights.

The court found the trial court erred by allowing the foster parents to fully participate as intervenors at the termination hearing and that error was harmful and required reversal of the order terminating the mother’s parental rights.