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Reinstatement of Parental Rights in Georgia

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This presentation looks at 'reinstatement' v. 'restoration' of parental rights after termination.

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Reinstatement of Parental Rights in Georgia

  1. 1. 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
  2. 2. 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
  3. 3. “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
  4. 4. 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
  5. 5. 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
  6. 6. GAL/CATY/CADVA MAY FILE: MOTION FOR CHANGE OF CUSTODY MOTION FOR JUDICIAL REVIEW MOTION TO VACATE13
  7. 7. 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
  8. 8. 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 COURT Guardianship Custody until 18 GOING TO EXTREMES: ADOPTION BY A PARENT17
  9. 9. 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
  10. 10. 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
  11. 11. REINSTATEMENT AFTER FAILED ADOPTION When an adoption fails - Surrender by adoption parents (to DFCS?) - Superior Court sets aside adoption - TPR of adoptive parents
  12. 12. NO SECOND BITE AT THE APPLE The 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
  13. 13. REINSTATEMENT UNDER THE PROPOSED JUVENILE CODE (H.B. 641)
  14. 14. 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
  15. 15. 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
  16. 16. REQUIRED FINDINGS OF PROPOSED O.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”.
  17. 17. CONSIDERATIONS PROPOSED O.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
  18. 18. POST REINSTATEMENT OF PROPOSED O.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.
  19. 19. 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).

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