The Sky Is Not Falling: Lessons and Recommendations from Ten Years of Reinstating Parental Rights

As policymakers debate the merits of reinstatement statutes, three main objections are typically raised about permitting children to be returned   to their “rehabilitated” biological parents: (1) the number of adoptions will decrease, (2) courts and child welfare agencies will be burdened with reinstatement petitions, and (3) permitting reinstatement will limit efforts to terminate parental rights.

While little information has thus far been available about the frequency and impact of reinstatement, this Article presents both quantitative and qualitative information about experiences with reinstatement of parental rights. The data and anecdotal information discussed below suggest that the concerns about the impact of reinstatement of parental rights are likely unfounded.

After an introduction to the issues involved with reinstatement of parental rights and the typical cases where reinstatement has been utilized, the Article provides the data available about the number of cases where reinstatement of parental rights occurred. The Article concludes with a discussion of recent policy issues and proposed amendments to reinstatement statutes and provides recommendations for legislative next steps in this area of child welfare law.

II. Reinstatement of Parental Rights Is an Appropriate Permanency Goal for Some Children

Reinstatement of parental rights occurs in cases where the child welfare system terminated the biological parent’s rights, the child currently does not have a new legal parent or reasonable prospects of being adopted, and the court finds that the biological parent has alleviated the issues that led to the termination of parental rights.

For reasons such as a child’s age, ethnicity, special needs, or desire to remain in a sibling group, many children with terminated parental rights and a permanency goal of adoption may never find a “forever family” or may experience a broken or dissolved adoption. The federal government labels these legal orphans as “waiting children” for purposes of data collection. According to the federal government, there were 117,794 “waiting children,” or children waiting to be adopted, in the United States in 2016.

Another group of children potentially benefiting from reinstatement  of parental rights is adolescents whose parents’ rights were terminated. Those children, however, have a permanency goal of emancipation, rather than one of adoption. A goal of emancipation is sometimes called a goal of “independent living,” and it falls within the category of “Another Planned Permanent Living Arrangement” (APPLA) under the Adoption and Safe Families Act (ASFA). While these children are also legal orphans, they are no longer counted as “waiting children” by the federal government because their permanency goal is not adoption. Since the system is not searching anymore for an adoptive family for these youth, who are typically age sixteen or older, reconsidering their biological parents may be their only feasible option for a legal-parent relationship. According to the federal government, there were 17,394 children with the goal of emancipation in 2016 across the United States.

The last major category of children who may be appropriate for reinstatement of parental rights is older youth whose parents’ rights were terminated by the child welfare system, youth who are likely to “age out” or otherwise leave the custody of the child welfare agency. Given that former foster youths report high rates of contact with biological families after exiting the system, investigating the viability of reinstatement of parental rights prior to exit from the system may provide the child desperately needed supports, legal and otherwise, as they transition into adulthood. The federal government refers to this category of older youth who leave the child welfare system as “emancipation exits.” While there were 22,932 emancipation exits in the child welfare system in 2014, it is important to note that the number of children aging out of the child welfare system has fluctuated, with a low in 2002 of 20,358 to a high in 2011 of 26,286.

At least for some of the waiting children—children with a permanency goal of emancipation or children exiting or aging out of the system— locating their biological parents to assess their ability to care for the child seems an appropriate permanency-planning tool. Perhaps, if “reinstatement of parental rights” was a permanency goal at both the federal and state level, this option would be utilized more for children. At this time, of  the eighteen states with reinstatement statutes, only North Carolina has created a separate permanency goal of “reinstatement of parental rights.”

III. "Typical” Cases Where Considering Reinstatement of Parental Rights May Be Appropriate

In considering the impact and usefulness of reinstatement of parental rights, it is helpful to understand what kinds of cases or circumstances might be appropriate for the reinstatement of parental rights. After conducting interviews with practitioners in states with reinstatement statutes, the cases where petitions to reinstate parental rights were filed fall into four categories: (1) extraordinary circumstances preventing biological parent involvement, (2) caregiver illness and biological parent already re- involved, (3) aging out youth already planning to live with a biological parent, and (4) youth with an emancipation goal and the biological parent is located.

The first category is where extraordinary or unusual facts prevented the involvement or location of the biological parent. For example, in one case, a father’s parental rights were reinstated for a thirteen-year-old boy who had not yet been adopted after his parents’ rights were terminated five years before. The background to this story was that after a severe natural disaster in his hometown, the boy had moved with his mother to a new state and lost contact with his biological father, whom he had seen only a few times before. When the child was removed from his mother due to neglect, child welfare officials were unable to locate the father or other relatives. Because the mother was unable to be reunified with the child, parental rights were eventually terminated. Several years later, through the use of social media, the child was able to locate his father and some paternal relatives in yet another state. After the child shared this information with his lawyer, the lawyer filed a successful petition to reinstate parental rights with his father.

Another type of common case where reinstatement of parental rights occurs is when the current caregiver, either the foster parent, kinship legal custodian, or adoptive parent, has become sick or is no longer able to continue to care for the child and the biological parent has already been present in the child’s life. Several child welfare professionals  shared stories of cases where circumstances, such as an ill grandparent or great-grandparent, prevented the kin caregivers from continuing to care for a child. In these cases where reinstatement of parental rights occurred, the biological parent had typically also previously reestablished a relationship with the child due to continued family connections. For instance, one attorney reported that the parental rights were reinstated for the biological mother of her client who had an emancipation goal but who was living with the maternal grandmother in a kinship foster care home. The grandmother was diagnosed with cancer and became very ill. Because the biological mother had been seeing the child several times a year for family holiday celebrations already, the court agreed that reinstatement of parental rights was appropriate.

The third category of reinstatement cases involves teenagers, with any permanency goal, who have expressed a desire to leave the custody of the child welfare agency upon their eighteenth birthday or who  might run away before they turn eighteen and who are also planning to live with a biological parent with whom they have maintained contact. The child welfare professionals indicated that, in these cases, using the statute to reinstate parental rights is a “last-ditch effort” to try to create a legal parental relationship for teenagers before they leave the child welfare system. While the professionals reported that courts were not always willing to grant this kind of petition to reinstate parental rights, counsel for the aging-out youth reported the importance to the teenager of trying to restore a legal relationship with the biological parent. For example, one aging-out young person expressed that she believed reinstatement would help her feel more emotionally and financially secure, and that she might be more welcome back into the biological parent’s home with a reinstated legal relationship.

Finally, the last type of case where reinstatement of parental rights is generally used is when the child has the goal of emancipation and has planned to stay in the system until age twenty-one, but the biological parent has become reengaged in the child’s life. For these youths who are working towards an independent-living goal, the reentry of a biological parent presents an opportunity to have a different future with potentially more support and legal rights. The attorney reported that one seventeen- year-old client did not know if he would want or need to live with his biological mother after he turned eighteen, but by having his biological mother become his legal parent again, it provided options and connections he had not thought were going to be possible for him. He also looked forward to being in the lives of, and legally connected to, his younger half- siblings, whom his mother was currently raising.

IV.  Impact of States’ Statutes on Reinstatement of Parental Rights

Each of the eighteen states that have enacted statutes has differing criteria for when and how reinstatement of parental rights should be considered in a case. These include the minimum age of the child, how much time must have passed since the termination order, which party may file a petition for reinstatement of parental rights, and the evidentiary burden of  proof.  For  example,  most  states  allowing  reinstatement  of parental rights require the court to evaluate: (1) whether there is a likelihood of permanency in the future for the child, (2) whether the parent has rehabilitated herself, (3) whether both the child and biological parent are freely consenting to reinstatement, (4) the success of some period of trial reunification between the child and biological parent, and (5) if reinstatement is in the best interest of the child. However, California and Nevada, both among the first to enact these statutes, do not provide as much direction to the court and child welfare system about the process to use and factors to consider when reinstating parental rights.

There is not much available data on the number of reinstatements in each state with a statute. While none of the eighteen states shares the number of reinstatements on their publicly available data websites, six states were able to compile data using either court-filing data, child welfare case management data (known as Statewide Automated Child Welfare Information Systems, or SACWIS), or staff surveys. Those states are Colorado, Delaware, Maine, Minnesota, Virginia, and Washington.

While these six states were able to provide statewide comprehensive data, other jurisdictions, such as New York, could only provide data for some parts of the state. Some states could share anecdotal numbers but did not have reliable data suitable for publication about the number of reinstatements. Other states reported that they were in the process of updating court or child welfare data systems to track this issue. Lastly, several states did not respond at all after repeated inquiries to the child welfare agency and/or court system.

Given all the differing criteria among the reinstatement statutes, analyzing the available data about the number of reinstatements in the context of the state’s specific statute and child welfare system is critical. For example, the age requirement of the child, number of years required since the termination of parental rights, and who can file a petition seeking reinstatement could all impact the pool of eligible cases potentially considered for reinstatement in a given jurisdiction. The data available  as to a state’s number of waiting children, emancipation exits, and runaway exits may also help to demonstrate the potential usage rate of the reinstatement statute in a particular jurisdiction. Finally, reviewing the number of children adopted in the child welfare system before and after the reinstatement statute also provides some information about the provision’s possible impact on the children welfare system.

Below is a summary chart of the number of reinstatements by state, along with profiles of six states able to provide official statewide data for this Article.

A.  Colorado

Colorado’s statute to reinstate parental rights was enacted in 2014; it requires that children be at least twelve years old or be part of a sibling group where at least one child is age twelve. Colorado also requires that three years have passed since the order terminating parental rights or a showing that less than three years is still in the best interest of the child. Colorado permits the child welfare agency, the child’s attorney, or the child (if over the age of sixteen) to file a petition requesting reinstatement of parental rights.

In 2014, Colorado reported 5,787 children in foster care, 1,008 waiting children, 314 emancipation exits, and 101 runaway exits. Between August 2014 and September 2016, the Colorado Court Services Division reported that five petitions seeking reinstatement of parental rights had been filed and four were granted. Therefore, at this point, on average just over one petition to reinstate parental rights is filed per year statewide in Colorado.

As to whether the reinstatements have impacted the rate of adoptions for children involved with the Colorado child welfare agency, the adoption data show 782 adoptions in 2013 and then 769 adoptions in 2014 after the statute was enacted. However, while the rate has remained constant over the years for which data is available, given how recently Colorado’s statute was enacted, the impact, if any, on the rate of adoptions is uncertain.

B.  Delaware

The state of Delaware enacted its reinstatement of parental rights statute in 2013; it requires that children be at least fourteen years old for reinstatement to be considered. Delaware also provides that two years must have passed since the order terminating parental rights or that the child be seventeen years old. Delaware permits the child welfare agency, the child, the child’s guardian ad litem, or the child’s attorney to file a petition requesting reinstatement of parental rights.

In 2014, Delaware reported 635 children in foster care, 202 waiting children, 72 emancipation exits, and zero runaway exits. Since the statute’s enactment in 2013, the Office of the Child Advocate in Delaware reports that four petitions seeking reinstatement of parental rights had been filed and all four were granted. This averages about one petition per year filed to reinstate parental rights.

As for the impact on child welfare agency adoptions, the number of adoptions in 2012, which was the year prior to enactment, was 91. In 2013, there were 112 adoptions, and then 84 adoptions in 2014. Again, given how recently Delaware’s statute was enacted, the impact, if any, on the adoption rate is unknown.

C.   Maine

Maine’s statute to reinstate parental rights, enacted in 2011, does not include a minimum age but does require that children over age twelve consent to the reinstatement. Maine requires at least twelve months to have passed since the termination of parental rights. The statute only permits the child welfare agency to file a petition requesting reinstatement of parental rights.

In 2014, Maine reported 1,864 children in foster care, 590 waiting children, 62 emancipation exits, and zero runaway exits. The Maine Office of Children and Family Services reported in September 2016 that five petitions seeking reinstatement of parental rights had been filed since the statute’s enactment, and all five were granted. This is an average of one petition for reinstatement per year.

As for whether the reinstatement statute has impacted public agency adoptions, Maine’s adoption data shows 276 adoptions in 2010 and then 296 in 2011. Subsequently, there were 291 adoptions in 2012, 214 in 2013, and 295 in 2014. Over this five-year period, the adoption rate has remained relatively stable and does not seem to have been impacted by the reinstatement statute.

D.   Minnesota

The statute to reinstate parental rights in Minnesota, enacted in 2013, requires that children be at least fifteen years old and that thirty-six months have passed since the order terminating parental rights. Minnesota only permits the child welfare agency to file a petition requesting reinstatement of parental rights.

In 2014, Minnesota reported 6,324 children in foster care, 1,188 waiting children, 354 emancipation exits, and 47 runaway exits. The Minnesota Family Courts reported that twenty cases had parental rights reinstated between 2013 and 2015. While this averages to be just over six petitions filed by year, the exact annual breakdown is:

• 2013: 3 reinstatements granted, none denied;
• 2014: 13 reinstatements granted, none denied; and
• 2015: 4 reinstatements granted, none denied.

As for whether the reinstatement option impacted the rate of adoptions in Minnesota, the adoption data before enactment show 520 adoptions in 2012. The number of adoptions was then 583 in 2013 and 642 in 2014. With only three years of adoption data available to consider, it is difficult to assess the impact on the number of adoptions. However, given that the rate has increased both years since enactment, it is unlikely that having a reinstatement option has negatively impacted the rate of adoptions.

E.  Virginia

After the legislature requested a study on the issue, Virginia then enacted a statute to reinstate parental rights in 2013. The statute permits both the child welfare agency and the child to file a petition requesting reinstatement of parental rights. The statute requires that children be at least fourteen years old, except that younger children can file if the agency joins in the petition or the younger child is part of a sibling group where at least one child is fourteen years old. Virginia requires two years to have passed since the order terminating parental rights, unless the child will turn eighteen before that two-year period has ended.

In 2014, Virginia reported 4,597 children in foster care, 1,532 waiting children, 518 emancipation exits, and 1 runaway exit. The Virginia Department of Juvenile Justice reported that six petitions seeking reinstatement of parental rights had been filed since enactment in 2013 and all six were granted. This averages to less than one petition to reinstate parental rights filed per year.

In 2012, the year before enactment, Virginia’s adoption rate was 639. In 2013, there were 709 adoptions and then in 2014, there were 632 adoptions. Again, because Virginia began reinstating parental rights so recently, there is not much adoption data to review. However, given that the number of adoptions remained stable after enactment of the statute, it appears there was no negative impact.

F.  Washington

Washington enacted a statute to reinstate parental rights in 2007, making it one of the earliest states to have done so. The statute requires that children be at least twelve years old. Younger children could also be the subject of a reinstatement petition, but only if good cause can be shown. Washington also requires three years to have passed since the order terminating parental rights. The statute further provides that only the child may file a petition requesting reinstatement of parental rights.

In 2014, Washington reported 10,630 children in foster care, 3,213 waiting children, 298 emancipation exits, and zero runaway exits. The Children’s Administration in the Washington Department of Social & Health Services reported that, according to  court records, between July 2007 and September 2016, 64 petitions seeking reinstatement of parental rights were filed. Of the petitions filed, only 23 were granted statewide. This averages about eight petitions filed per year and less than three petitions granted per year.

The exact annual breakdown of petitions filed and granted per year is:

• 2007: 10 petitions filed, 3 granted;
• 2008:   8 petitions filed, 3 granted;
• 2009:   5 petitions filed, 1 granted;
• 2010:   3 petitions filed, 3 granted;
• 2011:   2 petitions filed, 1 granted;
• 2012:   6 petitions filed, 2 granted;
• 2013:   3 petitions filed, 1 granted;
• 2014:   2 petitions filed, 1 granted;
• 2015: 10 petitions filed, 2 granted;
• 2016: 3 petitions filed, none granted.

As for the impact on adoptions in Washington, in 2006, which was the year prior to enactment, there were 1,195 adoptions. In 2007, the number of adoptions was 1,291, and then in the subsequent years, the numbers of adoptions were:

• •  2008: 1,261 adoptions;
• •  2009: 1,634 adoptions;
• •  2010: 1,633 adoptions;
• •  2011: 1,583 adoptions;
• •  2012: 1,227 adoptions;
• •  2013: 1,328 adoptions;
• •  2014: 1,362 adoptions.

Given the multiple years of data available on adoptions since enactment and given that each post-enactment year had more adoptions than pre- enactment years, it would seem that the reinstatement option does not appear to have had a negative impact on the rate of adoption in Washington.

V. Policy Considerations and Recommendations for the Future of Reinstating Parental Rights

As demonstrated by the small numbers of reinstatements and consistent adoption rates from the available data, this permanency option is unlikely to be a burden on resources or have a negative effect on the number of adoptions in a jurisdiction. The available data suggest that such concerns are likely unfounded and that policymakers across the country should enact statutes to reinstate parental rights that fully address lessons learned thus far from the eighteen states.

Since available data suggests that reinstatement of parental rights is not being utilized in a large number of cases, policymakers might consider whether the eligibility criteria could be altered to allow even more children to find permanency. In other words, policymakers should evaluate whether the age of the eligible child might be lowered, the required waiting period after the termination of parental rights should be shortened, and/or more parties should be able or required to file petitions to reinstate rights.

For example, the Minnesota legislature is considering a bill that would lower the age of children from fifteen to ten, reduce the waiting period from thirty-six months to eighteen months, and allow parents to file petitions. By opening up reinstatement to a potentially larger pool of eligible children and allowing parents to files petitions, Minnesota would likely be increasing the number of children finding permanency with reinstatement of parental rights.

Virginia is another state considering an amendment to its restoration  of parental rights statute. The proposed legislation in Virginia questions whether there should be a mandate for the child welfare agency or child’s attorney to investigate and propose the option of restoration of parental rights under certain circumstances. House Bill 1219 requires, among other things, that the child welfare agency and child’s attorney investigate the possibility of restoration of parental rights at the annual foster care review hearing for some children. The bill also gives the court authority to order the child welfare agency or the child’s attorney to conduct an investigation into the possibility of restoration of parental rights if the child meets the criteria and is interested in pursuing restoration.

Nonetheless, given the current small number of reinstatements to date, the most obvious lesson for stakeholders is that reinstatement of parental rights is simply an option that should be added to the “permanency toolbox” available to children and families in every state. As dedicated child welfare professionals, attorneys, and judges try to create positive outcomes for the almost 150,000 waiting and aging-out children across the country, states with reinstatement statutes have one more option to at least consider when searching for permanency for these youths. As called for by the National Council of Juvenile and Family Court Judges, every state should have a law allowing for reinstatement of parental rights.

One way to encourage more states to enact these provisions is for    the federal government to add reinstatement of parental rights as a “permanency goal” to the reporting data required annually by the Adoption and Foster Care Analysis and Reporting System (AFCARS). Such a requirement would have the double advantage of requiring all states to accurately track and publicly report the number of reinstatements each year. By adding reinstatement of parental rights as a permanency goal tracked by the Children’s Bureau at the U.S. Department of Health and Human Services, the child welfare system would be further encouraged to develop individually tailored permanency plans and allow for publicly available data to hold systems accountable for all permanency outcomes.

Over the past few years, states have amended statutes to address other public policy issues related to reinstatement, and they should continue to address these when drafting new legislation and when offering training for child welfare professionals, attorneys, and judges. First, most of the statutes about reinstating parental rights require that the child “not yet [have] achieved permanency” or not yet have been adopted or appointed a new legal parent. Such language, however, may eliminate the reinstatement option for children who may have achieved permanency through adoption or other permanency goal that has since failed or dissolved.

In 2010, in In re the Interest of J.R., Washington was the first state to at least publicly struggle with this issue. The appellate court found that the reinstatement statute, as originally enacted, did not permit courts to consider reinstatement for parents of children who had achieved a permanency goal that later failed. The Washington legislature resolved the issue by amending the statute to read that a court may consider reinstating parental rights when a child had not yet achieved a permanency plan or when “the child achieved a permanency plan [that was] . . . not . . . sustained.”

Depending on the language of a state’s provision or the statutory construction principles in a given jurisdiction, an amendment to legislation may not be needed to cover children whose permanency goals are no longer viable. However, most of the more recent reinstatement statutes have included language to address situations in which prior permanency goals have failed.

Another problem arises when reinstatement of parental rights is applied to some but not all siblings. In states where the statute has a minimum age requirement with no flexibility, not all the siblings may be old enough to join in a petition to reinstate parental rights. In those scenarios, professionals have found themselves in the awkward position of having to explain to one or more siblings that, unlike an older brother or sister, they are not yet old enough to go home with the biological mother or father. This creates tension among the siblings, increases frustration in all involved, and wastes resources by requiring the later filing of one or more almost-identical petitions for those younger siblings.

While some of the more recently enacted statutes have created the flexibility needed for younger siblings, other states force younger siblings to wait until they reach the minimum age requirement in the statute. However, attorneys from a couple of states reported that discussions were happening to try to amend their statutes to address cases with failed permanency and/or younger siblings.

Another policy issue that may require legislative action stems from what appears to be an unintended consequence for older youth. The statutes usually require that a certain number of years must pass before a court can consider the reinstatement of parental rights. However, depending  on the age of the child, this period of waiting could conflict with when the child turns eighteen. In other words, there may not be two or three years between when the termination of parental rights occurred and the child’s eighteenth birthday. Because the statutes all refer to “children” and the age of majority in most states is eighteen, courts may not be able to consider reinstatement of parental rights in cases in which a young person has reached the age of eighteen. Some states statutes, however, already include language to address this situation. For example, Virginia’s statute provides that two years must pass after the termination order, except in instances in which a child will turn eighteen before the end of the two-year period.

While there have been reported decisions about whether a legislature intended to include circumstances of failed permanency, there have been no reported cases about the conflict between the number of years since termination and the child reaching age eighteen. This could mean that the issue has not yet arisen or that courts are choosing to “waive” the waiting period for older children with the parties’ consent.

VI. Conclusion

After ten years of reinstating parental rights for some families, it is clear that reinstatement of parental rights can be a useful permanency tool for a limited number of children. By creating a statutory right to reinstatement, policymakers are expanding the options for children who would otherwise leave the child welfare system with no legal connections to a family.

Given the restrictive criteria in the existing reinstatement statutes across the country, the available data and information suggest that the number of petitions for reinstatement is not and would not be a burden on the courts or child welfare agencies. Additionally, as the adoption data in states with these statutes have remained relatively stable, there also does not seem  to be a negative impact on the rate of adoptions. Thus, slippery-slope concerns about the decline of adoptions and the child welfare system being overwhelmed with reinstatement requests seem to have not materialized.

Based upon the experience with reinstatement statutes over the past ten years, Congress should amend federal law to create “reinstatement   of parental rights” as an approved permanency option for children. This federally sanctioned option would encourage or even require states to enact statutes providing the option for the more-than 100,000 children who are waiting to be adopted, whose adoption has dissolved, or who are aging out of the child welfare system with no legal parent in the United States.

Finally, as the legislative findings from the recently enacted Arkansas statute reinstating parental rights succinctly state, these statutes are intended to: (1) provide additional options to the child welfare system, and (2) find permanency for children in the foster care system.