After judge separates Kansas girl from foster family, proposal may prevent future cases

Nick Wagner/

After a Kansas judge ordered foster parents to surrender a 3-year-old girl they had cared for her whole life and placed the child with biological siblings she’s never lived with, state lawmakers have taken a first step toward potentially preventing similar decisions in the future.

The Gardner couple Nicole and John DeHaven turned over the child last week following a decision by Wyandotte County Judge Jane A. Wilson overruling Kansas Department for Children and Families Secretary Laura Howard, who had recommended the court allow the couple to adopt the child.

A Manhattan family, which has three of the child’s biological siblings, currently has custody of the child. DCF has appealed.

A bill introduced Monday would require the DCF secretary, who leads the agency, to consider placing children in adoptive homes that maintain “the child’s close and healthy attachments.” The secretary would also be required to consider foster parents as prospective adoptive parents when the child has lived more than half of their lifetime with the parents and for more than two years.

The House Child Welfare and Foster Committee held a hearing Wednesday, an usually swift schedule for legislation, though the proposal itself has been in the works for months. Rep. Susan Concannon, a Beloit Republican who chairs the committee, said the legislation wasn’t offered because of the DeHavens’ situation but that the case nevertheless illustrates the stakes involved.

“It is a perfect example of the kind of pain … the type of trauma we’re putting on children by not honoring these attachments,” Concannon said.

Under both the bill and current Kansas law, officials are required to focus on the child’s best interests when making decisions. But within that, current law gives first preference to adoption by a relative and second to a person with whom the child has close emotional ties.

While many people involved in child welfare issues acknowledge that reuniting siblings is often best, they also say the DeHavens’ situation underscores why other factors must sometimes also be taken into account.

“They don’t know her routine,” Nicole DeHaven said last week of the child’s new family. The family doesn’t know that “she likes a glass of milk before going to bed” or that she likes the milk in her Minnie Mouse sippy cup,” DeHaven said.

The DeHavens didn’t testify during Wednesday’s hearing and weren’t present. The Kansas Department for Children and Families also didn’t offer testimony. No one spoke against the legislation.

Just a few months ago, it appeared likely the DeHavens would be able to adopt the child. They had learned in October that Howard had decided to recommend the girl stay with them after initially recommending adoption by the Manhattan family.

While a judge must sign off on the adoption, the DeHavens had expected it to be a formality because of Howard’s change of course. However, Wilson ruled that Howard wasn’t looking out for the “best interest” of the foster child when she recommended that she stay with the DeHavens.

“Secretary Howard’s decision in this case, to overturn the decision made by agency workers, and, instead of allowing her to be adopted with her siblings, directly place (the little girl) in a home separate from her siblings and in a home that would, by all accounts, cut off all ties to (her) biological siblings, was not in (her) best interest,” Wilson ruled.

The DeHavens have said they are willing to keep up a relationship between the girl and her siblings.

The Kansas Judicial Council, a sort of think tank authorized under state law, last year studied the role of attachment in child placement decisions. In a December report, it recommended that children should not be removed from caregivers with whom they have a close and healthy relationship and placed with someone with whom they don’t have that same kind of relationship solely because the person is a relative.

Rachel Marsh, CEO of the Children’s Alliance of Kansas, spoke in support of the bill, saying it reflects a carefully considered approach to longstanding concerns surrounding the adoption process. How DCF policies are implemented can currently vary from region to region and court to court, Marsh said.

In some instances, the agency’s policies have been interpreted to exclude long-term foster parents from being eligible for consideration as adoptive parents when siblings or relatives are involved. While Marsh emphasized that her organization believes such cases are rare, she said the practice is problematic for the affected child.

“It recognizes that we have to consider healthy and close attachments for children,” Marsh said of the bill.

The Star’s Laura Bauer contributed reporting