The Rights of Foster Children – legal update

Appellate decisions regarding foster care are rare and decisions that focus on foster children are rarer still. So when two decisions appear in the space of about a week they deserve some commentary. One is from the Maryland Court of Appeals, Maryland’s highest court, and addresses an issue of great interest: under what circumstances and to what extent does a foster child’s attachment to foster parents impact the rights of the biological parents when such parents are confronting the termination of their parental rights? The other case, from the New York Appellate Division, also addresses an issue of interest: can foster children sue foster parents for negligent supervision?

A lesson that can be learned from both cases is that the laws that affect foster care in general and foster children in particular are far from uniform. Each case provides insight into these important issues and suggests how the law may evolve.
In re Adoption / Guardianship of Alonza D. Jr. and Shaydon S.

The Maryland case, In re Adoption/Guardianship of Alonza D., Jr. and Shaydon S., No. 41, September Term, 2009, Court of Appeals of Maryland (January 19, 2010), occurs in a legal environment in which past rulings of the Maryland Court of Appeals made it clear that the rights of a biological parent cannot be terminated unless the parent is proven to be unfit at the time of the termination, or, “exceptional circumstances” exist.

The best interests of the child, by itself, is not an exceptional circumstance. In other words, proving that a child would be better situated if parental rights were terminated is not enough to support a termination of parental rights. The specific issues in Alonza D. were whether the childrens’ attachment to the foster parent who intended to adopt, absent proof of parental unfitness, was sufficient to terminate parental tights. The Court of Appeals said no and remanded for further proceedings.

The Court of Appeals found that separation from the father, an asserted lack of a father-children bond, and bonding between the foster mother and the two children was not an “exceptional circumstance” sufficient to overcome the presumption that it is in the best interest of a child to maintain a relationship with the biological (referred to in the opinion as the “natural”) parent. Rather, the Court ruled that termination would require a finding based on clear and convincing evidence that “a continued parental relationship would be detrimental to the best interests of the children.”

This decision is more than just an interesting analysis of a complex area of law. Rather, the decision focuses on the impact that the foster child-foster parent’s relationship can have on a fit parent’s ability to prevent an adoption. This is a common situation in foster care—involuntary removal, loss of meaningful relationship with parent, the creation of a new relationship with a foster home, a desire for permanency through a foster parent adoption and a parent who at the time the termination decision needs to be made is not unfit and seeks to establish or reestablish the parental relationship.

Remember, the standard is unfitness or exceptional circumstances. The essence of the Court’s ruling is that evidence that the parental relationship is detrimental to the child is a necessary ingredient of exceptional circumstances. It could be argued that a clear and convincing showing of detriment is not Constitutionally required or that the need to make such a factual finding will make it much more difficult for foster parent adoptions to succeed.

The task for the trial court on remand, and in future cases, calls for the term “detriment to the best interest of the child” to be given a factual context. What exactly is detriment to the child? Is it the harm that could occur due to lack of permanency and the consequences of permanent foster care? Is it the speculative harm of being removed from the foster home?

McCabe v. Dutchess County

In the other case, a New York intermediate appellate court held that even though the N.Y. Court of Appeals has “abolished the defense of intrafamily immunity” a foster child cannot sue a foster parent for negligent supervision. McCabe v. Dutchess County, New York Appellate Division, Second Department, 2010 NY Slip Op 823 (February 2, 2010). In McCabe, the child, Jacob, was placed with a foster parent, Sherwood. Jacob climbed out of his “sleeping accommodation” and fell to the floor, sustaining injuries. The mother regained custody and sued Sherwood and the agency for negligent care and supervision.

The Court reasoned that the decision that ended intrafamily immunity and a subsequent decision made it clear that the case law did not create new liabilities. By way of example it was explained that the negligent operation of a motor vehicle was a cause of action that had been barred by intrafamily immunity that would now be would be actionable. However, negligent supervision of a child by a parent was never an action that would have been actionable if not barred by intrafamily immunity and therefore is not actionable just because intrafamily immunity has been abolished.

The issue was how, if at all, does this affect a cause action by a foster child against the foster parent. The court reasoned that it would be impossible to delineate the bounds of the asserted right to supervision and that most injuries could be avoided by closer supervision. The court concluded that such considerations apply to foster parents because their relationship with foster children mimics that of parents. Therefore, if a parent cannot be sued for negligent supervision, then neither can foster parents.

It could be argued that this reasoning begs the question: why, for purposes of liability, should foster parents be treated the same as biological parents? Are there reasons why foster parents should be held to a different standard so that they can be sued for negligent supervision?

The court also dismissed the suit against the agency because the agency could not have foreseen that the child’s injury would have occurred as it did and that it did not seem that there was a dangerous condition in the foster home or that the foster parent was acting in a dangerous manner.


Although it often seems that everything which can be said about these issues has already been said, these two decisions illustrate the ever-evolving legal landscape affecting children in foster care. The agencies, lawyers and judges who work with the hundreds of thousands of children in state care must continuously adjust to new realities and push the boundaries to insure that the rights of our most vulnerable children are protected.

Guest analysis by Harvey Schweitzer, Esq.

Mr. Schweitzer is a lawyer whose practice in Washington D.C. and Maryland focuses on legal matters pertaining to children and the provision of services to children including foster care, child abuse and neglect, adoption,custody and mandatory reporting. He is the co-author of Foster Care Law: A Primer. Contact him at or go to

2 Replies to "The Rights of Foster Children - legal update"

  • Ray c.
    March 22, 2010 (3:46 pm)

    I just have a question in regards to my own personal expierience. I was took into foster kare in 1985 & was legally adopted a few years later. I lived with my legal gaurdian through my whole childhood & up into my departure for the military. I never really was afforded a full oppurtunity to voice my xpressions throughout my life in the “cycle”. Just recently my foster mother passed away(rest her soul) & now I have nothing to Go on. She never really accepted us as “her” children, just more as of her joB. I wanted 2 know what would a foster child have to rely on when Both his mothers’ are Gone?

  • Foster parent in Maryland
    January 31, 2011 (11:30 am)

    My wife and I have taken care of our 3.5-year old foster son for over 2 years. I believe our son is in a much safer and healthier environment than his biological parents can give him–to understate it.

    Two questions, if I may:

    1) How would the county (who’s in charge of the foster program in our state) develop and document clear and convincing evidence that a continued (biological) parental relationship would be detrimental to the best interests of the child? Would evidence of the bio mother’s continued and pervasive drug abuse, and giving birth two two drug-addicted children, count? Would the bio father’s history of violence to women, and intimidation to court officials, count? Would the bio sibling’s ongoing history of school truancy count?

    2) Judges in our county continue to grant requests by the bio parents’ lawyers for “doctor consultations,” presumably to bolster the bio parent’s case. I understand the need for objectivity, for gathering as much relevant data and expert opinions as possible. But the latest doctor that the judge said could interview our son is just that–a medical doctor who doesn’t even specialize in children’s issues. He is not a psychologist or psychiatrist. And this doctor wanted 6 full hours to interview our son. My question–does the judge or the county have some responsibility to review this doctor’s credentials? The court admitted that it didn’t have time to do this. If the doctor’s credentials are later to be found irrelevant, why put our son through this?

    As a follow-on, does the judge of county have some responsibility to make sure our son is safe in the care of this doctor? As foster parents, we feel that we have very limited rights–but don’t we have the right to protect this child? We have no idea who this doctor is, and I don’t think the county does either.

    Thanks for any insights or guidance.

    Foster parent in Maryland