"The child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding….”
Appellate Court Decisions Favoring Bonding
Fortunately, courts are recognizing the importance of bonding and attachment when considering placement decisions. The courts have used terms like “continuity of care,” “risks of transition,” and “significant attachment” when describing the importance of attachment and keeping children in bonded relationships. Here are nine recent appellate court decisions from across the country:
The Missouri Appellate Court upheld a ruling in favor of foster parents adopting their foster child over the objections of the child’s grandparents and their Indian tribe. The child had multiple medical needs that required special medical equipment and training in its use. The foster parents became very adept at providing for the child’s medical needs and a strong bond developed. Although there is a statutory preference for the child to be placed with a member of his family and tribe, the court reasoned that his foster parents’ ability to provide care for his special needs and the significant emotional bond between them overrode the statutory preference. (In re C.G.L. v. McDonald County Juvenile Office, 63 S.W. 3d 693) (2002)
The Kansas Appellate Court ruled that a lower court erred, in part, when it discounted an emotional bond between a foster child and her foster parents, which is one factor in the best interests of child. The child was placed with a foster family by the custodial agency and the agency failed to pursue adoptive placement with interested relatives. The foster family and the child’s relatives both filed to adopt. The lower court had ruled that the agency initially failed in their reasonable efforts to explore adoptive placement with the relatives and, therefore, the court ruled in favor of placement with relatives. The Appellate Court affirmed the lower court ruling that the agency failed in its reasonable efforts; however, the court reversed placement with the relatives until consideration could be given to the emotional bond between the child and her foster parents in determining her best interests. (In the Interest of D.C., 32 Kan. App. 2d 962) (2004)
In a separate case, the Kansas Appellate Court ruled a lower court erred when it granted an adoption by grandparents based solely on biological preference when the foster family had more of a relationship with the child. The child had resided with his foster family for over two years when the competing petitions were filed. The court reasoned that the bond between the foster family and the child is a critical factor when determining the child’s best interest. (In re Interest of J.A.,42 P. 3d 215) (2002)
The Washington Appellate Court affirmed a lower court that denied biological parents’ preference to have a couple other than the family the children had been placed with to adopt. The court reasoned that the best interest of the child was to remain in the placement where he was thriving, not to undergo the risk of a transition. The record showed that the custodial family was prepared to adopt the child. They were the experienced parents of three children. The child was observed to be happy and healthy in their care and was accepted by all members of their family. At the time of the trial court's decision, the child had lived with the family for 14 of his 19 months. The trial court did not abuse its discretion by concluding that the custodial unit was the family to whom the child bonded and that he should have remained in their care. Relevant discussion as to how a court should consider placement decisions was included in the opinion.
“Evidence relevant to an adoptive placement decision may include, but is not limited to, the psychological and emotional bonds between the dependent child and its biological parents, its siblings, and its foster family; the potential harm the child may suffer if severed from contact with these persons as a result of a placement decision; the nature of the child's attachment to the person or persons constituting the proposed placement; and the effect of an abrupt and substantial change in the child's environment. An important objective is to maintain continuity in the child's relationship with a parental figure, and to avoid numerous changes in custody if this is possible without harm to the child. Where possible, the initial placement shall be viewed as the only placement for the child.” (p. 13) (In re Dependency of J.S., 111 Wn. App. 796) (2002)
The California Appellate Court upheld a ruling in favor of continuing placement with foster parents over placement with the children’s tribe. In spite of the preference for Indian children to be placed with their tribe according to the Indian Child Welfare Act, the court ruled in favor of continued placement with the children’s foster parents due to their significant attachment. The court reasoned that this extraordinary emotional bond falls under the “good cause” exception to the Act. (Fresno County Dept. of Children & Family Services v. Sup..., 122 Cal. App. 4th 626) (2004)
The Pennsylvania Supreme Court ruled in favor of foster parents adopting their foster child over placement with the biological grandparents. The child was “failure to thrive” when she entered foster care and made dramatic gains while with the foster parents. The court reasoned that the risks in moving the child from the foster home where she was secure and attached were too great. (In the Interest of C.J.R., 782 A. 2d 568)(2001)
Maine’s Supreme Court upheld a lower court ruling that gave adoptive placement to the foster parents over the child’s grandparents. The child had lived with the foster parents for two years while the grandparents had visited infrequently. The child had many developmental delays and the foster parents had a track record of meeting her needs. The court reasoned that significant bonding occurred between the child and her foster parents, and it was in her best interest to remain with them. (In re Annie A., 2001 ME 105; similarly In re Kayla M., 2001 ME 166) (2001)
The Alaska Supreme Court ruled for a grant of adoption of a foster child by his foster parents, while denying the biological grandparents’ petition. The child had continuously resided with his foster parents from the age of seven months to three years. Although the child had a relationship with his grandparents, the court reasoned it was in the child’s best interests to be adopted by his foster parents due to the significant bond with them and recognizing the child’s need for “continuity of care.” (In re Adoption of Bernard A., 77 P. 3d 4) (2003)
The Tennessee Appellate Court ruled in favor of foster parents’ adoption petition over that of the child’s relatives - even though it permanently separated siblings. Siblings were initially placed together in the foster home, when the youngest, a four month old, was then placed in the custody of relatives while the older one remained in the foster home. This arrangement had continued for nearly two years when the competing adoption petitions were filed. The court granted the foster parents’ adoption petition of the older child thereby dismissing the relatives’ petition. The relatives were able to adopt the younger child. The court reasoned that the continuity of care preference outweighed the preference for placing siblings together due to the age of the children and their respective attachment to their caregivers. (In re S.B., Tenn. App. LEXIS 308) (2000)
The Indiana Court of Appeals recognized the importance of parenting and bonding when it comes to adoption. The Appellate Court held that biology is not more important than a child’s relationship with a man who has been a father in the terms that matter most. The court upheld the adoption of a girl to a man who had cared for her as his daughter for five years while dismissing the biological aunt and uncle’s adoption petition. (Gerweck v. Schoenradt, 793 N.E. 2d 1054) (2003)
Not all higher court decisions have favored bonding. Legal precedent in Maryland has held that the rights of a biological parent cannot be terminated unless the parent is proven to be unfit at the time of the termination, or “exceptional circumstances” exist. The Maryland Court of Appeals on January 19, 2010 (In re Adoption/Guardianship of Alonza D., Jr. and Shaydon S.) found that the best interests of the child, by itself, is not an exceptional circumstance.
“In other words, proving that a child would be better situated if parental rights were terminated is not enough to support a termination of parental rights. The specific issues in Alonza D. were whether the children’s attachment to the foster parent who intended to adopt, absent proof of parental unfitness, was sufficient to terminate parental rights. The Court of Appeals said no and remanded for further proceedings.”
“The Court of Appeals found that separation from the father, an asserted lack of a father-children bond, and bonding between the foster mother and the two children was not an “exceptional circumstance” sufficient to overcome the presumption that it is in the best interest of a child to maintain a relationship with the biological (natural) parent. Rather, the Court ruled that termination would require a finding based on clear and convincing evidence that “a continued parental relationship would be detrimental to the best interests of the children.”
“This decision is more than just an interesting analysis of a complex area of law. Rather, the decision focuses on the impact that the foster child-foster parent's relationship can have on a fit parent's ability to prevent an adoption. This is a common situation in foster care—involuntary removal, loss of meaningful relationship with parent, the creation of a new relationship with a foster home, a desire for permanency through a foster parent adoption, and a parent who at the time the termination decision needs to be made is not unfit and seeks to establish or reestablish the parental relationship.” (Schweitzer, 2010)
Schweitzer summarizes, pointing out that the standard for termination is unfitness of the biological parent or exceptional circumstances. “The essence of the Court's ruling is that evidence that the parental relationship is detrimental to the child is a necessary ingredient of exceptional circumstances. It could be argued that a clear and convincing showing of detriment is not constitutionally required or that the need to make such a factual finding will make it much more difficult for foster parent adoptions to succeed.”
The task for the trial court on remand is to define the term “detriment to the best interest of the child” in an objective way. The speculative harm that might occur upon removal from the foster home needs to be given a factual context.
First and most importantly, bonding needs to be defined in a concrete and evidentiary way. Statistics might then be presented (see Chapters Three to Six) to show the significant increase in the likelihood of dire consequences if a bonded relationship is disrupted. While neither party can predict the future with one hundred percent accuracy, the compelling statistics may raise the level of harm to the child from merely possible to more likely, and from a mere “best interest” to the level of “exceptional circumstances.”