Foster Parent & Relative Caregiver Statutory Rights
The top 6 foster parent rights most often violated
Note: These apply if the child is in the custody of DFCS.
The Foster Parent Bill of Rights (“FPBOR”)
In Georgia, Foster parents have the rights set out in OCGA § 49-5-281. While these rights are important, they are not all enforceable in court. At most, a violation of these rights by themselves authorizes a foster parent to file a grievance with either DFCS or the Child Placing Agency with which the foster parent is affiliated. See Owen v. Watts, 303 Ga. App. 867, 869, 695 S.E.2d 62, 65 (2010). Here is the policy. The forms can be found here.
In our work with foster parents and relative caregivers, we have found that the following rights are those most often violated:
The right not to be discriminated against on the basis of religion, race, color, creed, gender, marital status, national origin, age, or physical handicap.
These rights are also covered by federal and state anti-discrimination laws. MEPA, the Multi-ethnic Placement Act, is a federal law prohibiting discrimination in foster or adoptive placements based on the foster parent or child’s race, color, or national origin.
Recently, there have been a number of cases involving the clash between foster parents’ (or prospective caregivers’) religious beliefs and the requirements of state child welfare agencies.
The Americans with Disabilities Act also applies to protect foster parents and caregivers with disabilities from being discriminated against on the basis of their disability.
Foster parents who believe they’ve been discriminated against on the basis of any of these factors can file an online complaint with the US Department of Health and Human Services’ Office of Civil Rights. Fostering Impact can help!
The right to information about the children for whom you are caring.
The FPBOR makes clear that caregivers have the right to information about the children placed with them. Those rights include:
The right to any issues the child presents with that might endanger the foster family’s safety or necessitate a different approach to fostering;
The right to discuss these issues with DFCS prior to placement;
The right to find out the foster child’s history – for example, how many times the child has changed placements;
The right to receive a copy of the child’s case plan;
The right to participate with DFCS in the case planning process; and
The right to communicate with doctors, therapists, and other professionals working with the child.
While these rights may not be easily enforceable in court, they are subject to the grievance process. If an agency knows of a child’s propensity to commit sexual abuse or engage in any other appropriate behavior, the agency could conceivably be responsible if the foster child harms someone in the caregiver’s home.
Notice of hearings, placement changes, and preferences for placement and adoption.
The FPBOR directs that foster parents be notified of any hearing involving the child’s permanency; that a foster family who has cared for the child in the past have preference if the child returns to care; and the right to be considered as a primary permanent placement if the child has been in care for 12 months and can’t return home. These rights are subject to the grievance process.
There are other important rights, however, that should be enforceable in court. Several of these are found in OCGA § 15-11-215:
If a child has been in the same stable placement for 12 months and removing the child would damage his or her emotional health, the court may presume that the placement is in the child’s best interests.
DFCS must give notice of a proposed placement change to the caregiver at least five days prior; the caregiver can object to the change simply by emailing the appropriate juvenile court clerk’s office and stating the reasons for the objection. Here is a form for that purpose. The court must then have a hearing to determine whether the move is warranted. “The court shall specifically consider any objections filed to the change of placement and shall consider evidence pertaining to such objections, including, but not limited to, evidence from the child and the foster parent, relative, or caregiver.
The Reasonable and Prudent Parent Standard
Under federal law, state child welfare agencies are required to allow foster parents and relative caregivers to use the “reasonable and prudent parenting standard” when caring for a child in state custody. The Code defines it as “the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the department to participate in extracurricular, enrichment, cultural, and social activities.” In other words, we want children in care to have the same freedoms as do our own children.
As a specific example of this standard, the legislature in OCGA 49-5-8.1 authorizes foster parents and caregivers to choose a babysitter for children in care for up to 72 hours, up to twice a month.
Getting in touch with caseworkers and getting reimbursed.
Under the Foster Parent Bill of Rights, caregivers have the right to timely reimbursement of per diems and reimbursable expenses and to get in touch with case managers. These issues come up often, and there are no easy solutions!
Violations and Appeals
The FPBOR also grants caregivers the right to timely and fair investigations of any violations or other incidents in the foster home and the right to have an advocate present during those investigations.
If a foster parent (or any other individual) is accused of child maltreatment and the investigating caseworker finds “by a preponderance of the evidence” that maltreatment occurred, that allegation is “substantiated.” While Georgia no longer has a child abuse registry, the agency does keep an internal record of individuals against whom maltreatment has been substantiated. Some employers and other agencies – for example, the agency that licenses childcare providers – can still access those records.
To clear one’s name from a substantiation, the Department currently provides an internal set of review processes that are handled at the county, regional, and then the state levels. None of those processes, however, allow for the accused to have counsel or present any evidence; rather, they amount to a paper review of the case.
Recently, a Superior Court in Fulton County ruled that the internal review process does not provide adequate due process and violates the accused’s constitutional rights. Fostering Impact can provide more information about this situation on request.