June 01, 2015

Previously Adopted Child Could Reinstate Birth Parent's Rights

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re T.H., 2015 WL 1926287 (Okla.).

Where child’s birth parents’ rights were terminated and, years later, adoptive parents’ rights were also terminated, three-year timeframe for failing to reach permanency under reinstatement statute could run from first termination order. To interpret statute to require another three years to run from second termination ran counter to overall intent of statute to promote timely permanence for all children.

When child was three years old, her parental rights were terminated. She was adopted approximately a year later. She lived with her adoptive parents until she was 15 when she alleged her adoptive father had been sexually abusing her for around 10 years. Both adoptive parents consented to termination of parental rights.

The child then filed a petition to reinstate her birth mother’s parental rights. 

A state statute allows for reinstatement of parental rights of a parent when the parent is shown to be fit, the child is dependent, rights were terminated under state statutory section 10A, the child had not achieved permanence within three years of a final termination order, and the child is age 15 or older when she files.

At the trial court, the state disputed whether the child had ‘not achieved permanency’ within three years of the termination order. Her adoptive parents’ rights has been terminated a short time before.

The trial court denied the petition and the Court of Appeals affirmed. The Oklahoma Supreme Court granted certiorari. The court reversed the lower court and remanded the case. 

The court noted this was a novel issue regarding a relatively new statute. At dispute was the interpretation of the meaning of achieving permanency under the statute. 

The child contended that ‘has not achieved permanency’ could mean either that the child had never achieved permanency or that she lacked permanency at the time of the petition. It was not disputed that she lacked permanency at the time of the petition, she did not have parents with rights who could legally reunify with her or other options. She urged that the overall goal of the statute was to promote all children finding some form of permanency. Requiring another three years for the agency to work toward permanency, in her case, would ensure she did not reach permanency since she would then be 18.

The court concluded more than one reasonable explanation of the element could exist. Thus, the court examined the statute and other sections of the state Children’s Code. The court agreed with the child that the overall intent of the Children’s Code was to promote timely safety and permanency. Requiring a child to wait three years after a second termination to examine the possibility of reunification with an alleged now fit biological parent, went against those primary purposes.