California Foster Parent Rights
National Center for Youth Law
October, 1996
GENERAL DEFINITIONS
· Foster parent: a person whose home is licensed or certified for 24-hour care of children, and persons to whom the responsibility for the provision of foster care is delegated by the licensee. Cal. DSS Manual 31 -002.f
.(8).
· De facto parent: a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a
substantial period. Cal. Rules of Court, Juvenile Court Rules, Rule 1401 (a
)(4).
THE PROCESS OF FOSTER CARE PLACEMENT
· Placement Selection: Criteria to be considered include, but are not limited to:
1. The least restrictive (most family like) setting available and in close proximity to the parents' home, consistent with the best interests and special needs of the child; 42 U.S.C. 675(5
)(A).
2. The child's age, sex and cultural background including ethnic and religious identification: Cal. DSS Manual 31-420.12.
3. Planned parent/guardian contacts during the separation, and the specific actions to be taken by the parent/guardian
which will facilitate reunification; Cal. DSS Manual 31-420.13.
4. Capability of foster parents to meet specific needs of the child; Cal. DSS Manual 31 -420.14.
5. Appropriateness of attempting to maintain the child in his/her current school; (Cal. DSS Manual 31 -420.15.
6. The child's health and emotional factors; Cal. DSS Manual 31 -420.16.
7. Anticipated special needs of the child, including but not limited to transportation, diet, medical and/or psychological care, clothing, recreation and special education. Cal. DSS Manual 31-420.17.
· Placement Activities: The social worker must:
1. Arrange for
preplacement visitation between the child and foster parents, if possible; Cal. DSS Manual 31-405.1.c.
2. Arrange for telephone access to a social worker 24 hours a day, seven days a week in case of emergencies involving foster child(
ren); Cal. DSS Manual 31 -405.1.i.
3. Ensure that the foster parents understand and support the child's case plan, and are aware of any chances to it; Cal. DSS Manual 31 -405.1
j .
4. Inform the foster parent of the child's background, if such information is available, including but not limited to the following histories: a. Educational;
b. Medical;
c. Placement;
d. Family;
e. Behavioral.
Cal. DSS Manual 31-405.1.k.
5. Inform the foster parent of any known or suspected dangerous behavior of the child being placed.
Cal. DSS Manual 31 -405.1.1. a. The social worker must document any information given to the care provider regarding the child's known or suspected dangerous behavior, including:
1. Date information provided;
2. Name of person receiving information;
3. Specific facts provided; and,
4. Affirmation that person informed was advised that the facts were confidential and that unauthorized disclosure could result in a $ 1000 fine.
Cal. DSS Manual 31-405.1.1(1).
b. The department may be liable for injuries sustained by foster parent and/or members of his/her family caused by a foster child whose known or suspected dangerous behavior was not reported to foster parent. Johnson v. State, 73 Cal.
Rptr. 240, 251 (1968) (rationale reaffirmed by Zuniga v. Housing Authority, 48 Cal.Rptr.2d 353, 361 (Cal.App.2Dist. 1995).
NOTE: Although state law imposes strict liability upon parents or guardians for injuries resulting from the
willful misconduct of their children, this strict liability is not imputed to foster parents or to
public entities.
59 Ops. Atty. Gen. 142 (3576).
RIGHTS AND RESPONSIBILITIES OF FOSTER PARENT/AGENCY WITH RESPECT TO FOSTER CHILDREN
· Generally: The agency has "legal custody and control" of foster children; however, the responsibility for day-to-day supervision of the child is with the foster parent.
· Worker/Agency Responsibility:
1. With respect to the child, the social worker must:
a. Monitor the child's physical and emotional condition and shall take necessary action to safeguard the child's growth and development while in placement; Cal. DSS Manual 31 -405.
l .e.
NOTE: The department may be liable for its failure to carry out mandatory duties to monitor and supervise placement of child in foster care home when such failure results in injuries to the child. Elton v. Orange County,
84 Cal.Rptr.
27, 31 (1970). b. Have face-to-face contact with the child at least monthly unless certain express criteria are met; Cal. DSS Manual 31-320.41.
NOTE: In the first 30 days of placement, the social worker must visit the child at least 3 times. Cal. DSS Manual 31-320.2.
c.Arrange for face-to face contact between the child and the parent/guardian at least monthly in order to achieve reunification unless the case record contains documentation and supervisorial approval justifying less frequent contacts; Cal. DSS Manual 31 -340.2
d. Counsel the child in an age-appropriate manner to understand the reasons for foster placement; and to handle associated emotional problems; Cal. DSS Manual 31 -310.11.
e. Assist the child to maintain his/her cultural and ethnic identity; Cal. DSS Manual 31-405.1.d.
f. Ensure that child receives medical and dental care which places attention on preventive health services through the Child Health and Disability Prevention (CHDP) program, or equivalent preventive health services in accordance with the CHDP program's schedule for periodic health assessment. Cal. DSS Manual 31 -405.1.g.
NOTE: Children are eligible for more Medicaid services than adults because CHDP requires the state to treat children for conditions identified through CHDP screening, whether or not the state covers those same conditions for adults. State Medicaid Manual, Part Five, EPSDT, ¤ 5124 B.2.b. (April 1990).
2. The social worker must contact the foster parent at least monthly. Cal. DSS Manual 31-330.2.
· Foster Parents' Responsibilities and Rights
1. Generally: A foster parent has the responsibility and right to make decisions on behalf of the child concerning such things as food, clothing, shelter, etc. However, the agency may place certain restrictions on what the foster parent may do with the child, e.g., prohibiting corporal punishment, limiting right of family to move without agency approval, etc.
2. Foster Parent Consent on behalf of the Foster Child - Cal. Health & Safety Code ¤ 1530.6 (West 1990); Cal. DSS Manual 31-401.41.
o A foster parent may give the same legal consent for a foster child as would a parent, except a foster parent does not have the authority to give legal consent for:
1. Marriage;
2. Entry into the armed forces;
3. Vehicle operator's license;
4. Medical or dental treatment which is not ordinary.
§ Ordinary medical or dental treatments -- including immunizations, physical examinations, and X-rays -- are routine services provided under the supervision of licensed doctors and dentists that protect or enhance a child's health.
Cal. DSS Manual 31 -401.41.411.
§ A parent of a voluntarily placed child has the authority to modify or prohibit consent by a foster parent if a written agreement regarding such modification or prohibition exists between the agency and the parent. Cal. DSS Manual 31-401.412.
§ A court of competent jurisdiction has the authority to issue an order limiting a foster parent's authority to give such consent.
Cal. DSS Manual 31 -401.413.
§ Specially trained foster parents may provide specialized in-home health care pursuant to a discharge plan for a child who is
alcohol- or drug-exposed or who is HIV positive when the county placed the child in their care.
Cal. Welf. & Inst. Code ¤ 16525.30.
3. Rights of Foster Parent When Foster Child is Teenage Mother whose Child Lives with Her
o Unless the parent's right to custody of his/her child has been limited by an order of the juvenile court, the teenage mother should have the right to make decisions regarding the care of her infant.
Cal. Family Code 3010.
o However, the foster parent has responsibility for the teenage foster child. The question of whose decision should control if conflicts arise on matters affecting the infant is not addressed by statute, regulation or case law.
o The state should pay an infant supplement -- in addition to the minor parent's federal foster care assistance -- to the foster parents. Cal. DSS Manual 45-302.211.
4.
Right to Notice and Hearing Prior to Removal of Foster Child
o The foster parents have standing as a foster child's "de facto" parents to contest removal of a child from their home.
Katzoff v. Superior Court 54 Cal. App. 3d 1079, 127 Cal.Rptr. 178, 180 (1976).
o Notification of Intent to Move Foster Child
1. The agency must notify foster parents in writing at least seven days' in advance of intent to remove the child, and of the right to request a grievance review.
Cal. DSS Manual 31 -440.1.
2. The agency is not required to give notice if:
§ The child is in immediate danger;
§ A signed waiver has been obtained from the foster parent;
§ A court has ordered the child's removal;
§ Adverse licensing or certification actions have occurred which prohibit the foster parent from
continuing to provide services; or
§ Removal of a voluntarily placed child is made or requested by the child's parent/guardian.
Cal. DSS Manual 31-44().21-.25.
o Grievance Procedure
1. The department must have grievance procedures to review complaints from foster parents, legal parents, guardians and children concerning the placement or removal of a child from a foster home. All issues shall be resolved in the best interest of the child.
Cal. DSS Manual 31-020.1.
2. Grievance review is not required when:
§ Removal of a child is for any reason set forth in subsection
b(2), supra;
§ Removal of a child or modification of services results from an administrative review panel determination;
§ Removal of a child is for direct placement into an adoptive home;
§ The complaint regards only the validity of a law or statewide regulation; or
§ The complaint regards an issue for which a fair hearing is available as specified in Cal
Welf. & Inst. Code ¤ 10950-10965.
Cal. DSS Manual 31-020.21-.25.
o The agency must explain the right to a review and provide a copy of the grievance procedure regulations to:
§ the legal parent/guardian at the time of placement;
§ the foster parent at the time of licensing; and,
§ any complainant at the time a complaint is filed.
Cal. DSS Manual 31-020.31.31 1-.313.
o The review request must:
§ Be filed in the form of a written statement signed by the complainant;
§ Set forth the facts which the interested person believes provide a basis for reversal of the agency action; and, (c) Be filed ten calendar days after becoming aware of the action under complaint.
NOTE: In cases where the department must provide notice, the complainant must submit the review request to the agency at least two calendar days before the intended date of removal.
Cal. DSS Manual 31 -020.32-.34.
o The agency must help the foster parent prepare the complaint, if assistance is requested or necessary.
Cal. DSS Manual 31 020.35.
o The review must be held within ten working days from the date the department receives the written complaint.
Cal. DSS Manual 31-020.4. NOTE: All parties should receive notice of the date, time and place for the review not less than five calendar days prior to the hearing.
Cal. nss Manual 31-020.41.
o The Review Hearing
§ Only someone not involved in the complaint, who is knowledgeable of the field and capable of objectively reviewing the complaint, may conduct a review
§ The review agent must try to conduct the hearing in a
nonadversarial atmosphere.
Cal. DSS Manual 31 020 52.
§ The review agent must allow all parties and representatives to examine all documents and physical evidence introduced at the hearing.
Cal. DSS Manual 31-020.53.
§ Only the parties, their representatives, and witnesses while testifying, are authorized to be present during the review unless all parties and the review agent consent to the presence of other persons.
Cal. DSS Manual 31-020.54.
§ All witnesses must testify under oath or affirmation.
Cal. DSS Manual 31-020.55.
§ The review agent may continue the review for a period not to exceed ten calendar days if additional evidence or witnesses are necessary for determination of the issue. Cal. DSS Manual 31-020.56.
o Review Decisions
§ The review agent must issue a written recommended decision, and the agency director must issue a final written decision, within five calendar days after reviewcompletion. Cal. DSS Manual 31-020.61.
§ The decision must be based upon the evidence presented at the hearing.
Cal. DSS Manual 31 020.62.
§ The director's decision must contain a summary statement of the facts, the issues involved, findings and the basis for the decision.
Cal. DSS Manual 31 020.63.
§ A copy of the decision must be sent to each party, their representatives, and the State DSS.
Cal. DSS Manual 31 -020.64.641 -.643.
o Unless the child is in imminent danger, he/she shall remain with the foster parent(s), pending decision of the agency director, when removal is the basis for a complaint.
Cal. DSS Manual 31-020.7. .
NOTE: Courts have ruled, however, that the removal of a foster child prior to notice or hearing did not violate any liberty interests of the foster parents in the continuation of the foster child parent relationship. Gibson v. Merced County Department of Human Services
,799 F.2d 582, 589 (9th Cir. 1986)
5.Right of Foster Parents (De Facto Parents) to Appear and Be Represented by Counsel at Dependency Proceedings
o A court may recognize foster parents as the "de facto" parents and allow them to appear and participate in juvenile court proceedings. Cal . Rules of Court 1410(b)(2); 1412(e).
1. A state court ruled that foster parents who cared for a child over a prolonged length of time (one year) were considered "de facto" parents. In re B.G. 114 Cal. Rptr. 444, 453 (1974).
2. Whether a foster parent is a de facto parent is not just a question of the length of time the child has been in the foster home, but also the court will consider "the unique vantage point of the foster parents
vis-a-vis the information they are able to provide to the court."
Christina K. v. Superior Court, 229 Cal. Rptr. 564, 568 (1986).
o De facto parents have the right to be represented in dependency proceedings by their own retained counsel or, at the discretion of the court, by appointed counsel. Cal. Rules of Court 1410(b
)(3); 1412(e).
6. Custody and Adoption of a Foster Child
o Custodial Rights:
1. Before an adoption petition is filed, the department is entitled to exclusive custody and control of the child. Cal. Family Code ¤ 8704
§ The department's right to custody at this stage is very broad. The same section provides that: "Any placement for temporary care, or for adoption, made by the department may be terminated in the department's discretion at any time before the granting of an order of adoption. In the event of termination of any placement for temporary care or for adoption, the child shall be returned promptly to the physical custody of the department or licensed adoption agency."
§ After an adoption petition is filed, the department may remove the child only with the approval of the court and with notice to the prospective adoptive parents.
Cal. Family Code 8704(b).
· Placement Decisions:
1. In choosing the proper adoptive placement for a child, the department must first consider adoptive placement in the home of a relative. Cal. Family Code 8710.
2. The agency need not place the child in a relative's home if:
§ no relative is available;
§ such a placement is not in the child's best interest; or
§ such a placement would permanently separate the child from other siblings.
Cal. Family Code 8710.
3. If not placed in a relative's home, the agency should consider placing the child with the foster parents if:
§ The child has been with the foster parent for more than 4 months;
§ The child has substantial emotional ties to the foster parent;
§ The child's removal from the foster home would be seriously detrimental to the child's well-being; and
§ The foster parents have requested in writing to be considered to adopt the child.
Cal. Family Code ¤ 8710.
4. The department may consider the child's cultural, ethnic, religious, or racial background and the capacity of the prospective adoptive parent to meet the needs of such a child as one factor in determining the best interest of a child.
Cal. Family Code ¤ 8709. NOTE: However, the department may not categorically deny, delay, or otherwise discriminate in making an adoptive placement decision solely on the basis of the race, color, or national origin of the adoptive parent or the child involved.
Cal. Family Code ¤ 8708.
5. Foster parents are entitled to present a specific application to the agency for adoption of foster children placed with them.
Cain v. Adoption Agency of Tulare County Welfare Dept., 54 Cal. App. 3d 1127, 126 Cal. Rptr. 836, 839 (1976).
· Eligibilitv for Federal and State Foster Care Benefits and Status of Foster Parent
1. Federal Benefits Children are eligible for federal foster care benefits whether placed with relatives or non-relatives under the supervision of a state child welfare agency.
Miller v. Youakim, 99 S.Ct. 957, 969 (1979). NOTE: If the foster parent becomes the legal guardian of the child, however, the state child welfare agency is no longer responsible for the child, so the child becomes ineligible for federal foster care benefits (although the child may remain eligible for federal AFDC benefits).
2. State Benefits: Foster children ineligible for federal foster care benefits nevertheless may be eligible for state foster care benefits, but these benefits are available only to foster children placed with a non-related foster parent. Thus, foster children placed with relatives are ineligible for state foster care benefits. This provision of California law has been upheld in King v. McMahon, 186 Cal. App. 3d 648, 230 Cal.
Rptr. 911 (1986).
· Foster Parents - Abuse Charges
1. Definitions
o "Abuse in out-of-home care" means situations of physical injury on a child which is inflicted by other than accidental
means, or of sexual assault or neglect or the willful cruelty or unjustifiable punishment of a child where the person responsible for the child's welfare is a foster parent.
o "Child abuse" means a physical injury which is inflicted by other than accidental means on a child by another person. "Child abuse" also means the sexual abuse of a child or any act or omission proscribed by Cal. Penal Code ¤ 273a (willful cruelty or unjustifiable punishment of a child) or ¤ 273d (corporal punishment or injury). "Child abuse" also means the neglect of a child or abuse in out-of home care, as defined in this article.
Cal. Penal Code ¤ 11165.6.
2. Revocation of the Foster Care License
o The department has the authority to revoke a foster care license when:
1. the foster parent has violated licensing rules and regulations; Cal. Health & Safety Code ¤ 1550(a).
2. the foster parent is aiding, abetting, or permitting the violation of licensing rules and regulations; Cal. Health & Safety Code 1550(b).
3. the foster parent's conduct in the operation and/or maintenance of the foster home endangers the health, morals, welfare or safety of foster children. Cal. Health & Safety Code 1550(c).
o The department may suspend the foster care license prior to a hearing if it is necessary to protect foster children from physical or mental abuse, abandonment, or any substantial threat to health or safety.
Cal. Health & Safety Code ¤ 1 550(e).
o Hearing Procedures:
1. The department must notify the foster parent of the license suspension and serve the provider with any accusation.
2. The foster parent may present a notice of defense to the accusation. Within 15 days after the receipt of a notice of defense, the department must set the matter for hearing. The hearing must be held as soon as possible, but not later than 30 days after receipt of the notice of defense.
3. The license suspension shall remain in effect until a final determination on the merits has been made. However, if a determination is not made within 30 days after the original hearing is
completed, the suspension will be deemed vacated.
Cal. Health & Safety Code ¤ 1 550(e).
o At the hearing, foster parents have the following rights:
§ the right to testify under oath;
§ the right to cross-examination and to confront adversary witnesses;
§ the right to representation;
§ the right to a formal decision;
§ the right to language assistance (oral interpretation or written translation) .
Cal. Gov. Code ¤ 11500(f-g).
