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.
When children are removed from their homes, parents are often left upset, scared, and confused. They may not know where their children have been placed, what school they will attend, when they can see their children or how to provide information about their children’s medical care. For many parents involved in the child welfare system, this state of not having information about their rights and the role they should play while their children are out of their home can last for the life of the case.
To inform parents about the rights they retain while their children are in foster care, the ABA Center on Children and the Law, in partnership with the Annie E. Casey Foundation, created state-specific Know Your Rights guides for all 50 states and the District of Columbia. The guides are based on research conducted in 2017 and are short summaries of state law and policy with parents as the primary audience. The guides can be found at www.ambar.org/parentrights
What Parents Can Find in the Guides
While specific to each state’s laws and policies, the guides contain common themes and information types. Each guide starts with a list of rights the parent retains absent a court order (such as medical decision making, visitation, legal counsel) and the areas the child welfare agency should consult with the parent about (e.g., placement decisions, haircuts, consent to military service, and marriage). The body of the guide details what the parent can expect with emphasis on legal counsel, education and school rights, medical rights, placement decisions, immigration and due process rights.
The guides empower parents and help them understand how they can be involved in their child’s life. Until a parent’s rights are terminated, the parent should be involved in all important decisions about their child. The parent should be included in medical and education decisions, but often parents are not asked for their opinion or told they should be involved. The guides focus on day-to-day issues that, when a parent is involved, can make a positive difference for his or her child.
How Practitioners Can Use the Guides
As a child welfare professional, you can share your state’s guide with parents. Use the guide to start the conversation with a parent about the importance of the parent’s involvement in the case outcome. For example, in many states, parents have a right to be involved in placement decisions.
As a parent’s lawyer, you can use the guide to explore whether your client has relatives who could care for the child.
As a judge, you can share the guide with parents who appear before you. Talk to them about the information in the guide, and advise them to talk to their caseworker and lawyer if they are not getting opportunities to provide input on important decisions.
As a child’s attorney, you can use the guide to understand what rights your client’s parent may have to be involved in key decision making processes relevant to the child.
As an agency attorney, you can use the guide to inform the assigned case worker and other agency personnel about decisions that may require parental involvement.
In addition to referring to your own state’s guides, reviewing other states’ guides can reveal helpful practices that differ from your own. For example, Indiana sets out medical decision making clearly and broadly: a parent has an explicit right to be involved in the decision to place the child on psychotropic medication, to permit the child welfare agency to seek drug and alcohol treatment for the child or to consent to HIV testing and treatment for the child. If you represent parents and the parents’ rights to this type of involvement are not as clear in your state, you can share the information with the child welfare agency and court, and advocate for expanding parents’ rights. You can also advocate for your own clients to be involved in these decisions.
Other Examples of Family-Friendly Laws and Policies
Other states’ guides also provide excellent examples of family-friendly approaches to incorporate into your own practice:
In Kentucky, a parent has the right to be involved in deciding what school her child will attend while in out-of-home care because the parent has primary education decision-making authority. Additionally, the parent is the only person who can sign the child’s driver’s license application. Special requests, such as body piercing, tattoos, hunting and riding four wheelers, require a parent’s permission or court order. While some of these issues may be more serious than others, it is significant that Kentucky outlines how the parent can remain engaged in the child’s life.
Similarly, Missouri and Mississippi set forth many rights parents can expect when their children are in out-of-home care. Having these rights clearly set out helps a parent understand what to expect from the system related to visitation, decision-making authority for the child, service planning for the parent and child, treatment for the child while in care, and participation in case planning conferences and court hearings. Notably, Mississippi assures parents their children will be free from abuse, discipline, or harsh treatment while in the child welfare system, and gives them opportunities to share their family’s strengths and shape the service plan.
Arkansas’s guide is worth reviewing for a couple of reasons. Arkansas parents are told more about what parents can expect relating to their child’s education than in other states. In part they are told,
“Your child will usually attend public school. However, sometimes a certified mental health professional finds public school is not in a child’s best interest. If this happens, your child may attend a non-public school. A waiver may also allow a child to attend a non-public school without a mental health professional’s finding. Talk to your lawyer about which school your child will attend.”
Additionally, the guide describes explicit responsibilities the Arkansas Department of Child and Family Services has related to parents. Notably, the agency must inform parents why their child was removed and placed with a foster family. It must also acknowledge the role parents have in their child’s life and treat families fairly without judgement or criticism. Other responsibilities include keeping parents informed about reunification services, access to counsel, removal and placement decisions, case planning, support and service provision, and steps to achieve reunification.
Idaho’s guide statutorily mandates placing siblings together:
“The child welfare agency must try to place your child with his or her siblings. If they do not keep siblings together they must explain to the court why not. You have the right to challenge the placement decision in a court hearing.” (Idaho Code Ann § 16-1622(1)(c) and (d); Idaho Juvenile Rule 43; Idaho House Bill 556)
These states go beyond the basics to educate parents about their rights and roles in their children’s cases. Scanning these and other states’ guides can provide you with ideas and advocacy tools to help your clients.
Some states also detail responsibilities parents have when their children are in foster care. The most common is to provide financially for their children – something that may be difficult for many parents in the child welfare system. While long lists on a piece of paper may not be useful to a parent, the responsibilities sections show how important parents are to their children and how important it is to engage with them.
Colorado and Texas, for example, outline comprehensive lists of responsibilities, to help parents know what they must do to have their child returned. In Colorado the parent is asked to talk about family strengths and challenges because no one in the child welfare system knows this information better than the parents. Similarly, in Texas, parents should be asked about the child’s special needs, allergies, eating habits and adults who are special to the child. By discussing these rights and responsibilities and engaging in meaningful dialogue with parents, professionals can better serve children and their families. Other responsibilities include providing a safe and loving home, helping identify resources that may be sources of strength and support for the family, telling the caseworker about American Indian or Alaskan Native descent or special religious requests or observances, visiting regularly and working on all aspects of the case plan.
It is important for parents to know what they must do to have their children reunified. It is also essential that child welfare professionals work with parents to ensure they understand their duties and responsibilities. These guides, and the state resources listed, can provide concrete information and action steps to share with parents. Other states with responsibilities clearly stated include Louisiana, Kansas, Maryland, New Jersey and Georgia.
Where These Rights are Found
Finally, a word about where we found the rights and responsibilities covered in the guides. In some states they were in statute, but that was the exception. In other states we found them in child welfare policy manuals, but even that was a challenge. In many states we found the information in Foster Parent Handbooks. While it is positive that states are sharing this information with foster parents, it is critical to get the information to parents themselves.
Some states, such as Texas, Colorado, New Jersey, Kansas, Pennsylvania, Ohio, Oregon, Virginia, California, Michigan, Iowa and others, have handbooks and videos for parents to let them know what to expect when their child is involved in the child welfare system. These are valuable tools that every state should develop, and importantly, distribute to every parent. These state handbooks go into much more depth than the Know Your Rights Guides and they should be used together to best meet the needs of each family.
Mimi Laver directs the National Alliance for Parent Representation at the ABA Center on Children and the Law.
Emily Peeler, staff attorney at the ABA Center on Children and the Law, focuses on education, kinship and parent representation issues.