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Nine States Now Have Legislation Protecting Foster Parents
by Bill Grimm
Orignally published in Youth Law News, April-June 2004.
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Legislators in Georgia and Alabama this year enacted a bill of rights for foster parents, while Washington state’s legislature just expanded the list of protections afforded foster parents. Nine states now have adopted some form of a foster parents’ bill of rights,1 and in late April, legislation was pending in several others.2
Georgia
Like many other foster parents’ rights bills, the Georgia law begins with a general statement of foster parents’ right to be treated by the local child welfare agency “with dignity, respect, and trust … and as a member of the professional team.”3 While the law does not specifically mention religion, it affirms the right of the foster parent “to continue with his or her own family values and beliefs.”4 However, this is qualified by a requirement that these values and beliefs do not infringe on those of the foster child and the birth parents.5
Foster parents are guaranteed “standardized” training before placement of a child, and “appropriate ongoing training to help improve caregivers’ skills in meeting the needs of their child.” The content of the training is left to the discretion of the local child welfare agency, but information must be provided on agency policies and procedures, including any changes in laws or policies.6
Several sections of the Georgia law affirm the importance of giving foster parents accurate and complete information about the children placed in their homes.7 Foster parents must be given information about the child prior to placement, including “any issues relative to the child that may jeopardize the health & safety of the foster family or the child.”8 They also must be told how many times the child has been moved, along with the reasons for the changes in placement. 9 The agency has a continuing obligation to provide “additional pertinent information relevant to the care of the child.”10
Facilitating communication with prior caregivers and other service providers is just good practice,11 but agencies rarely encourage it. Foster parents may ascertain the identity of a previous care provider “through the grapevine,” but few agencies address this in policy. Georgia grants a foster parent the right to the names and phone numbers of previous caregivers.12 If the child has had multiple placements, the statute appears to require that the foster parent be given the information on all caregivers. However, the right to such information is qualified – the previous foster parent must authorize the release of their name and phone number.13
Recognizing that foster parents’ communication with other professionals is important to the care of the child, the law also gives them the right to talk with the child’s therapists, physicians, and teachers.14 Other state or federal laws, however, may abridge this right.
Under Georgia’s law, foster parents’ right to participate in decision-making for their child is expanded beyond the minimal and vague requirements of notice and an opportunity to be heard, granted by federal law. Decisions about the child are not to be made without participation of the child’s day-to-day caregiver.
The local child welfare agency is to seek out and consider input from the child’s foster parent.15 A copy of the child’s case plan must be given to the foster parent.16 Recognizing that the plan for the child’s visits with parents ought to take into consideration the foster parents’ schedule, the bill of rights explicitly gives caregivers the right to participate in planning.17
There are two circumstances in which the foster parent is afforded a preference in placement:
• When a child formerly in their home re-enters foster care18;
• When a child is released for adoption or permanent foster care, provided that the child has
lived with them for 12 months or more.19
Each of these provisions grants only “a right to be considered, where appropriate.”20
Alabama
Alabama’s bill of rights begins with the same general statement of the “right to be treated with dignity, respect, trust, value, and a member of the professional team.”21 It then lists 22 more rights, which are similar to comprehensive lists in such states as Georgia, Tennessee, and Oklahoma.
Foster parents are entitled to information on a child an agency asks to place in their home, prior to the placement. For “emergency placements,”22 such information must be provided within 72 hours of the placement. Categories of information to be provided include the child’s behavioral problems, health history, educational status, and cultural and family background. A written summary of the child’s assessments should be provided to prospective foster parents, “to assist in determining if the child would be a proper placement.” After placement, as the department obtains further information, foster parents should be updated. Any changes in the case plan must be reported to foster parents, as must the agency’s intention to terminate the placement.
As with most other states’ bills of rights, foster parents are entitled to training and support, to help them improve their skills. “A period of respite” is one specific support service the agency is required to provide.
Foster parents’ rights to participate in planning is expanded beyond court hearings and foster care reviews to include individual service planning, and individual educational planning. A volunteer advocate may accompany the foster parent to these proceedings.23 While the statute requires that foster parents “actively participate in and provide input,” it does not specify that they may attend these meetings. Foster parents also have the right to initiate communications with the child’s therapists, doctors, and teachers, without going through the caseworker as intermediary.
Alabama’s statute also explicitly protects foster parents against reprisals in four circumstances. These are:
• Advocating for services that meet the needs of children in their care;
• Refusing to accept a child for placement;
• Requesting the removal of a child for good cause;
• Communicating with a child’s former foster parents, adoptive parents,
or birth parents, if approved by the individualized service plan team.
Washington State
Washington state legislators, concerned about reprisals against foster parents who complain about the local child welfare agency’s performance, amended the state’s existing law this year.24 During the 2001 session, the legislature passed a bill giving foster parents “the right to be free of coercion, discrimination, and reprisal.”25 However, the governor vetoed the section of the bill which specified the particular acts against which a foster parent was protected. These acts included testifying in proceedings, advocating for services, or seeking to adopt a child in their care. This year, legislators were successful in getting those exact same particulars passed again, and the governor signed the bill into law.26
Testimony in support of the bill came from several foster parents. One foster parent who had been licensed for eight years described her ordeal trying to get the agency to place a young female relative in her home. She said, “[t]he more aggressive I became, the more letters I wrote, the more vocal I became, the more obstruction I received.”
Cheri Covert of the Central Washington Foster Parent Association said “when I brought these infractions of policy and procedure to DSHS… I was perceived as a problem. Thus a campaign was launched to silence my efforts. I am now known by DSHS (Department of Social and Health Services) staff as Enemy Number One.”
Darlene Flowers, executive director of the Foster Parent Association of Washington State (FPAWS), told legislators that while actual incidents of retaliation did not occur daily, “[t]he fear of retaliation is an epidemic and it spreads like wildfire.”27 Representatives of FPAWS supported this year’s legislation, working with the bill’s sponsors and the Family and Children’s Ombudsman Office to craft the amendments.
Under the new law, foster parent complaints alleging a violation of their rights may be filed with the Family and Children’s Ombudsman Office. The office was established in 1996 to investigate complaints about agency performance, which involves any child at risk of abuse, neglect, or other harm.28
In investigating complaints, ombudsman staff has unrestricted access to all DSHS records, and can receive confidential information from other agencies and service providers. The ombudsman’s office has no authority to force the agency to remedy the situation, nor do foster parents appear to have any right to enforce the statutes on their own. An annual report to the legislature must now include recommendations for changes in policy or practice that result from investigations of foster parent complaints. The department is required to develop procedures for responding to ombudsman recommendations.
Rights Under Federal Law
Federal law bestows few rights on foster parents, and there is evidence that those rights which are in place have not been implemented. More than a decade ago, Congress amended federal child welfare law to mandate that foster parents be given the health and education history of a child placed in their home.29 Inexplicably, this mandate was not included in federal Child and Family Services Reviews (CFSR).30 With the enactment of the Adoption and Safe Families Act (ASFA) of 1997, Congress required that foster parents be provided with notice and opportunity to be heard at any hearing concerning a child placed in their home.31 Provisions in the Multi-Ethnic Placement Act prohibit discrimination based on race, color, or national origin, in the licensing of foster and adoptive homes, and the placement of children. Every foster child’s case plan must address the supportive service needs of foster parents.32
Recent federal CFSRs indicate that many foster parents are still waiting for these rights to be implemented by state and local child welfare agencies. In more than 20 states, the notice and opportunity mandate remains an unfulfilled promise. In Idaho, stakeholders’ “key concern” included the lack of needs assessment and services to foster parents.33 In Arkansas, stakeholders raised concerns that foster parents were not being provided services for children with behavioral problems.34 Hawaii’s case reviewers found that foster parents’ need for services to help them care for children were not met in 40 percent of all audited cases.35
Federal law does not address foster parents’ rights to contest the removal of a child from their home. Although caregivers are entitled to notice of hearings concerning a child placed in their home, in many states, the administering agency does not need court approval before changing the child’s placement. Federal law does not grant foster parents a right to a hearing on their own request.36
Common Provisions in Other States’ Bills of Rights
While there is no uniform model statute37, most states’ bills of rights have certain protections in common, e.g., rights to information about children placed in the home, some form of grievance procedure, participation in decision-making for the child, and notice of a change in placement. There are also substantial differences. Laws in Maryland, Mississippi, and Washington contain only a few basic rights, while laws in Alabama, Tennessee, Oklahoma, Illinois, and Georgia are much more extensive.
Though some of the more recent statutes borrow heavily from the language in the expansive Tennessee and Oklahoma laws, each state puts its own stamp on statute language. Laws in Missouri and Tennessee contain a unique provision authorizing the state to “provide, upon request by the foster parents, information about a child’s progress after the child leaves foster care.”38 Missouri’s statute is the only one to define the “foster parents” who are entitled to the protections of the bill.39 Its definition appears to cover relatives who are caring for children in state custody.40
Right to Information About Child
With the exception of Washington, state laws require that foster parents receive information about their child.41 The breadth of information is different in each of the laws. Maryland’s statute requires caseworkers to provide “full information” to foster parents at the time of initial placement, and “after new information becomes available.”42 Mississippi requires that “pertinent information” be shared with caregivers.43 Several restrict the release of information about the child’s natural parents.44 A few states require distribution of the child’s case plan to foster parents,45 while others only require “a clear, written understanding of a placement agency’s plan.”46
Rights to Services
Most statutes specify training as a mandatory service for all caregivers.47 Acknowledging that issues in the care of children often arise after usual office hours, states include a right to after-hours assistance from the local child welfare agency.48 Illinois and Oklahoma have established a telephone hotline for foster parents.49 Several states acknowledge that respite care is a critical support.50 Tennessee’s provision is more explicit – “[t]he department shall permit the foster parent or parents a period of respite, free from placement of foster children in the family’s home with follow-up contacts by the agency occurring a minimum of every two months.”51
Notice of Child’s Removal
Many states’ bills of rights provide for some type of notice to the foster parent when the agency is considering removal of the child. Maryland and Illinois require reasonable written notice, waived only in cases of a court order, or when a child is determined to be at imminent risk of harm.52 Barring an emergency, Missouri foster parents are entitled to advance notice, including a written statement of the reasons for an agency’s proposed removal of the child.53
Protections Against Reprisals
Washington and Alabama are not the only states in which foster parents feel they need protection against reprisals by employees of the local child welfare agency.54 Missouri protects caregivers from retaliation for questioning an agency’s case plan, refusing a placement, or encouraging the agency to place the child with a particular foster care provider.55 Illinois’ protection is narrower, providing “the right to be free from acts of harassment and retaliation by any other party when exercising the right to appeal.”56 Oklahoma permits foster parents to refuse placement or “request, upon reasonable notice to the department, the removal of the child form their home for good reason, without threat of reprisal.”57
Enforcement
Some statutes say explicitly that the law does not create a cause of action for a foster parent whose rights are violated.58 Tennessee allows foster parents to file for mediation in response to violations of the bill of rights.59 Georgia requires the creation of grievance and mediation procedures, but expressly makes the filing of a grievance the “foster parents exclusive remedy.”60
Foster Parent Rights Elsewhere
In many states without a formal bill of rights, foster parents nonetheless have legal rights. Finding them, however, can be a daunting task. It requires a review of statutes, regulations, policies, and other publications. Some states publish handbooks that include descriptions of the rights and responsibilities of foster parents, but they can be out of date. Furthermore, handbooks often are written by the local child welfare agency, which may have little incentive to emphasize rights.
A search of laws in states with no formal bills of rights found that foster parents still have some legal protections.61 Massachusetts, for example, provides in part:
Whenever a child is placed in a foster home, or is transferred from one foster home to another, or from a state facility for the care of children to a foster home, a completed child profile form shall precede or accompany the child to the foster home… Said child profile shall contain, but not be limited to, a history of the child’s previous placements and reasons for placement changes; a history of the child’s problem behaviors and mental and emotional problems; educational status and school related problem behaviors, and any other psychological, educational, medical, and health information necessary.62
Wyoming’s foster parent handbook states “rights of foster parents include being fully informed of the child’s background and physical and mental functioning to ensure provision of appropriate care and protection…”63 The Vermont Social Service Policy Manual requires that “foster families will be provided with full information.” It then adds a comprehensive data list, which includes:
• The reason for the child’s placement;
• Child and family background;
• The child’s behaviors and needs, including medical and educational needs;
• Any known risks the child may pose to others due to violence, fire-setting,
abusive behaviors, and a plan to minimize those risks;
• The goal and anticipated time frames of the case plan;
• The anticipated length of stay;
• Whom the child may contact.64
With several bills still pending, it is likely that later this year, legislators in several more states will succeed in establishing formal protection of foster parents’ rights.
Bill Grimm is a senior attorney with the National Center for Youth Law, specializing in Child Welfare. He has been lead counsel in several class action lawsuits to reform child welfare systems, including in Washington state, Arkansas, Utah, and Baltimore.
Footnotes:
1 2004 Ala. Acts 257; Ga. Code Ann. § 49- 5-281 (2004); 20 Ill. Comp. Stat. 520/1-15 (2004); Md. Code Ann. Fam. Law § 5-504 (2004); Miss. Code Ann. § 43-15-13 (11) (2004); Mo. Rev. Stat. § 210.566 (2004); Okla. Stat. Ann. tit. 10 § 7206.1 (West 2004); Tenn. Code Ann. § 37-2-415 (2003); Wash. Rev. Code § 74.13.332 (2004).
2 See, e.g., S.B. 2082, 80th General Assembly Second Session (Iowa 2004); H.B. 2631, 83rd Reg. Sess. (Minn. 2004) & S.B. 2505, 83rd Reg. Sess. (Minn. 2004); S.B. 660, 79th Legislature (W.Va. 2004). (During the last few years, bills introduced in Kansas and Florida were not enacted: H.B. No. 2908, Reg. Sess., (Kan. 2002); HB 0853, Reg. Sess. (Fla. 2002).
3 Ga. Code Ann. § 49-5-281 (a)(1); see also 20 Ill. Comp. Stat. § 520/1-15 (1); Miss. Code Ann. § 43-15-13 (b); Okla. Stat. Ann. tit. 10 § 7206.1 (1).
4 Ga. Code Ann. § 49-5-281 (a)(3); see also Mo. Rev. Stat. § 210.566.
5 Id.
6 Ga. Code Ann. § 49-5-281 (a)(4) -(5).
7 Id. § 49-5-281 (a)(8)-(9), (11)-(12).
8 Id. § 49-5-281 (a)(8).
9 Id. § 49-5-281 (a)(11).
10 Id. § 49-5-281 (a)(12).
11 Vera Fahlberg, A Child’s Journey Through Placement 179-181 (1991).
12 Ga. Code Ann. § 49-5-281 (a)(11). See also Okla. Stat. Ann. tit. 10 § 7206.1 (A)(10).
13 The release also is “as allowable under state or federal law.” There is no federal law or regulation that explicitly bars the exchange of this information among foster parents.
14 Ga. Code Ann. § 49-5-281 (a)(17).
15 Id. § 49-5-281 (a)(16).
16 Id. § 49-5-281 (a)(13). Whether the foster parent is given only part of the case plan – such as an exclusion of provisions relating to the biological parent – varies from state to state.
17 Id. § 49-5-281 (a)(14). See also Mo. Rev. Stat. § 210.566 3. (1).
18 See also Ill (12) (20 Ill. Comp. Stat. 520/12). (The right to be considered as a placement option … if that placement is consistent with the best interest of the child and other children in the foster parents’ home).
19 Ga. Code Ann. § 49-5-281 (a)(19) – (20). See also Mo. Rev. Stat. § 210.566 4.(1).
20 Id.
21 S.B. 228, Reg. Sess. (Ala. 2004).
22 “Emergency placements” are not defined. They could include the child’s initial placement in care and unplanned “emergency” replacements.
23 Foster parents right to attend court hearings is “at the discretion of the judge.”
24 The federal CFSR Final Reports suggest that this is a problem elsewhere. E.g., Children’s Bureau, U.S. Dep’t of Health & Human Servs., Idaho Child and Family Services Review Final Report 36 (2003). (“Stakeholders in Ada County expressed concern that the agency may respond negatively if the foster parents request services or complain about lack of services for their foster children.”)
25 H.B. 1102, Reg. Sess. (Wa. 2002).
26 SHB 2988, 58th Legislature, Reg. Sess. (Wa. 2004).
27 An Act Relating to Foster Parents’ Rights: Hearing on HB 2988 Before the House Comm. On Children and Family Services, 58th Legislature, 2004 Re. Sess. (Wa. 2004) (Statement of Darlene Flowers, Executive Director, Foster Parent Association of Washington State (FPAWS)).
28 Other states with ombudsman offices include California and Michigan.
29 42 U.S.C. §675 (5)(D) (2000 & Supp.I 2002).
30 See 42 U.S.C. § 1320a-2a (2000 & Supp.I 2002). The U.S. Dep’t of Health & Human Servs. was mandated by Congress in 1994 to promulgate regulations for the review of state child welfare programs. These reviews were to determine whether states were in “substantial conformity” with the federal child welfare mandates in Titles IV-B and IV-E of the Social Security Act. HHS, the federal agency charged with ensuring compliance with the federal mandates attached to the billions of federal child welfare dollars, began a series of Child and Family Services Reviews in 2001. All the on-site reviews have been completed, but several final reports have not been released.
31 42 U.S.C. § 675 (5)(G).
32 42 U.S.C. § 675 (1)(B).
33 Children’s Bureau, U.S. Dep’t of Health & Human Servs., Idaho Child and Family Services Review Final Report 35-36 (2003).
34 Id. at 30.
35 Id. at 44-45 (2003).
36 Timmy S. v. Stumbo, 916 F.2d 312, 315-316 (6th Cir. 1990) (Administrative hearing procedures must be made available to foster parents for denial of benefits. The “relevant benefits” include foster care maintenance payments to licensed foster parents and training and allegedly wrongful decertification as foster parents. )
37 The National Foster Parent Association publishes a Basic Rights of Foster Parents, http://www.nfpainc.org/aboutFP/rights_FP.cfm?page=2 (last visited May 24, 2004).
38 Mo. Rev. Stat. § 210.566 4.(1); Tenn. Code Ann. § 37-2-415(a)(18). Missouri’s statute specifies that the state “may provide” the requested information. Tennessee mandates that “the department shall provide” it but limits the information to “information already in possession of the department at the time of the request.”
39 Mo. Rev. Stat. § 210.566 8.
40 Id. (“foster parent” means a resource family providing care of children in state custody”).
41 See, e.g., 2004 Ala. Acts 257; Ga. Code Ann. § 49-5-281 (a)(8)-(9), (11)-(13); 20 Ill. Comp. Stat. 520/1-15 (5), (7), (9); Md. Code Ann. Fam. Law § 5-504 (a)(1); Miss. Code Ann. § 43-15-13 (11); Mo. Rev. Stat. § 210.566 2. (1); Okla. Stat. Ann. tit. 10 § 7206.1 A. (6)-(7), (12); Tenn. Code Ann. § 37-2-415 (5), (8)-(9), (15).
42 Md. Code Ann. Fam. Law § 5-504 (1).
43 Miss Code Ann. § 43-15-13 (d)(i).
44 Ill. Comp. Stat. § 520/1-15 (9) (Disclosure of Information concerning the child’s family shall be limited to that information that is essential to understanding the needs of and providing care to the child in order to protect the rights of the child’s family. When a positive relationship exists between the foster parents and the child’s family, the child’s family may consent to disclosure of additional information.); Md. Code Ann. Fam. Law § 5-504 (1) (Information about family members that may be privileged or confidential is excluded.)
45 Mo. Rev. Stat. § 210.566 2.(1); Ga. Code Ann. § 49-5-281 (a)(13).
46 Ill. Comp. Stat. § 520/1-15 (5); Tenn. Code Ann. § 37-2-415(a)(8).
47 Okla. Stat. Ann. tit. 10 §7206.1 A. 3; Tenn. Code Ann. 37-2-415 (a)(4). See William Grimm, Foster Parent Training: What the CFS Reviews Do and Don’t Tell Us, Youth Law News, April-June 2003, for a complete review of foster parent training.
48 Tenn. Code Ann. 37-2-415 (a)(6); Ga. Code Ann. §49-5-281 (a)(7).
49 Okla. Stat. Ann. tit. 10 § 7206.1 A. (22); Ill. Comp. Stat. § 520/1-15 (20).
50 Mo. Rev. Stat. § 210.566 2.(1); 2004 Ala. Acts 257 § 2.19.
51 Tenn. Code Ann. § 37-2-415 (a)(22).
52 Md. Code Ann. Fam. Law § 5-504 (3); 20 Ill. Comp. Stat. § 520/1-15 (10). See
also Okla. Stat. Ann. tit. 10 § 7206.1;
Tenn. Code Ann. § 37-2-415 (16).
53 Mo. Rev. Stat. § 210.566 4.(1).
54 See, e.g., Children’s Bureau, U.S.
Dep’t of Health & Human Servs., Idaho
Child and Family Services Review (2003)
(“Stakeholders… expressed concern that
the agency may respond negatively if the
foster parents request services or complain
about the lack of services for their foster
children”).
55 Mo. Rev. Stat. § 210.566 2. (1).
56 Ill. Comp. Stat. § 520/1-15 (13).
57 Okla. Stat. Ann. tit. 10 § 7206.1(a)(10).
58 Md. Ann. Code Fam. Law § 5-504 (b); Okla. Stat. Ann. tit. 10 § 7206.1C.
59 Tenn. Code Ann. § 37-2-415 (a)(25).
60 Ga. Code Ann. § 49-5-281 (c).
61 See, e.g., Ariz. Rev. Stat. Ann. § 8-514B (2004); Kan. Stat. Ann. § 38-134 (2003); Mich. Comp. Laws Ann. § 722.954 (2004); Wis. Stat. Ann. § 48.371 (2003); S.C. Code Ann. § 20-7-775 (2003).
62 Mass. Gen. Laws Ann. ch.119 § 23 (2004).
63 Wyoming Dep’t of Family Services, Foster Parent Handbook, Section IV. B (January 2002).
64 Vermont Social Service Policy Manual, Policy No. 94.
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