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Foster parents can petition for guardianship of children placed in their care.

Foster parents who have cared for a child most of his or her life can petition for guardianship, the Delaware Supreme Court has ruled. (Division of Family Services v. Harrison, Nos. CN95-07233, CN93-11131, 1999 WL 989094 (Del. Oct. 28, 1999).)

The state Division of Family Services placed David Harrison with foster parents Bryce and Laurissa Butler when he was four months old. About two years later, the agency initiated a gradual reunification program for David and his biological father, Ralph. The trial court stayed the Butlers' petition for guardianship to give Ralph an opportunity to show that he could adequately care for his son. About a year later, the court granted the Butlers' petition, finding David's well-being would be threatened if he were returned to Ralph's custody.

On appeal, the Division of Family Services argued that the trial court erred in granting the Butlers guardianship on the ground that foster parents do not have standing to seek or contest custody awards for foster children without the agency's consent. Rejecting this argument, the high court cited case law granting foster parents standing to bring custody actions against natural parents and the Division of Family Services.

Noting that the issue of standing to petition for guardianship was a matter of first impression, the court emphasized that the Butlers are not seeking to intervene in a case where their interests already are represented adequately.

Instead, the court said that the Butlers' interests are adverse to both the Division of Family Services and David's biological father and therefore should be represented. Further, the court found that the Butlers have an expectation of permanency because David has never been returned to Ralph's custody.

The court wrote, "Having cared for David for most of his life, the Butlers enjoy a legally protected interest, distinguishable from others having an interest, in petitioning for guardianship of David." The court concluded that the Butlers are entitled to pursue their petition.
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Title Annotation:Delaware
Author:Levy, Stephanie
Geographic Code:1U5DE
Date:Feb 1, 2000
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