The child's right to attachment?
....Part three in a series on ASFA and Attachment
When the evidence shows a child is attached to caregivers in a loving, stable foster or relative placement and that the parent will not in the reasonable future be able to safely resume parenting, what rights does the child have to stay in that placement? While some courts have recognized that the child’s right to family is “concomitant” with the parents’ rights to the child, no court has gone so far as to find the child has the right to stay with those to whom he or she is attached.
In Smith v. O.F.F.E.R. (1977), the Supreme Court did consider whether foster parents had formed such a “bond” with foster children giving rise to constitutional issues if the agency wanted to move the children or return them to a parent. The closest the Court came to imagining a situation in which such a right might apply was the following hypothetical:
“At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family. For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals.”
While in Smith this scenario was not at issue, the Adoption and Safe Families Act purports to consider situations just like this one. Pursuant to the aggravated circumstances provisions of the law, States are not required to try to reunify children with their parents when, for example, the parent has abandoned the child or committed such serious child abuse that the parent is deemed incapable of resuming the parenting task.
But while Smith and some other cases at least recognize the importance of the child’s attachment to a stable, loving caregiver, there is no real acknowledgment of the principle in federal law. As noted last week, ASFA and other federal law generally focuses on the parent’s actions and how they affect the parents’ rights. While federal law does specifically recognize the attachments children have to their siblings and the important role that relatives can play, it gives short shrift to the attachments that arise between children and their parental or substitute caregivers.
As Mennen and O’Keefe note1, the quality of a child’s attachment to his parent (or lack thereof) should be considered from the beginning of any child protective services case. If the attachment is strong (though perhaps not healthy) and the maltreatment not severe, all efforts should be made not only to keep the family together and prevent recurrence of maltreatment but also to improve the bond between parent and child. If, on the other hand, you have a newborn and a high likelihood of severe or chronic maltreatment, the child’s need for early and healthy attachments might indicate TPR and adoption as a better route that respects the child’s right to a family.
At the same time, ASFA may backfire in some situations involving the maltreatment of a child who is securely attached to his parent. The timelines for making a reunification or termination of parental rights decision are short, and they do not take into consideration the child’s need for that caregiver. Mennen and O’Keefe emphasize that when such a child is in foster care, it is critical that the child have frequent visitation with the parent and that the foster parents model healthy attachment. As they state: “Children are able to form attachments to multiple caregivers and can use the new healthy attachment with the foster parent as an internal working model for new attachments.” Additionally, some youth who come into foster care as teens and who may be solidly attached to a parent should not be forced into a permanency plan that disrupts that family connection.
Despite the widespread recognition the child’s need for healthy attachment to a caregiver, our federal law often seems more intent on recognizing the rights and needs of others in the process: parents, siblings, and relatives. While federal child welfare law requires a trauma-informed approach to the child’s needs, it may be time to add language requiring an attachment-informed model. Federal law might consider adding the following three requirements for states:
Mandate in federal law that the juvenile court and child welfare agency consider the child’s attachments (and the quality of those attachments) when making removal, placement, and termination of parental rights decisions. Current law focuses more on specific acts of parents and on specific individuals who might have a relationship with the child than on the child’s actual relationships with the parent, sibling, foster parent, and/or relative.
Add “attachment” as an issue on which state child welfare agencies would be graded. Currently, for example, the Child and Family Services Review process tends to look at “quantity” issues such as joint sibling placements and visits, parent-child visits, search for relatives, compliance with ASFA timelines, and the presence of an “accepted” permanency plan such as reunification, adoption, or guardianship. These reviews might be modified to consider, for example, not how many siblings were placed together, not how many relative placements were made, but why. Was placement pursued simply because of the blood relationship, or were these siblings/relatives bonded with the child prior to removal? Were any of the child’s healthy attachments damaged to accomplish those goals?
Add a requirement that courts review the agency’s reasonable efforts “to maintain and promote the child’s healthy attachment to a stable primary caregiver.” This requirement might help “balance” what one sees in common practice: the rush to place with a blood relative or the rush to have siblings placed together regardless of the child’s needs. Such a requirement would certainly shift the conversation from one centered on process to one centered on the child’s actual need for — or, as I would argue, the child’s right to — health attachment to a stable, trusted caregiver. Of course, that primary caregiver might well be the child’s own parent or a relative. The question should be less one of blood and more of relationship.
There are also steps that can be taken at the state level, including introducing “attachment” as a central focus in dependency and termination of parental rights cases. In Georgia, for example, legislation passed in recent years has directed courts making permanency decisions other than reunification to give preference to stable, permanent caregivers who have had the child in excess of twelve months. These new initiatives also seek to reduce foster care drift, a known source of attachment disorders, by authorizing the caregiver of a child to object to moving the child to a different non-parental caregiver. Key to these laws is that they are focused on the child’s need for stability and not on the needs of foster parents, relatives, or the agency.
Next week we’ll tackle a new topic. As always, your feedback and suggestions are appreciated!
F. Mennen & M. O’Keefe, “Informed Decisions in Child Welfare: The Use of Attachment Theory” (2005) 25 Children & Youth Svcs. R. 577.
A dear friend of mine often advocates that with every move a child in care should gain the most and lose the least… we have a long way to go!