The Court Has Problems

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The courts which oversee the foster care system are overcrowded. To move a child from foster care to permanence within 12 months, court hearings are needed upon entering the foster care system and every three to six months thereafter. Instead, cases may wait months even for the initial hearing. Furthermore, the legal rules for the presentation of evidence frequently fail to admit pertinent information. Complicated family matters are often poorly presented and inadequately resolved in court.

More courts at all levels are recognizing the importance of bonding when making placement decisions. This consideration, however, remains far from universal. Many courts still fail to consider the documented bond between the foster parent and foster child and choose adoptive placement with a long lost relative, relying solely on the primacy of biological rights. Thanks to the Adoption and Safe Families Act (ASFA), the rights of the child are or should be considered paramount.

Regulatory and statutory barriers exist to complicate the adoption of foster children who cannot return to their parents’ homes. The separate and sometimes conflicting requirements between the regulations that govern foster care and adoption can slow the process. Examples of statutes that can delay matters include:

Vague laws that can be misinterpreted to require sequential, rather than concurrent planning, thus greatly lengthening the time a child spends in foster care.

  • Statutes that fail to consider the child’s developmental needs in establishing reunification time lines.
  • Laws that allow the establishment of a plan for long-term foster care.
  • Statutes that require that reunification services be given to birth parents who do not want them.
  • Policies that value blood relatives and remove children from homes where they have significantly bonded, to place them with heretofore unknown siblings and relatives.

Court delays are endemic. Continuances present a problem. The courts may allow continuances to give the birth parents chance after chance. Perhaps the parties have not been properly notified. Or another court case must be heard. Or an attorney has a scheduling conflict. Or one of the parties changes attorneys in an effort to delay. The reasons may vary but are often not sufficiently compelling to allow a child to drift in temporary care. Unfortunately, some courts have no sense of urgency when it comes to finding a permanent home for a child.

A case for bonding which employs solid research and written documentation and is presented to the court in a clear and persuasive manner can and increasingly does influence the court’s decision on what is in the child’s best interests.

Laws and policies have changed in the past few years, generally in favor of earlier permanence for children. ASFA puts the needs of the child at the top of the priority list. Appellate court decisions frequently recognize the importance of bonding. The average time in foster care drops from one year to the next, but far too slowly. The next chapter will review and summarize the goal: to respect bonding when it occurs and to strive for early permanence for children in care.