Akin in psychological and other respects to a family by blood, marriage or civil union, the foster family does not have the same legal status. While the concept of family has evolved and continues to evolve to include may non-conventional relationships, developments in law have stopped short of affording the foster family the same or equivalent protection and deference as long has been afforded the birth family (Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 [1977]).

A biological family has a constitutionally protected interest in its integrity, stability and survival. The foster family does not. The State cannot remove children from birth parents absent abuse or neglect. It may remove foster children from foster parents in its discretion so long as it does not act capriciously. It needs only a rational reason. Since the status of foster parents derives not from nature but from agreement or contract, their legal rights are less comprehensive and unfettered and their legal duties more stringent and demanding than those of birth parents.

While foster parents are entrusted with and are responsible for the child’s care, legal authority for decision-making remains with the State. That is not to say foster parents must obtain consent from the agency for each and every one of the multitude of decisions involved in child rearing day-by-day. Common sense is what determines what meals to cook, clothes to buy, outings to plan, lessons to supervise, discipline to administer, talents to develop, values to instill, morals to nurture, ambitions to encourage, meal-lime, bath-time and bed-time routines, television shows to watch, video games to play and more. The line between day-by-day child-rearing decisions and those decisions only the agency can make or for which it must give permission is not clearly articulated by statute or regulation. The latter, generally speaking, involve enrollment in school and other education decisions, travel outside New York Stale, medical treatment for other than routine preventive care, visitation with birth parents, siblings and members of the extended birth family, babysitting or day care arrangements and religious training outside the child’s religion. Each agency’s Foster Placement Agreement may make further distinctions and additional delineations may be found in each agency’s manual of policies.

The law not only does not protect the care-taking relationship between foster parent and foster child in the way it protects the parent-child or guardian-ward relationship, it also disqualifies foster parents from obtaining or even seeking to obtain such protection. Under New York law, foster parents lack standing to petition the Court for legal custody of a foster child currently or formerly in their care or for visitation with a former foster child. That does not mean, however, that foster parents have no legal rights. They do, consisting, inter alia, of the following:

• Read their certification home study and insert comments
• Receive a manual summarizing agency policies and practices bearing on the role and responsibilities of foster parent
• Receive information regarding a foster child’s health history, health status and health care needs and material health history of birth parents
• Receive information regarding immunization and medical examination schedules and protocols and procedures for obtaining emergency medical treatment for the chil
• Receive basic information regarding child’s behavior, known propensities, history of sexual abuse, school and educational experiences, relationships with birth parents, siblings and members of the birth family, details of The parent-child visitation plan and schedule, permanency goal and plan and information on such additional factors as may significantly influence child’s behavior
• Receive invitation to and participate in Service Plan Reviews
• Receive the agency’s Permanency Hearing Report and a Notice of Permanency Hearing
• Participate as a party in Permanency Hearings
• Receive Notice, participate in meetings of Committee on Special Education and make educational decisions on behalf of child in need of special education services
• After child in home for 12 months, intervention as of right in any Court proceeding where child’s custody is at issue
• Petition Court to terminate parental rights after child in care for 19 months or if DSS/ACS or agency fails to file a petition within 90 days after having been ordered to do so by the Court, which ever is earlier
• Receive Notice when child’s permanency goal has been changed to adoption and Notice when child has been freed for adoption
• After child in home for 12 months, receive first consideration in selection of adoptive parent for child freed for adoption
• Receive 10-day written advance notice of the agency’s intent to remove child from home except for imminent or immediate danger
• Stay removal of a foster child by requesting independent review of agency’s decision
• Receive 20-day written advance notice of agency’s decision and reasons for non-renewal or revocation of certification and an opportunity to discuss reasons with agency official
• Access to State Administrative Law Judge for reversal of certain adverse agency actions or inaction
• Access to State Supreme Court for reversal of adverse decision by Administrative Law Judge

These rights collectively insure (or are designed to insure) foster parents receive adequate information regarding the foster child in their care and have opportunities and notice of opportunities to have input and be heard in case planning and decision-making. Legal rights, however, unlike factual interests, are inchoate. They do not self-activate. They must be actualized or brought into being. While agencies are required not only to notify foster parents of these rights but also to recognize and effectuate them, due to oversight or otherwise that may not occur.

What’s a foster parent to do? Enhancing effectiveness, saying or doing what is necessary to bring rights into being, stems in large measure from foster parents finding within themselves the courage to question, not to complain but to focus attention, The stamina to persevere, refusing to give up when encountering difficulty, and energy and steadfastness in demanding clarity and certainty.

It is not enough to be “right.” Challenging with “right” and “wrong,” mostly triggers defensiveness and blaming. Effectiveness lies in attuning oneself to and speaking into the other person’s listening, framing concerns and issues in the language of their “already listening.” In foster care, that is the language of the law. Furthermore, if there is a concession to be made, for someone to do what is required for foster parental rights to materialize, it is up to foster parents to create space and opportunity for the commissioner to save face. Effectiveness also involves consciously cultivating the mind-set of a Professional Parent and habits of vigilance, initiative and gumption.

Source: “Taking Your Place at the Table” by Micheal Neff, Esq., Developed for the Coalition Spring 2006 Link Family Gathering and Permanency Planning Seminar © 2006