Legal Standing for Foster Parents

Fostering Futures, Rhode Island Foster Parents Association, No. 8, Issue 3, April 2009*

by Susan M. Fink

From the moment I began working as a lawyer in Rhode Island’s child welfare system, my admiration for foster parents was sealed. As closely as I worked with children as a CASA attorney (starting in 1989!), I knew that foster parents needed to possess formidable emotional reserves to function successfully as DCYF foster parents. Foster parents provide the direct care and love all our DCYF kids deserve, with the expectation that they support all potential permanency outcomes – from reunification with the birth family to becoming adoptive parents to facilitating the transition of a child to a pre-adoptive home. In opening their homes, foster parents must take part in a social service and judicial system that can be challenging, if not overwhelming.

A Right to Be Heard

Rhode Island law clearly limits the legal role of foster parents. Rhode Island General Laws section 40-11-12.1 directs the Family Court to conduct a “permanency hearing” within twelve months of a child’s placement in the Department’s care. Paragraph (C) gives foster parents a right to be heard:

“At the permanency hearing, all parties shall be allowed to be heard and the foster parents, any pre-adoptive parent or relative providing care for the child shall be provided with notice of, may attend and present a report, oral or written, containing recommendations as to the best interest of the child, except that this subsection shall not be construed to require that any foster parent, pre-adoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and opportunity to be heard.”

The statute invites foster parents to be heard, but cautions that they do not become a party to the case. The constitutional rights of the biological parents remain paramount unless and until the Department can prove they are unfit. A child’s best interests, which foster parents may recognize from the start, cannot be considered until lack of fitness is proven.

The Court routinely reviews a child’s case at least every six months. Cases also come before the court for arraignment, pretrial, trials and motions. Only those annual hearings designated as permanency hearings invite foster parent participation. Despite the day to day familiarity with a child that results from living under the same roof, foster parents have limited ability to communicate directly to the court.

Proactive Communication

Other avenues exist for input. DCYF social workers and CASA attorneys thrive on the direct knowledge of foster parents when it comes to the child’s well being. Foster parents should be proactive about learning who the CASA attorney is and offering important information on the child’s behaviors and well being.

Foster parents also have the ability to have adoption petitions filed on behalf of their foster children. RIGL section 42-72-5.1 allows foster parents of a child who has been committed to the Department and who has resided in their home for at least two years to file an adoption petition. Good fortune seems to end with the filing. In order to grant the petition, the court must find that DCYF has made “every effort” to involve the natural parent in planning for the child, as opposed to the “reasonable efforts” required when DCYF files a termination of parental rights petition. The foster parents must also prove that the natural parents failed to exercise reasonable visitation. Practically speaking, a foster parent has no ability to meet this burden of proof. If the Department could meet the burden, it would proceed: funding, state and federal laws demand it. The cost of bringing such a suit privately would be prohibitive. Termination is seen as the prerogative of DCYF and the Court.

RIGL 42-72-5.1 is not without benefit. It can serve as a useful tool in bringing the parties to the table to speak realistically about a child’s future. Faced with such a petition in the court file, a judge might order the Department to file a termination petition. He or she might encourage biological parents to talk about long term planning for their child that includes some contact rather than a closed adoption.

Knowledge is Power

Perhaps the most confusing point in the legal proceedings is when the time comes for that discussion regarding permanency, frequently at the pretrial or case management conference on a termination petition. Foster parents obviously have a lot at stake, and a critical role, in determining the arrangements for post adoption contact. Although you are a party to the adoption petition, the agreement precedes the natural parent’s consent; in other words, the parties are working on the termination petition rather than the adoption petition. For a variety of reasons, each party is motivated to arrive at an agreement; foster parents, though, are left to fulfill their decisions. Some social workers forewarn foster parents of the “direct consent” hearing; others do not. I have had clients call with the statement that an agreement was made, but they had little or no input into the contract that they must sign. Changing Decrees of Open Adoption after the natural parent has signed is difficult and risks withdrawal of their consent.

Recently I was present in the courtroom when another attorney argued before the judge to be heard on the record regarding an open adoption agreement. The judge attempted to explain that the foster parents were not a party to the action and not permitted to be heard. The attorney was befuddled. The judge commented that despite their lack of standing, the foster parents could still use legal guidance.

Remember that knowledge is power. Make certain you ask questions before offers are made and documents are signed. Better yet - call an attorney. There are a few of us who practice in this area almost exclusively and would be happy to take your calls.

Susan M. Fink started at CASA in 1989, joined the DCYF Legal Staff in 1994 and became a DCYF Hearing Officer in 2000. She is currently a partner at the Law Offices of Greenwood & Fink.

*“Legal Standard for Foster Parents” is part of a paid advertisement. The opinions expressed are those of the author and do not represent an endorsement by the RI Foster Parents Association.