Wisconsin
Lawyer
Vol. 80, No. 9, September
2007
In the best interest of children: When foster parents may keep
placement
The legislature has given foster
parents certain rights when
seeking to continue to care for a child.
Attorneys representing foster parents need to understand the issues
their clients face when a foster child
is removed to another foster placement or returned to a biological
parent. The author discusses issues
affecting foster parents in such situations, including notice, standing,
procedure, and discovery.
by Elizabeth A. Neary
dam was born at home without a midwife or any medical
personnel present. His mother, who had been addicted
to cocaine for 15 years, had tested positive for cocaine earlier in the
pregnancy. A few days after his birth, Adam's
mother brought him to the hospital to obtain a birth certificate. Adam's
mother was arrested on an outstanding warrant,
and Adam was placed in protective custody.
After a brief stay with his grandmother, Adam was placed with the
same foster parents with whom his two
sisters had been placed and who had subsequently adopted the sisters
after involuntary terminations of the biological
parents' rights. The older sister, a teenager with severe medical
problems, had lived with her biological mother but was
removed when her needs were no longer being met. The younger sister
was placed in protective custody when both mother
and child tested positive for cocaine at birth. Over the next two and
one-half years, Adam was cared for by his foster
family, while his birth mother worked on meeting the conditions for
return set by the state. Eventually, the state
determined that Adam's mother had sufficiently met the conditions for
Adam to be returned to her care.
Adam was one of the more than 7,800 children in foster care in
Wisconsin in
2003,1 the most recent year for which
complete statistics are available. Nationally, foster children numbered
more than one-half million in
2005,2 the most recent statistics
available. Of those children that exited the foster care system in 2005,
the majority, more than
50 percent, returned to their birth
families.3 However, since the enactment of
the Adoption and Safe Families Act of
1997,4 adoptions by foster parents have
risen dramatically, from 28,000 in
1996 to 50,000 in 2000.5 In part, the Act
is intended
to create permanency for children who might otherwise languish in
foster care. What happens when a child is in foster care and
a termination of the biological parents' rights either is unsuccessful
or is not pursued? This article discusses some of the issues
facing foster parents and their attorneys when a foster child is
facing either removal to another foster placement or return to a
biological parent. The article addresses notice, standing, procedure,
and discovery issues.
Notice and Right to a Hearing
Elizabeth A. Neary, Marquette 1983, is a
partner with Grady, Hayes & Neary LLC, Waukesha. She practices in
adoption and related children’s issues and business
litigation.
Foster parents who have had placement of a child for more than six
months are entitled to an evidentiary hearing if they object to
a change in placement of their foster child. Written notice stating
the reasons for removal must be served on the foster parent at
least 30 days before the removal is
scheduled.6 The foster parent then has 10
days in which to file an objection and request a
hearing either before an administrative body or the circuit court. The
child may not be removed from the foster parent's care until after
the hearing, or 30 days from the notice, whichever is
later.7
When Adam's foster mother was served with a notice of change of
placement, she filed an objection and requested a
hearing before the circuit court. She also filed a discovery demand
and a motion to maintain the status quo regarding the visitation
schedule between Adam and his mother, so as to preclude an effective
change in placement before the hearing. After several delays
in scheduling the hearing, including one delay due to a more than
year-long failure to perform drug testing, the
CHIPS8 order expired, causing the court to
lose jurisdiction over the matter. Neither the court nor the district
attorney was willing to extend the order,
and the removal of Adam from his foster home was accomplished without
the court ever having determined if removal was in
Adam's best interest.
Constitutional Rights of Biological Parents
Since Stanley v. Illinois,9
courts have recognized that parents have a fundamental constitutional
right to the care and custody
of their children. However, this right is not absolute. Parental
rights are dependent, to some extent, on the exercise of
parental responsibilities. "A biological parent who has never
born [sic] a significant responsibility for the child and who has not
functioned as
a member of the child's family unit is not entitled to the full
constitutional
protections."10 Therefore, when a
court is
determining custody between a parent and a third party, the parent
will win absent a showing of compelling reasons for awarding custody to
a third party. Compelling reasons include abandonment, persistent
neglect of parental responsibilities, extended disruption of
parental custody, or other extraordinary circumstances affecting the
welfare of the
child.11 For a foster parent to maintain
custody of a
child, the foster parent may attempt to prove unfitness of the
biological parent, but need not do so to prevail. If the foster parent
is
able to show that the biological parent has abdicated his or her
responsibilities, the court may determine which placement is in the
child's best interests. Even fit parents can lose custody if they
previously had abdicated their responsibilities and the court determines
that best interest considerations dictate placement with a third
party.12 The passage of a significant
period of time, and attachment
to the foster parents, may weigh heavily in the court's determination
in such a situation.
Placement with Siblings
Adam's outcome might have been different had his placement occurred a
few years later. In 2005, the Wisconsin
Legislature amended Wis. Stat. section 48.834 to require consideration
of placement with siblings before other adoptive placements
are considered. During the process of determining Adam's placement, an
argument could have been advanced that the legislature
has expressed a preference for placement with siblings.
This was the basis for the removal decision in the case of Benjamin.
After several out-of-home placements, some with
his siblings, some without, Benjamin was placed with a foster family
with the goal of eventual adoption. At first, the transition
was difficult, but as Benjamin began to feel accepted by this family,
his behavior improved and, by all accounts, he began to thrive.
Attempting to avoid the loss siblings suffer when separated from one
another, the state sought to reunite Benjamin with
his twin sister and younger brother, who had been placed with a
different foster family. Benjamin's foster mother objected to
the removal in accordance with her rights under Wis. Stat. section
48.64, and an evidentiary hearing was scheduled.
Discovery
Unlike in Adam's case, counsel for Benjamin's foster mother was not
provided access to the county file. The attorney filed
a discovery demand, and the guardian ad litem (GAL) objected to the
request. The foster mother argued that she should be
entitled to see the entire file as it related to Benjamin so that she
could present a complete picture to the court. The GAL, joined by
the state, successfully argued that the foster parent could see only
what the state intended to use at trial. Wis. Stat. section
48.64 provides access, at a reasonable time before a hearing, to
"all documents and records to be used at the hearing…."
The law is murky regarding the status of foster parents at a section
48.64 hearing. Section 48.64 allows foster parents to
present evidence at a hearing in support of their objection to
removal. Yet, the statute is worded such that evidence that may prove
the
most useful (that is, documents in the state's possession that it
does not intend to use) might not be available to foster
parents. Plus, it
is arguable that the foster parent, unless afforded party status, is
unable to initiate or participate in any discovery.
The Children's Code specifically allows for use of all discovery
procedures permitted under Wis. Stat. chapter
804.13 Chapter 804 refers to discovery by
parties.14 The foster mother in
Benjamin's case argued that the legislature clearly intended that
foster parents, at the very least, have quasi-party status if they are
to meaningfully participate in hearings. Without the ability to
fully prepare, how can the foster parent fully participate? More
importantly, the court is left to decide the child's best interest based
on an incomplete record. There have been no appellate cases addressing
this important issue.
Benjamin's foster mother was not treated as a party, was not
provided any documents until the day of trial, and was
precluded from engaging in any discovery. Nevertheless, the court
ruled that the reunification efforts, while laudably motivated, came too
late in Benjamin's life. Testimony from two therapists supported the
claim that Benjamin was thriving in his foster placement and
that recent efforts at reunification had caused significant regression
in Benjamin's behavior. He began to wet his bed, was regularly
lying and stealing, and had violent outbursts. Benjamin was allowed to
stay with his foster mother, and she has begun the adoption process.
The extent of discovery may depend on which court is assigned the
case. Down the hall from the courtroom in which
Benjamin's hearing took place, the foster parents of Cory were
provided full access to the county's file and took depositions of
several witnesses. Cory, the youngest of 17 children born to a woman
with a cocaine addiction, was removed from her care when he
tested positive for cocaine after birth. Cory's father, a man with a
lengthy history of drug abuse and a criminal record that included
a conviction for sexual assault of a child, wanted custody of Cory.
The foster parents objected to Cory's removal. Cory had been
in their care since birth. When the change of placement notice was
served, Cory was nearly 2 years old.
Standing
A pivotal issue in Cory's case was whether the foster parents had
standing to object because a parent, not the state, was
requesting the change in placement. The father argued that Wis. Stat.
section
48.357,15 not section 48.64, applied.
Section 48.357(2r)
allows foster parents to merely make a statement to the court when a
parent requests a change in placement. Foster parents
specifically are denied party status under this section. The judge
ruled that because placement with the foster parents exceeded six
months, section 48.64 applied regardless of who requested the change.
The judge's ruling is consistent with Caryn A.-G., in which the
court of appeals held that section 48.64 "expressly recognized the
right of foster parents to participate and present evidence in
hearings that involve `the placement and care' of a child in their
household."16 A contrary finding
would have undermined the ability of
foster parents to ever challenge a change in placement or the ability
of the court to determine if a change in placement is in the
child's best interest. The distinction between sections 48.357 and
48.64, as concerns a foster parent's right to object, appears to be
the length of the child's placement with the foster
family.17
Standard and Burden of Proof
The best interest of the child is the standard by which changes of
placement are to be determined. The 2005 amendments to
the Children's Code clarify that the petitioner has the burden of
proof to show, by clear and convincing evidence, that the
Department of Health and Family Services or other child welfare
agency's decision to change a child's placement is not in that child's
best interest.18
The Children's Code fails to precisely delineate the factors the
court must consider in making a best interest
determination. However, the court is free to consider any factor that
bears on the issue of best interest, as well as the factors enumerated
in
the Family Code.19 The court's decision
should comply with the stated goals of the Children's Code. Best
interest considerations
are always of paramount importance.20 A
goal of Wis. Stat. chapter 48 is to preserve the unity of the family.
However, the
legislature included language in the Children's Code to advise courts
that, when appropriate, they have the authority not to reunite a child
with his or her family. Furthermore, Wis. Stat. section 48.01 states
that "courts and agencies responsible for child welfare should
also recognize that instability and impermanence in family
relationships are contrary to the welfare of children and should
therefore recognize the importance of eliminating the need for
children to wait unreasonable periods of time for their parents to
correct
the conditions that prevent their safe return to the family."
Effect of Bonding
The law does not define what constitutes an "unreasonable"
period of time. A consequence of lengthy foster care placement is
that at the same time a biological parent is working on conditions for
return, the child is becoming bonded and attached to his or
her caregiver, particularly if the same foster family provides care
throughout the out-of-home placement. At a change of
placement hearing, the foster parent or GAL may request, or the court
on its own motion may order, that a bonding assessment be
performed to assist the court in making its determination. In a
bonding assessment, a psychologist evaluates the bonds that have been
formed between the child and his or her biological parents and between
the child and the child's foster parents. The strength of these
bonds may be the determining factor in whether a child should be
removed from a caregiver.
Bonding is the basic link of trust between child and
caregiver.21 When an infant's needs
consistently are met by a
primary caregiver, a trusting relationship develops. Successful
bonding leads to attachment, the foundation of future healthy
relationships. Disruptions in secure attachments can lead to a wide
array of developmental difficulties for the
child.22
In Cory's case, the court heard testimony from professionals who
opined that Cory had strong bonds with both his
biological father and his foster parents. Ultimately, the court
ordered that Cory was to be placed with the biological parent.
Some Decisions May Indirectly
Affect Foster Families
Recent Wisconsin decisions that do not deal directly with rights
afforded to foster parents nevertheless affect the
relationship between foster parents and children in foster care. For
example, when the Wisconsin Supreme Court reversed the termination
of parental rights of Jodie W. to her son Max, its decision had a
profound effect on the foster parents who had provided care for
Max for the prior four years and necessarily affected the child's
future placement and thus
security.23 Issues the court addressed
were whether the birth mother entered a knowing and voluntary plea to
the CHIPS allegations and whether a termination of
an incarcerated parent can occur when the conditions for return are
impossible. These issues do not directly relate to foster
parents; however, the outcome of the case most certainly did. Rather
than wait for the state to remove Max and reunite him with
his mother, the foster parents moved for permanent guardianship.
The Wisconsin Supreme Court is considering another case in which its
decision will affect foster parents and the foster
children in their care for several years. The court heard oral
argument in February in State v. Bobby G.24 At issue is whether a
biological father has a constitutional right in the
"opportunity" to develop a relationship with his child. The
biological father did not know
of the child's existence until the petition to terminate his rights
was served. If the court determines that such a right exists, the
long-term placement of this special needs child with foster parents
who have taken exceptional care of him, will be jeopardized.
The potential exists for the foster parents to prepare for litigation
in the context of either a proposed guardianship or objection to
a change in placement.
Conclusion
Although foster care is intended to be a temporary situation pending
permanent placement of a child or return to a
biological parent, the legislature has given foster parents certain
rights. An objection to a change of placement when a child has been in
a foster placement for more than six months entitles the foster parent
to a full evidentiary hearing. The extent of the foster
parent's participation in that hearing is not fully defined in the
law. Attorneys need to be aware of and able to address notice,
standing, attachment, and discovery issues. Legislative clarification,
particularly as it relates to the status of the foster parent and his or
her right to discovery, is needed for the full intent of the
legislation to be realized.
Endnotes
Wisconsin
Lawyer
