June 01, 2011

Foster Parents Have Right to be Heard at Permanency 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.

Kristopher v. Mazzone, 2011 WL 508415 (W. Va.).

Foster parents who had cared for child for 22 months and had expressed desire to adopt should have been given an opportunity to attend and participate in child’s permanency hearing. Although West Virginia law gives preference to blood relatives in adoption decisions, that preference does not override the need to consider the child’s best interests and weigh relevant factors, such as the emotional bond between the child and foster parents and the duration of their relationship.

A child was taken into protective custody at birth after the mother admitted using drugs during her pregnancy and the child tested positive for cocaine. The child welfare agency filed an abuse and neglect petition and was awarded legal custody of the child in May 2008. The agency then placed the child in the care of foster parents, where she remained for 22 months.

Both parents’ rights were involuntarily terminated in December 2009. At that point, the agency arranged weekly supervised visits between the child and her paternal aunt. These visits continued and the agency ultimately determined the child’s best interests would be met through permanent placement with the aunt. The agency then informed the foster parents that the child would be removed from their home on March 29, 2010 and permanently placed with the aunt.

After a permanency hearing on March 29, 2010, the child was placed with the aunt. The foster parents then secured legal counsel and filed a motion to intervene, arguing they were not notified that a permanency hearing would be held on March 29th and that they should have received an opportunity to be heard at the hearing. They claimed they had advised the agency several times before the hearing that they wanted to adopt the child.

The trial court denied the foster parents’ motion to intervene, finding they lacked standing to intervene and that permitting them to intervene would not be in the child’s best interests. Further, the court noted the foster parents had not submitted a written application to adopt within 30 days after the father’s parental rights were terminated, and that West Virginia law favors placing dependent children with blood relatives. The foster parents then filed a writ of prohibition based on lack of jurisdiction.

The Supreme Court of Appeals of West Virginia granted the writ after finding that the trial court exceeded the bounds of its authority by not giving the foster parents a chance to be heard at the permanency hearing. The court explained that West Virginia statute clearly provides that “[a]ny foster parent . . . providing care for the child shall be given notice of and the opportunity to be heard at the permanency hearing . . . .” 

Because the statute was clear, the court granted the writ and returned the case to the trial court for another permanency hearing to give the foster parents a chance to be heard.

The court also identified other concerns it had with the agency’s handling of the case. It cited a lack of any concurrent planning during the child’s first two years of life. While the agency sought to terminate the parents’ rights soon after the child’s placement, it did not explore placement with anyone other than the foster parents early in the case. The court found this suspect since the agency later maintained that blood relatives are the preferred placement under its policies. The court stressed that the agency should have been seeking relative placement with the potential for permanent placement from the start of the case.

The court was also concerned by the agency’s claim that it had to place a child with a blood relative over a foster parent, without considering the emotional bond between the child and foster parent, the length of the child’s placement in the foster home, or other factors relating to the child’s best interests. The agency claimed its internal policy favoring relative placements was based on federal law. It cited the Social Security Act, which requires that states consider giving preference to a relative over a nonrelative. The court found the agency’s interpretation of this requirement went too far. While preference to relatives must be considered, the child’s best interests must ultimately determine placement.

Further, although West Virginia statute gives statutory preference to grandparents in adoption cases, such preference is not absolute and the court has discretion when awarding legal custody.

The court found the foster parents were given little consideration as prospective adoptive parents for the child, even though they had provided care for 22 months. Because of this lack of consideration, they were unable to present evidence to the trial court about the child’s best interests at the permanency hearing. The court therefore remanded the case to the trial court to give the foster parents a chance to be heard.