Child Welfare and Custody

Permanency Planning in DSS Court Cases: What Non-Parent Caregivers Should Know

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When a child welfare case goes to court, DSS presents its evidence that the child is abused, neglected, or dependent in a hearing called an adjudication. If DSS makes its case, the judge then enters a disposition order, which sets forth initial instructions regarding the child’s care and placement during the case, while also outlining what the parents must do to address the issues that brought the matter to court. Once a case gets to this stage, the parents are deeply involved in a court process that has as its goal to reunify the child with one or more parents. As the court case proceeds, the authority to decide legal custody of the child rests with the juvenile court judge. Unless ordered otherwise at the end of the case, this authority normally continues until the child reaches legal adulthood.

If a child’s parents are not in a relationship, the judge in a DSS court case will separately examine their readiness to safely reunify with the child in their respective homes. In some such cases, a judge may place the child in joint custody, through an order outlining details of who gets the child for holidays, school breaks, or other events. In other cases, one parent will receive legal and physical custody and the other will have court-ordered visitation. If the parents are together, the court will judge their progress together. This means that when one parent is unable to overcome their personal obstacles to providing a safe home, a DSS case can put pressure on the other parent to choose between their partner relationship and their opportunity to reunify with the child.

Looking to Non-Parents to Provide Care and Permanence

Because the right to parent your own children is held dear in our society and legal system, the ability of a parent to reunify with a child is measured using a “minimum parenting” standard, rather than judged against optimal circumstances for the child’s growth and development. For a judge to place a child permanently with a non-parent, the court must have evidence that the parents have acted contrary to their constitutional rights as parents in one or more ways. In other words, if a parent can provide decent basic care, they are normally allowed to have their children back, even if other caregivers might be in a position to provide more opportunity or better care.

The fact that a family is involved in a DSS court case does not automatically mean that a child is removed from the legal custody of their parents. However, it is typical in a DSS court case that the child is ordered into the legal custody of DSS, which then has the ability to place the child in any safe and appropriate home—i.e., with a family member, foster parent, or other caregiver. Thus, the majority of these cases rely on non-parents to provide daily care for a child. If the parents are unable to make sufficient progress over time to justify continuing efforts to reunify, the Court and DSS will look to others to fill the gap, asking non-parent caregivers to provide permanence for the child through legal custody, guardianship, or even adoption.

What to Do When Considering Permanence for a Child

As a non-parent committed to caring for a child, what should you do when DSS asks you to consider legal custody, guardianship, or adoption? What might each of these different forms of permanence mean for you and your family circumstances? DSS may encourage you to accept one or the other form of permanence, and each grants different legal rights and obligations. Most people understand that adoption makes you the legal parent in the birth parent’s place, and although adoption is the most secure and stable form of permanency between a child and a non-parent caregiver, it is typically only considered in more serious cases. On the other hand, there are limitations to both guardianship and legal custody that are important for you to be aware of when either is proposed to you. What should you do to be sure your decisions on these matters is sound?

The best way to ensure that you have a full understanding of permanency options in a DSS case is to secure the advice of an attorney skilled in this area. Once the attorney-client relationship is established, your child welfare attorney can provide you with a thorough explanation of the distinctions among legal custody, guardianship, and adoption. Reviewing your overall family situation, your relationship with the birth parents, and the information you are receiving from DSS and the court, a knowledgeable child welfare attorney can help you make sense of your options in light of your family goals. Moreover, an attorney can advocate for you at this critical juncture, giving voice to your needs, concerns, questions, or ideas regarding permanence for the child.

There are many ways to nurture and care for a child whose parents are not up to the task. If you are a non-parent caregiver facing the critical decision of whether to accept permanence of a child in a DSS case, below are some questions you can ask yourself to clarify your need for legal guidance. These are questions any non-parent caregiver should consider at various stages of a case, and which they should be prepared to discuss with a child welfare attorney at an initial consultation:

  1. Do I truly believe that permanence with my family is the best possible outcome for the child at this time? If yes, are DSS and the Guardian ad Litem in agreement?
  2. Is the child currently available for adoption, or is DSS or the court pushing for termination of parental rights to make this possible? If not, why not?
  3. Do I understand the differences among the various forms of permanence for a child: adoption, guardianship, and legal custody? Which of these is DSS or the Guardian ad Litem recommending to the court, and why?
  4. If I am the permanent caregiver, how much control do I need or want over when and how the parents have contact with the child? Am I willing to facilitate ongoing contact between birth parent and child in my role as a permanent caregiver?
  5. Am I certain that I will be able to care for the child to adulthood? Is there a permanency option that would allow for a change in the plan if needed at a later time?
  6. Do I need financial assistance or other services to provide permanence for the child? Do I know what programs exist and whether my family would qualify for them?
  7. Do I want to support the biological parents in eventually resuming a caregiver role? What is the best permanency option to achieve this, when the parent is able to step up and provide the needed care?