Volume 9 Issue 2 June, 2007

In this Issue

• Allegations of Abuse: Stronger protection for foster parents under new standard
• Kin-Come-Lately
• Adoption vs. Aging Out
• ACT’s Board in Action

Allegations of Abuse

Foster Parents Get Stronger Protection Under Indiana Law

by Attorney Peter Kenny, ACT Executive Director

Changes in Indiana law as of July 1, 2006, give Indiana foster parents greater protection when accused of child abuse or neglect. The former standard for substantiated abuse or neglect was “credible evidence.” The new standard, as of July 1, 2006, is “preponderance of evidence.”

Indiana was following Illinois’ lead. In 1997, Dupuy v. McDonald, the first statewide class action suit of its kind was filed in US District Court in Chicago. The plaintiff filed in behalf of persons involved in child care who were blacklisted following substantiated charges of neglect or abuse. The court subsequently found that burdens of proof such as “some credible evidence,” “probable cause,” and “reasonable belief” placed an unfair burden on the accused. As a result, Illinois tightened its standard of proof.

Under Indiana’s old standard (Indiana Code 31-9-2-123) “[s]ubstantiated…means a determination regarding that status of a report made under Indiana Code 31-33 whenever facts obtained during an investigation of the report provide credible evidence that child abuse or neglect has occurred.” The standard of “credible evidence” meant basically evidence which could be true. The single statement of a four year old declaring that her foster mom hit her, the testimony of an angry teen foster daughter claiming that her foster father touched her breast, virtually any testimony which might be true could result in the loss of the foster parent license.

A substantiated finding of child abuse or neglect impacts not only foster parenting but also all services to children. The person found guilty of child abuse or neglect cannot work in a child care setting, cannot become a teacher’s aide, cannot drive a school bus.

The Indiana legislature wisely amended this standard effective July 1, 2006. Indiana Code 31-92-2-123 now provides that “’[s]ubstantiated’, when used in reference to a child abuse or neglect report made under IC 31-33, means a determination regarding the status of a report whenever facts obtained during an investigation of the report provide a preponderance of evidence that child abuse or neglect has occurred.” Preponderance of evidence means that the State must prove by 51 percent of the evidence at a hearing that abuse or neglect has occurred.

What can a foster parent do who feels he was unfairly judged prior to July 1, 2006, under the old Indiana standard? The foster parent should hire an attorney who is aware of the new standard of proof. It is possible to have your case re-heard if charges of abuse or neglect were substantiated against you under the old standard.

Kin-Come-Lately

Mother’s parental rights to her three small children are terminated following 23 months and several unsuccessful attempts at reunification. The foster parents who have had the children from the beginning wish to adopt. At this point, a wealthy out-of-state single grandfather surfaces and contests the adoption. The DCS recommends that the children be “awarded” to the grandfather. The judge agrees. Blood is thicker than water.

This case is not unusual in Indiana. Foster children are often removed from long-term foster/adopt homes and placed with a distant and heretofore unknown relative. Some DCS workers and courts place an absolute mandate on any biological relationship, even where the relative has never known the child and the child has bonded with his foster/adopt parents. Bonding is a significant reciprocal attachment which both parties want and expect to continue, and which is interrupted or terminated at considerable peril to the parties involved. Human beings bond by sharing everyday vital life events, such as eating, sleeping, and playing together. Research shows that bonding is likely after three months of 24/7 contact, probable after six, and almost certain after 12 months. The earlier in life that the bonded relationship is interrupted, the more serious are the consequences.

Interrupted bonded relationships take a heavy toll on human health and well-being. A common result is the detached child, one who no longer trusts and simply refuses to become attached or love again. Mental illness, now or later in adult life, becomes significantly more likely. So also do homelessness, crime, and poverty.

The Indiana Child Welfare Manual (805.12) states that the caseworker may waive the requirement to find a home which does not require a subsidy: 1) If the foster/adoptive placement has continued for six or more months; 2) If the child has developed a significant emotional attachment to the foster/adoptive parents; 3) If the child has expressed a desire to be adopted by his or her foster parents. These are waivers to the rule that the DCS look first for a “free” placement and indicate that Indiana DCS policy recognizes the importance of bonding.

So why do some DCS workers and courts fail to give bonding the consideration it merits? Do we need a change in the law? A change in policy? Better education about laws and policies that already exist?

Federal and state laws already indicate that the child’s rights are “paramount.” Indiana law say the judge must “consider” attachment or bonding alongside kinship. Is that enough?

Readers, we need your help. ACT’s sole mission is to help foster children find good and safe permanent homes within a reasonable time. What can or should ACT do? Does the law need strengthening? In what way? Should we advocate for a change in DCS policy? How should the policy read? Or do we simply need better education?

Please email ACT with your suggestions at:act4adoption@hotmail.com.

Adoption vs. Aging Out

“Aging Out of the System: Unique Programs to Help Foster Youth” reda a front page headline in the Indianapolis Recorder (6-1-07.) In ever-increasing numbers foster children are being emancipated at age 18 without a permanent home. “We have failed these children if they ‘age out’ of foster care without a safe, permanent family they can count on,” said Jim O’Hara of the Pew Charitable Trust. “Every day we do not reform foster care, we fail 67 more young people who exit foster care completely on their own.”

The Recorder article goes on to note some troubling statistics. One in four of those who age out will be incarcerated within two years. One in two will become homeless. Only half will graduate from high school. To help these children, the Recorder reports that the Fostering Independence Program provides transitional housing and support services for former foster children. Children stay about one year, hopefully strengthened, to face a world on their own.

This program falls far short of resolving the problem. All of us need a family for our entire lives. Agencies and institutions do not have the same availability, personal connection, or commitment that is found in a family. Where do we go when we celebrate a marriage? The birth of a child? Need help with an illness? Need a loan? Just want to talk to someone who cares unconditionally?

We need to work harder and work smarter to get these children adopted. Pat O’Brien of “You Gotta Believe” in New York does just that. His agency (www.yougottabelieve.org) works to find permanent homes for foster children who are ten and older. His approach is the reverse of the traditional agency approach. Instead of looking for prospective adoptive homes, he starts with the young person. Whom do you like and admire? A neighbor? Teacher? Therapist? Friend at the library? Probation officer? He approaches that person, tells them of the child’s affection, and invites him or her to learn more about foster care and adoption. If they are interested enough to make a commitment, he helps them take the next step toward forming some permanent relationship with the child through licensing as a foster parent, guardianship, preparing for adoption or even becoming a permanent special friend.

We all need a permanent home. Every child has the right to a permanent home. Helping with independent living skills is not enough. We need to find non-traditional ways and redouble our staff efforts to get these older kids adopted. As the poet Robert Frost says: “Home is the place where, when you have to go there, they have to take you in.”

ACT's Board in Action

ACT held its annual board meeting in Indianapolis on April 6, 2007. Present were Tim Powers, Peter Kenny, Bonnie Huxford, Melissa Richardson, and Jim Kenny. The following initiatives were discussed.

• Sales of ACT’s national Foster Parent Journal have been encouraging. To date, over 50 customers have purchased over 5000 copies. With more to come.
• ACT urges the joint training of caseworkers and foster parents and has authored a letter to that effect that appeared in the Indianapolis Star. This already happens in Vandenburg County.
• Indiana foster parents have many rights of which they are unaware. These rights need to receive the widest possible circulation. They are listed in our previous issue.
• Indiana has a new law granting improved due process to foster parents accused of abuse and neglect. Foster parents who believe their case was mishandled under the old law can request an administrative review.
• The issue of bonding vs. blood kinship was discussed at length, particularly in the case of a distant late-emerging relative who has never known the child in care and who is involved in a disputed adoption. Are new laws and policies needed? Or do we simply need better education about what we already have?