Hopefully, your child has a Guardian ad Litem (GAL) and that person is advocating on their behalf. Too often I hear from foster parents who have never met the child’s GAL and who don’t feel like anyone is advocating on behalf of the child. Sometimes, they want to “raise cane” about the bureaucratic system that fails to recognize the foster child’s individual needs. Generally, I suggest that they advocate very carefully.

Sadly, if a foster parent is too “squeaky” they can make the professional mad and that can change indifference to hostility to the foster parent’s goals. Because the foster parents often want what they believe is best for the child, a conflict between “the system” and the foster parents can backfire mostly to the detriment of the child. Whether the various professionals “like” you makes far more difference than it should in TN child welfare case management and people who actively speak up for their foster children can be viewed as trouble by DCS and even GALs. It is a tricky line to walk. Certainly, when you advocate use good manners and offer mostly facts and far less emotion.

As a first step to engage an inactive GAL who has not met the foster parents or child, I generally advise that the foster parents set a time when the family will be home and invite the GAL over to talk with the foster parents and the child.

The GAL may not accept or even respond to the invitation but if they do, the foster parents can treat the GAL like a professional guest in the house, offering coffee, etc. Try to create an opportunity for the GAL to get a real sense of who the child is temperamentally and educate them about any special needs and residual trauma that the child has.

Provide the GAL with a written list of the children’s professionals and school, if any, with contact information. Provide a summary of progress. If any provider has a progress report, diagnosis or assessment, share that.  If there have been visits with birth parents, provide that schedule with annotations if you think that is helpful. As you look at the case, you will see things the GAL needs to make his or her job easier. Provide those things in writing.

Don’t use the meeting as an opportunity to generally denigrate the birth parents, but do provide relevant facts like, the child arrived directly from the birth parents’ home with in the following condition… or the birth parent has been invited to medical appointments 4 times and has never appeared, etc.

 

Timing of Process.

Many families want to know what time frame they are looking at.

Federal Law, “The Adoption and Safe Families Act,” provides for a limited 15-month period to attempt rehabilitation of a parent. The state is also required to file a termination of parental rights (TPR) action against the parents after the child is in custody for 15 or the last 22 months unless: they don’t have grounds, or the child is with a relative, or the state did not make reasonable efforts to reunite.

The 15-month timeline is used in federal audits of the state child welfare programs but it does not provide “a private right of action.” Which means individuals cannot sue or otherwise compel DCS to follow the guidance.

However, once a Court has made a finding of severe child abuse, no attempts to reunify are required and the state can, but does not have to, move to terminate parental rights right away. It is not enough for the facts of severe child abuse to exist, but the Court must enter an order saying that severe child abuse occurred for rehabilitation to be optional. DCS, in most counties, pretty regularly get a severe abuse finding against mothers in cases of prenatal drug use. They are slower on other facts.

Foster parents also sometimes wonder what to make of the “goal” listed on a foster care plan. Generally the goal on the foster care plan is either “adoption” or a dual goal of “adoption and reunification” by the time the TPR is filed. However, the goal is not a promise. It is only a statement of the Department’s current intention and should provide a basis for their case management decisions. The goal can be changed as facts or institutional plans change. It is not terribly unusual for different people at DCS to work toward different goals at the same time. If you have an active GAL, the GAL could point out this problem. If there is no active GAL or if the GAL is working at cross-purposes even to the Department, foster parents may want to raise the issue themselves through their own counsel.

Hiring counsel too can brand foster parents as “trouble.” But sometimes foster parents are actually less trouble to DCS when an attorney takes the time to listen to their concerns and explain exactly what is going on and why. Foster parents can consult with counsel to get advice and to have questions answered without sharing that they have done so with the Department. They can talk with the attorney about whether having the attorney openly advocate on their behalf is a good idea in light of the circumstances of the particular case.

Two miscellaneous pointers:

• Once the foster parents have had the child for the immediate past 12 months, they have preference to adopt them, should they become eligible for adoption, over relatives or other foster placements. This does not mean reunification stops. But it does mean if anyone is going to adopt, the foster parents have preference.
• Should DCS offer to give foster parents custody or guardianship, rather than completing the case themselves, foster parents should not agree without talking to an attorney. This choice can leave the foster parents with large legal tasks undone and no funding to pay a lawyer to do them. Likewise, it leaves the children ineligible for adoption assistance and health insurance backup that foster children are normally entitled to receive.

When I am hired to finalize and adoption of a special needs child in state custody (this usually happens when the TPR is over or almost over) the Department of Children’s Services pays me a flat rate (usually $1000) to represent the prospective adoptive family. When I do this, I will also provide up to an hour of professional time included on adoption related legal matters at the foster parents’ request.

I will also donate an additional hour of my time to all foster parent clients who want me to help with other adoption related matters including adoption subsidy.

If you want to hire me for other legal matters within the scope of my practice, you can do that by separate agreement.