Is there a legal ‘bias’ against foster adoptions?

Foster parents looking to adopt fight uphill battle

By Craig Kelly -

CELINA — For Brian Anderson, one word best describes his 20-month-old foster daughter, who at the request of the family’s attorney will be referred to as M.A.

“She’s a firecracker,” he said. “She’s a spark plug. Her engine just never stops. She is by far the brightest, most intelligent girl I have ever seen in my life.”

Anderson, along with his wife, Kelly, and their seven children had no idea two years ago that they would have the chance to get to know this bright young girl. However, when she was 13 days old, she was placed with the Andersons as a foster child by Allen County Children Services while a relative out of state was being evaluated for placement.

“To be honest, at the beginning, we were told that they just needed a short-term placement,” he said. “Initially, we were told maybe three or four days.”

Judge Glenn Derryberry of Allen County Juvenile Court and Children Services Executive Director Cynthia Scanland declined to comment, citing Ohio confidentiality laws.

Those few days turned into weeks, which turned into months with a growing young baby beginning to bond with her temporary family and the family bonding with her.

“We built a very strong bond, not just with the child, but with the birth mother, as well, to the point where she looks at my wife and calls her ‘Mom,’ and she looks at her birth mother and calls her ‘Mom’ when we’re all in the same room,” Anderson said. “She has two moms in her life and a dad in her life.”

The bond became so strong the Andersons made the decision to try to adopt M.A., even receiving the birth mother’s blessing.

“She has never wavered from that, but the agency involved has continued to push for a relative that lives out of state,” Anderson said, “and that brings us to where we are now.”

‘A tough row to hoe’

According to the Child Welfare League of America, 42 percent of the 9,356 Ohio children coming out of out-of-home care in 2012 were reunited with parents or other family members, while 1,250 children, or 13 percent, were legally adopted through a public child welfare agency. That number decreased slightly to 1,244 children in 2013.

Barry Spaeth, a Cincinnati-based attorney who has represented foster families looking to gain custody of their foster children, said it is extremely difficult in today’s culture for foster parents to obtain custody of foster children.

“In my experience, it’s been a very tough row to hoe,” he said. “The preference, obviously, is the birth mother, and I’ve seen courts bend over backward to reunite the child with the birth mother. But if the birth mother’s been eliminated, there is a preference in the law for blood relatives. That doesn’t trump everything else, but in my experience, courts quite often act as though it does.”

The Ohio Department of Job and Family Services said on its website that “caseworkers first try to place children with a suitable relative to help maintain family bonds” before looking to foster care.

“If a court determines that it is not in a child’s best interest to return home, the agency will take steps to find an alternative, permanent placement for the child,” the agency went on to say on its website. “Such places may include adoption or legal guardianship.”

On March 16, M.A. was removed from the Andersons’ home and sent to live with the out-of-state relative, despite the family making their wishes to adopt known to Children Services.

“Two weeks later, we had a hearing in Mercer County Probate Court, where my wife and I reside,” Anderson said. “The birth mom testified side by side with us, saying that this was in the best interest of her child, and the judge agreed.”

Despite the judge issuing an adoptive placement order, the child has not been returned to the Andersons, nor have they been able to participate in visitations.

A ‘bias’ in the system?

Spaeth said that a commonly accepted reality in legal circles is that foster parents can often be the last ones to be considered when it comes to child custody.

“I’ve had attorneys tell me, ‘Forget it. You’ll never get custody for a foster parent,’” he said.

Part of what Spaeth called a “bias” against foster families is the notion that these families knew going in that these arrangements are never meant to last.

“The retort is always, ‘They knew going in that this was part of the deal,’” he said. “‘They’re not allowed to ask for custody.’ I think that can be part of the agreement that they sign as one of the terms of them becoming foster parents.”

The ODJFS reiterated this point on its website: “Foster care is intended to be temporary.”

In Andersons’ case, he said that he has not received an explanation for the removal of M.A. save the conventional assertion that foster parents do not have any bearing on custodial issues.

As for a reason for removal, “they just said, ‘We can,’” he said. “‘We have temporary custody and we can place this child where we want.’”

‘The ultimate test’

While Spaeth acknowledged that the current legal system prefers birth parents or relatives when it comes to child placement, there is an overriding plumb line that the law dictates should be used in evaluating where a foster child should go.

“The ultimate test, under the law, always, is what’s in the best interest of the child,” he said. “And what gets lost in these cases, at least in mine, is the trauma that the child is going to experience in being ripped away from, quite often, the only family that he or she has ever known.”

For Anderson, that has been the most difficult part of this situation, with M.A. becoming a “pawn” in the process.

“In the whole scheme of things, as frustrated and hurt and upset as I am, along with my wife and kids and the birth mom, ultimately, the saddest thing out of this is that you have a 20-month-old little girl who has no clue what’s going on except that she has been moved out of the only home she’s ever known,” he said.

Anderson also said that it is his understanding that the adoption cannot be finalized until the child is physically with the family in the courtroom for a finalization hearing, with this scenario keeping her status still in limbo.

“It’s a sickening game that’s being played,” he said. “The sad thing is that it’s not about me, my wife or the child’s mom, but it’s a game that’s being played with the child’s life.”

What’s the solution?

The Anderson family plans to continue to plead their case, asserting that allowing the adoption to proceed will not only benefit the child and family, but also the taxpayers, with a family willing and able to take on financial responsibility for her.

Spaeth is not sure how to address this issue in the broader sense, but he acknowledged that doing so will not be easy.

“It’s not easy,” he said. “You definitely have a sense that you’re bucking the system when you fight these battles.”
Foster parents looking to adopt fight uphill battle

By Craig Kelly

Reach Craig Kelly at 567-242-0390 or on Twitter @Lima_CKelly.

Reach Craig Kelly at 567-242-0390 or on Twitter @Lima_CKelly.

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