WHAT RIGHTS DO FOSTER PARENTS HAVE IN DCF CASES?
If a child is taken under an Order of Temporary Custody (OTC), DCF is supposed to make good-faith efforts to seek out relatives as temporary placement resources.
Sometimes that is not possible, and the child must be placed in a foster home or in a residential safe home. Foster parents generally do an excellent job, and everyone appreciates their service.
The problem is that foster parents may become attached to the child. In some cases, DCF social workers may prematurely assure the foster parents that they will get to adopt the child. Then, if something goes wrong, the foster parents find that they have very few rights in Juvenile Court.
The purpose of this article is to explain the limited rights of foster parents in DCF matters, and to urge foster parents to seek the services of a qualified attorney to protect those rights.
Juvenile Court is not generally public. Only the interested parties (parents, child, and DCF) are automatically allowed at court hearings. Others persons, such as grandparents or aunts and uncles, who wish to attend court hearings, need the permission of the Court to sit in.
However, relatives may file to intervene in a case. If granted, interveners are now official parties in a case. They are automatically allowed at all court hearings, get notice of hearings directly from the Court, and may even hire their own attorney to represent them at hearings.
Non-relatives may also ask to intervene, but that permission is seldom granted. This holds for non-relative foster parents also.
THE RIGHT TO BE HEARD
There is, however, a state statute that gives foster parents the right to be heard in certain hearings. C.G.S. Sec. 46b-129(o) states in part that foster parents have the right to receive notice and be heard in any court proceeding concerning the child’s living with the foster parent. In those cases, the foster parent has the right to be heard and comment on the best interests of the child, so long as the foster parent is currently caring for the child, or has done so within the past year.
The Connecticut Practice Book, in Section 35a-5, states that DCF itself shall provide this notice to the foster parent. The Court itself does not provide the notice, since the foster parent is not an intervener, or an official party to the case.
There are two problems with this plan:
1. The responsibility for notifying the foster parents rests upon the shoulders of a DCF social worker, who is not a lawyer, and who may be under pressure from her management to place the child elsewhere, and thus not be sympathetic to the foster parents. If the social worker “forgets” to notify the foster parents, that is just too bad.
2. The “right to be heard and comment” does NOT necessarily include the right to call witnesses and present evidence. All it guarantees you is the right to make an unsworn statement in court. Whether or not you can present evidence, including other witnesses and documents, is at the discretion of the Court. The DCF social worker is completely unqualified to give legal advice to foster parents as to what they may or may not do in Court.
THE CASE OF TRACI H.
A recent case was Traci H. (53 Connecticut Law Reporter, No. 5, Page 183, March 19, 2012). In Traci H., a child was removed from his parents. DCF then filed a petition to terminate the rights of the parents (TPR). DCF also learned of grandparents in Florida who might be a permanent placement resource for the child, and the Court ordered an interstate compact to study the suitability of the grandparents in Florida. After that was ordered, DCF then placed the child with foster parents in a “legal risk, pre-adoptive foster home.” In plain English, this means that the foster parents were led to believe that they would get to adopt the child.
The child bonded with the foster parents, and the foster parents fully expected to adopt the child if TPR were granted. Then, nearly 10 months after the child had been placed with the foster parents, the Florida study found that the Florida grandparents were approved for possible placement of the child. The foster parents were not informed of this.
Aside: For those who find it hard to believe that it took the State of Florida nearly one year to approve the grandparents after the study was ordered, be assured that this is not uncommon. The various states have different priorities for their child protection work.
Some six weeks after the Florida approval, an agreement was made, whereby the child would be placed with the Florida grandparents. A court date to approve this agreement was set. Again, the foster parents knew nothing officially about this, but later claimed that they found out about it by accident.
DCF then sent the foster parents a form letter, curtly advising them that the child would be removed from their home in a month. The form letter did not advise the foster parents of their right to be heard. The social worker herself had said nothing to them.
The foster parents then hired a lawyer. That lawyer advised the Court that the foster parents wished to be heard. However, for some reason, that hearing did not happen. The lawyer then filed a habeas corpus action and sought an injunction against removing the child. The injunction was granted, but later dissolved by the Court. It is certain that this cost the foster parents thousands of dollars, for nothing.
It remains unclear if the foster parents were ever heard. It is unlikely that anything they say would make a difference at this point.
DCF incurred no penalty for failing to notify the foster parents, in a timely manner, of their right to be heard.
WHAT IS REALLY GOING ON
When a child is removed from his parents, the decision on placement of the Child is up to the Court, not DCF. However, the Court always gives strong deference to DCF’s wishes.
Recent legislation favors placing children with relatives. As a practical matter, non-relatives are in a disfavored position. Sometimes DCF thinks that there are no suitable relatives, and will fight for the foster parents. However, there are no guarantees.
What is guaranteed is that foster parents cannot count on DCF to do their legal work for them.
POSSIBLE USE OF HABEAS ACTIONS
It is indeed possible for foster parents to file a habeas corpus action in a Juvenile Court case. However, this requires that the TPR actually have been granted by the Juvenile Court.
For example, suppose that the foster parents do intend to adopt the child, and the rights of the natural parents have been terminated. Suppose further that DCF then, before the adoption is finalized, removes the child from the foster home. In that instance, a habeas corpus action by the foster parents is possible.
Obviously, this is a rare occurrence.
RETAINING A LAWYER
Foster parents in DCF cases have extremely limited rights.
If they truly intend to be only foster parents, this is generally not a problem. However, since they are dealing with DCF, they should still retain a lawyer.
If any allegation is made against them regarding the foster child, there could be ramifications for the other children or other relatives of the foster parents. For a tragic example, see FAQ #13, and the truly heartbreaking story of Bernard and Elizabeth.
If they do retain a lawyer, and nothing bad happens, then it is a cheap insurance policy.
If they do intend to adopt the child, they absolutely should retain a lawyer.
Relying on DCF to give them notice of their rights, let alone explain those rights, is incredibly short-sighted.
The lawyer is no guarantee that foster parents will prevail if DCF prefers that relatives adopt the child. However, the lawyer will give you your best chance, and will ensure that you are not caught off-guard at the last moment.
Foster parents in DCF cases have few rights.
Retaining a lawyer when dealing with DCF is always a good idea.
It is especially a good idea when you have few rights in the first place.