Foster Care - When do the Child’s Rights Begin?

Monday, March 1st, 2010 by James Moran

This article is written to address the question: When do the child’s rights take precedence over the birth parent’s rights ?

I have been associated with the foster care system in New York for several years and it seems that there is a great deal of time spent on the rights of birth parents and not enough time on what is really right for the child.  There are many instances of birth parents that are known not to be able to provide and yet, the cycle continues.

I have witnessed judges in the Family Court system give countless chances to allow birth parents time to take control of their lives and possibly have their children return to the home.  I have examined many cases and most of the time, even when the children were returned to the birth parents’ home, it was only a short time and they wound up back into the foster care system.

The trauma a child feels when they are uprooted from their family and familiar surroundings is immeasurable and different with the particulars of each instance.  The age of the child is a major factor in the resiliency of the move.  When children are placed into good foster care situations, they have the ability of seeing that it can be different than they have known.  This new knowledge can create a certain amount of anxiety, and possibly fear, of returning to the birth parents’ home, and a desire to stay in the foster home, which may not be an option.

Two Years is a Long Time.

There seems to be an amount of time that is considered acceptable or expected by the professionals involved with the system.  The minimum amount of time for the termination of parental rights seems to be about two years.  There are many instances of birth parents that are known not to be able to provide and yet the cycle doesn’t change.

This two-year period can seem like a lifetime to a younger child.  The younger child develops very fast, with many changes in their thought processes and ability to reason.  With respect to the younger child, most of the memories they will have of family values, birthdays and holiday traditions will be those of a family not their own.

With an older child, they can feel very out of place because they don’t know the traditions that everyone else seems to know and it makes them very uncomfortable to see differences to what they may have been accustomed to.  The older child may make conscious decisions to not include themselves during family gatherings, or even act out to sabotage their inclusion.  Depending on the circumstances, the older child may never be able to develop bonds with foster parents and foster siblings, causing tension whenever there are gatherings of family or other groups that require both to interact.

The Risks of Attachment

When a potential long term placement is likely, there is a decision to be made concerning what type of placement is right for the case and it’s different with each placement.  These placements can become a double-edged sword, or so to speak.

  1. On one hand, if you place a child with a loving, caring, nurturing foster family, you have the emotional attachments that a child develops with the foster family.  This is especially true for the younger child that’s placed into care.  Over time with the foster family, they develop bonds with new siblings and extended families as well as the parental bond that develops.  The child develops a strong sense of belonging to those new families, celebrating birthdays, holidays and other events that take place.  The longer this placement continues, the harder it will be to separate, and the anxiety from that will be greater and more damaging to the foster child.   There will also be some damage to the children and other family members of the foster family.  The foster parents know and prepare themselves for this separation anxiety and may be able to cope with the separation better.
  1. On the other, if you don’t place the child with a long-term foster family and they begin the cycle of bouncing from one home to another, they begin to develop attachment disorders and become unable to develop those bonds at all.  These attachment problems can damage them for life and possibly hinder their ability to develop loving relationships with a spouse or possibly even their own children some day.

Case Study

I know of a case in which there is a male child that entered the foster care system at the age of five.  This child was placed in a group care facility with his younger brother, age four, because of a neglect accusation.  The boys were placed together in a foster care home within a few days.  The two boys were very primitive in their behavior and played very rough with each other.  The two boys played very different from each other and in just two days the new foster family was at a point where they felt they couldn’t care for both boys together.

The boys were split between two families, with the four-year-old younger boy staying at the original placement and the older five-year-old boy being placed with a new foster family.  The placements continued for 18 months and both boys are beginning to express feelings of wanting to stay where they are instead of possibly going back to their birth mother.  The boys have a combined sibling visit with their birth mother every other week and get together with each other, separately, at least once a month with the two foster families coming together.

The birth mother has special needs of her own and has always shown signs of being unable to provide a safe, structured household that is capable of educating the boys.  The family history is such that neither boy knew their fathers, or had a male role model that was sufficient for them to learn acceptable male behavior from.  The boys did not have safe habits as far as strangers were concerned and were both very primitive in their behavior.  The boys could not eat with utensils, help wash or even dress themselves.  The older boy was unable to recognize any letters, numbers or even colors.

The court cases have come and gone for 18 months and they continue to speak of reunification with the birth mother and try to define classes and steps she should take to facilitate that.

When do the child’s rights start to take precedence over the birth mother’s rights?  The birth mother has been told at every hearing and before each bi-weekly visit that she needs to set up a household and begin skill-building classes to get the children home again.  The birth mother has never followed through with any of the plans that have been set up for her and avoids the services that are being provided for her to learn the techniques of providing a proper household.  She continues to ignore the orders from the court and adhere to the instructions and yet they are still talking about reunification.

It would be very disruptive for either boy to change their living situation now after living in the same homes for this amount of time at their respective ages, and it is becoming clear from the boy’s behaviors after visits with their birth mother that they are both concerned about having to go back.  The two brothers act very differently from one another and only play together for approximately an hour when they get together.  After an hour or so, they drift away from each other and begin to play independently.  The younger boy is very active and loud in his play and behavior.  The older boy is very calm and enjoys quiet play.  Although both boys suffer from ADHD, they are affected by the disorder in different ways.

The older boy is now seven years old and has been in school for two school years, developing an IEP and getting into a routine with respect to home life, child care and school.  This child is receiving individual counseling, OT, PT and private tutoring services and beginning to show significant improvement.  Academic testing was done during the second school year and his development status is bordering on the MR level, with significant deficiencies in basic pre-K knowledge.   There have been significant advances in his growth during the second academic year now that some of the pre-K basics are being learned and retained.

When do the Child’s Rights Supersede the Birth Parent’s Rights ?

Apparently in New York, they don’t really.   If they did, these two boys would not be worried about returning to a home that is “not capable” of teaching them life skills and educating them.  Remember at the beginning of the case study, it referenced that the birth parent had special needs as well and is not able, and is known not to be able to provide for the boys.

Two years in the lives of children at this age is a long, long time, and in my opinion, too long for the system to take, to make a formal decision about their disposition.  This is especially true when a major deciding factor was known at the onset, the inability of the birth mother to provide due to her own disabilities.

James Moran   5960 Bowman Road   East Syracuse, NY  13057

moranj@sunyocc.edu         315-436-1162

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4 Responses to “Foster Care - When do the Child’s Rights Begin?”

  1. C Says:

    I beg to differ with you about NY and your statement that the parents rights supersede the childs. When a child is considered of age to make a decsion to live in a particular place the courts I have been in most definately side with the child not the parent. Of age can be at least 12 but it also takes into consideration the maturity and understanding of the individual child.

  2. James Moran Says:

    C - I stand corrected, you are correct inthat after they are 12 the judges will ask the child where they would prefer to live and that even happens in marital custody cases. It does not happen when the children are young and the ” advocates and workers ” have to go through a battery of procedures and protocols to affect any changes.
    I was basically speaking about the feelings children could have during the placement period and that it’s too bad that there isn’t a way in New York to fast track it,,,, when it’s known to to change in the end.

  3. Cathy Says:

    I have to agree with the fact that parent’s rights often supersede that of the child’s rights. I speak from experience having been taken into care at the age of 4 with my 4 other siblings. The story of the two boys experience mirrors my own bar from a few details. For 2 years i was made to see my birth parents several times a week a my parents had the right to see their child, completely looking over the fact of how terrorised i was to have to see them. I would cling for dear life on to the railings on the car park whilst they had physically drag me to the taxi to see my parents. Finally after two years of this social services to into account my own human rights and stopped making me see my parents, those two years i can never get back.

  4. John Says:

    I have to say James this is an excellent layout of just one of the concerns that the child endures in foster care. A brief synopsis of what we have gone through. A 9 year old child placed with us a foster care agency who was looking to replace the child with a larger group of children thus pushing the child into diagnostic treatment for a 90 day period due to a rogue psychiatrist who had never evaluated the child but pushed medications namely seraqual and zoloft. We continued to visit the child 2-3 times per week at our own expense driving the 125 mile round trip. The agency closing our home voluntarily because we wanted to hold the child’s room open for his return. Interviewing with new agencies to get re-opened and facing the monumental task of a county supervisor who has no regard for the child’s wishes. We have fought and fought to bring this child back to our home to give him stability. The director of treatment for the 90 day sat in a meeting with the county supervisor, us, who were invited as a guests by the biological mother who by the way never had allegations of abuse but previously was afraid of her son due to him being used as a weapon against her by the biological father (the child when placed into care believed the mother hated him and was told to to horrendous things to not only make the mother feel threatened but to deface her home and belongings) and the biological father who has been documented to have mental and addiction problems was also there. The director of treatment for the 90 day program stated the child had formed a trust bond with us and needed a loving, nurturing 2 parent family such as ours, that he is not or has never been a threat as we had advocated and also it was determined that the only medication the child needed was Vyanse which is what we told our agency he leveled off on, the father stated he can treat his child good and doesn’t want him back with us because we treated him too good, the mother told the supervisor the child needs to be with us because we have restored their relationship and the child is returning to the wonderful child she remembers. The supervisor who is oblivious to the needs and well being of the child stated that we were not an option because we were not with an agency at that time but did tell the father he had not completed any aspect of what was required of him and that after a period of more therapeutic foster care he would be returned possibly as soon a January to a 2 family home since the Mother’s boyfriend was overseas as an independent contractor. OK, understood as we also were told that the county supervisor believed contrary to the director of the 90 day program stating otherwise that this child was a threat and menace and needed a highly supervised environment with extremely experienced foster parents. Even though the director of the diagnostic facility stated that in 90 days there has not been 1 incident or restraint that the child had recorded. Fast forward a few weeks we received news that we were being re-opened by a new agency and the details were worked out WOW! We were told we could start making the child feel at ease and planning for his release. We talked about amusement parks, using a camper and campsite that we had just dropped a bundle on in preparations for the child. And how he would have rules that would need to be followed upon return. We always told the child we were working on his behalf but never committed that we had the green light even though his treatment team had told him a few times it looks good that you will return only to have it shot down by the county supervisor and have the child back in turmoil and tears which in turn brought us to tears as much as we didn’t want to let on to our disappointment and emotions. By now the child at first proceeded with caution to the news that we had a commitment then as the days proceeded and he thought it was so he became more and more excited. Then yesterday a call to my phone I answered it was the county supervisor; Mr (my name) Yes how are you (miss county supervisor) it is great to hear from you. I am so happy this is working out for the child and he will have the stability to return and grow until he can be returned to his Mother as you stated in the meeting. Well Mr. Sorry to be the bearer of bad news but we have decided to go in a different direction we will be placing him with a different resource and if you do get certified maybe we will look at your home. Oh and by the way you can limit your visits to every 2 weeks for 1 hour and they have to be supervised. Why? What did we do? What about the child? What about the trust issues? The response was he is 9 and will move on. A call from the mother prompted the same response other than she was told our goal is to reunite him with a parent and it doesn’t mean it will be you. The case worker called me later and confidentially off the record and told me the concerns were what the child was being told about custody issues by us and the mother. We had never discussed custody in front of the child but this child who was 9 and was so smart he was accelerated from 3rd to 5th grade knew one thing and told everybody clearly what he wanted he knew said that his father loaded him with lies, that he wished his father would get help and heal, he knew his father loved him but didn’t know how to raise him in a safe manner, that he realized he loved his mother, that he knew he love us and that he was beaten and neglected constantly by his father and didn’t ever want to return to that environment. We know that the treatment center didn’t raise any concerns with the county since the director was out of town on vacation. One thing did happen while all of this was transpiring, the child got his mothers cell phone and for whatever reason his paternal grandmothers number was in there. The child took it upon himself to call his grandmother who was kept in the dark about the child even being taken into foster care and let her have it he told her the statements that were referenced above. A couple of days later the grandmother called the child’s mother and questioned her as to what is going on. The mother restated what she was told in the county meeting against probably what would have been anyone’s better judgement, that she would get the child once her boyfriend had returned from overseas as a civilian contractor in January. That the child was abused by her so to which the grandmother said she had always suspected. That the child was smart and had a foster family that he would be returning to that loved him and totally turned him around. Then she gave the Grandmother the number to the diagnostic group home and told her to call him. When I was informed I told the Mother she had made a grave mistake that she could believe that the grandmother was supportive of her but all she did was open a can of worms and fuel a fire that had almost been put out by a father who called or visited his son other than 1 time in 4 months. the calls started coming fast a furious to the child by the father after the incident, we were told on the QT by staff that the calls from the father had been refused by the child and they respected that. In summary this is just a brief account and there were many other twists and turns but this is a classic case of a child who even though he is 9 knew what he wanted in his life because he had the distinct ability to rationalize. His wishes have gone unheard by the county and the child has been painted as a threat to society contrary to the facts not only from us but the treatment center. Still the Father has the right to live his life blame the child for the whole mess and beat to his own drum. The county had no interest in the child’s well being just wanting to bounce him and cut important people that the child has come to love and trust out of his life. At this juncture we haven’t told the child what has transpired, we are waiting for the director of clinical behavior who has stated over and over again to the county that the child belongs with us to return from vacation and break it to him. Is this the way a child should be treated by the system who is suppose to be protecting him?

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