As a result of recent changes in federal law, foster parents, pre-adoptive parents and relatives who are caring for a child in foster care are entitled to notice and an opportunity to be heard at reviews and hearings regarding any child for whom they are caring. States have enacted statutes and developed procedures that comply with this federal mandate and in some cases, have broadened the rights of foster parents in this area beyond the federally recognized rights. At the same time, child welfare practitioners increasingly are recognizing the critical role that foster parents, pre-adoptive parents, and relatives play as team members, especially as critical sources of information about children. The role of foster parents in providing key information about children in care -- to courts, in particular -- is explored in this analysis.

The Federal Framework

The Adoption and Safe Families Act of 1997 (ASFA) specified that foster parents, pre-adoptive parents, and relatives who care for a child in the custody of public child welfare agencies have a role in reviews and hearings regarding a child in their care. Section 104 of ASFA requires that in each state:

The foster parents (if any) of a child and any pre-adoptive parent or relative providing care for the child [must be] provided with notice of, and an opportunity to be heard in, any review or hearing to be held with respect to the child, except that this subparagraph shall not be construed to require that any foster parent, pre-adoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and opportunity to be heard.

The federal law made clear that caregivers are entitled to receive notice of reviews and hearings and must be afforded an opportunity to be heard, but they are not, on that basis, to be considered "parties" in any legal proceeding regarding the child in their care. A "party" to a proceeding - in contrast to an individual who only is entitled to be notified and to be heard - has a range of rights, including the right to initiate a legal proceeding, introduce evidence, cross-examine witnesses, and examine court records (Spigel, 2000). Federal law does not extend "party" status to caregivers.

In line with the federal statutory mandate, two subsequently promulgated federal regulations implemented Section 104 of ASFA. The first regulation required that each state have in place procedures that:

provide foster parents, pre-adoptive parents, and relative caregivers of children in foster care with notice of and an opportunity to be heard in any review or hearing held with respect to the child (§1355.34[c][2][v]).

The second regulation stated:

The State must provide the foster parent(s) of a child and any pre-adoptive parent or relative providing care for the child with timely notice of and an opportunity to be heard in permanency hearings and six-month periodic reviews held with respect to the child during the time the child is in the care of such foster parent, preadoptive parent, or relative caregiver. Notice of and an opportunity to be heard does not include the right to standing as a party to the case (§1356.21[o]).

As the regulation made clear, the federally-recognized rights of foster parents, pre-adoptive parents, and relative caregivers to notice and an opportunity to be heard are limited to only two types of reviews and hearings: permanency hearings and six-month periodic reviews. Caregivers, presumably, do not have federally-recognized rights regarding hearings related to termination of parental rights or any post-termination of parental rights hearings (Federal Register, 2000; Federal Register, 2001).

In the accompanying commentary to these regulation, the Administration for Children and Families clarified that states retain discretion in a number of areas. States remain free to determine how caregivers are to be notified. States also have discretion "to determine what documentation, if any, to provide [to caregivers notified of a review or hearing], consistent with Federal and State confidentiality laws" (Federal Register, 2000, p. 4065). The Administration for Children and Families further made clear that decisions regarding the extent to which caregivers can attend entire reviews or hearings or can have access to confidential information about birth parents are "best left to the State or the court to determine" (Federal Register, 2000, p.4065). The federal regulators declined to address issues related to the circumstances under which foster parents might be granted standing (that is, status as a "party"), again leaving that determination to the states. The regulators did confirm, however, that "the right to provide input on a case at a hearing does not convey the right to legal counsel to these individuals" (Federal Register, 2000, p. 4065).

After the promulgation of implementing federal regulations, questions continued to be posed about the scope of the right to notice and, in particular, the right to "an opportunity to be heard." The Child Welfare Policy Manual issued by the Administration for Children and Families in 2001 which reviews federal child welfare policy in question and answer format [see: http://cb1.acf.dhhs.gov/programs/cb/cwpm/] contains the inquiry, "Please provide guidance on the type and degree of participation that must be afforded foster parents, pre-adoptive parents, and relative caregivers in satisfying the requirements for notice and opportunity to be heard." In response, the Administration for Children and Families provided the following guidance:

The requirement that States give foster parents, pre-adoptive parents and relative caretakers notice of and an opportunity to be heard affords these individuals with a right to provide input to these reviews and hearings. However, it does not confer a right to appear in person at the review or hearing. The requirement can be met as the State sees fit, such as by notification to the individuals that they have an opportunity to attend the review or hearing and provide input, or notification that they can provide written input for consideration at the review or hearing.

The guidance acknowledges that the role of foster parents, pre-adoptive parents, and relative caregivers in reviews and hearings is "to provide input," but it gives states latitude as to how these individuals may provide such input and, in effect, "be heard." The guidance tracks the earlier commentary to the federal regulation on this issue where the Administration for Children and Families stated that "this requirement [the opportunity to be heard] can be met by providing the caretakers with an opportunity to present either written or oral input that can then be considered at the review or hearing" (Federal Register, 2000, p. 4066).

The States' Framework

Following the passage of ASFA, states enacted implementing legislation in order to comply with the new federal mandates, including the requirement related to foster parent notice and an opportunity to be heard. States took a variety of approaches. In some cases, states duplicated the federal language in their statutes (Georgia, Kansas, Missouri, North Carolina, Rhode Island, Vermont, and Washington, as examples). Some states, however, took a more expansive approach, as permitted by federal law and regulation. The following states' laws illustrate broader definitions of the role of caregivers in relation to reviews and hearings.

Alaska law (Alaska Statutes §§47.10.030; 47.10.070) provides that foster parents be given notice and may be present at hearings:

In all cases, the foster parent or other out-of-home care provider is to be given actual notice and the notice of the hearing must contain all names by which the child has been identified.
The court may limit the presence of the foster parent or other out-of-home care provider to the time during which the person's testimony is being given if it is in the best interest of the child, or it is necessary to protect the privacy interests of the parties and will not be detrimental to the child. The court, in its discretion, may permit individuals to attend a hearing if their attendance is compatible with the best interests of the child.
Hawaii law (Haw. Rev. Stat. §587-72) significantly expands the rights of foster parents with regard to reviews and hearings:

Current foster parents are entitled to participate in case review and permanency hearings as parties.
Foster parents must receive notice at least 48 hours before a hearing. No hearing may go forward unless foster parents have been served with notice.
Illinois law (Ill. Comp. Stat. Ann. §§405/1-5[2][a], 405/1-5[2][d]) expands the types of hearings for which foster parents are entitled to notice and an opportunity to be heard:

Current and "previously appointed" foster parents and relative caregivers have the opportunity to be heard by the court.
Any current foster parent and any relative caregiver has the right to adequate notice at all stages of all hearings and proceedings regarding a child in their care.
If a foster parent is denied the opportunity to be heard, he or she may file a legal action against the court or public agency to enforce his or her right to be heard.
A court may grant any foster parent standing as a party if the court finds that it is in the best interest of the child to do so.
Maine law (22 Me. Rev. Stat. Ann. §§4005-C) expands the types of hearings for which foster parents, pre-adoptive parents, and relative caregivers are entitled to notice and an opportunity to be heard:

Foster parents, pre-adoptive parents, and relative caregivers have the right to be notified and have an opportunity to be heard with regard to any review or hearing for a child in their care.

They have the right to testify at hearings but do not have the right to present evidence, to attend any other portion of the review or hearing (other than when they are testifying), or obtain pleadings or court records.

They may attend a review or hearing in its entirety unless the presiding judge specifically excludes them.

Minnesota law (§260C.152) expands the types of hearings for which caregivers are entitled to notice and an opportunity to be heard and expands these rights to other relatives:

Foster parents, pre-adoptive parents, and relatives providing care for a child must be provided with notice and an opportunity to be heard in any review or hearing.

Any other relative may request, and must be granted, a notice and the opportunity to be heard.

New Mexico law (§32-A-4-27), in addition to requiring notice and an opportunity to be heard to caregivers, allows a range of individuals to intervene as parties in legal proceedings involving a child in the custody of a public child welfare agency:

Foster parents, pre-adoptive parents, and relative caregivers are entitled to notice and an opportunity to be heard in any hearing, including hearings at the dispositional phase, judicial review hearings, and permanency hearings.

The court may permit the following to intervene as a party at any stage of a proceeding: a foster parent with whom the child has resided for a period of at least 6 months; a relative within the fifth degree of consanguinity with whom the child has resided; a stepparent with whom the child has resided; and a person who wishes to become the child's permanent guardian.

New York law (NY Soc. Serv. Law §392-2 through-4 and NY Family Court Act §1055) allows foster parents to become parties to a legal proceeding under certain circumstances:

Foster parents in whose home a child has resided during a twelve month period may file a petition for review of the status of a child in foster care and become a party to the proceeding when (1) an agency has determined that the child in their care will remain in care continuously for at least 12 months; (2) the child has been freed for adoption for at least 6 months and has not been placed with an adoptive family; or (3) the child has been placed with a prospective adoptive family but no petition for adoption has been filed within 12 months after placement.

Under any of these circumstances, the foster parent in whose home the child lives or lived when or after the 12 months of continuous care ended or ends must be given notice of the hearing.

Either the agency or the foster parent who filed the petition must notify any foster parent currently caring for the child about any permanency planning hearing.

Foster parents are entitled to notice of permanency hearings and must be served with a copy of a petition and any supporting affidavits or reports. Foster parents are considered parties to permanency hearings.

North Carolina law (§§ 7B-506, 7B-907, 7B-908) includes specific provisions regarding notice to foster parents, pre-adoptive parents, and relatives and extends the right of notice and an opportunity to be heard to post-termination hearings:

Notice must be given 15 or more days in advance to the parent, the juvenile (if age 12 or older), a guardian, a foster parent, a relative or pre-adoptive parent who provides care of the child with regard to the review hearing, permanency planning hearings, and post-termination of parental rights placement review hearings.

Wisconsin law (WI Acts §48.62[2]) expands the types of reviews and hearings for which caregivers are entitled to notice and an opportunity to be heard:

Foster parents, treatment foster parents, and other physical custodians of the child must be notified of all hearings on matters related to children in need of protection and services as well as to all hearings on a Termination of Parental Rights petition and be given an opportunity to be heard, except hearings on motions for which notice need only be provided to the child and his or her counsel.

The caregiver must be given an opportunity to be heard by making a written or oral statement during the hearing or submitting a written statement prior to the hearing.

Some states have authorized foster parents to initiate termination of parental rights actions:

Michigan law (Mich. Stat. Ann. §712A.19b) allows a foster parent to file a petition to terminate parental rights as a "concerned person" if he or she (1) has specific knowledge of the parent's behavior that constitutes grounds for termination of parental rights and (2) has contacted the public child welfare agency (Family Independence Agency), the prosecuting attorney, the child's attorney, or the child's guardian ad litem (if the child has one) and is satisfied that none of these representatives intends to file a petition.

New Hampshire law (N.H. Stat. Ann. §170-C:4) allows foster parents to initiate a petition to terminate parental rights if (1) the child has lived continuously with the foster parent for 24 months; and (2) the foster parent has requested the agency that serves as the child's legal guardian to free the child for adoption, but the agency has not initiated a termination of parental rights proceeding, and there is reasonable cause to believe that grounds for termination of parental rights exist.

New Mexico law (N.M. Stat. §32A-4-29) allows foster parents to initiate proceedings to terminate parental rights. In such cases, the public child welfare agency can agree to litigate the case or ask the court to find the motion to be premature and to dismiss the case. If a foster parent initiates a termination of parental rights proceeding, he or she must give notice to the child's current foster parents and any foster parents with whom the child has lived for 6 of the previous 12 months. The notice must state that the party served must file a written response within 20 days if he or she plans to contest the petition to terminate parental rights.

Caregivers' Participation in Reviews and Hearings: Practice Implications

Historically, foster parents, pre-adoptive parents, and relative caregivers were not viewed as active participants in the planning and decision-making processes for children. Agencies tended to focus on the temporary nature of foster care (whether provided by unrelated foster parents or kin) with little emphasis on the role that foster parents and relatives could play as members of a team committed to the safety, well-being, and permanence of children (Doughtery, 2000). In the current practice environment, however, caregivers more often are seen as playing multiple roles in addition to nurturing children and promoting their healthy growth and development - including advocacy, mentoring of birth parents, and providing other members of the team (including social workers, lawyers, and judges) with information that is key to the well-being of children and the achievement of permanency for them (Barbell & Freundlich, 2001).

Foster parents, pre-adoptive parents, and relative caregivers have daily contact with the children for whom they are responsible and, because of high caseworker turnover, often are the individuals who have had the most stable and consistent experience with children from the time of children's entry into foster care. As a result, they typically have the most complete and accurate information about a child's strengths, needs, and progress. Increasingly, child welfare agencies and the courts are recognizing the vital role of foster parents, pre-adoptive parents, and relative caregivers as key sources of information when decisions are being made about children's current and future status. In its guidebook for caregivers who participate in juvenile dependency proceedings, the Center for Families, Children & the Courts (2000) listed a number of areas in which foster parents and relative caregivers can provide courts with helpful information:

Placement information (the date the child arrived in the home and the child's physical and emotional status at the time)

Medical information (doctors' visits and hospitalizations since the last court hearing and the results; any medications the child is taking and the dosages; any adverse reactions on the child's part to medical treatment or medication; the child's physical development; and any observed developmental lags)

Dental information (any visits to the dentist since the last court hearing and the results)

Educational information (the child's school grade and whether he or she is performing at grade level; the dates on which school conferences were held and the results, particularly when children are enrolled in special education; and any educational testing that has been conducted, who administered the testing, and the results)

Behavioral information (a description of the child's behavior in the home; any services that are being provided to address the child's behavioral problems, who provides these services, and the frequency with which the services are provided; a description of how the child expresses his feelings and needs and calms his emotions; and a description of the child's eating and sleeping patterns)

The child's special interests and activities (a description of the child's social activities as well as the child's talents, hobbies, skills, and interests)

Visitation (the dates of visits between the child and parents and extended family members; if present, the caregiver's description of the child's and parent's behaviors at the visits; description of any visitation arrangement for siblings; and the dates of any telephone contacts between the child and parents or extended family)

Professional contacts (all in-person and telephone contacts between the caregiver and the child's social worker, the child's attorney, and the child's Court Appointed Special Advocate)

Recommendations (a description of services that would be of benefit to the child, in the opinion of the caregiver)

Conclusion

The role of foster parents, pre-adoptive parents, and relative caregivers in providing courts with vital information about children is now recognized in both practice and policy. Federal law sets minimum standards of (1) notice to foster parents, pre-adoptive parents, and relative caregivers and (2) an opportunity for these caregivers to be heard in certain reviews and hearings. Many states have expanded caregivers' rights to include other reviews and hearings and have, in some cases, elevated the rights of caregivers to the status of "party" under certain circumstances. Even at the basic level of notice and an opportunity to be heard, however, foster parents, pre-adoptive parents, and relative caregivers have opportunities to inform the courts' decision-making processes for children in ways that previously were not available in many jurisdictions.

References

Barbell, K. & Freundlich, M. (2001). Foster care today. Washington, DC: Casey Family Programs National Resource Center for Resource Family Support.

Center for Families, Children & the Courts. (2000). Caregivers and the courts: A primer on juvenile dependency proceedings for California foster parents and relative caregivers. San Francisco: Judicial Council of California, Center for Families, Children and the Courts, Caregivers and the Courts Program.

Doughtery, S. (2000). Toolbox for foster care: The changing role of foster parents. Washington, DC: CWLA Press.

Federal Register. (2000, January 25). Title IV-E foster care eligibility reviews and child and family services state plan reviews; Final rule. Washington, DC: United States Printing Office.

Federal Register. (2000, November 23). Title IV-E foster care eligibility reviews and child and family services state plan reviews; Technical corrections. Washington, DC: United States Printing Office.

Spigel, S. (2000). Foster parent intervention in child abuse cases. Available from Children's Rights.