In Depth

Increasingly, practitioners and policymakers are recognizing the benefits of birth family reconnections with foster youth, even when a return home is not possible. Some states and localities are taking this a step further by exploring the reunification of older adolescents with their birth parents, despite the termination of parental rights (TPR). In assessing the likelihood of reunification, certain factors must be considered, according to Diane Riggs of the North American Council on Adoptable Children:

• Other permanency options have been considered and are not viable.
• There is an established relationship between the youth and the parent: The birth parent is committed to the youth and his or her needs; and the youth wants to live with the parent.
• Parents have a reliable support system and have made progress in addressing the emotional and concrete issues that prevented them from properly caring for their child pre-TPR.
• Youth can care for themselves and advocate for their own needs and safety.

Policies to Overcome the TPR

As birth families increasingly become permanency resources for children in care, policymakers must consider how legal relationships between youth and parents whose right have been terminated can best be re-established. The options include:

1. Legal guardianship with the parent. A state’s guardianship laws can be used to establish the parent’s legal guardianship. This provides parents the right to consent to medical care, enroll the youth in school, and make other decisions that require a legal relationship. In most states, however, legal guardianships end when youth reach age 18, leaving the parent and child with no legally recognized relationship in adulthood.
2. Adoption by the parent. A state’s adoption laws can be used to fully reestablish a legally recognized parent-child relationship. Adoption, however, requires that the parent be assessed through a home study process, complete required training, and receive agency and court approval to adopt. Because birth parents must qualify to adopt and commit emotional resources and time to the process, many may not see adoption as a realistic or appropriate option.
3. Reversal of the order terminating parental rights. California expressly provides a process for reversal of TPR. Under California law (AB 519), an adolescent in foster care may petition the court to reinstate his or her birth parent’s legal rights. The court will consider the petition when:
   • The birth parent’s rights were terminated at least three years prior to the adolescent’s petition;
   • The youth is unlikely to be adopted or does not have a case goal of adoption;
   • The parent wishes to resume parenting the youth; and,
   • There is compelling evidence that it is in the youth’s best interests to reverse the TPR.

Absent a state statute that specifically provides for reversing a TPR, courts may be able to use court rules or procedures. In New York State, for example, Section 5015 of the New York Civil Practice Law and Rules has been interpreted as providing courts with authority to reverse a TPR order or judgment. However, the rule provides neither the specific procedure nor the grounds that must be met for a TPR reversal.

Related Resources

• California AB 519: Statutory Language (PDF)
• California AB 519: Bill Analysis