Achieving Safe, Permanent Homes for Colorado Children

• Publication year: 2002
• Pages: 37

31 Colo.Law. 37 Colorado Lawyer 2002.

2002, October, Pg. 37. Achieving Safe, Permanent Homes for Colorado Children

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37

Vol. 31, No. 10, Pg. 37

The Colorado Lawyer
October 2002
Vol. 31, No. 10 [Page 37]

Children and the Law

Achieving Safe, Permanent Homes for Colorado Children
by Shari Shink, Tim Eirich

Shari Shink, Denver, is the founder and executive director of the Rocky Mountain Children's Law Center, which has served children in Colorado for twenty-one years. She represents individual children, directs the Child Advocacy Law Clinic as adjunct faculty at the University of Denver College of Law, and supervises the development of innovative programs to serve children

Tim Eirich is a second-year law student at Loyola University School of Law in Chicago, Illinois. Loyola is the only law school with a three-year program focused on the representation of children. Tim spent his summer internship at the Rocky Mountain Children's Law Center

It is Monday morning. Three faxes are sitting on the attorney's desk from Juvenile Court. The attorney has been appointed the guardian ad litem ("GAL") and must recommend a permanent placement for these children based on the following facts

Natalie is a one-year-old African-American child. Immediately after birth, Natalie's biological parents abandoned her. She was placed with the Lieder family and has lived with them for the past fourteen months. Soon after her placement, her biological parents' rights were terminated. Natalie has three other siblings, two of whom live with a different family, the Vasquezes. At the time of her placement, the Vasquezes were unwilling to accept Natalie because of her special needs. Now both the Lieders and the Vasquezes wish to adopt Natalie. The Lieders have five other children, one of whom is adopted. What permanent home should the GAL recommend for Natalie?

Tyler is 3 years old. When he was 7 months old, the Department of Human Services ("Department") removed him from his mother's custody. Soon thereafter, the Juvenile Court declared Tyler dependent and neglected. He was placed with a foster family with whom he lived for two and a half years. Tyler's biological mother visited with him regularly. Some experts have testified that Tyler and his biological mother were attached and that she had progressed in parenting skills. Experts also have testified that Tyler had developed a strong relationship with his foster mother and to remove him from this family would be detrimental. The foster family wanted to adopt Tyler. What permanent home should the GAL recommend for Tyler?

Josh is a one-year-old. Immediately after Josh's birth, the Department took custody and placed him with a foster family. Soon thereafter, the biological mother's parental rights were terminated, and the foster family immediately expressed interest in adopting Josh. A few days before the permanency planning hearing, and after ten months in the foster family's home, a biological grandparent expressed her interest in adopting Josh. What permanent home should the GAL recommend for Josh?

Litigation Challenges
For GALs

Competing interests make these placement decisions difficult. In Natalie's case, would the GAL recommend placement with her siblings or maintain her current placement where she is thriving?1 In Tyler's case, compare the presumption toward reuniting him with his biological mother with the child's interests in remaining with his psychological parents.2 In Josh's case as well, the preference that favors placement with a biological grandparent needs to be balanced with the interest in keeping Josh with his psychological parents.3 The GAL is obligated to consider both the short- and long-term interests of the child, as well as competing statutory mandates.

This article provides a framework to address these competing interests in light of Colorado case law, statutes, and other standards. Focused on a child's primary need for permanency, this article espouses a child-centered approach in making placement decisions by interpreting the best interests of the child standard as one that promotes the least detrimental alternative.

The Need for Permanency

Children need safe, permanent homes. A child's need for permanence is widely supported by child developmental research4 and is well documented in federal and state statutes.5 Being denied early and permanent relationships can have a devastating effect on a child's future well being. Today, there is increased awareness that children not only have a need, but a right to a permanent home.

Colorado has long recognized the necessity for permanence. A decade of efforts, culminating in the Expedited Permanency Planning ("EPP") legislation in 1994, mandates a permanent home for young children within twelve months.6 This legislation preceded the passage of the Adoption and Safe Families Act of 1997 ("ASFA"),7 the federal legislation reducing the permanency goal of from eighteen to twelve months, and changing the focus from reunification to the safety of the child.8 A child's need for permanence has slowly crept into the forefront, transcending the right of a parent to custody.9

However, even with EPP, the state has struggled to achieve the goal of safe, permanent homes for children. For example, in 1999, 20 percent of the children who entered foster care had been in foster homes within the previous twelve months due to a prior episode of abuse or neglect.10 Some children under the age of six who entered the system prior to EPP continue to languish in the system today, years after entering foster care.11

This problem cannot be solved by statutes alone. GALs must be zealous advocates and pursue permanence that is in the best interests of the child from the outset of a case.12 In doing so, they need to marshal resources, assure appropriate placements, and minimize trauma. This includes avoiding unnecessary changes in placement when a child is already thriving.

Standards for Achieving Permanence in Colorado

Although Colorado has legislation recognizing a young child's need for an expedited permanency placement, practitioners are keenly aware that there is little consistency among Colorado courts over which placement is in the best interests of the child. Usually, the outcome depends on what the individual judge thinks the "best interests of a child" means in a particular case.13 In many cases, the difficulty of the placement decision lies in competing interests, such as those illustrated by the case examples at the beginning of this article.

The Children's Code offers little guidance as to how competing interests should be balanced.14 However, due to Colorado's implementation of ASFA,15 as well as recent judicial interpretations of the best interests of the child,16 there is now more guidance that may help resolve seemingly irreconcilable conflicts of interest.

Health and Safety of the Child

Prior to the passage of ASFA, decision-makers interpreted the societal preference for reunifying families as a mandate17 and, sometimes, the effects were catastrophic.18 ASFA was a federal response to the plight of thousands of children in foster care adrift without permanent homes.19 The legislative intent of ASFA now stresses that the child's health and safety are the paramount concern in determining rehabilitative services, placement, and permanency planning.20

The Best Interests of the Child

The best interests of the child standard guides custody...