Foster Parents Have Rights to Participate in Court Proceedings to Determine a Parent's Custody of the Child

Posted By Matthew Clawson || 3-Sep-2014

Little "A.M." (courts use only the child's initials in cases) had been taken by his parents to the emergency room a number of times in the span of three months, including for a lacerated tongue, a bruised cheek and a fractured elbow. X-rays revealed other fractures to the baby's ribs, leg bone and cheekbone. The County Department of Social Services was notified by the doctors and immediately placed the baby in foster care with a married couple, and then filed a petition with the court "in dependency and neglect "of the child.

A dependency and neglect proceeding is started when a local county department of human services or a local law enforcement agency is made aware of suspected child abuse or neglect. After the local agency takes immediate steps to protect the child, it gives notice to the local juvenile court which may authorize the filing of a petition in dependency and neglect. This is the proceeding that may condition, or terminate, the rights of a parent to custody of his or her child. The petition in dependency and neglect is filed by the State of Colorado, which also notifies the parents of the petition and their rights in the proceeding. Parents who are subject to losing custody of their child for neglect or abuse have a right to an attorney, as well as to a jury trial. The State must prove the allegations of neglect or abuse by a standard of whether the allegations are more probably true than not. If the court hearing the case determines that the allegations are proved, then the state child services will protect the child and will determine what rehabilitation the parent(s) may require in order to safely parent the child again. The court will order that the parents comply with a treatment plan to provide services to the family, to prevent unnecessary out-of-home placement of the child and, ultimately, to facilitate reunification of the child and family. Failure of one or both parents to comply with the treatment plan may provide grounds for the State to ask the court to terminate a parent's rights to the child. At no point should the child's best interests be put on the back burner, or be set aside of what the parents want.

At the hearing to determine whether the child could be returned to the parents, Colorado law provides that those who have had the child in their care for more than three months, and have knowledge about the care of the child, can intervene in the court proceedings. In A.M.'s case, his foster parents asked the court to let them intervene in this hearing because not only did they have pertinent information about the child to share with the court, but they also admittedly wanted the parents' rights to the child terminated so that they could adopt A.M.

The law does not make it easy for a court to terminate parental rights, and can only be done so through solid, inarguable evidence and accounts. The parents may seek legal counsel, provided by the State if they cannot afford their own attorney. At the hearing, witnesses will be treated as if it is a criminal court case, meaning cross-examinations and new witnesses testimonies may be utilized by either party. Ultimately, the parent's relationship with the child will only be ended if all other alternatives have been explored and deemed unworthy of the solution required.

But Colorado law also recognizes that foster parents of the child have important information that must be provided to the court such as the current status of the child and how the child's well-being would be affected by return to the parent. In a recent decision by the Colorado Supreme Court, the justices held for the first time that foster parents have the right not only to give testimony about the current state of the child, but also to fully participate in the hearing to terminate parental rights, including cross-examining witnesses who are testifying in favor of the parents' custody, but also calling their own witnesses to show that it is not in the best interests of the child to return the child to the child's parents, as well as presenting written and oral arguments to the court for that position.

We don't know the outcome of A.M.'s story—as this kind of information remains private to protect the child. We do know that Colorado now recognizes that foster parents form lasting bonds with children in their care and that foster parents have rights to fight for what the foster parents see as the best interest of the child they have grown to love.

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