July 12, 2000
FOSTER PARENT INTERVENTION IN CHILD ABUSE CASES
By: Saul Spigel, Chief Analyst
You asked about laws in other states that allow foster parents to intervene in child abuse and neglect cases.
Foster parents could conceivably wish to intervene at several points in judicial proceedings involving an abused or neglected child: (1) the disposition of a case after the initial determination of abuse or neglect, (2) hearings on the child's permanency plan, (3) termination of the biological parents' rights to the child (TPR), and (4) the custodial agency's determination to remove the child from the foster parents. Your question suggests you are more interested in foster parents' capacity in the first three situations, rather than in cases where their personal interests are directly at stake. This report focuses on those three situations.
There are three levels of involvement in court matters: (1) standing to participate fully, (2) intervention, and (3) opportunity to be heard. Statute, case law, and court rules determine a foster parent's permissible level of involvement. A person who has legal “standing” is “aggrieved” because his rights have been invaded or infringed on. He can initiate a court action, be present, introduce evidence, cross-examine witnesses, and examine court files.
A person who is granted the ability to “intervene” can ask the court to allow him to join with either party in an already pending action, but he cannot bring an action on his own. Once the court grants him intervener status, he has the same legal rights as a party with “standing.” A person who has the right to be heard may present only his own testimony.
Connecticut statutes, for example, (1) give current foster parents full standing in any Superior Court matter involving a foster child's placement or revocation of his commitment to the Department of Children and Families (DCF) (2) permit a child's prior foster parents to comment on such cases in some circumstances, (3) permit foster parents to initiate an abuse or neglect case by filing a petition, and (4) allow current and former foster parents to bring an action challenging a DCF decision concerning a child's custody.
The federal Adoption and Safe Families Act of 1997 requires states to give foster parents notice of and an opportunity to be heard in any review or hearing concerning the child, but it specifies that this is not to be construed to make them a party to the case. Several states, including Georgia, Kansas, North Carolina, Rhode Island, Vermont, and Washington have adopted similar language. Hawaii and New York (in limited cases) specifically permit foster parents to become a party in a hearing on a child's permanency plan. Maine allows foster parents who have cared for a child for at least four months to ask to intervene in any child protection case. Illinois allows the current foster parents to file a motion asking to be made a child's guardian but only when returning the child to his home is not one of the child's court-established permanency goals.
Arizona, New Hampshire, and New Mexico allow current foster parents to file a TPR petition, and Michigan allows current or former foster parents to file such a petition if they believe no one else involved with the child plans to do so.
Foster parents in Connecticut have a statutory right to:
1. file an abuse or neglect petition in Superior Court (CGS § 46b-129(a), although most, if not all such petitions are typically filed by DCF);
2. have standing in Superior Court, if the child is living with them, in cases involving an abused or neglected child's placement and the revocation of the child's commitment (CGS § 46b-129(o));
3. comment on the child's best interest, if they cared for a child for at least six months within one year of a placement or revocation matter being brought to the court, (CGS § 46b-129(o)); and
4. ask the Superior Court (by applying for a writ of habeas corpus) to review a DCF decision concerning the custody of a child currently or recently in their care (at least 90 consecutive days for a child under age three and 180 days consecutive days for older children) (CGS § 52-466(f).
In deciding that a DCF regulation excluding foster parents from contesting decisions to return a foster child to his home unconstitutionally deprived the child of his due process rights, the Connecticut Appellate Court said
Once a child has been in foster care for one year or more, the relationship between child and foster parent has developed to the point where such a process [notice and hearing] can be meaningful. The foster parents, who have had daily contact with the child, have, at this point, become significant figures in the child's life. . . . By this time, the foster parents may have gained significant insights into the child and be in a unique position to offer information about the child or the proposed placement that will assist DCYS [predecessor to DCF] in its decision making. Their voices must be heard (Orsi v. Santore, 31 Conn. App. 400, 438 (1993)).
DISPOSITION AND PERMANENCY PLANNING HEARINGS AND REVIEWS
The Adoption and Safe Families Act of 1997 (P.L. 105-89, § 104) requires foster parents to receive notice of, and be given an opportunity to be heard in, any review or hearing held with respect to a foster child. But, it specifically states that it is not to be construed as requiring a foster parent to be made a party to a review or hearing solely because he must get notice and be heard.
The regulations implementing this act limit to permanency hearings and six-month periodic reviews the situations in which foster parents have the right to notice and to be heard. They thus exclude TPR hearings and, possibly, hearings on changes in custody. They also explicitly limit these rights to current foster parents, although the commentary that accompanies the regulations states that they do not prohibit a state from extending the right to previous foster parents. The commentary also states that the right to be heard does not automatically mean the right to be present at the hearing or review; it is up to the states to decide how the foster parents' testimony can be made. It also says that the right to be heard does not convey to a foster parent the right to counsel (45 CFR 1356.21(o), Federal Register, January 16, 2000, p 47).
Hawaii. Current foster parents are entitled to participate in case review and permanency plan review hearings as a party. They must receive notice at least 48 hours before a hearing. No hearing can be heard until they are served notice. Notice can be served in person, by regular mail, or through the last court order if it includes the date and time of the hearing (Haw. Rev. Stat. § 587-72)
Illinois. Any current or former foster parent has the right to be notified at all stages of hearings and proceedings concerning the child and to be heard in court. But the foster parent does not become a party to the proceeding. A foster parent who is denied his right to be heard can, within 30 days, bring a mandamus action against the court or a public agency to enforce his right (Ill. Comp. Stat. Ann., § 405/1-5(2)(a)).
A current foster parent or one who previously cared for the child for at least one year and is still licensed can file a motion to intervene when the custodial agency moves to return the child to a parent or guardian who has been found to have abused or neglected him. The intervention can be solely to ask that the child be placed with the foster parent, and the law specifies that the court cannot issue any other orders in this situation (Ill. Comp. Stat. Ann., § 405/1-5(2)(b)).
A court can grant standing and intervener status to any foster parent if it finds that this is in the best interest of the child (Ill. Comp. Stat. Ann., § 405/1-5 (2)(d)).
Maine. The Department of Human Services must provide foster parents with written notice before any hearing or review concerning the child, and they have a right to be heard. But the law explicitly states that it gives foster parents only the right to testify; it does not entitle them to present evidence or other witnesses, attend any other portion of the hearing or review, or access pleadings or court records. (This requirement is contained in Maine's TPR law, so it is not clear whether it applies to disposition and permanency plan hearings.)
A licensed foster parent can ask the court to intervene in any child protection case concerning a child who is currently or who has lived in his home for at least 120 days. These cases include disposition and permanency plan reviews and hearings and TPR hearings. In deciding whether to allow the foster parent to intervene, the court must consider the strength and duration of his relationship with the child and the child's best interest (22 Me. Rev. Stat. Ann. §§ 4053, 4005-A).
New York. Certain foster parents can file a petition for review of a child's foster care status and become parties to it. Other foster parents must be notified and have an opportunity to be heard without becoming parties.
Foster parents who have cared for a child in the following situations can file for review and become parties: (1) an agency has determined that the child will remain continuously in foster care for at least 12 months, (2) the child has been freed for adoption for at least six months and not placed in a prospective adoptive home, or (3) the child has been placed in a prospective adoptive home but no petition for adoption has been filed within 12 months after placement. Notice of the hearing must be given to the foster parents in whose home the child lives or lived when or after the 12 months of continuous care ends or ended (NY Soc. Serv. Law, § 392-2 to -4).
The agency with custody of the child or the foster parent filing a petition must also notify any foster parent currently caring for the child (if they do not fit the criteria for a party foster parent) about a permanency plan hearing. These foster parents must have an opportunity to be heard, but they do not become parties (NY Soc. Serv. Law, § 392-4(i)).
Wisconsin. Foster parents must be notified in writing at least 30 days before any review of their foster child's case and be given the opportunity to be heard. They can do this by submitting written comments at least 10 working days before the review or by participating in it (Wisc. Stat. Ann. § 48.38(1)(b))
TERMINATION OF PARENTAL RIGHTS
Michigan. A current or former foster parent may petition for TPR as a “concerned person” if he has (1) specific knowledge of behavior by the parent that constitutes grounds for termination and (2) contacted the Family Independence Agency (Michigan's version of DCF), the prosecuting attorney, the child's attorney, or the child's guardian ad litem (if he has one) and is satisfied that none of them intends to file a petition (Mich Stat. Ann., § 27.3178).
New Hampshire. Foster parents can petition for TPR, but only if (1) the child has lived with them continuously for 24 months, (2) they have asked the agency that is the child's guardian to legally free the child for adoption, (3) the agency has not initiated TPR proceedings, and (4) there is reasonable cause to believe grounds for TPR exist (N.H. Stat. Ann., § 170-C:4).
New Mexico. A foster parent can file a motion to begin TPR proceedings. If it does so, the Children, Youth and Families Department can choose to litigate the case or it can move that the motion be found premature and denied.
When another party moves to begin TPR, notice must be served on the current foster parents and on foster parents with whom the child has lived for six of the previous 12 months. The notice must state specifically that they must file a written response within 20 days if they intend to contest the motion (N.M. Stat., § 32A-4-29).