This article is written to address the question: When do the child’s rights take precedence over the birth parent’s rights ?
I have been associated with the foster care system in New York for several years and it seems that there is a great deal of time spent on the rights of birth parents and not enough time on what is really right for the child. There are many instances of birth parents that are known not to be able to provide and yet, the cycle continues.
I have witnessed judges in the Family Court system give countless chances to allow birth parents time to take control of their lives and possibly have their children return to the home. I have examined many cases and most of the time, even when the children were returned to the birth parents’ home, it was only a short time and they wound up back into the foster care system.
The trauma a child feels when they are uprooted from their family and familiar surroundings is immeasurable and different with the particulars of each instance. The age of the child is a major factor in the resiliency of the move. When children are placed into good foster care situations, they have the ability of seeing that it can be different than they have known. This new knowledge can create a certain amount of anxiety, and possibly fear, of returning to the birth parents’ home, and a desire to stay in the foster home, which may not be an option.
Two Years is a Long Time.
There seems to be an amount of time that is considered acceptable or expected by the professionals involved with the system. The minimum amount of time for the termination of parental rights seems to be about two years. There are many instances of birth parents that are known not to be able to provide and yet the cycle doesn’t change.
This two-year period can seem like a lifetime to a younger child. The younger child develops very fast, with many changes in their thought processes and ability to reason. With respect to the younger child, most of the memories they will have of family values, birthdays and holiday traditions will be those of a family not their own.
With an older child, they can feel very out of place because they don’t know the traditions that everyone else seems to know and it makes them very uncomfortable to see differences to what they may have been accustomed to. The older child may make conscious decisions to not include themselves during family gatherings, or even act out to sabotage their inclusion. Depending on the circumstances, the older child may never be able to develop bonds with foster parents and foster siblings, causing tension whenever there are gatherings of family or other groups that require both to interact.
The Risks of Attachment
When a potential long term placement is likely, there is a decision to be made concerning what type of placement is right for the case and it’s different with each placement. These placements can become a double-edged sword, or so to speak.
- On one hand, if you place a child with a loving, caring, nurturing foster family, you have the emotional attachments that a child develops with the foster family. This is especially true for the younger child that’s placed into care. Over time with the foster family, they develop bonds with new siblings and extended families as well as the parental bond that develops. The child develops a strong sense of belonging to those new families, celebrating birthdays, holidays and other events that take place. The longer this placement continues, the harder it will be to separate, and the anxiety from that will be greater and more damaging to the foster child. There will also be some damage to the children and other family members of the foster family. The foster parents know and prepare themselves for this separation anxiety and may be able to cope with the separation better.
- On the other, if you don’t place the child with a long-term foster family and they begin the cycle of bouncing from one home to another, they begin to develop attachment disorders and become unable to develop those bonds at all. These attachment problems can damage them for life and possibly hinder their ability to develop loving relationships with a spouse or possibly even their own children some day.
I know of a case in which there is a male child that entered the foster care system at the age of five. This child was placed in a group care facility with his younger brother, age four, because of a neglect accusation. The boys were placed together in a foster care home within a few days. The two boys were very primitive in their behavior and played very rough with each other. The two boys played very different from each other and in just two days the new foster family was at a point where they felt they couldn’t care for both boys together.
The boys were split between two families, with the four-year-old younger boy staying at the original placement and the older five-year-old boy being placed with a new foster family. The placements continued for 18 months and both boys are beginning to express feelings of wanting to stay where they are instead of possibly going back to their birth mother. The boys have a combined sibling visit with their birth mother every other week and get together with each other, separately, at least once a month with the two foster families coming together.
The birth mother has special needs of her own and has always shown signs of being unable to provide a safe, structured household that is capable of educating the boys. The family history is such that neither boy knew their fathers, or had a male role model that was sufficient for them to learn acceptable male behavior from. The boys did not have safe habits as far as strangers were concerned and were both very primitive in their behavior. The boys could not eat with utensils, help wash or even dress themselves. The older boy was unable to recognize any letters, numbers or even colors.
The court cases have come and gone for 18 months and they continue to speak of reunification with the birth mother and try to define classes and steps she should take to facilitate that.
When do the child’s rights start to take precedence over the birth mother’s rights? The birth mother has been told at every hearing and before each bi-weekly visit that she needs to set up a household and begin skill-building classes to get the children home again. The birth mother has never followed through with any of the plans that have been set up for her and avoids the services that are being provided for her to learn the techniques of providing a proper household. She continues to ignore the orders from the court and adhere to the instructions and yet they are still talking about reunification.
It would be very disruptive for either boy to change their living situation now after living in the same homes for this amount of time at their respective ages, and it is becoming clear from the boy’s behaviors after visits with their birth mother that they are both concerned about having to go back. The two brothers act very differently from one another and only play together for approximately an hour when they get together. After an hour or so, they drift away from each other and begin to play independently. The younger boy is very active and loud in his play and behavior. The older boy is very calm and enjoys quiet play. Although both boys suffer from ADHD, they are affected by the disorder in different ways.
The older boy is now seven years old and has been in school for two school years, developing an IEP and getting into a routine with respect to home life, child care and school. This child is receiving individual counseling, OT, PT and private tutoring services and beginning to show significant improvement. Academic testing was done during the second school year and his development status is bordering on the MR level, with significant deficiencies in basic pre-K knowledge. There have been significant advances in his growth during the second academic year now that some of the pre-K basics are being learned and retained.
When do the Child’s Rights Supersede the Birth Parent’s Rights ?
Apparently in New York, they don’t really. If they did, these two boys would not be worried about returning to a home that is “not capable” of teaching them life skills and educating them. Remember at the beginning of the case study, it referenced that the birth parent had special needs as well and is not able, and is known not to be able to provide for the boys.
Two years in the lives of children at this age is a long, long time, and in my opinion, too long for the system to take, to make a formal decision about their disposition. This is especially true when a major deciding factor was known at the onset, the inability of the birth mother to provide due to her own disabilities.
James Moran 5960 Bowman Road East Syracuse, NY 13057
[email protected] 315-436-1162