Protecting the Rights of Foster Children through State Legislation & Enforcement

Introduction

The United States foster care system needs substantial reform, and its dysfunction is putting the rights of foster children at risk. With 391,000 children in foster care and 33 percent of foster children experiencing instability with at least three placements per year, improving their lives and ensuring their voices are heard is paramount (Todd-Smith, 2024). Fortunately, many states have taken action to ensure that foster children are provided with the necessary tools to cope with often unstable and challenging situations. By better supporting foster children and providing them with opportunities, these states are helping to set these children up for long-term success.

Bills of rights for foster children have been enacted in at least 15 states and Puerto Rico (NCSL, 2019). This legislation centers on protecting the rights of foster children to maintain a connection to their biological parents and siblings, to have educational stability and opportunity, and to enforce their rights through an attorney. These provisions are shown to lead to better outcomes for foster children, including increased well-being and improved academic success. Moreover, giving foster children the right to participate in their court proceedings and work with their attorneys ensures their voices are heard and their needs are met. Prioritizing the protection of these rights provides foster children with greater continuity in all facets of life and, ultimately, an improved life trajectory.

Foster Children’s Bills of Rights Strengthen Family Connectedness

Once in foster care, a child is entitled by federal law to a permanency plan, with the goal of placing the child in a permanent family, whether through reunification with the child’s birth parents, adoption, guardianship, or permanent custody of a relative (Todd-Smith, 2024). While a foster child awaits permanency, the child may receive care from relatives or family friends, known as “kinship care.” Placing foster children with relatives while their biological parents resolve issues can be a critical aspect of permanency planning (Teixeira et al., 2022). Research shows that kinship care—specifically from relatives—provides children with greater stability and continuity of familial relationships, which are essential for their well-being. Children placed in kinship care are more likely to experience fewer placements, maintain connections with their siblings, and have a better sense of identity and belonging (Edwards, 2018).

While temporary kinship care is the next best thing to safe, secure, in-home care, it is important that children maintain a connection to their biological parents and siblings while in temporary care, so long as the court has not determined otherwise. This helps lead to reunification, which is considered the best solution for children in foster care when the family has resolved all dysfunctional patterns that hindered the child’s safety and well-being (Teixeira et al., 2022). Foster children should be provided explicitly with the right to communicate with their biological parents while they are in kinship care to ensure long-term stability and success. When children maintain that connection, the chances of reunification increase and the amount of placement changes decrease, therefore improving outcomes (Fowler, 2017).

Family connectedness also provides benefits in cases that do not result in reunification or when a child ages out of the system. These connections can help reduce the risk of homelessness for foster children, which is immediately faced by 20 percent of youth aging out of the system upon turning 18 (Todd-Smith, 2024). A 2017 study found that focusing on reunification with biological parents is effective in mitigating the risk of homelessness among youth transitioning to adulthood (Fowler, 2017). Experts also support the involvement of every stakeholder—foster parents, biological parents, and social workers—to empower foster children and provide stability (Sciortino, 2014).

While timely reunification is often best for the child, few states have legislation in place to ensure that foster parents maintain communication with biological parents and siblings after the child is placed outside the home. Such communication not only helps provide stability for the child but can also ease the transition back into the home if reunification is the goal. New Jersey, Arizona, and North Carolina are examples of states that have taken strong action.

New Jersey law provides children placed outside the home with the right to visit with their biological parents or legal guardians immediately after the child has been placed and on a regular basis thereafter. The law provides department assistance to facilitate that contact (N.J. Rev. Stat. § 9:6B-4). This policy maximizes the chance of timely reunification and a stable family setting, which have positive effects on the children (Waldfogel et al., 2010). However, if the contact is causing regressions and further traumatizing the child, the child can choose not to assert the right to maintain contact.

New Jersey law also requires the state’s Department of Health and Human Services to make its best effort to place the child in the same setting as the child’s sibling if the sibling is also being placed outside the home. When only one child is placed in foster care, or when the children are placed separately, foster parents are to facilitate visitation with the child’s biological sibling on a regular basis and to maintain otherwise contact with the sibling (N.J. Rev. Stat. § 9:6B-4). Several studies have found that when foster children maintain a bond with siblings, it results in increased mental well-being, improved school performance, and fewer placements (Casey Family Programs, 2020). According to the National Resource Center for Diligent Recruitment, foster children depend on one another when faced with parental losses, neglect, or abuse, so siblings are strongly bonded. Being together in placement helps to mitigate the impact of separation and loss, providing a sense of security and continuity for children. Research has found that placing siblings together leads to improved outcomes, including greater placement stability, fewer emotional and behavioral difficulties, and fewer days in placement (National Resource Center for Diligent Recruitment, n.d.).

North Carolina passed the Foster Care Children’s Bill of Rights. The law prioritizes placing children with siblings and gives children the right to participate in their transition plans if they are phasing out of foster care. They can directly participate in their family team, treatment team, court, and school meetings. The law also guarantees each foster child the right to a social worker, who must immediately begin investigating to identify and locate all grandparents, adult siblings, and other adult relatives of the child to explain the options to participate in the placement of a child (N.C. Rev. Stat. § 131D-10.1).

Arizona enacted a law that ensures foster children are informed as to why they are in foster care and what will happen to them and to their family, including siblings, and ensures that the children are informed about their case plans. It also provides foster children with the right to comply with any approved visitation plan and to have any visitation restrictions explained in a manner deemed age-appropriate by the foster parent in agreement with the caseworker and documented in the child’s record (Ariz. Rev. Stat. § 8-529).

Foster Children’s Bills of Rights Ensure Educational Continuity

Students in foster care often struggle in school, scoring lower on standardized tests, repeating grades more frequently, and dropping out at higher rates than other students (Lips, 2007). It is estimated that between 30 and 50 percent of youth in foster care receive special education services due to gaps in instruction resulting from the tendency to move frequently between schools, while only 11.5 percent of youth reared by their families of origin receive special education services. Only 65 percent of youth in foster care graduate high school by age 21, compared to the national graduation rate of 84 percent (Somers et al., 2020). This limits their opportunities to excel and attend college. To address this, state child welfare agencies should provide more support for educational stability, ensuring that foster children do not have to change schools if they change placements and that they can maintain school connectedness (Somers et al., 2020). States can also encourage schools to recognize partial credit and require schools to apply earned partial and full credit toward core graduation requirements.

Arkansas law requires that teachers, attorneys, parents, and other special advocates collaborate to ensure educational continuity for foster children. It requires every school district to identify a foster care liaison to ensure timely school enrollment of foster children, help them transfer between schools, and expedite the transfer of school records. The law includes provisions to ensure foster children have access to academic resources, services, and extracurricular enrichment activities that are available to all students (Ark. Stat. § 9-28-113). Studies have found that extracurricular involvement can improve outcomes and provide a sense of belonging. (Somers et al., 2020). When foster children feel connected to their school, it reduces adolescent risk behavior such as cigarette smoking, alcohol use, marijuana use, delinquency, and violent behavior (Somers et al., 2020; Dornbusch et al., 2001).

Arkansas law also ensures foster children have the right to continuity in their educational placements. This is especially important given the many placements foster children experience, with both relatives and non-relatives. The Arkansas Department of Human Services is required to consider continuity of educational services and school stability when making foster placement decisions. School districts also must allow the foster child to remain in the child’s school of origin and continue the child’s education in most cases (Ark. Stat. § 9-28-113). The school district is also required to work with the Arkansas Department of Human Services to develop a transportation plan for the child to get to school. By doing this, Arkansas guarantees these children will have educational stability even when placed in a new home.

Similarly, Missouri passed a Foster Care Education Bill of Rights, which designates an educational liaison from each school district for children in foster care. It also requires each child-placing agency to promote educational stability for foster children when making placement decisions by considering their current school attendance area. Lastly, it provides foster children the right to remain enrolled in and attend their school of origin pending resolution of school placement (MO. Rev. Stat. § 167.018), mitigating educational instability.

Foster Children’s Bills of Rights Ensure that Foster Children Have Legal Support

States must recognize a child’s right to be represented by an attorney. Traditional, client-directed legal representation best affords abused and neglected children the opportunity to protect their rights and be heard in cases with a significant effect on their liberty and interests. Case law and legislation establish foster children’s constitutional right to traditional legal counsel in dependency proceedings. Without legal representation, foster children could be subject to lay advocates who may lack the necessary knowledge of both the child and the legal system (National Association of Counsel for Children (n.d.).).

Arizona has led the way on this issue, enacting a law to ensure that foster children are appointed an attorney to serve the child in a traditional legal representation model before the filing of a dependency petition, which is a legal document asking the court to protect an abandoned or abused child by having the state assume temporary custody (Ariz. Rev. Stat. § 8-221). Arizona law also allows children to enforce their enumerated rights through an attorney representing them in dependency proceedings. Specifically, the law provides an opportunity to seek equitable relief from a violation of rights but precludes independent causes of action (Ariz. Rev. Stat. § 8-529; Seal, 2022). This allows a child to have a voice in their case and pursue equitable relief (Seal, 2022).

Arizona law also requires that each child be appointed an attorney to represent the child in dependency proceedings or proceedings for termination of parental rights. It requires that each foster child be well informed and aware of their legal rights to ensure those rights are enforceable through an attorney. In Arizona, foster children have the right to:

• Receive contact information for the child’s caseworker, attorney, or advocate and speak with that person privately if necessary.
• Be represented by an attorney in all dependency proceedings.
• Participate in service and permanency planning and be given a copy or summary of each service plan and service plan review.
• Attend court hearings and speak to the judge.

By mandating that foster children be clearly informed of their rights and that those rights are enforceable through an attorney, Arizona is ensuring that foster children are protected and involved and can advocate for themselves.

Conclusion

It is vital that states prioritize the well-being and success of the 391,000 children in the foster care system. By taking the following critical steps, states can ensure that all foster children are able to maintain family connections, receive a consistent, tailored education, and fully understand their rights:

• Enact legislation that facilitates familial connectedness by ensuring foster children the right to communicate with their biological parents, as in New Jersey, that prioritizes sibling placements, as in New Jersey and North Carolina, and that explicitly provides foster children with the right to comply with any approved visitation plan, as in Arizona.
• Direct relevant state agencies to consider continuity of educational services and school stability when making foster placement decisions, as in Arkansas and Missouri.
• Require every school district to identify a foster care liaison to ensure timely school enrollment of foster children, help foster children transfer between schools, and expedite the transfer of school records, as in Arkansas.
• Codify enumerated rights for all children in state custody and care, as has been done in New Jersey, Arkansas, and Arizona, and ensure that children are notified of their rights and know the mechanism to enforce their rights through independent legal representation.
• Improve the ability of children to enforce their rights as part of their underlying dependency proceedings, as in Arizona.