With rising numbers of children under state supervision and a worsening shortage of foster families, more states have made it easier for parents whose rights to their children were terminated to renew those relationships, sometimes years after a court terminated legal ties.
Severing parental rights is the nuclear option of child protective services: The adult can no longer visit or contact their children, and the kids are known as “legal orphans,” because in the court’s eye, they have no parents. Still, the situation is becoming more common: In 2017 nearly 70,000 such orphans across the country were awaiting adoption, nearly a fifth more than in 2013.
This year, three states — Arkansas, Minnesota and Oklahoma — enacted laws easing the path to restoring parental rights. The laws range from allowing parents to petition courts directly for the re-connection to allowing younger children to make the request themselves. A handful more states have parental rights bills pending.
“We’re in an era where we’re smarter,” said Minnesota State Rep. Rena Moran, a member of the Minnesota Democratic-Farmer-Labor Party, who sponsored the parental rights bill.
“We had this system that was punitive, that said, ‘We are going to remove these kids from these bad parents and keep them safe,’” she said. “But it’s not enough to remove them from their homes, place them with strangers and say, ‘You’re safe now; be happy.’”
The uptick in legislation is the result of several interlocking trends.
State and local agencies increasingly recognize that children fare best with families, and maintaining contact with biological parents, when appropriate, can help them overcome the trauma of separation, child welfare experts say. A 2018 federal law addressing the foster care system reflects this perspective, funneling foster care payments into prevention to keep kids from entering the system in the first place.
Meanwhile, because of the opioid and meth epidemics, more children are entering the foster care system, creating a shortage of available foster families. Some states have stepped up efforts to recruit extended family members to foster displaced children.
And at the same time, an increasing number of foster youth are exiting the child welfare system without an adoptive or biological family to call their own. This means that, in many states, in addition to losing emotional bonds with their parents, those young adults lose the rights to inheritance and Social Security Survivor benefits, said LaShanda Taylor Adams, a professor at the University of the District of Columbia’s David A. Clarke School of Law and a noted scholar on child welfare laws.
Adoptions have not kept pace with the number of kids whose parents have lost their rights, according to a 2018 report by the American Bar Association.
And many children do not find a permanent family after their parents’ rights are terminated, according to a 2014 report published in the University of Michigan Journal of Law Reform. Over the past several years, more than 100,000 children whose parents have had their rights terminated were awaiting adoptions, the report said.
The state laws represent a recognition “that families change over time, and circumstances change over time,” said Ann Flagg, who heads the Center for Child and Family Well-Being at the American Public Human Services Association, an Arlington, Virginia-based nonprofit representing state and local health and human service agencies.
With appropriate levels of support, restoring parental rights “can be an option — certainly when other options don’t present themselves earlier in a child’s life,” Flagg said.
Most children are in foster care because of poverty-related neglect or addiction. In 2017, the most recent year for which data is available, 62% of the nearly half-a-million children in foster care were there at least in part because of neglect; 36% for drug abuse and 10% for housing issues, according to the federal Adoption and Foster Care Analysis and Reporting System. Some of the reasons overlap.
Fifty-six percent of them had a case plan envisioning reunification with their parents.
But critics worry few parents who have had their parental rights terminated fulfill their responsibilities once they are reinstated, and that returning kids to unfit parents will jeopardize their safety. It’s hard to confirm how many parents succeed; the federal government doesn’t track parental reinstatements and few states track it as well or publish this data.
“In my experience, it wasn’t overly successful,” said Chris Henderson, executive director of the Colorado Office of the Child’s Representative, which represents children in the court system. “It’s few and far between, when a parent is rehabilitated. I’m glad there’s a vehicle for them.” He said he just wishes more parents were rehabilitated enough to get their parental rights reinstated.
As an example, he said, his agency represents six children who’d been living with their grandmother because their mom’s parental rights were terminated following her struggles with mental illness and addiction. Their father was long gone.
“We kept trying to give Mom a try,” Henderson said. And then the grandmother died. So Henderson decided he’d give the mother another chance — maybe she’d had a “wakeup call.”
“You never want to judge a parent on their worst day,” Henderson said. “Just because they went to termination once, that doesn’t mean that’s who they are now. But the system has to have a safeguard.”
In this case, reunification was not to be: Henderson discovered the mother had another family — and that she’d been charged with abusing her other children.
In nearly every state, parents who have lost their parental rights can’t ask to renew contact; only the state child welfare system or the child may ask a judge for reunification.
Until last month, only New York allowed parents to directly petition the court for reinstatement. (Alaska allows a parent who voluntarily relinquished their rights to ask a judge to vacate the termination order before the child is adopted.)
Then Minnesota Gov. Tim Walz, a Democrat, signed a bill granting terminated parents a chance to have parental rights restored provided their parental rights were not terminated due to “egregious harm.” Parents can petition to have their rights reinstated if they were terminated because of chemical dependency or mental illness, but not for physical, sexual or psychological abuse.
Some observers say those options are needed. Child welfare agencies aren’t likely to lobby for reinstatement if they were the ones who’d pushed to have the parent’s rights terminated in the first place, Adams said.
And without adequate legal representation, Adams said, most children’s petitions are typically rejected by courts.
Minnesota’s new law expands on a 2013 law that allowed children 15 and older who hadn’t been adopted to petition to be reunited with their parents, according to Nikki Farago, Minnesota’s assistant commissioner for Children and Family Services.
“The idea was to provide another permanency option for older youth who would otherwise age of out of foster care” without a family, Farago said in an email statement.
Farago said the success of the law will depend on providing support to both parents and kids, such as meeting with a therapist to ensure a smooth transition. She also said there is some concern that children may sabotage adoption efforts in hopes of being reunited with their parents.
Other state lawmakers have taken different approaches to tackling the same issue.
In Arkansas, lawmakers in March amended the state’s parental rights law, eliminating the three-year-waiting period after termination for parents who want their rights reinstated, as long as reinstatement is in the best interest of the child, and the child hasn’t found a permanent family and isn’t likely to.
Oklahoma in April enacted a law allowing 14-year-olds to request parental rights to be restored. In Connecticut, a similar bill died in committee in March.
Meanwhile, New York lawmakers are debating a bill that would allow parents to visit children after their parental rights are terminated — even if their kids are adopted by another family.
Meredith Schalick, a professor at Rutgers Law School and a leading expert on child welfare law, said family unification laws will help only “a very narrow” group of children.
This is because even under the new laws there are strict eligibility rules, such as who can file for reinstatement; limiting the age of the child; and requiring that a significant amount of time has passed since the parental rights were terminated. Most child welfare staff, children’s attorneys and judges aren’t aware that reinstating parental rights is even an option, she said.
It can also be tough to find the biological parents. And, Schalick said, “there’s a lack of belief that a parent can truly change and rehabilitate himself or herself.”
And for parents grappling with addiction, where relapsing more than once is often a part of the recovery process, there often isn’t enough time to stabilize so they can get their children back. Some states have even more stringent requirements. For example, in Colorado, children under 6 have to have a permanent home within a year — even if their brothers and sisters are older.
“We’re on a clock,” said Suzanne Sellers, a single mother from the Chicago suburbs. “And it counts against us.”
Sellers battled alcohol and cocaine addiction for years. When someone called child protective services, she said, she was honest with the caseworkers.
“I admitted I was on drugs,” said Sellers, now 50. “I needed help. But I didn’t harm my daughter.”
But, she said, they didn’t help her get into a long-term treatment program. Instead, she said, they removed her daughter from her home. Sellers shortly after gave birth to a boy; she lost him to the system, too. Ultimately, she said, she was coerced into relinquishing her parental rights to the children, who were adopted by their foster parents.
By the time her parental rights had been terminated, she’d gotten sober and was back in college with a full-time job. She eventually went on to grad school.
Today, she works as an advocate for other parents who’ve had their rights terminated and lobbying the state legislature on child welfare issues.
Illinois enacted a law in 2013 allowing parents to petition to get their kids back. But the law, she said, “has many hurdles and caveats and isn’t worth the paper it’s written on.”
She said the statute is vague and undefined, with multiple requirements. Among them: Only the state or the child can request to have rights restored; the parents must not have “intentionally” acted to prevent the child from being adopted; and the child must be at least 13, but if there are siblings, each one also must independently meet the criteria for parental rights to be reinstated.
Because of this, Sellers said, only a handful of parents have succeeded.
Jassen Strokosch, a spokesman from the Illinois Department of Children and Family Services, said that the state doesn’t track how many parents get their rights restored, but that it happens “very rarely.”
This fall, Sellers said, she’ll be back at the state capitol, lobbying the legislature for better child welfare laws — and to make it easier for parents to petition for reinstatement.