Tom C. Rawlings Director, Office of the Child Advocate State of Georgia tom@gachildadvocate

1. Foster Parent Legal Rights and Liabilities39th Annual Education ConferenceNational Foster Parent AssociationGrand Sierra ResortReno, NevadaMay 4, 2009(This is a simplified online version) Tom C. Rawlings Director, Office of the Child Advocate State of Georgia tom@gachildadvocate.org

2. Overview • This morning • 9:30 - 10:45 • An overview of foster parents’ legal status. • What are the big issues? • Foster Parents’ Bills of Rights and how they are implemented • 11:00 - 12:30 • Other state rights • Looking for love in all the wrong places? Bootstrapping federal and state laws to create substantive rights for foster parents. • 12:30 - 1:30 Break for Lunch

3. Overview • This afternoon • 1:30 to 2:45 • Walking through scenarios – preventing and responding to violations of your rights. • Ignorance is NOT Bliss: What you don’t know can hurt you and your family. • Possible liability and how to avoid it • 3:00 to 4:30 • What if YOU get accused? • Pushing for expanded protections in your state. • The future of foster parents’ rights: class actions and the Constitution

4. What’s Your Status? • Let’s start with an important U.S. Supreme Court case, Smith v. Org. of Foster Families, 431 US 816 (1977). • Foster parents claimed a constitutional right to due process – notice, an opportunity to have a hearing before an independent decisionmaker – before a foster child could be removed from the foster parent’s home.

5. What’s Your Status? Supreme Court’s findings: 1. We know there is a “family liberty interest” that’s protected by the Constitution: • “Freedom of personal choice in matters of... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. . . . There does exist a "private realm of family life which the state cannot enter.”

6. What’s Your Status? Supreme Court’s findings: • We also know that family is not based just on biology: • “[I]t is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family. For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals.”

7. What’s Your Status? • BUT, at the same time, foster families are a bit different: • “First, unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements.”

8. What’s Your Status? • So, “we’re going to punt” and not really settle this issue for you! • “It is unnecessary for us to resolve those questions definitively in this case, however . . . even [if] appellees have a protected `liberty interest.’ . . . . Where procedural due process must be afforded because a "liberty" or "property" interest is within the Fourteenth Amendment's protection, there must be de-termined `what process is due’ in the particular context.

9. What’s Your Status? • We’re still left scratching our heads. • What is constitutionally required to protect the procedural and substantive rights of foster families? • Still, many state and federal laws give statutory rights to foster parents. • Foster parents’ bills of rights, federal child welfare laws, etc. • To what extent are they enforceable?

10. What’s Your Status? • There’s also the question of how your status as relatives or parents interplays with your status as foster parents. • What if you’re accused not of breaching your contract but of abusing a child? • Is there a difference between being a foster parent, a foster-to-adopt parent, a relative foster parent, etc?

11. What’s Your Status? • Any foster parent rights are generally seen as rights “relative” to the rights of the agency and the birth parents: • “[T]he Legislature has provided that the relationship between the foster parents and the child is by its very nature subordinate both to the relationship between the agency and the child and to the relationship between the child and the child's parents.” • In the Interest of G.C., 558 Pa. 116, 121 (1999)

12. What’s Your Status? • “True liberty rights do not flow from state laws, which can be repealed by action of the legislature. Unlike property rights they have a more stable source in our notions of intrinsic human rights. The very fact that the relationship before us is a creature of state law, as well as the fact that it has never been recognized as equivalent to either the natural family or the adoptive family by any court, demonstrates that it is not a protected liberty interest, but an interest limited by the very laws which create it.” • Drummond v. Fulton County DFCS, 563 F.2d 1200, 1207 (5th Cir. Ga. 1977)

13. What’s Your Status? • So, let’s think about some of these issues!

14. Foster Parents’ Rights • Bills of Rights: What and Where Are They Found? Are they useful? • Other State and Federal Statutory Rights • Right to notice and an opportunity to be heard. • Right to payment, training, etc.

15. Alabama (Code of Ala. 38-12A-2) Georgia (OCGA 49-5-281) Illinois (20 ILCS 520/1-15) Louisiana (La. R.S. 46:286.13) Maryland (Md. Fam. L. Code Ann. § 5-504) Mississippi(Miss. Code Ann. § 43-15-13) Missouri (§ 210.566 R.S.Mo.) Oklahoma (10 Okl. St. § 7206.1) Tennessee (Tenn. Code Ann. § 37-2-415) Washington (Wash. Rev. Code §74.13.332) Foster Parents’ Bills of Rights • Generally adopted as laws by the state legislature, often in response to foster parent advocacy. • Do you have one in your jurisdiction?

16. Foster Parents’ Bills of Rights • Acknowledge value of foster parents, and may also apply to relative caregivers. • Affirm the right of the foster parent or relative caretaker to participate in case planning, to receive information, to have training (pre-service and ongoing) • Are these “rights” one can enforce?

17. Foster Parents’ Bills of Rights • How about more “substantive” rights? • Right to timely reimbursement; • Right to know about the child you are receiving and the right to refuse; • Right to a fair process for resolving disputes; • Right to due process when rights violated or when discipline occurs; • Right to keep the child in your care under appropriate circumstances; • Right to be involved in the court process

18. Examples of provisions • Affirms right to be treated “fairly,” equally, and not to be discriminated against. • What exactly does that mean? • In Washington, foster parents have “the right to be free of coercion, discrimination, and reprisal in serving foster children, including the right to voice grievances about treatment furnished or not furnished to the foster child.” •  The remedy? The foster parent “may file a complaint with the office of the family and children's ombudsman.” • Rev. Code Wash. (ARCW) § 74.13.333

19. Examples of provisions • Right to know about the child entering the home: • “Prior to placement, … shall allow the foster parent to review a written summary of information concerning the child, including . . . assessments, evaluations, and case plans, . . . to assist in determining if the child would be a proper placement.” • Alabama • “At placement and on an ongoing basis” • Louisiana

20. Examples of provisions • Right to know about the child entering the home: • “The right prior to the placement of a child to be notified of any issues . . . that may jeopardize the health and safety of the foster family or the child or alter the manner in which foster care should be administered” • Georgia • “The department shall fully disclose . . . past or pending charges of delinquency as a juvenile, criminal charges . . . and previous hospitalizations, whether due to mental or physical issues” • Tennessee

21. Examples of provisions • Right to know about the child entering the home: • “The children's division and its contractors shall provide to foster parents and potential adoptive parents, prior to placement, all pertinent information, including . . . full disclosure of all medical, psychological, and psychiatric conditions of the child, as well as information from previous placements that would indicate that the child or children may have a propensity to cause violence . . . . The foster parents shall be provided with any information regarding the child or the child's family, including . . . any family history of mental or physical illness, sexual abuse of the child or sexual abuse perpetrated by the child, criminal background of the child or the child's family, fire-setting or other destructive behavior by the child, substance abuse by the child or child's family, or any other information which is pertinent to the care and needs of the child and to protect the foster or adoptive family. Knowingly providing false or misleading information to foster parents in order to secure placement shall be denoted in the caseworker's personnel file and shall be kept on record by the division. • Missouri

22. Examples of provisions • Notice prior to removal: • In Missouri, two weeks’ notice and the written reasons unless it’s an emergency. • Illinois, “reasonable written notice.” • In Oklahoma, 5 days’ notice and written reasons if child has been in placement for at least 3 months. • 10 Ok. Stat. 2706.1, 2708(B) • Mississippi, 72 hours’ notice.

23. Examples of provisions • Right to refuse a child or to have a child removed: • “right to refuse placement of a child in the foster home or to request, upon reasonable notice, [removal] . . . without fear of reprisal or any adverse effect on . . . future foster or adoptive placements” • Georgia • Right to “refuse a placement without reprisal from the caseworker or agency.” • Missouri

24. Examples of provisions • The right to training – pre-service and ongoing. • Right to timely and appropriate reimbursement. • Mississippi: Reimbursement for damages caused by foster child, up to $500. • Washington: Similar law for reimbursing damages

25. Examples of provisions • Right to a hotline or other access to a grievance procedure. • “Access to a fair and impartial grievance process to address licensure, case management decisions, and delivery of service issues. Foster parents shall have timely access to the child placement agency's appeals process, and shall be free from acts of retaliation when exercising the right to appeal. • Missouri

26. Examples of provisions • Right to a hotline or other access to a grievance procedure. • “The right to be provided a fair, timely, and impartial investigation of complaints concerning the foster parent's licensure, to . . . have a person of the foster parent's choosing present during the investigation, and to be provided due process during the investigation; the right to be provided the opportunity to request and receive mediation or an administrative review of decisions that affect licensing parameters, or both mediation and an administrative review; and the right to have decisions concerning a licensing corrective action plan specifically explained and tied to the licensing standards violated.” • Illinois

27. Examples of provisions • Right to permanency priority • First choice to adopt if child has been in foster home 12 months or more (Tennessee) • Right to priority placement if child who has left foster care returns (Georgia, Illinois, Missouri)

28. Additional State Rights • Right to notice and opportunity to be heard in hearings • Right to preference in adoptions

29. State Rights to Notice and Opportunity to Be Heard • Georgia: • “In advance of any hearing or other proceeding to be held with respect to a child pursuant . . . the court shall provide notice or shall direct that a party shall provide notice of such hearing or other proceeding, including their right to be heard at such hearing or other proceeding, to the foster parents of the child, and to any preadoptive parents or relatives providing care for the child, consistent with the form and timing of notice to parties . . . .” • OCGA 15-11-55.1

30. State Rights to Notice and Opportunity to Be Heard • Alabama • “Relative caregivers, preadoptive parents, and foster parents of a child in foster care under the responsibility of the state shall be given notice, verbally or in writing, of the date, time, and place of any juvenile court proceeding being held with respect to a child in their care.Foster parents, preadoptive parents, and relative caregivers of a child in foster care . . . have a right to be heard in any juvenile court proceeding being held with respect to a child in their care.No foster parent, preadoptive parent, and relative caregiver of a child in foster care under the responsibility of the state shall be made a party to a juvenile court proceeding solely on the basis of this notice and right to be heard pursuant to this section.” • Code of Ala. § 12-15-307

31. Right to preference in adoptions • Tennessee • (1) When a child is placed in a foster home by the department or otherwise, and becomes available for adoption due to the termination or surrender of all parental or guardianship rights to the child, those foster parents shall be given first preference to adopt the child if the child has resided in the foster home for twelve (12) or more consecutive months immediately preceding the filing of an adoption petition.   (2) In becoming adoptive parents, the foster parents shall meet all requirements otherwise imposed on persons seeking to adopt children in the custody of the department, and shall be subject to all other provisions of this part. • Tenn. Code Ann. § 36-1-115 (g)

32. Enforcing these State Rights • Are they enforceable? • Some agencies treat them as you would a “customer service code of conduct.” • Maryland – no cause of action! • “This section does not create, and may not be construed to create, a cause of action for foster parents.” • Md. FAMILY LAW Code Ann. § 5-504

33. Enforcing these State Rights • Are they enforceable? • “DHS has an affirmative statutory duty to cooperate with and provide guidance and support to foster parents and foster families to promote stability and permanency. Foster parents are guaranteed the right to provide input in the planning of services for a child and actively and fully participate in the decision-making process regarding the child.” • Saul v. Alcorn, 2007 OK 90, P14 (Okla. 2007).

34. Enforcing these State Rights • Are they enforceable? • “Although the trial court does give consideration to a surrender of parental rights in favor of a relative, the surrender is not in itself determinative on the ultimate issue of whether an adoption petition should be granted, which remains governed by the best interest of the child analysis. . . . We note, however, that the Georgia Code also provides that, after a child has been placed with a foster family for 12 months, the foster parents have "[t]he right to be considered, where appropriate, as the first choice as . . . permanent . . . parents for a child" who has been released for adoption. OCGA § 49-5-281 (a)(20). • Owen v. Watts, ___ Ga. App. __ (Mar. 5, 2009)

35. Enforcing these State Rights • Foster Parent Grievance Procedures • North Dakota • Georgia • Are these grievance procedures sufficient? • Rights without remedies? • Advocacy

36. Removal Hearings • Connecticut Example • Sec. 17a-100-5. Request for removal hearing • (a) A licensed or certified out of home care provider may request a removal hearing if the child: (1) has been in continuous placement with the out of home care provider for one (1) year or more; or (2) has been in non-continuous placement with the out of home care provider for a total of two (2) or more years of actual placement; (b) Notwithstanding the provisions of subsection (a) of this section no removal hearing shall be provided by the department if: (1) a child is removed from an out of home care provider for the purpose of placing such child with a prospective adoptive family or other placement identified in the permanency plan approved by the court; or (2) the out of home care provider is denied a hearing under the provisions of section 17a-100-6 of the regulations of Connecticut State Agencies.

37. Removal Hearings • Connecticut Example (a) The department shall conduct a removal hearing when the out of home care provider, qualified for such hearing under section 17a-100-5 of the regulations of Connecticut State Agencies, disagrees with the department's decision to remove a child from the provider and requests a removal hearing within ten (10) days of receiving the written notice required by section 17a-100-4(c) of the regulations of Connecticut State Agencies • Regs., Conn. State Agencies § 17a-100-3

38. Removal Hearings • New York: • 10 days’ notice in writing unless emergency • Foster parents must request conference, set within 10 days of request, can submit objections to removal • Request for conference puts hold on removal; • Appeal from there to Commissioner for a “fair hearing” – administrative hearing officer

39. Removal Hearings • New York: • Fair hearing includes right to present evidence, witnesses, etc. • May appeal from there to a “real” court, with the standard being “substantial evidence” indicating the removal was not “arbitrary” or “capricious. • Banks-Nelson v. Bane, 214 A.D.2d 338 (N.Y. App. Div. 1st Dep't 1995)

40. Other Administrative Hearings • Denial of or change in benefits • Claudio v. Dowling, 89 N.Y.2d 567, 571 (1997) • Challenge to finding of abuse or neglect • More on that later

41. Federal Rights • Contained in ASFA, CAPTA, AACWA, and lots of other federal acts that go by acronyms. • Generally, the rights are phrased as: • If the State wants to get federal $, it will create a “plan” acceptable to the feds. • Those “state plans” must contain certain features. • Can private individuals enforce those required features?

42. Federal Right to Notice and Opportunity to Be Heard • Under 42 USC § 671(a)(16), State must provide an adequate “case review system.” • Under 42 USC § 675 (5)(G), such a system must include provisions that: • “the foster parents (if any) of a child and any preadoptive parent or relative providing care for the child are provided with notice of, and a right to be heard in, any proceeding to be held with respect to the child, except that this . . . shall not . . . require that [the person] be made a party to such a proceeding . . . .”

43. Adoption Assistance and Child Welfare Act of 1980 • Does this law provide foster and adoptive parents with enforceable rights? • This law requires that states assure the federal government that they have in place certain policies and laws that govern foster care and the foster care process. • Failure to comply can result in loss of federal foster care and adoption assistance funding, but to what extent does it also give foster and adoptive parents real rights?

44. Adoption Assistance and Child Welfare Act of 1980 • Among its provisions are the following: • Requirement to assess adequacy of foster and adoption assistance reimbursements. • The state must conduct a periodic review of the amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness. • 42 USCS § 671(a)(11) • In the Kenny A. case, the State agreed to propose increases for foster care expenses as well as a commission to set residential placement rates. No progress thus far. • www.childwelfare.net/activities/kennya/kenny_a_monitorreport5.pdf

45. Adoption Assistance and Child Welfare Act of 1980 • Requirement of Adequate Reimbursement • 42 USC 672 and 42 USC 675(4)(A) require the state to make foster care payments to cover the cost of caring for the child. • A California federal court recently held that foster parents can enforce this requirement by court action. • California State Foster Parent Ass'n v. Wagner, 2008 U.S. Dist. LEXIS 88798 (N.D. Cal. Oct. 21, 2008).

46. Adoption Assistance and Child Welfare Act of 1980 • Requirement of Adequate Reimbursement • A federal appeals court recently prohibited Oregon from unilaterally reducing the amount of its adoption assistance payments. • ASW v. Oregon, 424 F.3d 970, 975 (9th Cir. 2005) • The Court took seriously the requirement in 42 USC 673(a)(3) that these amounts be set in agreement with the adoptive parents.

47. Adoption Assistance and Child Welfare Act of 1980 • State must grant foster and adoptive parents the opportunity for a fair hearing before the State agency to whenever a claim for “benefits” is denied or not acted upon with reasonable promptness. • 42 USC 671(a)(12). • “Benefits” include reimbursements and training.

48. Adoption Assistance and Child Welfare Act of 1980 • Some federal and state courts have interpreted this right to a hearing as one that individuals can enforce. • Timmy S. v. Stumbo, 916 F.2d 312, 315 (6th Cir. Ky. 1990). • Claudio v. Dowling, 89 N.Y.2d 567, 571 (1997)

49. Adoption Assistance and Child Welfare Act of 1980 • What would such a hearing look like? • Similar to that involved when a license is revoked, or a school disciplinary tribunal? • Notice, opportunity to be heard; • Opportunity to present and respond to evidence, cross-examine witnesses; • Decision in writing; • Opportunity to appeal; • Opportunity to seek judicial relief? • OCGA 20-2-750 et seq. • Georgia Administrative Procedures Act, OCGA 50-13-13

50. Adoption Assistance and Child Welfare Act of 1980 • Other requirements: • State must not discriminate in placement on the basis of race, color, or national origin; • State must ensure foster parents are prepared adequately with the appropriate knowledge and skills to provide for the needs of the child, and that such preparation will be continued, as necessary, after the placement of the child;