Thursday, November 25, 2010

Legal Aspects of George's Case

George has been in our home for over a month now and the two most frequent questions family members and friends ask us regarding his case are:
1)   How long will he be with you?
2) Is there any chance you could adopt him?  

Up until now I haven’t been able to give any definitive answers to anyone because I haven’t had any definite answers given to me, either.  The information I’ve been seeking is always dependent on court dates or meetings and sometimes meetings get postponed or rulings in court are inconclusive or conditional upon further hearings.  But this week I talked with George’s caseworker who was able to give me the latest information on where his case is headed in regards to reunification or adoption.  It’s nice to finally know- one way or the other- what the future holds for him . . . and for us.

BUT FIRST, before giving an update, let me back up and give a little background about how foster placements “typically” work.  (Of course I do realize that using the word “typical” to describe a foster placement is pretty much an oxymoron since nothing is predictable in foster care!)  But here goes . . .  

In “typical” cases after children are removed from their parent’s or legal guardian’s care the parents/guardians are offered “services” such as counseling, parenting classes, on-going random drug-testing, job training, etc. through the Division of Child and Family Services in what is outlined in a Service Plan.  If, after a court-mandated amount of time, the child’s parents comply with the requirements of the Service Plan, then a judge can order the child returned back into the parent’s custody.  If however, the parents don’t do everything required of them in the Service Plan (and I’ve found that even if they don’t there can always be extensions granted) there is always the possibility of parental rights being terminated (TPR), thus leaving the child legally free for adoption. 

George’s case and family situation are a little different than our previous foster placements have been because his “parents” aren’t legally his parents- (hence the quotation marks around the word parents.)  This begs the question: What makes someone a parent?  In my opinion, a parent is the primary caregiver (or caregivers, if they’re lucky enough to have two) to a child.  That definition, however, doesn’t hold up in a court of law.  I actually did the research and grabbed my husband’s copy of Black’s Law Dictionary (albeit an older edition) from his den and looked up the legal definition of parent.  There were five different definitions by statute and I’ll paraphrase each:  (1) the natural father or mother of a child born of their valid marriage (2) the adoptive father or adoptive mother of a child (3) the natural mother of an illegitimate child (4) a child’s putative blood parent who has expressly acknowledged paternity and contributed to the child’s support and (5) any individual or agency whose status as guardian of the child has been established by judicial decree.

George’s “parents” don’t fit any of these definitions, but I refer to them as his parents anyway since that’s the role they’ve played in his life.  George’s birthmother unofficially “gave” George to some friends of hers when he was less than a month old and those friends of hers have been raising him until he was recently removed from their home.  These caregivers are not related to George by blood nor do they have legal custody of him which is very important because blood relatives ALWAYS take precedence over non-relatives or anyone else when deciding where a child is placed.  (Lesson #2 from this post)

George’s parents did actually try to petition the court for guardianship the last time George’s birthmother was arrested, but because of pending issues and because they’ve had a previous history with the Division of Child and Family Services before George ever came into custody, their petition for guardianship was not honored.  The judge, however, is sympathetic to their case since they have been the ones caring for George most of his life and that is why he granted visitation rights and legal standing to this couple.  Judges have the final say in every decision, regardless of anybody else’s opinions.

This is where the case gets interesting: DCFS did not initially agree with the judge’s decision that it’s in the best interest of George to have ongoing visits with his caregivers- primarily because their goals for George are safety and permanency.  Whether children in foster care end up with a relative, back with their parents, in a group home, or being adopted by their foster family the ultimate goal is to “provide each child with a safe, nurturing, and permanent home” a statement which is taken directly from our region’s vision statement.

Do George’s caregivers/parents love him?  Of course!  But sometimes loving a child and simply being attached to a child are not good enough reasons to have a child returned to one’s care.  Other variables such as a safe home environment, employment, the ability to pass a background check, and a previous history with DCFS should most definitely be taken into consideration for the child’s well-being.

The Division’s job is ultimately to look out for the best interests of the child in state custody.  However, they are also there to help the child’s parents which, to me, can present a conflict of interest.  So the big moral/legal dilemma at the heart of George’s particular case and the question on our minds the past couple of weeks has been: Should parental rights and a service plan be granted to “parents” who have no legal rights to a child in the first place?  OR does DCFS pursue kinship options (Legally they must, but so far nothing has panned out which is why George is with us right now).  OR, is it in George’s best interest to be placed in an adoptive home?  

After a staff meeting this week and in accordance with the judge’s ruling, it was decided that despite X, Y, and Z reasons (I won’t go into specifics but all I can tell you is that all of the reasons by themselves are substantial enough not to place a child back with his caregivers into the home environment he came from) DCFS has no choice but to go along with the judge’s ruling and they must give George’s parents full legal standing in the case- meaning, they’re basically being treated as his legal parents- and a Service Plan will be drafted for them so that they can work on getting him back into their care.

In answer to everyone’s inquiries: We will most likely have George in our care for seven more months, the time allotted in the Service Plan,  and then he’ll be placed back with his parents (on the condition that they don’t go to jail during that time or have any further criminal charges against them.)

What are my personal feelings on the matter?  Well . . . I’m grateful to George’s parents for loving him, and I know that they must be going through an extremely difficult time right now, BUT quite frankly, I’m more concerned with George’s well-being than I am with theirs.  He’s the one who is where he is today through no fault of his own.  His birthmother and his parents, on the other hand, are adults who must be accountable for the choices they’ve made- just like the rest of us.  Yet it seems that their “rights” are taking a priority over his “rights” and his best interest.  So regarding the judge’s decision I’m kind of left thinking, “Are you freakin’ kidding me?”  

All I can say is, no matter what side of the issue you’re on- whether foster parent, parent whose children have been removed, caseworker, judge, etc. the most important question shouldn’t be “What are the birthparent’s rights?” or if you are a birthparent or foster parent “How will this decision impact me and my family?”  but rather  “What is in the best interest of the child?”.

Yesterday I called my husband to tell him the latest news about George’s case.  After giving him the update the other end of the line grew quiet.  “Are you alright? . . . What do you think about all of this?” I asked.

“I’m okay” he explained.  “I’m just worried about him.” 

That is precisely where the concern should be- with the child.


jendoop said...

"Yet it seems that their “rights” are taking a priority over his “rights” and his best interest."
That seems to be the case where we are too. I am amazed at how few rights a child has, even basic rights to safety and food (slight to moderate risks are overlooked).

Even though we aren't looking to adopt, if our foster son went back with either of his parents I would be heartbroken. He is doing so very well, I hate to think what those deprived circumstances would do to him the third time around.

Anonymous said...

It's just absolutely amazing to me that a judge who has no knowledge of what's really going on with these kids have so much power to just push them around because it's the "politically correct" thing to do! It's just so heartbreaking to see these little kids go through this time and time again. These parents get way too many chances to mess up at the expense of their children whom they profess to love and care so much about.

Mom Forever said...

Actually, from what I understand, the first priority is the reunification of families. This is not always/usually in the best interest of the child in placement and is certainly a huge contradiction. If their first priority were the interests of the children then there would certainly be changes in how things are handled by CYS and the courts. I absolutely cannot believe that the judge gave his "parents" standing. Grrr! Yes, this hits a nerve with me...