Representing Foster Parents in Dependency and Neglect Proceedings
| Publication year | 1993 |
| Pages | 1697 |
| Citation | Vol. 22 No. 8 Pg. 1697 |
1993, August, Pg. 1697. Representing Foster Parents in Dependency and Neglect Proceedings
Foster parents occupy a unique position in relation to the children in their care. Although foster parents enter into a contractual relationship with the county department of social services ("department") to care temporarily for abused, neglected or abandoned children, the reality is that these placements often continue for years.(fn1) The unintended result is that in many cases a significant emotional attachment develops between children and their foster parents, such that these new caretakers become the children's "psychological parents."(fn2)
Due to the strong emotional bond formed among members of a foster family, foster parents commonly become committed to raising these children on a permanent basis. This is especially true where a child is placed in foster care as an infant, hardly knows his or her natural parents and remains in the care of the same foster parents for several years. In such situations, foster parents throughout the country are increasingly attempting to protect and preserve this new familial relationship through litigation.
In the context of dependency and neglect proceedings, practitioners must be cognizant of the myriad of issues likely to arise in representing foster care providers. This article explores the rights of foster parents in the following matters: intervention; discovery; pre-removal hearings; custody; termination of parental rights proceedings; and adoption. Due to a dearth of appellate case law and statutory authority existing in Colorado, other jurisdictions have been cited to illustrate how courts throughout the country are interpreting the role of foster parents in dependency proceedings.
When a Petition in Dependency and Neglect is filed, the parties to the original action usually include the county department of social services, the natural parents and the child.(fn3) Foster parents are not afforded party status. In order to participate meaningfully in hearings, foster parents must first intervene as an "interested party."
The leading Colorado case addressing the rights of foster parents to intervene in a dependency case is People in the Interest of M.D.C.M.(fn4) In that case, foster parents who had a child for a substantial number of months were permitted to intervene in the dispositional stage of the proceeding for the ultimate purpose of adopting the child. The Colorado Court of Appeals stated that,
those having custodial experience with a child have sufficient interest, knowledge and concern relative to the child to bring them within the classification of interested parties, and they are thus entitled to intervene as a matter of right.(fn5) [Emphasis added.]
Pursuant to M.D.C.M. and Colorado Rules of Civil Procedure ("C.R.C.P.") 24(a), foster parents may intervene following a court order adjudicating the child dependent and neglected.(fn6) Party status entitles foster parents to receive notices of all hearings, have access to court reports and voice their concerns about the child's welfare directly to the court. Foster parent intervenors are also in a position to seek additional services for their foster child where the department refuses to provide them.(fn7) In essence, once intervention is obtained, foster parents are better able to monitor the status of the case, negotiate with other parties and address the court on behalf of their foster child.
As parties, foster parents should arguably have the right to discover relevant evidence pursuant to C.R.C.P. 26 through 36. Evidence may include therapists' reports; the department's notes pertaining to contacts and visits between the natural parents and the child and descriptions of their relationship; and notes relating to the parents' compliance, or lack thereof, with the court-ordered treatment plan. These documents serve not only to inform the foster parents better about their foster child's specific needs, but also are necessary to prepare for possible litigation.
Practitioners representing foster parents should anticipate the department's refusal of their discovery requests, whether in the form of depositions, interrogatories or requests for production of documents. The department will likely seek a protective order on the basis that the child abuse records and reports are confidential.(fn8) Foster parents will then need to file a motion to compel discovery.(fn9)
Foster parents should assert that good cause exists for permitting them access to the requested information.(fn10) Good cause is arguably present in that foster parents must be privy to information concerning children in their physical custody to provide quality twenty-four-hour care. Caretakers cannot adequately attend to all of the children's physical and emotional demands without a clear understanding of the children's emotional conditions and ongoing therapeutic needs.
Good cause also may exist in that a party must have access to information in order to participate meaningfully in the judicial proceedings.(fn11) Only by reviewing the documents and identifying necessary witnesses and experts to testify can foster parents forcefully present their position.
It is widely recognized that many children experience multiple moves while in foster care.(fn12) This is typically referred to as "foster care drift." Moves occur for varying reasons: time-limited placements; change in venue when natural parents relocate to a different district;(fn13) or the caseworker's belief that the foster parents are becoming too attached to the child...
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