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Letter to the Editor: Child Advocates: Giving foster parents party status problematic

December 12, 2018

To the editor:

Indiana Lawyer recently published an article examining a view that foster parents should have broader rights and procedural safeguards in child in need of services cases (“Love and heartbreak: Attorney couple joining movement to bring changes for Indiana foster parents,” Nov. 14, 2018). Foster parents are invaluable assets and partners in child welfare. Every child in the system has a “child and family team.” This includes teachers, therapists, service providers, parents, DCS and a guardian ad litem. Foster parents are also essential to the team. Including foster parents’ voices in team decision making is where our focus as a system should be. Foster parents’ input in team meetings and on an ongoing basis provides valuable insight into the child’s needs. However, giving foster parents party status presents many problems.

This group is seeking party status with the belief that the children need an independent voice in court. This independent voice exists and is involved with every CHINS case in the state of Indiana. It is the sole purpose of a GAL and court appointed special advocate to make independent and objective recommendations to the court regarding that child’s best interest. GALs and CASAs visit the children in their placements on a regular basis, review records, speak with therapists, teachers and biological family, maintain contact with the placements for updates on the child’s well-being, and speak directly with the children in private. The GAL/CASA then takes all of that information from varying sources into consideration when making an objective best interest recommendation to the court. Due to the highly emotional nature of foster care and the strong bonds that occur when a child resides in a foster home, foster parents with the best intentions and the most selfless nature often lack objectivity.

The recommendations of the GAL are made solely on a best-interest-of-the-child basis. That said, it is important to understand the laws in which the child welfare system operates and the relevant factors in these decisions. Due to confidentiality laws, we cannot address individual situations; however, examples of the team not operating in the child’s best interest, as proffered by this group, demonstrate some misunderstandings of important factors and laws.

As referenced in the article, with some very narrow exceptions, the initial goal in CHINS cases is reunification. There is an assumption that it is in children’s best interests to be raised by their parents. Parents who have had their children removed are provided with an opportunity to remedy issues. There comes a time in every case when the court reviews the child’s permanency plan. The best interests of children returning to their parents’ care can come into conflict with foster parents’ earnest belief that they can provide the child with a better life, and can create tension between the legal directive of reunification and foster parents who grow to care for a child as if he or she were their own.

“No reasonable efforts” cases allow the court to change the plan to adoption quickly in limited cases. If a parent has a prior involuntary termination case (this does not apply if parents signed consents), if a baby is abandoned or if a parent has been convicted of one of several enumerated crimes, the court can entertain a petition to bypass reunification. There can be confusion by those who do not work with the statutes regularly about when a case qualifies for “no reasonable efforts.” A case does not necessarily qualify for “no reasonable efforts” simply because a parent has other children who have been adopted. Many statutes in Indiana recognize the important input foster parents provide. Some statutes pertain only to (statutorily defined) long-term pre-adoptive foster parents, and others apply to any current or previous placement. These laws include the right to notice if DCS intends to move the child, to file a motion objecting to the child being moved, to request a hearing, to receive notice of hearings and, among many other things, to be heard by the judge at hearings. Realistically, some legislation sought by this group would expand foster parents’ rights beyond what the law provides biological parents. The input currently allowed by these statutes is broad and meaningful. The longer a child has been in a foster home, the stronger safeguards the law provides to foster homes.

Confidentiality in these cases is paramount. Families in the child welfare system struggle with extremely sensitive issues. Confidentiality laws protect that information from becoming public. Giving foster parents party status would allow a foster family who has known a child for days to have access to medical records, mental health records, substance abuse treatment records and trauma history of the child in their care and the child’s full biological family. There is no basis to, nor do any jurisdictions of which we are aware, give foster parents this level of access to such information.

Importantly, party status for foster parents exists under current law on a case-by-case basis. If the judge finds intervention to be in the child’s best interest, any current or previous foster parent may receive party status. The judge is the appropriate individual to determine access to judicial remedies and classified information. Except in very unusual cases, foster parents already may appear at hearings, address the court, etc. This and the opportunity for judicially granted party status are sufficient and appropriate in ensuring foster parents are heard, while the rights of families are protected. Additionally, automatic party status would subject foster parents to burdens to which they are not currently accustomed and blur the roles of foster parents.

The child welfare system strives to put the best interests of the children first. The law provides guidance, limitations and protections for families, the state and the children as we work to reunify families and resolve tragic situations.

There are undoubtedly frustrations where those involved feel unheard. The solutions must come from continuing to develop practices which ensure all members of a child’s team have a strong and meaningful voice in decision making, rather than legislatively bestowing party status on all foster parents.

Joseph Fischer and Carey Haley Wong,
Child Advocates, Inc.

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