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Reinstatement of Parental Rights State Statute Sum

Reinstatement of Parental Rights

Every State has statutes providing for the termination of parental rights by a court. Termination of parental rights, which can be voluntary or involuntary, ends the legal parent-child relationship. Once parental rights have been terminated, the child is legally free to be placed for adoption.

Approximately nine states have legislation in place that allows for the reinstatement of parental rights following termination of parental rights. If a permanent placement has not been achieved within a specific timeframe, a petition may be filed with the court requesting reinstatement of the parent’s rights. If the court determines that the parent is now able to provide a safe home for the child, the request may be granted. The laws were developed in response to children who were aging out of the foster care system and re-establishing ties with parents and family members. 

Updated as of October 2012

State and Statute
 
Timing of Motion or Petition
 
Who can file Motion and Petition
 
Duties and Authority of the Child Welfare Agency
 
Standard of Evidence for Reinstatement
 
Required Court Findings and Duties/Authorities of Court
 

AK


Alaska Stat. § 47.10.089
 

After a termination order is entered and before the entry of an adoption or legal guardianship decree

A person who voluntarily relinquished parental rights to a child.

 

Clear and convincing

A court shall vacate a termination order if the person shows that reinstatement of parental rights is in the best interest of the child and that the person is rehabilitated and capable of providing the care and guidance that will serve the moral, emotional, mental, and physical welfare of the child.

CA


Cal. Welfare and Institutions Code
§ 366.26

At least three years from the date of termination of parental rights or earlier if agency stipulates child not likely to be adopted.

Child for whom court has determined that adoption is no longer the permanent plan.

 

Clear and convincing

Child no longer likely to be adopted; reinstatement is in best interest of child. For child under 12 for whom plan is not reunification, court must specify factual basis for finding that reinstatement is in child’s best interest.

HI


2010 Hawaii Session Laws, SB 2716, Act 135

Child has been in permanent custody for at least 12 months.

Child who is 14 or older; child’s Guardian ad Litem; Child Welfare Department

Within 7 days before preliminary hearing, the Child Welfare Department and the Guardian ad Litem shall submit reports to the court that address: Material change in circumstances since the termination of parental rights (TPR), reasons for TPR, parent’s and child’s willingness to resume contact have rights reinstated, parent’s willingness and ability to be involved in child’s life and accept custody. Department shall develop permanent plan and provide transition services to family during trial home visit. The Department may assess trial home visit and rescind it if in child’s best interest.

Clear and convincing

At preliminary hearing, court may order trial home placement and temporary reinstatement of parental rights upon finding that there has been material change in circumstances, parent is willing to provide care for child, parent is able to provide safe family home or the home can be made safe with the assistance of services, trial home visit is in child’s best interest. If court issues temporary order, child shall be conditionally placed with parent for up to 6 months, the department shall develop permanent plan and provide transition services. Court will hold hearing after child has been placed with parent for 6 months. At the hearing, court may issue final order of reinstatement and terminate jurisdiction, provided court finds that reinstatement is in child’s best interest, taking into account whether parent has remedied conditions, age and maturity of child and child’s ability to express preference, likelihood of risk to child, parent is able to provide safe home, both parent and child consent to reinstatement, permanent plan goals for child have not been met and are not likely to be achieved.

IL


705 Ill. Comp. Stat. 405/2-28 and 705 Ill. Comp. Stat. 405/2-34

Three years after parental rights surrendered or terminated with entry of order appointing guardian with power to consent to adoption.

Department of Children and Families.

For any child over age 13 who meets criteria for reinstatement, DCFS shall conduct an assessment of the child’s circumstances to assist in future planning, including determining the appropriateness of filing for reinstatement.

Clear and convincing

While minor was under court jurisdiction, parent surrendered child for adoption or consented to adoption or had rights terminated and guardian appointed with power to consent to adoption; since then minor has remained ward of court or returned to care with termination of a guardianship or an adoption; the minor is not currently in placement likely to achieve permanency; reinstatement is in minor’s best interest; parent wishes rights to be reinstated and is appropriate to have rights reinstated; more than 3 years has lapsed since consent or surrender or entry of order; child is 13 or older or is the younger sibling of a child 13 or older who is seeking reinstatement and sibling meets other requirements; if court has previously denied motion for reinstatement, there has been substantial change in circumstances. In ruling on motion, court shall consider reasons why child was initially brought to court’s attention, the history of the child’s case as it relates to parent, and current circumstances of parent. Court shall consider grounds for which unfitness was found pursuant to sec. 2-29. If case is post-disposition, court shall schedule matter for permanency hearing. Custody shall not be restored to parent except by order of court pursuant to 2-28 (4).

LA


La. Child. Code Ann. art. 1051

 

Child in foster care over the age of 15.

Make diligent effort to locate parent and inform him of effects of restoration. Submit report detailing change in parent’s circumstances, reasons for TPR, willingness of parent and child to have parental rights restored.

 

Best interest of child; consent of parent. Court may allow contact between parent and child; restore parental rights, place child in parent’s custody with or without continuing supervision of the child welfare agency.

ME

2011 Me. Laws, SP 352 LD 1152, Chap. 402, Sec. 16

Requires the court to hold a hearing prior to reinstatement of parental rights and gives the department the burden of proof. The Department of Health and Human Services. The Department of Health and Human Services may petition the district court to reinstate the parental rights of a parent whose parental rights have been previously terminated by an order of the district court.  The petition for reinstatement of parental rights must be accompanied by a permanency plan that provides for the health and safety of the child. Clear and convincing. Requires the court to hold a hearing prior to reinstatement of parental rights and gives the department the burden of proof.  Allows the court to grant reinstatement of parental rights if the court finds, by clear and convincing evidence, that the child has been in the department’s custody for at least 12 months; has lived with the parent for at least three months after the petition for reinstatement has been filed; that the parent consents to reinstatement of parental rights; that the child, if he or she is age 12 older, consents to parental rights; and that reinstatement is in the child’s best interests.  Requires the court to consider the child’s age and maturity, the child’s ability to express a preference, the ability of the parent to meet the child’s physical and emotional needs, and the extent to which the parent has remedied the circumstances that resulted in termination of parental rights.

ME

Sec. 16. 22 MRSA §4059

      The department may petition the District Court to reinstate the parental rights of a parent whose parental rights have been previously terminated by an order of the District Court.

NC

2011 N.C. Sess. Laws, HB 382, Chap. 295

The order terminating parental rights must have been entered at least three years before the filing of the motion, unless the court has found or the juvenile's attorney advocate and the county department of social services with custody of the juvenile stipulate that the juvenile's permanent plan no longer is adoption. Sec. 18(a): A juvenile whose parent's rights have been terminated, the guardian ad litem attorney or a county department of social services with custody of the juvenile may file a motion to reinstate the parent's rights. Requires that a number of conditions be satisfied in order to file the motion to reinstate.  The conditions include: if the juvenile is at least age 12 years or, if the juvenile is younger than 12, the motion alleges extraordinary circumstances requiring consideration of the motion; and the juvenile does not have a legal parent, is not in an adoptive placement and is not likely to be adopted within a reasonable period of time.    Sec. 16: Allows the court to consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable and necessary to determine the best interests of the juvenile in termination of parental rights considerations. Sec. 15: Requires that rules of evidence in civil cases shall apply in termination of parent rights proceedings.

Sec. 18(g): At the preliminary hearing and any subsequent hearing on the motion to reinstate parental rights, the court shall consider information from the county department of social services with custody of the juvenile, the juvenile, the juvenile's guardian ad litem, the juvenile's former parent whose parental rights are the subject of the motion, the juvenile's placement provider, and any other person or agency that may aid the court in its review. The court shall consider the following criteria and make written findings regarding what efforts were made to achieve adoption or a permanent guardianship: whether the parent whose rights the motion seeks to have reinstated has remedied the conditions that led to the juvenile's removal and termination of the parent's rights; whether the juvenile would receive proper care and supervision in a safe home if placed with the parent; and the age and maturity of the child and the child’s ability to express his or her preference.

NV


Nev. Rev. Stat. Ann. § 128.160, 128.170

 

Child or legal custodian or guardian of child.

 

Preponderance of the evidence.

Child who is 14 or older consents to restoration; parent has been informed of legal obligations and rights and is willing to accept them; child is not likely to be adopted; restoration of rights is in child’s best interest; for child under 14, court shall specify factual basis of best interest finding.

NY


N.Y. Fam. Ct. Act,
§§ 635-637

Two years after order committing guardianship or custody of child.

Attorney for child age 14 or older, agency or individual to whom guardianship and custody of child have been committed, respondent in the termination of parental rights proceeding or his/her attorney.

Court shall direct local CW agency to supervise birth parent during pendency of conditional order restoring parental rights, develop reunification plan, provide transition services and report to parties, child’s attorney and court 30 days before expiration of the period specified in conditional order.

Clear and convincing

Restoration of rights is in child’s best interest, order committing custody of child was based on provisions relating to abandonment, mental illness or permanent neglect, all parties have consented to restoration of rights or, if the petitioner in the termination of parental rights (TPR) proceeding failed to consent, such failure was without good cause. Court shall state its reasons for disposition of the petition. Court may: 1. grant petition, modify order of disposition in TPR proceeding and transfer guardianship and custody of child to birth parent, provided that the findings of fact on which TPR was based shall remain; or 2. Dismiss the petition; or 3. Grant the petition conditionally for up to 6 months during which custody remains with local child welfare agency and child may visit with or be placed on trial discharge with birth parent. Court shall hold hearing for permanent restoration and state reasons for determination.

OK


Okla. Stat.
Ann. tit. 10 A, § 1-4-909

Three years after termination of parenal rights.

Child 15 or older.

Child Welfare Department shall provide the court information related to efforts to achieve permanency, including efforts to achieve adoption or permanent guardianship. Department shall develop permanency plan for reunification and provide transition services after temporary order of reinstatement.

Clear and convincing

Court shall conditionally grant application if it finds that child has not and is not likely to achieve permanency, reinstatement is in child’s best interest. Court shall consider whether parent has remedied conditions, age and maturity of child and ability to express preference, whether reinstatement will be risk to child, other material changes in circumstances. If court conditionally grants application, case continued for 6 months and temporary order of reinstatement entered, during which child placed with parent. If child must be removed during 6 months, court shall dismiss application. Court shall hold hearing after 6 months and order reinstatement if placement successful. Court will close deprived action. Reinstatement does not vacate original termination of parental rights, but acknowledges change in circumstances. The Child Welfare Department not liable for damages, etc.

WA

2011 Wash. Laws, HB 1774, Chap. 292

        Sec. 2: Adds to the list of circumstances under which a child may petition the court to reinstate his or her parental rights to include that the permanency plan has not been sustained or that three years have passed since the final order of termination was entered.

WA


Wash. Rev. Code Ann §13.34.215

Three years after termination of parental rights, if child has not achieved permanency.

Child 12 or older, or younger if good cause is shown

Provide notice to former parent, existing parent, current caregiver, child’s tribe. Provide to the court information related to its efforts to achieve permanency plan, including adoption or permanent guardianship. Develop a new permanency plan of reunification after conditional grant of petition for reinstatement.

Clear and convincing

Conditional grant of petition: child has not achieved permanency plan and is not likely to do so; reinstatement is in child’s best interest. Court shall consider fitness of parent, age and maturity of child, whether reinstatement poses risk to child, other material changes in circumstances that warrant granting the petition. Upon conditional grant of petition, case is continued for 6 months, during which child is placed with parent. If child must be removed from parent during this time, court shall dismiss petition. If placement is successful, court order reinstating rights remains in effect and dependency is dismissed. Court order does not affect validity of original termination of parental rights (TPR) but recognizes that situation has changed since TPR. Parent whose rights are reinstated not liable for child support owed to department during period from TPR to reinstatement. State not liable for civil damages resulting from services under this section.

 

 

For more information, see the Child Welfare Information Gateway report titled, "Grounds for Involuntary Terminiation of Parental Rights."

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