Representing Foster Parents in Adoptions
| Publication year | 2022 |
| Pages | 0179 |
By Samuel J. McLure
Timothy (this is an entirely hypothetical case) came into foster care at the age of 11 months. He had five broken bones, gangrene, and a g-tube. He was diagnosed as suffering from failure to thrive, he was globally developmentally delayed, and he had extensive unexplained scarring on top of old scarring. He was in foster care for 13 months, where he thrived, grew, healed, caught up developmentally and began to swallow, eat, talk, walk, laugh, and play. He first word was "mommy," and it was to his foster mother.
However, the juvenile court sent him back to his abusers - his biological family. To be fair, the Alabama Juvenile Justice Act requires the court and DHR to reunite a child with the child's biological family as quickly as they safely can. Ala. Code § 12-15-101 (b) (3).
However, when he went back home, he was again abused by his biological family, though it took a while for that to come to light. Thankfully, DHR stepped in again, filed a new dependency petition, the juvenile court agreed, and returned Timothy to foster care. This time DHR placed him with a different foster family. After an additional 13 months in foster care, DHR was planning, again, to return Timothy to his biological family.
There seems to be a common misperception in our culture that biological parents not only love their children, but love them better, and more fiercely, than non-related family ever could. To borrow from another author, to believe this is always and everywhere true is to stick your head in the sand with a blindfold on.
There is little dispute that the best-case scenario for a child is to be born into a family of a married mother and father who love each other and love their children and who are committed to a permanent relationship with each other.
Sadly, too many children aren't born into those homes. Many are unwanted from conception and treated as such by their biological family. Some of them come into foster care. Children who come into foster care may have been beaten, starved, used as an ashtray (with the burns to prove it), pimped out for drugs, sexually assaulted, suffered bones broken, have their spirits crushed, and the list could go on.1
In the case of Timothy, many blood relatives filed their own petitions for custody. All of them believed, and testified in court under oath, that no abuse occurred, that things were blown out of proportion, and, many believed, that Timothy harmed himself. They testified that they were a good family. The truth was that their beliefs were misplaced.
The only hope that Timothy had was a string of foster families who were willing to put everything on the line for him. They hired an attorney, went to court, and worked together in an effort to protect Timothy's safety. Along with some deeply loving medical professionals, they persuaded DHR to pursue termination of parental rights, all of which was followed by an adoption. Timothy was adopted by a foster family who protects him and loves him. He is thriving.
Sometimes a child's best hope is a foster family who will be a real family and fight like a mama bear for him - for the rest of his life.
Approaching Foster Parent Representation
Many foster parents lack the tools and knowledge to advocate for the best interests of the child in their care. All foster parents have to go through a Trauma Informed Parenting for Permanency and Safety class (TIPS) where they learn that their role is to provide a temporary safe home for a child while the Department of Human Resources (DHR) works with parents to alleviate the underlying causes of dependency.
So, when a lawyer is consulted by foster parents who feel at odds with the system, what does that lawyer do?
The first hurdle a practitioner must overcome is the Foster Parent Agreement (FPA) signed by every Alabama foster parent. Section 9 of the FPA states that a foster parent will not "file a petition in any court pertaining to any child placed in our home by the Department of Human Resources, or take any steps toward the adoption of the child, or take any steps to obtain any order granting us legal or physical custody or placement of the child without the WRITTEN CONSENT of the State Department of Human Resources."
To the extent this agreement is a contract, the lawyer should argue that it is either void or voidable. In light of the nearly-dozen Alabama appellate cases affirming the dignity of foster parents and non-biological caregivers to seek permanency for the children in their care through independent court actions, section 9 of the FPA can be argued to be void as a violation of public policy.2
Section 5 of the FPA states that the foster parent agrees to "treat the children who we may receive for care as well as we would treat members of our family." Even if the agreement were not void or voidable, Section 5 can be argued to have overruled Section 9: what family would stand idly by while their biological child is sent to live with an abuser? Furthermore, even if all of the above were not true, our courts have held that DHR is the only party who has the standing to advance the argument that a foster parent has failed to honor the FPA.3
The practitioner should not be surprised if their representation of foster parents is sometimes not well-received, depending on the local juvenile court and the local DHR. However, it is important to demonstrate that the foster parents often are the only stable caregiver in the child's life: they go to medical appointments, sporting events, every birthday party, and they tuck the child into bed every night - adding up to many hours of attention and care. Sometimes, they've observed the parents in a way that DHR has not. Often, they have information - first-hand - that no one else does. They can bring a lot to the table.
Every foster parent struggles with the tension of advocating for the child without rocking the boat. In 2004 the legislature codified certain protections for foster parents in the Foster Parents' Bill of Rights.4 Included in those enumerated rights is the right of foster parents to "provide input to the department in identifying the types of resources and services that would meet the needs of the children currently in their care...and to advocate for the same without threat of reprisal."5 Additionally, the Alabama Supreme Court has routinely held that the juvenile courts are open to foster parents intervening in juvenile court proceedings concerning the child.6
Legal Mechanisms to Aid Foster Parents in Gracious Advocacy
Foster parents may seek to intervene in the juvenile court case involving a child in their care. Intervention is governed by Rule 24 of the Alabama Rules of Civil Procedure. As with all initial pleadings before the juvenile court, a motion to intervene, accompanied by a...
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