Officially it is. However, too many foster parents do it as a means of adopting a child in a market with limited availability. As one former foster care youth notes – “I keep telling everyone reunification is lip service and the younger kids never get reunited.”

The New Yorker has an article out in collaboration with ProPublica – When Foster Parents Don’t Want to Give Back the Baby by Eli Hager. The subtitle reads – In many states, lawyers are pushing a new legal strategy that forces biological parents to compete for custody of their children.

In this story, a typical couple who’s infant ends up in foster care, actually decided to do the “hard work” to get their baby returned to them (the infant had been placed with foster parents). The couple had met every one of the judge’s requirements, and then some. They’d tested negative on more than thirty consecutive drug screens between them, including hair-follicle tests that indicated how long they’d been clean. They had continued to visit their son weekly, even when due to the pandemic that meant Zoom. The father took a job as a maintenance man for the county, installing plumbing in low-income housing and mowing the fairgrounds. The mother quit working in a bar and began delivering mail for the U.S. Postal Service plus manning the deli counter at a grocery store on her days off. They spent much of what they earned replacing carpets, repainting walls, and fogging air ducts to remove any lingering trace of meth from their one-story house. They had completed parenting lessons and were in therapy, getting support for their sobriety and learning how to be better partners to each other. In other words, the foster-care system, whose goal under federal law is to be temporary, in service of a family reuniting, seemed to be working.

Then, after being sober for 6 months, another requirement was added – an expert evaluation of how well they interacted with their son. What they didn’t know was that they would be competing for him. His foster parents, hoping to adopt him, had just weeks earlier embraced an increasingly popular legal strategy, known as foster-parent intervening, that significantly improved their odds of winning the child.

The background is this – it has become harder and harder to adopt a child, especially an infant, in the United States. Adoptions from abroad plummeted from twenty-three thousand in 2004 to fifteen hundred last year, largely owing to stricter policies in Asia and elsewhere, and to a 2008 Hague Convention treaty designed to encourage adoptions within the country of origin and to reduce child trafficking. Domestically, as the stigma of single motherhood continues to wane, fewer young moms are voluntarily giving up their babies, and private adoption has, as a result, turned into an expensive waiting game. Fostering to adopt is now Plan C, but it, too, can be a long process, because the law requires that nearly all birth parents be given a chance before their rights are terminated. Intervening has emerged as a way for aspiring adopters to move things along and have more of a say in whether the birth family should be reunified.

Intervenors can file motions, enter evidence, and call and cross-examine witnesses to argue that a child would be better off staying with them permanently, even if the birth parents—or other family members, such as grandparents—have fulfilled all their legal obligations to provide the child with a safe home. Regarding our unfortunate couple, the evaluator who is a social worker reported “Neither parent has the kind of relationship with (their son) that will help him feel safe in a new situation.” The mother was bewildered when she read the report. Didn’t the evaluator understand how hard it is to bond with a baby you’ve only been allowed to see a few hours a week. Why was the baby’s eye contact with her described as lacking “affective involvement”? She also opposed the baby being returned to his parents on the grounds that the foster-parent intervenors had reported that he pitched fits and struggled to eat and sleep after seeing them.

It turned out this social worker had a long-standing independent agenda: helping foster parents succeed in intervening and permanently claiming the children they care for. No wonder some people feel the system is rigged against them. Relying heavily on this expert assessment, the county moved to permanently terminate the parents parental rights. In the 1950’s, the British psychoanalyst John Bowlby posited that being separated from a maternal figure in the first years of life warps a child’s future ability to form close relationships. The the American Academy of Pediatrics has concluded that kids who grow up with their birth family or kin are less likely than those who are adopted or are raised in non-kinship foster care to experience long-term separation trauma, behavioral and mental-health problems, and questions of identity. It’s not acceptable in most family courts to explicitly argue that, if you have more material (financial) advantages to provide for a child, you should get to adopt him or her. 

Ultimately, even though the couple had complied with their treatment plans, the filing concluded, their son had been in foster care for three years and needed “the permanence that only adoption can afford him.” However, his parents fought back. They filed an Open Records Act request, and soon received dozens of invoices. In all, their tiny, unaffluent county had spent more than three hundred and ten thousand dollars on their son’s case. An internal investigation found improprieties in the handling of the case. The trial was cancelled, and, the county finally dropped its case. Then, his mother joined other birth families in testifying in favor of new state legislation that would give biological relatives more priority in foster-care cases and prevent foster parents from intervening, until they had cared for a child for a year. In August, that law went into effect.

There are a lot more details in the article, if you are further interested. PS it is possible to get around the paywall with a bit of persistence and read the article in full.