REINSTATEMENT OF PARENTAL RIGHTS

IN GEORGIA

A Presentation by:Hon. J. Lane Bearden, Juvenile Court of Gordon County1

Elinor Portivent, Esq. LAW FIRM OF SCOTT J. FORSTER2

Brent Erwin, Esq. JONES & ERWIN3

Oct 2011

A FEW QUESTIONS OF FORM

IT IS NOT REALLY REINSTATMENT WHEN RIGHTS ARE RESTORED BEFORE TERMINATION ORDER IS FINAL

DISCRETIONARY APPEAL PROCEDURE HAS BEEN UPHELD4

“REINSTATEMENT” OR “RESTORATION” OF PARENTAL RIGHTS?

Approximately thirteen states have legislation in place that allows for the re-establishment5 of parental rights following termination of parental rights.

“Restoration” - New York, Texas, Louisiana, Arizona, Michigan, Alaska, California, Nevada.6

“Reinstatement” - California, Hawaii, Illinois, Oklahoma, Washington, and the Proposed Georgia Code.7

WHAT CAN PARENTS DO?

MOTION FOR RECONSIDERATION OR MOTION TO SET ASIDE8

STANDING: THE TERMINATED PARENT IS NOT A PARTY AFTER APPEAL IS OVER?9

THE ROLE OF A GUARDIAN AD LITEMS/CHILD ADVOCATES/CHILD ATTORNEYS IN

REINSTATEMENT

APPEAL OF TPR BY THE 10GAL/CATY/CADVA

COLLATERAL ATTACK OF THE TPR ORDER(service, language, jurisdiction)

ARGUABLY, ADVOCATES FOR BEST INTEREST, NOT WHAT CHILD WANTS11

BUT THE GAL MAY NOT BECOME THE PETITIONER IN A TPR12

GAL/CATY/CADVAMAY FILE:

MOTION FOR CHANGE OF CUSTODY

MOTION FOR JUDICIAL REVIEW

MOTION TO VACATE13

DFCS PLACEMENT OF A CHILD WITH A PARENT WHOSE RIGHTS HAVE BEEN

TERMINATED?

DFCS POLICY 14

CAN REINSTATEMENT BE CONSIDERED KINSHIP CARE OR FICTIVE KIN?

PLACING WITH TERMINATED PARENT AGAINST DFCS WISHES?15

OTHER WAYS A CHILD CAN BE RETURNED TO A TERMINATED PARENT

NOT QUITE REINSTATEMENT: RETURN OF PHYSICAL CUSTODY TO A PARENT16

PLACEMENT DIRECTLY BY THE COURTGuardianshipCustody until 18

GOING TO EXTREMES: ADOPTION BY A PARENT17

THE ARGUMENTS FOR AND AGAINST REINSTATEMENT

“Children should not be required to linger indefinitely in foster care” and “[i]t is well established that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.”18

NEVER SAY NEVER:THE CASE FOR PLACING A CHILD BACK WITH A PARENT

WHOSE RIGHTS HAVE BEEN TERMINATED

Substantial change of circumstances for the child

Change of prospective adoptive parents

Substantial change of circumstances for the parent(s)

Avoiding the aging out of legal orphans

Reinstating parental rights without placing the child back with the parent

REINSTATEMENT AFTER FAILED ADOPTION

When an adoption fails- Surrender by adoption parents (to DFCS?)- Superior Court sets aside adoption- TPR of adoptive parents

NO SECOND BITE AT THE APPLEThe Case Against Reinstating Parental Rights

Res Judicata. A matter, having been adjudicated, shall not again be adjudicated19

Children will sabotage placement hoping to reunify

Parents will sabotage in hopes of regaining custody

If they were the last people on earth … reunification at any cost?

Alternatives to being a legal orphan

REINSTATEMENT UNDER THE PROPOSED

JUVENILE CODE (H.B. 641)

REQUIREMENTS OF PROPOSED O.C.G.A. 15-11-323:

Three years from the date of termination order

Court has determined that adoption is no longer the permanent plan

Child may petition to reinstate parental rights

Agency with custody must stipulate that adoption is unlikely

PROCEDURE OF PROPOSED O.C.G.A. 15-11-323:

Procedure is same as modification of order pursuant to O.C.G.A. 15-11-32

Retroactive – applies to all children under jurisdiction of the court, regardless of TPR date

Child over 14 shall sign petition

Parent and foster parent have right to be heard, but are not parties

Motion shall be dismissed if the parent cannot be located

REQUIRED FINDINGS OF PROPOSEDO.C.G.A. 15-11-323:

Clear and convincing standard of evidence

Child is no longer likely to be adopted AND reinstatement is in child’s best interest

Reinstatement “shall be a recognition that the situation of the parent and child has changed since the time of the termination of parental rights and reunification is now appropriate”.

CONSIDERATIONS PROPOSEDO.C.G.A. 15-11-323:

Court shall consider:

(1) Is parent fit, remedied deficits in record of TPR?

(2) Age and maturity of child, and child’s preference

(3) Will reinstatement risk health, welfare or safety?

(4) Other material changes in circumstances since TPR

POST REINSTATEMENT OF PROPOSEDO.C.G.A. 15-11-323:

An order granted under this Code section reinstates the parental rights to the child.

Child may be immediately placed with reinstated parent.

A review hearing will be scheduled within six months.

If a transition period is necessary and the child is in DFCS custody, Court may order DFCS to provide transition services to the family.

RESEARCH GUIDE: REINSTATEMENT OF PARENTAL RIGHTS

National Conference of State Legislatures Guide to State Restoration/Reunification laws20

Judicial Guide to Fostering Connections21

Role of the Guardian22

See Schmidt & Dabney, Restoring Parental Rights: Giving Legal Orphans a Chance at Family, 25 ABA Child Law Practice at 170-171 (2007).