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ACHIEVING PERMANENCE FOR A FOSTER CHILD

A. Colorado Law: Permanency Planning Hearings and Permanent Homes

The Colorado Children’s Code emphasizes the importance of ensuring children, especially very young children, be placed in a permanent home in a timely manner. Numerous studies have established that the children who experience “foster care draft, “ who do not bond and attach with a primary adult, and/or whose attachment and bond have been indiscriminately broken with a long-term care giver often suffers significant emotional damage which frequently leads to chronic psychological problems and antisocial behavior during adolescence and adulthood. C.R.S. 19-1-102(6.1). Accordingly, one of the primary goals of dependency and neglect proceeding is to secure a stable and permanent home as soon as possible for each child who is placed in foster care. C.R.S 19-1-102(1)(c) and 19-1-102(1.5)(a).

To achieve this end, Colorado Revised Statues 19-3-702 requires that a permanency planning hearing must be held as soon as possible following the dispositional hearing but no later then 18 months after the original placement of the child out of the home. This permanent plan may include the return of the child to the birth parents, permanent foster care, guardianship, permanent custody, adoption and emancipation. Moreover, in the specialized case of the children under the age of six and their siblings, certain counties, including Boulder, Colorado Springs and Jefferson Counties, must expedite permanency. C.R.S. 19-1-102(1.6): 19-3-505(3): 19-3-508(1): 19-3-604(1)(b)(III): 19-3-710(1): 19-3-702(2.5): 19-3-703. Expedited permanency includes:

1. Permanency Planning Hearing must be held no later than three months after the Decree of Disposition of the child: and:
   
2. A Permanent Home must be realized within 12 months after the original placement out of the home, unless the court determines that placement in a permanent home is not in the best interests of the child at that time. A permanent home shall include but not limited to the child’s reunification with the child’s parents, placement with a relative, placement with a potential foster parent, permanent custody granted to another, or, if the child cannot be returned home, placement in the least restrictive level of care.

B. Permanent Plan Can Involve Foster Parents

Foster parents who have had a foster child for a considerable length of time and have developed a significant reciprocal attachment with the child should be seriously considered by the court as a possible permanent home for the child. See C.R.S 19-3-702(5)(b) (“if the child is currently in a foster home and the foster parents are capable of providing and willing to provide a stable and permanent environment, the court may determine that the child shall not be removed from the home if the removal would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the foster parent”). The fundamental principle underlying this consideration is that a child needs a stable, continuous, and caring relationship with an adult for a normal character and identity development. To break an attachment or bond with a long term care giver, such as a foster parent, may result in emotional and psychological damage and delays. Foster parents seeking to retain care of their foster child should consider pursuing one of the following legal avenues: permanent custody: guardianship: adoption or permanent foster care. It should be emphasized the while the support of the guardian as Item and/or department is no doubt helpful in prevailing, foster parents success is not dependant an their backing or joining a foster parents’ motion. Rather, as previously described, the court is the ultimate decision maker as to the interim and final placements of a foster child.

C. Permanent Sole Legal Custody

1. 1. Filing for Permanent Custody
   An interested party, including the foster parents, who has intervened in a dependency and neglect action may file a petition for permanent physical and legal custody of the minor child if: a) the child is not in the physical custody of one of his birth parents or b) the foster parents have had physical custody of their foster child for six months or more and commerce an action within six months of the termination of such physical custody. C.R.S 14-10-123.
   Clearly, it is much more advantageous to file the custody action while still retaining physical custody of the child to avoid having to rebut the argument that returning the child to the foster parents would result in yet another disruption in the child’s placement. The custody motion should first be filed pursuant to the Uniform Dissolution of Marriage Act and then the custody action should be certified to the juvenile court to hear the matter as part of the dependency and neglect proceeding. C.R.S 19-1-104(4)(a). If custody is contested by either the birth parents, the department of Guardian ad Item, the court will set the matter for a hearing where testimony will be required. If foster parents prevail on their motion for custody, the juvenile court’s order should be certified and filed with the district court where the child is a permanent resident. C.R.S 14-10-123(II)(d).
   
2. Legal Standard to be Applied
   The trial court will decide the custody issue based upon the best interests of the child and the public. In the Interest of L.A.G, 912 P.2d 1385 (Colo. 1996). In considering the best interests of the child standard, the criteria ser forth in the Uniform Dissolution of Marriage Act may be considered by the judge. Some of these result relevant criteria include:
   
   · The wishes of the child’s parents as to his custody;