“Justice delayed is justice denied." (William Gladstone, British Prime Minister)
Court hearings are needed upon entering the foster care system, and every three to six months thereafter to move a child from foster care to permanence within child time. Unfortunately, the courts that monitor foster children are often overwhelmed by the sheer volume of cases. Cases involving children in foster care may wait months even for an initial hearing. Most cases don’t receive the time and attention necessary for the judge to thoughtfully resolve complicated family matters. An adversarial system with strict rules of evidence may exclude information that might otherwise inform the court about what is really in the child’s best interests.
Court delays are endemic. Continuances of hearings present a problem. Perhaps a party has not been properly notified, or an attorney has a scheduling conflict, or a party changes attorneys just before a hearing and the new attorney needs time to prepare. Because some courts lack a sense of urgency when it comes to finding a permanent home, the child, sadly, may drift along in temporary care.
If a child cannot reunite with the biological parents and adoption is the permanency plan, the process is often further delayed and complicated by statutory and policy barriers. Agencies and courts may ignore the critical importance of timelines in a growing child; they may fail to consider the critical importance of bonding when a child is moved; sometimes they list long-term foster care as a permanency plan.
The good news is that laws and policies have made progress in favor of earlier permanence for children. The Adoption and Safe Families Act mandated that the needs of the child are “paramount.” Appellate court decisions more and more frequently recognize the importance of bonding, and more courts at all levels are recognizing bonding as a primary factor in placement decisions. Nonetheless, many courts choose placement with a long-lost relative based solely on old notions of “blood ties,” failing to consider the documented bond between the foster parent and foster child. The clear and persuasive showing of a bonded relationship, coupled with research data on what happens when these relationships are disrupted, can influence a court’s decision on what is in the child’s best interests.
In a standard CHINS (Child in Need of Services) review hearing, permanency review hearing or a contested adoption, bonding is very often the most important consideration from the child’s point of view.
“We have had Briana for 19 months, since she was five weeks old,” related a foster mother. “She has lived with us for almost her entire life. We love her and want to continue to be her parents.” When the foster mother asked her case manager whether her family could adopt Brianna, the case manager told her that the parental rights had not yet been terminated. As soon as that happened, however, Brianna’s grandmother from several states away expressed an interest in adopting her. Grandmother had never met Brianna. The foster parents had become very attached to Briana and she to them. In this case, the foster parents can pursue their wish to adopt Briana in court. While the adoption may be contested, bonding is on their side and will be a key issue in the court hearing.
The Judicial Education Center in New Mexico has published a Child Welfare Handbook to educate judges, attorneys and case managers on facilitating the child’s path from abuse to permanence. The purpose and importance of a bonding study are described in Chapter 37.13: “A bonding study should stand alone and be requested because it makes a unique contribution. The bonding issue in permanency planning is the extent to which the parent is capable of caring for the child from the perspective of bonding and attachment. The bonding study draws data from observation, from social and interpersonal reports, and from cognitive and emotional assessments.”
In contested adoptions, the attorney’s primary task may well be to have an expert conduct a bonding evaluation, present an objective and measurable definition of bonding, then walk the judge through the results of the assessment.
In addition to providing personal observations and facts, an “expert” is a person qualified and entitled to present his or her opinion in court. State laws vary on the definition of an expert. In some states a doctorate is required. A psychologist or other qualified expert should be hired to perform such an assessment. Chapter 13 provides a detailed account of how to perform and present a bonding evaluation.
In a contested court hearing, the first step is to qualify the evaluator witness as an expert on bonding. The second step is to have the expert provide an objective and measurable definition of bonding. In states where they exist, statutory and child welfare policy definitions of bonding should be utilized as they will give greater weight to the expert’s definition. It may be effective to display the definition on a poster for the judge to refer to while each witness testifies.
The next step is to have the expert provide the results in a written report and testify about the bonding assessment itself. The attorney should lead the expert in detail through each proof of bonding, asking specifically if the information gathered from the various sources and the child’s of behavior satisfies the definition’s components. Finally the attorney should ask the expert directly if bonding has occurred. Provided that a bonded relationship has been effectively presented, the attorney should ask the expert for statistics on the increased likelihood of mental illness, delinquency or crime, and homelessness that result from the disruption of bonding.
While courts may have traditionally favored genetics over the emotional and psychological bonds, an increasing number of jurisdictions have begun to shift that stance to better serve the child’s best interests. Though the consideration is far from universal, courts are taking note of the significant impact that maintaining or breaking those bonds can have. Quite simply, courts are recognizing that children may be better served when they remain with the people to whom they have formed close psychological and emotional bonds rather than given to others with whom they simply share a biological relationship.
When deciding where best to place a child, courts today are developing a vocabulary of their own to define bonding. Appellate courts have used terms like “continuity of care,” “risks of transition,” “significant attachment,” “a father in the terms that matter most,” and “significant emotional bond.” The precise written language used by these courts defines bonding legally and can be brought to the attention of trial courts. Case law can be cited using appellate court language as a precedent.
The following decisions from across the country offer a few key phrases and concepts that non-biological parents may find helpful in child custody litigation:
“a meaningful…bonding study by itself may provide clear and convincing evidence that [placement with] the biological parents is contrary to the best interests of a child”
In re Ta.L., 75 A.3d 122, 127 (D.C. 2013) is the most recent opinion concerning the use of an attachment or bonding study in determining where a child is best placed. While the decision was ultimately overturned due to the Court’s failure to give weighty consideration to biological parent’s preference, it still contains some good dicta regarding the studies’ usage and value.
The trial court concluded that given the limited time the children had spent with E.A. and their birth parents in the past three years, it was “inconceivable that the children [had] meaningful attachments to any of them.” Based on the three experts' testimony, the trial court found that a “disruption of the attachments would pose a significant risk that all or most of the progress of the past three-plus years would be lost and that the children would regress to their pre-removal developmental trajectories.”
“The adoption petition of the biological parents' chosen caregiver can only be denied if it can be shown by clear and convincing evidence that placement with that caregiver is ‘clearly contrary’ to the best interests of the children,” rather than simply not in the children's best interests.
“[A]bsent other compelling evidence to the contrary, a meaningful attachment or bonding study by itself may provide clear and convincing evidence that the custodial arrangement envisioned by the biological parents is contrary to the best interests of a child and that the competing petitioner's attachment or bond to the child is strong.”
The major issue regarding this case as a testament to the value of bonding/attachment studies is that the Court did not simply put value on the study. It required there to be certain conditions under which the study could be used. The circumstances under which a bonding study comes into play are extremely narrow, and under these conditions may still likely be trumped by the wishes of the parent of some other biological relative. In re Ta.L., 75 A.3d 122, 133 (D.C. 2013).
“first and most importantly, bonding needs to be defined in a concrete and evidentiary way”
Not all higher court decisions have favored bonding. The Maryland Court of Appeals 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 court found that the best interests of the child, by itself, is not an exceptional circumstance.
The specific issues in the case 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 said no and remanded for further proceedings.
The court 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 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.” 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.
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 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 100 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.” In re: Adoption/Guardianship of Alonza D., 412 Md. 442 (2010).
“since the parent had raised him from birth and she had a strong maternal bond
with the child, the trial court erred in refusing the parent standing in the custody action”
Appellant parent sought review of a judgment from the Circuit Court of Clay County (West Virginia) denying her application for custody of a minor child on the ground that the parent lacked standing to request custody and granting custody of the minor child to appellee grandfather.
The parent, together with her domestic partner, raised the child, the natural child of the domestic partner, from his birth. The parent and her domestic partner entered into parenthood as a couple and intended to raise the child as such when the domestic partner was killed in a car accident. The grandfather, the domestic partner's father, and the parent both sought custody of the child. The trial court held that the parent lacked standing to pursue custody of the child and awarded custody to the grandfather. The parent appealed the decision contending that it was erroneous, and the court agreed holding that the parent had standing to pursue custody of the child under the unusual or extraordinary case section of W. Va. Code § 48-9-103(b), which allowed the trial court to exercise its discretion to permit intervention in such unusual or extraordinary cases only when intervention was likely to serve the best interests of the subject child. Since the parent had raised him from birth and she had a strong maternal bond with the child, the trial court erred in refusing the parent standing in the custody action. The judgment of the trial court was reversed. In re Clifford K., 217 W. Va. 625, 643 (W. Va. 2005).
“the…duration, closeness and continuity of appellee's relationship with the
child and proof of threatened emotional harm to the child if [said relationship was
severed] were sufficiently compelling reasons to interfere with appellant's parental rights”
A lesbian couple in a long-term relationship decided to adopt and raise a child. They planned and carried out the adoption together, although under Colorado law only one of the two could be listed as the "legal" parent. After several years raising the child together, the couple broke up. The district court determined that joint parenting responsibilities and equal parenting time would serve the best interests of the child. The legal parent appealed, arguing that as the legal parent, she has the right to exclude her estranged partner from their child's life. The ACLU filed an amicus brief in support of the estranged partner, arguing that the best interest of the child and the "psychological parent" doctrine support the district court's decision. The Court of Appeals agreed with the ACLU's position. The court held that the child's age and the duration, closeness and continuity of appellee's relationship with the child and proof of threatened emotional harm to the child if parental responsibilities were denied to appellee were sufficient compelling reason to interfere with appellant's parental rights. In the Interest of E.L.M.C., 100 P.3d 546 (Colo. App. 2004).
“the court ruled in favor of continued placement with the children’s foster parents due to their significant attachment”
“extraordinary emotional bond falls under the ‘good cause’ exception to the Act”
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 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”
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).
“it was in the child’s best interests to be adopted by his foster parents due to the significant bond with them”
The Alaska Supreme Court ruled in favor 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).
“biology is not more important than a child’s relationship with a man who had been her father in ‘the terms that matter most.’”
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 had been her 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).
“the significant emotional bond between them overrode the statutory preference”
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).
“an important objective is to maintain continuity in the child's relationship with a parental figure”
“the custodial unit was the family to whom the child bonded”
The Washington Appellate Court affirmed a lower court that denied biological parents’ choice for adoption of a couple different from the family the child had been placed with. 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. They affirmed the trial court’s decision 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.” In re Dependency of J.S., 111 Wn. App. 796 (2002).
“the trial court's decision…appeared…[to]…only [look] at the preference for a relative and…[t]herefore, the trial court erred”
“the court reasoned that the bond between the foster family and the child is a critical factor when determining the child’s best interest”
The Kansas Appellate Court ruled that 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 more than 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.
The foster family argued that the trial court abused its discretion by narrowly focusing on the grandparents' biological connection to the child without considering other factors to determine the child's best interests. The court of appeals agreed. Even though the trial court's decision alluded to the best interest of the child, it appeared that it only looked at the preference for a relative and ignored all the other important facts in the case. The trial court did not list any facts on which it relied for its decision, other than "blood." The court of appeals found it hard to believe that the trial court could have decided that the grandparents were the appropriate adoptive parents when the histories of the two families showed marked differences in the results of their parenting. Therefore, the trial court erred in awarding the child to the grandparents. In re Interest of J.A., 42 P. 3d 215 (Kansas, 2002).
“[in determining custody the court noted that] the step-mother addressed all of the older child's problems, while the mother addressed none of them”
An order of the Family Court of Broome County (New York), inter alia, dismissed petitioner step-mother's application and granted respondent biological mother's application, in a proceeding pursuant to N.Y. Fam. Ct. Act art. 6, for custody of mother's children after the biological father had died.
Extraordinary circumstances were necessary to enable a court to reach the issue of whether it was in the two children's best interests for them not to be with their biological parent, the mother. The appeals court summarized the extraordinary circumstances present in the case as the (1) untimely demise of the father; (2) poor relationship between the children and the mother; (3) mother's withdrawal as a parent from the lives of her children after she transferred custody to the father; and (4) specific needs of the older child with respect to school suspension, bereavement, and alcohol and drug abuse. The step-mother addressed all of the older child's problems, while the mother addressed none of them. Then, the appeals court summarized the reasons to find there was sufficient evidence to determine that it was in the best interests of the children for custody to remain with the step-mother.
The appeals court reversed the order, granted the petition, dismissed the cross-petition, and remitted the matter, including the issue of visitation, to the family court for further proceedings not inconsistent with the appeals court's decision. Matter of Banks v. Banks, 285 A.D.2d 686 (N.Y. App. Div. 2001).
“the risks in moving the child from the…home where she was…attached were too great”
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).
“significant bonding occurred…and it was in her best interest to remain with them”
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 continuity of care preference…outweighed the preference for placing siblings together due to…their respective attachment to their caregivers”
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. Subsequently, the youngest, a four-month-old, was 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).
“a non-parent who had a significant connection to a child had standing to assert a claim for custody”
Appellant non-parent sought review of a decision of the Superior Court of the State of Alaska, First Judicial District, which granted summary judgment for appellee mother in a child custody dispute.
The non-parent and the mother lived together for several years, though they never married. During that time, the non-parent was the primary caregiver and father figure to the mother's child from a former relationship. After the non-parent's relationship with the mother ended, he continued to care for and support the child. Both the mother and the non-parent sought custody of the child. The trial court granted summary judgment for the mother, and the non-parent appealed. The court reversed. The court held that there was no issue as to whether the non-parent had standing to assert a right to custody. The court found that Alaska Stat. § 25.20.060 was intended to set standards for the adjudication of custody disputes between parents in a non-divorce setting, but that nothing in the statute implied that the court lacked jurisdiction over a dispute between a parent and non-parent. Such disputes, the court said, were civil matters over which the trial court had jurisdiction. The court then held that a non-parent who had a significant connection to a child had standing to assert a claim for custody. Here, the court said, the non-parent unquestionably had such a relationship with the child.
The court reversed summary judgment for the mother in a child custody dispute in which the non-parent sought custody. Buness v. Gillen, 781 P.2d 985 (Alaska 1989).
“there were extraordinary circumstances…such as the…attachment of the child to the custodian”
The Appellate Division of the Supreme Court in the Second Judicial Department (New York) awarded petitioner natural mother custody of her child because she had not surrendered or abandoned the child and was not unfit. Respondent custodian sought review.
The child had been voluntarily, although not formally, entrusted by the natural mother's parents to the custodian just after birth. The court found that there were extraordinary circumstances present that had not been considered such as the protracted separation of the natural mother from the child, her unwed state, her lack of an established household, and the attachment of the child to the custodian. The court held that because neither party's qualifications or backgrounds had been analyzed, an examination into the best interests of the child was required.
The court reversed the order and the proceeding was remitted to the family court for a new hearing. Bennett v. Jeffreys, 356 N.E.2d 277 (N.Y. 1976).
While appeals are always possible, the decision of the trial court judge is usually final. For that reason, the court should be the last resort in seeking permanence for a child. Far better to anticipate, prepare and work matters out ahead of time. Here are a few steps or suggestions, both for birth parents who wish to be reunified with their child and for foster parents who wish to adopt.
First, show yourself to be a committed and caring parent. If you are the birth parent, follow the plan conscientiously to remedy the reasons for the loss of your child. Be on time for appointments. Turn your home and life around.
As a foster parent, follow the child welfare policies. Keep a daily journal. Include everyday happenings, as well as school achievements and medical appointments. Preparing a Life Book for your foster child is evidence of your concern and commitment.
Second, get along with the case manager and the CASA/GAL. This is equally important both for birth and foster parents. If they don’t contact you, call them and report. Having your own opinion is important, but do not badmouth the other parties. Search for areas of agreement and build on those. If the birth and foster parents get along, consider a cooperative adoption.
Third, marshal a wider body of support. Reach out to your extended family and friends, your church family, the child’s teacher and physician. If you are the foster parent, seek counsel and support from your fellow foster parents.
Finally, if serious issues remain and a decisive court decision seems necessary, find and hire a knowledgeable attorney. You need a compelling voice to help present your information and wishes before the judge. Don’t assume everything will work out the way you think it should. Your child is too important.