A good attorney can advise you, be your coach and supporter, explain relevant law and policies, mediate difficult conflicts, and represent your concerns in a court’s adversarial battleground. He will charge a reasonable fee and earn it, staying focused on the task you have set for him.
Diego was four months old when, due to severe abuse and neglect, he was removed from the home of his birth mother. He was immediately placed in a foster home with Mike and Jan, who had two older adopted children. Early developmental delay was clear, and Diego was diagnosed as “failure to thrive.” As the case progressed, relatives were contacted, but none showed interest in taking placement of him. Parental rights were terminated after about 15 months. Diego is now two-and-a-half years old and shows improvement. Mike and Jan wish to adopt him.
Meanwhile, the maternal grandmother has requested that Diego be placed with her. She lives in a different state and has never visited him. Nevertheless, she insists that he is her grandson and that family is family. Grandmother has requested that she be given legal guardianship of Diego. She has said that she may adopt him if she must compete with Mike and Jan. The welfare department has agreed with her and supports her request for a change of placement. In response, Mike and Jan have filed a petition to adopt Diego.
Mike and Jan are now facing a contested adoption. The outcome may very well hinge on the issue of which relationship is more important to the child: bonding or kinship. They will have to overcome the longstanding and widely held bias that the biological family always comes first. What can they do to present their best case in court?
When do foster parents need an attorney?
If everything seems to be running smoothly and you as a foster parent feel you can fulfill your obligation to the child in your care, let matters move along. If it’s not broken, don’t fix it. Too often, however, foster parents are afraid to speak up for fear of being labeled as troublemakers and blackballed. They may have opinions about what will serve the child’s best interests, but they lack a voice in team meetings, case conferences or in court. A knowledgeable attorney can function as a spokesperson and champion for foster parents and the children under their care.
In general, foster parents might consult an attorney when they feel they are not being heard about important matters related to their own issues or the best interests of the child. A wise course is to find and perhaps hire an attorney before troubling situations reach the crisis point. An experienced attorney who knows the territory can help foster parents present an effective argument in conferences and in court. Here are a few examples where an effective attorney can help:
- When foster parents need to understand their rights. The child welfare department may provide explanations and advice that actually reflects their own concerns, not necessarily those of the foster parents.
- A disagreement arises about the placement or removal of children in their home and they feel excluded from the decision-making process.
- In negotiating for the appropriate subsidies available to foster and adoptive parents.
- Unresolvable differences about visitation, special education, medical care or mental health therapy.
- When the foster parents have been accused of neglect or abuse. Complaints from the child or birth parents are not uncommon.
- When the foster parents wish to adopt.
- And finally, as one foster parent told us, when they were told they didn’t need an attorney.
How can an attorney help with adoption?
Foster parents need a knowledgeable attorney as soon as they have decided to adopt, whether the adoption is contested or not. Sometimes foster parents wanting to adopt are told to wait until after the parental rights have been terminated to hire their attorney. Wrong. Your attorney can help you move matters more quickly and smoothly, anticipating and circumventing problems before they occur.
Most foster children who are adopted are adopted by their foster parents. For attorneys, such adoptions are complicated. Before an adoption petition is filed, multiple meetings and hearings take place, including case conferences and possible appeals, initial court hearings, review hearings, permanency hearings, and the termination of parental rights. Several different parties have legal standing, including the welfare department, the birth parents and the CASA/GAL. In certain instances, agreements may need to be achieved so that a cooperative adoption can take place between the birth parent and pre-adoptive parents. Finally, if the child qualifies as having “special needs,” federal and state post-adoption subsidies are usually available, as well as Medicaid for the child. These must be approved, negotiated and agreed upon in the form of a signed contract before the adoption is finalized.
A good attorney will review the state child welfare policies with the foster parents. In some states, foster parents have the right to call a case conference anytime they believe the current case plan is not serving the best interests of their foster child. In these meetings, if the foster parents believe that efforts to reunify have been exhausted, they can propose changing the permanency plan from reunification to adoption. The attorney may wish to accompany the foster parents to the case conference to ensure that policies and laws are followed. He or she may consult with the welfare department attorney to help resolve any disagreements between the concerns of the foster parents and the welfare department.
Foster parents usually do not have legal standing in the case of a child in need of services. Depending on the state, foster parents may or may not have other lesser legal rights. These lesser rights may include the right to notification of all periodic review hearings, the right to present a written statement to the court, the right to testify, and the right to cross-examine the case manager and all other witnesses at the hearing. If foster parents do not have legal standing, their attorney’s first step would then be to file a “motion to intervene.”
The attorney may wish to consult with the foster child’s CASA or GAL about the child’s best interests and permanency plan. Foster parents have a stronger case when all parties advocating for the child are working toward the same goal.
A contested adoption involves a great deal more than simply filing a petition and hoping the court approves. Preparations are important. The groundwork needs to be laid. The attorney needs to understand bonding. While the varied legal procedures must be conscientiously followed, the presentation and proof of bonding between the child and the foster/adopt parents may be the strongest argument for keeping them together, especially in a contested adoption.
Bonding, when it occurs, is critical to a child’s development. The disruption of a demonstrated bonded relationship does considerable damage, which may be irreversible. The attorney may wish to ask the court to order a bonding evaluation. The attorney can then present proof of bonding and the consequences of its disruption to the court in a factual and evidentiary way.
Finally, the attorney can negotiate all post-adoption subsidies for which the child is eligible, including Medicaid.
The expert witness in court
In contested adoptions, an important task for the attorney may well be to have an expert conduct a bonding evaluation, present a clear and objective definition of bonding, then walk the judge through the results of the assessment. “A bonding study should stand alone and be requested because it makes a unique contribution. The bonding issue in permanency planning is the extent to which the parent is capable of caring for the child from the perspective of bonding and attachment. The bonding study draws data from observation, from social and interpersonal reports, and from cognitive and emotional assessments.”[1]
We recommend that the bonding evaluator use the four practical definitions of bonding offered in Chapter 3 of this book. After the foster child and the foster parent are given a bonding assessment, the mental health professional who performed the evaluation should prepare a detailed written report and testify on the results in court.
The foster/adopt parent in court
Keeping a journal is the number one way foster parents can help their attorney prepare for court and present a compelling argument. Foster parents should prepare for court by reviewing the written material in their journal entries.
Foster parents know the most about the children in their care and have the most to offer in terms of possible permanence. Realizing this, they should appear confident and comfortable in answering questions. They must express their own rights and wishes, but more importantly, they must advocate for the children in their home.
In an adoption hearing, the attorney should ask the foster/adopt parents for a declaration of their commitment on the witness stand. The foster/adopt parents should make clear to the court that they understand adoption to be a promise of forever. They are offering the child a permanent home.
The foster/adopt parent may be concerned about being cross-examined. Courts are adversarial settings and can be intimidating. The attorney might reassure and counsel the foster/adopt witness in the following manner: “You are the expert about the child under your care. Express what you think is best. Keep it simple. Think of the child’s welfare and try not to worry about yourself. Don’t be rushed. Take your time in answering any questions. It’s okay to state that you don’t know something. Don’t badmouth the birth parents or any other party. Stay positive in expressing your feelings about the child.”
The foster/adopt parents’ attorney may also call members of the community who have witnessed first-hand the day-to-day interactions between child and family to testify. How do they perceive this child? Do they consider him to be a member of the potential adoptive family? While these witnesses cannot offer an expert opinion, they can report on what they have observed. “Family identification” by the larger community is offered as a definition of bonding in many child welfare manuals.
Take allegations seriously
Foster parents begin with a love of children. Many of them decide to stop being a foster parent, not because they cannot face the challenges of handling troubled youngsters, but because they fail to receive support from the system. They may face allegations from anonymous accusers and may have charges substantiated against them with one-sided minimal evidence and negligible due process to defend themselves.
Foster parents are not immune to charges of abuse or neglect. Take such complaints seriously. Allegations can be made by anyone. Consult with an attorney familiar with relevant state policies for advice and perhaps to defend you at any hearings.
In order to encourage the reporting of abuse, the accuser is granted complete anonymity. Consequently, the foster parent can never directly question the accuser or directly challenge the credibility of the accuser. To further assure the safety of the child, strong proof of an allegation is not required. Hearsay is allowed. The usual standard is “credible evidence,” believable but not necessarily true. This can be difficult because even the word of a 4-year-old or the word of a biological mom who is a drug addict and wants to divert any blame from herself may appear credible to the case manager. And that word alone can be sufficient to remove the child from a foster home.
As a professional parent, foster parents are held to a higher standard of care. A couple of examples: The child welfare manual may forbid physical punishment. The manual may require that babysitting and respite care are provided only by another licensed foster parent or by someone over the age of 21. A foster parent may be charged with neglect for leaving an 8-year-old with a 19-year-old babysitter. Because the child is a ward of the state, failure to follow any direction given by the case manager may also be construed as abuse or neglect.
Any and all allegations should be taken seriously. The child who wants to “get back” at foster mother for making her do her share of household chores may tell her teacher that a bruise received at recess actually came from a “beating” by her foster mother. Foster children who have been in the system for a time become savvy on how this works. If you don’t like the rules at your foster home, make an allegation and you may get a new home.
Someone may report that a foster parent spanked their foster child. The birth mother may have complained that the foster parents left the child alone or locked him in his room. The case manager may even allege neglect against a foster parent for canceling a routine doctor’s appointment. The allegation may be a simple violation of welfare policy. Though the allegation may be for something not even remotely endangering the health or safety of a child, such complaints can lead to revocation of a foster care license.
Once Child Protective Services has substantiated any allegations, the foster child may not only be removed, but in many states, the foster parents may be placed on a list, the same list with sex offenders and other child abusers. The consequences of being listed are severe. Foster parents will lose their license. They cannot work with children. People have lost their jobs as a case manager in a mental health clinic, a prison guard, a school bus driver, a coach and a scout leader because of this stigma. Unproven allegations can and often do lead to a criminal-sized penalty for a mere policy violation. In most cases, it is extremely difficult to get one’s name removed from the list.
You need an attorney at a license revocation hearing. An attorney who knows the laws and policies related to licensing and the appropriate penalties for minor violations may save many future problems.
How to find the right attorney
Whether incorporating a business, planning an estate or suing for personal injury, one wants to be represented by someone who has expertise in that particular area. The same applies to matters related to foster care, especially to adoption. When hiring an attorney, foster/adopt parents want someone who is knowledgeable and experienced in the area of their concern—not only the state and federal laws, but also agency and state policies. Every state has its own thick manual that covers all foster care policies, including such topics as bonding, adoption, subsidies and a definition of special needs.
Some child welfare workers have told foster parents that they don’t need an attorney. Or that the foster parents should use an attorney that the case manager has selected. This is a mistake. Foster parents must realize they and the welfare department may have different and even opposite agendas.
A practical way to find a good attorney is to check with other foster parents who have been through the same process. Ask if they were satisfied with their attorney. The best recommendation will come not from a family friend or your family attorney, but from someone who has been helped in a situation similar to what you as a foster parent are facing.
Foster/adopt parents should always choose their own attorney and should be wary of any attorney who is highly recommended by the welfare department. An attorney recommended by the welfare department usually has a built-in conflict of interest when a disagreement arises between you and the department, particularly in the negotiation of the amount of monetary adoption subsidy.
How much does an attorney cost?
Fees vary. Some attorneys will ask for a retainer or full payment in advance. In cases other than adoption, you are responsible to pay your own attorney. If you are adopting your foster child and the child meets the definition of “special needs,” the attorney’s fee is usually paid for from the Non-Recurring Adoption Expense program. The maximum amount paid per adopted child varies by state.
Summary
While they have the most immediate responsibilities for everyday care, foster parents are often left out of the decision-making process. When disagreements arise, foster parents need to be notified and heard. A knowledgeable attorney can help them find their voice and have a say in what happens.
Chapter 16 Finding the Right Attorney Notes
[1] Child Welfare Handbook. Judicial Education Center. Institute of Public Law. Children’s Law Center and Judicial Education Center. (New Mexico, 2007), Chapter 37. 13. http://jec.unm.edu/resources/benchbooks/child_law/intro.htm.