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Colorado Supreme Court to decide if foster parents can intervene in abuse hearings

When and how should foster parents intervene in court cases involving the children in their care? That's the question at the center of a case that the Colorado Supreme Court will hear tomorrow. It could be said the case started five years ago when the Montezuma County Department of Human Services got a report of a four-month-old boy with blood in his mouth.

According to court documents, the boy's parents told a caseworker that perhaps his grandmother caused the injury. The caseworker advised them not to leave the infant alone with her, and that was that.

Except it wasn't. A month later, the boy was back in the emergency room with a lacerated tongue. This time, the parents blamed the injury on the infant himself. The hospital treated the baby and sent him home with his parents without calling human services.

A month after that, however, the hospital did call human services to report that the baby had a bruised cheek. The parents had yet another excuse: the injury was caused by his crib, they said. Once again, the baby was sent home with his mom and dad.

Another month passed, and the baby was back in the ER, this time with an elbow injury. An X-ray revealed that the elbow was fractured, and after initially sending the boy home, the hospital asked his parents to bring him back in. When they showed up three days later, the seven-month-old had new bruises on his face, lips and gums. At that point, human services removed the boy from his parents and put him in foster care.

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An orthopedic surgeon thoroughly examined the baby and found a total of eleven fractures in various stages of healing, including seven fractures to his ribs. The doctor determined that the fractures were consistent with child abuse, not accidents.

"This was one of the most egregious cases I've ever seen," says attorney Tim Eirich of the Rocky Mountain Children's Law Center. Eirich represented the foster parents in the court case resulting from the abuse. "First and foremost, the injuries to this child really made this egregious. But it was compounded by the department's lack of response."

And it didn't end there, Eirich says. Despite the alleged abuse, the boy's parents were allowed overnight visitation with him while he was in foster care. However, the foster parents expressed concerns about those visits, noting that that the boy often came back to them dirty and thinner than when he left.

At the least, the boy's biological parents struggled to comply with treatment plans set up by the department of human services. The plans required them to attend parenting classes, couples counseling and evaluations, and to find jobs and stable housing. But they often missed appointments, therapy and visits with the boy.

In addition, the boy's mother sent a "barrage of harassing text messages" to the caseworker assigned to the case, including one that said, "We have done everything in the original treatment plan and then some, quit fucking around and fork (the boy) over."

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In 2009, after the boy had been in foster care about a year, the department became aware of several incidents of domestic violence between his parents. A psychologist had diagnosed both with "significant psychological problems" and noted that their relationship appeared to involve "anger, tension and mistrust." In one incident, the father grabbed the mother by the neck and said, "I want you to die."

After that, the boy's guardian ad litem, an attorney appointed to represent his best interests, filed a court motion to suspend visits between the boy and his parents. On July 23, 2009, the boy's foster parents intervened, emphasizing that they were concerned about the child's safety and the fact that he'd been in foster care too long. A state law known as the "intervention statute" allows foster parents (or other relatives) who've had a child in their care for more than three months to intervene in court if they have "information or knowledge concerning the care and protection of the child."

The motion to stop visitation eventually led to a motion to terminate the parents' rights, making the boy eligible for adoption. The foster parents intervened in that case, too. At a hearing, Eirich, the foster parents' attorney, cross-examined the witnesses. The boy's father continued to offer excuses for his son's injuries, including that the rib fractures were perhaps caused by swaddling. His mother, when asked about the broken bones, said, "That's a toughy, right." In February 2010, the court terminated the parents' rights.

However, the parents and the Montezuma County Department of Human Services appealed the ruling, arguing that the foster parents' participation in the termination hearing was improper. In a split opinion, the court of appeals agreed. It reversed the trial court's ruling with regard to boy's mother but not the boy's father.

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In January 2011, Eirich and the Rocky Mountain Children's Law Center asked the Colorado Supreme Court to review the ruling. On August 1, the high court agreed to do so. Both sides have filed briefs. Eirich's argues that the foster parents absolutely had a right to intervene and share what they knew. "These are hard cases," Eirich says. "It's important that trial judges get all the information so they can make good decisions."

"The essence of what we're saying is that the law supports foster parents participating in these hearings," says Stephanie Villafuerte, the director of the Rocky Mountain Children's Law Center. "We're not saying that foster parents should adopt these kids or opine on whether a (biological) parent is a good parent or a bad parent. We just want foster parents to have access to the court to provide information."

The Colorado Supreme Court will hear arguments on the case at 9 a.m. tomorrow. They'll also hear arguments on another case involving a foster child who was moved around to several different foster homes without explanation. The law center plans to argue that a foster child has a right to a stable and permanent home.

"We're hoping that before a department can take a kid out of a home, they'd have to prove it's good move," Villafuerte says. "We'd hope better for foster kids than being bumped around from place to place." Which is too often what happens.

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