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New NC Law Leaves Stigma Around Foster Parents Hiring Attorneys

In this series of blog posts, I will unpack various opportunities for foster parents that I see in this new law, as well as tagging what I think are some of its inherent or anticipated problems.

October 8, 2021

September 10, 2021 should go down as a watershed day for North Carolina foster parents for a number of reasons, all of them bound up in the passage of a new law which the NC General Assembly has boldly packaged as a “Foster Parents’ Bill of Rights.” In this series of blog posts, I will unpack various opportunities for foster parents that I see in this new law, as well as tagging what I think are some of its inherent or anticipated problems.

Before delving into what this new law does, I want to first express frustration that the law does not assure that foster parents will be rid of one pernicious and pervasive problem: a stigma among social services personnel around foster parents’ use of lawyers!  While much of this new Bill of Rights is devoted to ensuring critical information is provided to foster parents, and that foster parents will have a voice in various aspects of the case, it does not overtly acknowledge foster parents’ right to engage and employ an attorney.

Although my assessment is admittedly based on anecdotes, I have found that the social services agency response to the presence of an attorney representing a foster parent or family member—or, more broadly, anyone who is not a party to the court case—tends to be guarded, flat, or silent. I believe this is explained by the general suspicion attorneys tend to generate. I get it! A lot of attorneys are pretty creepy! Some even do disreputable things! But should all of us be forced to wear the same old dusty cloak of suspicion due to problems social workers or agency attorneys have had with others in the past? What about the need for foster parents to have access to reliable information and insight about how North Carolina child welfare law operates and affects their case and their family?

Some new foster parent clients tell me they are afraid for their county agency to learn they have hired a lawyer. I have personally had county social services workers explain to me that foster parent or family member may attend a permanency review or child and family team meeting, but their attorney may not.

Keeping a foster parents’ lawyer from hearing the things their clients are entitled to hear obviously makes the lawyer’s job harder. My analysis is only as good as the available documentation, notes, or client recollections of wording, specific details of conversations, and nuances they may not have thought to observe about the interaction. While I have learned to equip non-parent clients on their “foraging expeditions” for information, I am always painfully aware of the likelihood that the “telephone game” will at least muddy up one or two important items that I had hoped to help my clients gain clarity on.

To be fair, the new Foster Parents’ Bill of Rights does recognize in its preamble the existence and importance of “a team, including child welfare workers, resource parents, a guardian ad litem, attorneys, and others who are working together to address the issues leading to the foster care” in which foster parents are expected to integrate when they become involved. But nowhere in the Bill of Rights is the right of foster parents to hire an attorney (at their own expense) and have the advice of an attorney expressly provided.

A lawyer basically functions in two ways: as someone who can, according to State law, represent your interests in a court of law (as well as in other contexts, such as private negotiations or settlements); and as someone who can advise you about the meaning and effect of North Carolina law as pertains to your interests and make corresponding recommendations for your course of action founded in this legal analysis.

It should be apparent that the second of these two major functions of a lawyer—to advise clients about the meaning of North Carolina law as pertains to their case—is immediately hindered by lack of accurate information. Meanwhile, foster parents’ access to juvenile case information regarding the children in their foster care is typically very limited and foster parents instead receive much of the information they have orally, from social workers, Guardian ad Litem volunteers or staff, service providers, and judges.

Based on my experience, the practice of keeping foster parents’ lawyers out of case meetings and other agency interactions is widespread enough in North Carolina to warrant granting foster parents the express right to be represented by an attorney relative to their role as a foster parent. It is odd to consider that most people would be unphased to know you consulted a lawyer in buying a house, and at the same time social services staff may become concerned to learn that a foster parent—who DSS may themselves be asking the foster parent to add a human life and story to their family—is seeking legal advice about this major life decision! In addition to the help that many foster parents need understanding the legal landscape of caring for a foster child, there is also legal risk to fostering that foster parents should be aware of, especially in cases where these risks are increased due to medical fragility, volatile behaviors, or a whole variety of other imaginable trauma effects and biographic circumstances.

Another significant shortcoming of the new Bill of Rights is that it denies foster parents any remedy for violations of their purported rights:

A violation of this Bill of Rights shall not be construed to create a cause of action under this section against the State, the Department of Health and Human Services, private supervising agencies, local county departments of social services, or an entity providing foster care pursuant to this Article. Nothing in this Bill of Rights shall override existing law or administrative rule.

N.C. Gen. Stat. § 131D-10.9C(c).

The notion that a Bill of Rights would have no enforcement mechanism raises serious questions about whether this new law was meant to be mere pageantry. The embedded, bombastic notion of “rights without a remedy” contained in subsection (c) of the new law will be the standalone subject of a separate blog post in this series.

As a foster parent who has questions and needs guidance about how child welfare law functions and affects the case of the child in your care, you have a right to seek legal advice from a knowledgeable child welfare attorney! While foster parents are wise to check the temperature of their local social services agency toward foster parent attorneys before simply inviting your new lawyer to join you in the gallery at a permanency planning hearing, there are many ways I help my clients behind the scenes, in phone or zoom meetings or email exchanges where we formulate our questions, concerns, and aspirations for children into communications, documents, or bullet points for a meeting or a hearing.

Everything, of course, changes at the two-year mark in a foster parent’s continual care of a foster child. In a case that drags on that long, a licensed foster parent almost certainly has a right to intervene in the case as a party, which includes entitlement to be represented in the case by a lawyer, and to otherwise participate fully as a party in the matter. Remember, as it’s worth stating again: after two (2) years of continual care of a foster child, a North Carolina foster parent can almost certainly intervene in that case as a full party. Lots of foster parents don’t know this, and the judge and social services can’t really tell you much if anything about it, because to do so could mean inappropriately giving you legal advice!

Decisions about the constitution of your family are BIG DECISIONS that you should enter eyes-wide-open! Do not be discouraged from hiring a skilled child welfare attorney to guide you through the often-confusing landscape of child welfare. It may take years for social services and the legislature to understand the many benefits to the process of creating legally-informed foster parents by welcoming child welfare attorneys to be appropriately involved in foster care cases. In the meantime, get the advice and insight you need as a foster parent by hiring a knowledgeable child welfare attorney early in the case, before problems arise!

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