(Re-)Grasping the Opportunity Interest: Lehr v. Robertson and the Terminated Parent

Abstract

Nearly 59,000 legally-free youth in the United States foster care system are waiting to be adopted. Some of these youth have biological parents who have rehabilitated and can provide care for them but the prevailing view that the parents are legal strangers to their children – persons with no legal rights or responsibilities – creates unnecessary roadblocks in their attempt to regain custody.

This article seeks to eliminate that barrier by relying on the Supreme Court’s decision in Lehr v. Robertson to assert that terminated parents retain an opportunity interest in their un-adopted biological children and cannot be prohibited from “re-grasping” that interest. As such, states must clearly set forth a process by which the interest can be converted into a legally-recognized right. Currently, parents in 19 states can look to state reinstatement statutes for such a process. However, this article sets forth reasons why those laws are legally insufficient.

To provide context, the article begins with a discussion of the constitutional rights of parents to the care, custody and control of their children, how those rights are terminated and the consequences of termination. Section IV introduces the concept of a retained opportunity interest and explains how that interest can be re-grasped. Lastly, Section V discusses how amending the federal Adoption and Safe Families Act (ASFA) to include post-termination reunification as a permanency option will satisfy the constitutional mandate.

Keywords: legal orphans, retained opportunity interest, termination of parental rights, ASFA, permanency options