Resurrecting Parents of Legal Orphans: Un-Terminating Parental Rights

Abstract

Despite federal and state legislation that requires termination of parental rights when a child has remained in foster care for a specified period of time, studies indicate that relationships with their biological parents (and other relatives) remain important to children in foster care.3 Especially for children whose parents’ parental rights have been terminated, the connection with their biological parent remains central to their development and these children make efforts to maintain that connection. Once it becomes clear that the purpose for terminating the parental rights (i.e., freeing the child for adoption) will not be served, in an increasing number of cases, the state child-placing agency, parent, or the child has approached the courts asking that the legal relationship between the parent and child be reinstated. Section I provides a brief overview of the Adoption and Safe Families Act, a federal law enacted in 1997 and its possible impact on the creation of legal orphans. Section II presents an overview of current state efforts to provide a mechanism by which parental rights may be reinstated. Section III explores court responses to individual requests to recreate parent-child relationships after termination of parental rights. Section IV outlines arguments related to res judicata and equal protection that may be used by parents when the court denies standing. Finally, section V proposes a method of temporarily terminating parental rights which ensures that children do not exit the foster care system without legal parents and discusses situations when the option may be most appropriate.

Keywords: reinstatement of parental rights, termination of parental rights, legal orphan