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    Wisconsin Lawyer
    September 07, 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.

    Elizabeth A. Neary

    Wisconsin LawyerWisconsin 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.

    child with   suitcaseby Elizabeth A. Neary

    Adam 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 NearyElizabeth 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.


    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.


    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.


    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.


    1U.S. Dep't of Health & Human Servs., Child Welfare Outcomes 2003: Annual Report.

    2U.S. Dep't of Health & Human Servs., National Adoption and Foster Care Statistics 2005.

    3U.S. Dep't of Health & Human Servs., Adoption and Foster Care Analysis and Reporting System (AFCARS Report) 6, at 7, 3, 4; Evan B. Donaldson Adoption Institute: Foster Care Facts.

    4Pub. L. No. 105-89, 111 Stat. 2115.

    5U.S. Dep't of Health & Human Servs., Administration for Children and Families; HHS Awards Adoption Bonuses, HHS News (Sept. 10, 2001); Evan B. Donaldson Adoption Institute: Foster Care Facts.

    6 Wis. Stat. § 48.64.


    8Wis. Stat. § 48.13 (Children in Need of Protection or Services).

    9405 U.S. 645 (1972).

    10Barstad v. Frazier, 118 Wis. 2d 549, 562-63, 348 N.W.2d 479 (1984).

    11Richard D. v. Rebecca G. (Caryn A.-G.), 228 Wis. 2d 658, 663, 599 N.W.2d 90 (1999).

    12Id.; see also Barstad, 118 Wis. 2d at 569 n.9; LaChapell v. Mawhinney, 66 Wis. 2d 679, 683, 225 N.W.2d 501 (1975); Howard M. v. Jean R., 196 Wis. 2d 16, 24, 539 N.W.2d 104 (Ct. App. 1995).

    13Wis. Stat. § 48.293(4).

    14Wis. Stat. § 804.01.

    15Wis. Stat. § 48.357.

    16Caryn A.-G., 228 Wis. 2d at 660.

    17Another potential issue of standing arises when the caretaker is not a licensed foster parent but instead is a relative with whom the child has been placed and from whom placement is being removed.

    18Wis. Stat. § 48.64(4)(c).

    19See Wis. Stat. § 767.41(5).

    20Wis. Stat. § 48.01.

    21Lawrence B. Smith, "Bonding and Attachment - When it Goes Right," Washington Parent Magazine, <>.

    22Goldstein, Feud, & Solnit, Beyond the Best Interests of the Child 31-34.

    23Kenosha County Dep't of Human Servs. v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845.

    24State v. Bobby G. (unpublished decision; petition for review granted) 2006 WI 126, 724 N.W.2d 202 (2006).

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