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Reinstatement of Parental Rights in Georgia
- 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. 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. “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. 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. 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. GAL/CATY/CADVA MAY FILE: MOTION FOR CHANGE OF CUSTODY MOTION FOR JUDICIAL REVIEW MOTION TO VACATE13
- 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. 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. 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. 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. REINSTATEMENT AFTER FAILED ADOPTION When an adoption fails - Surrender by adoption parents (to DFCS?) - Superior Court sets aside adoption - TPR of adoptive parents
- 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. REINSTATEMENT UNDER THE PROPOSED JUVENILE CODE (H.B. 641)
- 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. 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. 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. 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. 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. 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).
Editor's Notes
- 1 JD, Univ Alabama ‘85, BA Univ Redlands (Pol Sci, Philos) ‘81 2JD, UGA ‘98, BBA UGA (Marketing) ‘94 3 JD, Stetson ‘06, BA UGA (Crim Just, Socio) ‘02
- 4 The discretionary appeal process provided in OCGA § 5-6-35(a)(12) offers effective appellate review in an expedited manner, yet permits a full appeal of the termination of parental rights if that is shown to be warranted. See In re A.C., 686 S.E.2d 635, 285 Ga. 829 (2009). See also In Re N. A. U. E., 287 Ga. 797, 700 S.E.2d 393 (2010)(No Due Process violation).
- 5 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. 6New York (Soc. Serv. Law.§§384-b(13);F.C.A § 635; 636; 637); Texas (Texas Parental Rights Restoration Act TPRRA) (HB 2084); Louisiana (SB76 2008); Arizona PL 8-291.08; Michigan (The Parents Rights Restoration Act, Act 211 of 1990); Alaska Stat. § 47.10.089; 7Cal. Welfare and Institutions Code § 366.26; 2010 Hawaii Session Laws, SB 2716, Act 135; 705 Ill. Comp. Stat. 405/2-28 and 705 Ill. Comp. Stat. 405/2-34; Nev. Rev. Stat. Ann. § 128.160, 128.170; Okla. Stat. Ann. tit. 10 A, § 1-4-909; Wash. Rev. Code Ann §13.34.215
- 8In the Interest of K.W. et al., 662 S.E.2d 255, 291 Ga. App. 623 (2008). Pretermitting the foregoing claims, "OCGA § 15-11-40 provides the vehicle for the correction of juvenile court orders." (Punctuation omitted.) Hardin v. Hardin, 274 Ga.App. at 545(2), 618 S.E.2d 169 (2005). Without placing any time limit on this type of jurisdiction, it provides that the juvenile court may set aside, change, modify, or vacate its orders upon certain grounds, among them, newly discovered evidence and changed circumstances in the best interest of the child requiring the same, as above. In the Interest of J.O., 191 Ga.App. 521, 522(1), 382 S.E.2d 214 (1989), overruled on other grounds, In the Interest of T.A.W., 265 Ga. 106, 454 S.E.2d 134 (1995). Among the factors authorizing a juvenile court to set aside an order terminating parental rights is newly discovered evidence. OCGA § 15-11-40(a)(3); see also In the Interest of B.G.D., 224 Ga.App. 124, 128(2), 479 S.E.2d 439 (1996) (A mother may not revoke her surrender after ten days, unless the surrender is invalidated by duress, fraud, or incapacity.) Here, there was evidence of newly discovered evidence and fraud. Given the foregoing, the trial court's order granting the mother's motion to set aside its February 2004 order upon its records and proceedings was not error for insufficient evidence. Hicks v. Stargel, 226 Ga.App. 639, 640(1), 487 S.E.2d 428 (1997). (b) Because the undisputed evidence is that the mother's surrenders were procured by the caseworker's "suggestion" that it was in her best interest to surrender her parental rights, as above, the juvenile court did not err in granting the mother's motion to set aside for her failure to revoke her surrenders within ten days of their execution under OCGA §§ 19-8-4(d) and 19-8-9(b). See In the Interest of B.G.D., supra, 224 Ga.App. at 129(2), 479 S.E.2d 439.” See OCGA § 19-9-62(a)(2) (A court of this State has exclusive continuing jurisdiction over the termination of parental rights until "[a] court of this state or a court of another state determines that neither the child nor the child's parents ... presently resides in this state.") 9In the Interest of K.W., “As a party to the proceeding resulting in the voluntary termination of her parental rights, the mother was authorized to petition the juvenile court for relief from its February 2004 order. See OCGA § 15-11-40(c) ("Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in the child may petition the court for relief provided in this Code section.").
- 10Pursuant to OCGA § 15-11-85(a), the child himself is, in effect, made a party to an action to terminate his parent's or parents' parental rights. A child has standing, through his duly appointed attorney and guardian ad litem to bring an appeal. See In Interest of G.K.J., 370 S.E.2d 490, 187 Ga. App. 443 (1988); In re L.L.B., 256 Ga. 768, 353 S.E.2d 507 (1987). 11This is a controversial issue, and is the subject to ongoing debate. In the Interest of A. P., A08A0372 (Ga. App. 5/13/2008) (Ga. App., 2008), the children expressed a desire to be returned to the mother but the Guardian Ad Litem advocated that the mother’s rights be terminated. On appeal, held that such a dual appointment is possible precisely because it involves no conflict of interest. “As this Court has recognized, the fundamental duty of both a guardian ad litem and an attorney is to act in the best interests of the party whom they represent.” 12In re J.S.C., 356 S.E.2d 754, 182 Ga. App. 721 (1987). (“If the advocate for termination is permitted to be the advocate for the child, there is nothing for the court to decide, insofar as the third-party child is concerned, for the former has already decided that the best interests of the child will be served by termination. Between the two antagonistic parties is the child, who as we read OCGA § 15-11-55 must have a separate representative.”)
- 13In the Interest of K.W. et al., 662 S.E.2d 255, 291 Ga. App. 623 (2008)(“Such order, having been vacated by the juvenile court, was void. See Crolley v. Haygood Contracting, 207 Ga.App. 434, 436(2)(b), 429 S.E.2d 93 (1993), citing Black's [662 S.E.2d 257] Law Dictionary (4th ed. 1968) (A vacated order is one which has been annulled, set aside, cancelled, rescinded, or rendered void.)”.
- 14 Call it Department of Family and Children Services (DFCS) or Department of Family AND Children Services (DFACS)? I have historically preferred the later because I have heard (“DFCS”) pronounced like “Defects” which just won’t do. At any rate, I have spoken with DFCS administration about this issue, and have been advised there is no official policy in place, but that, “As an agency, we are more willing to reassess parents and biological family for placement after termination than in the past.” The Courts have said “The General Assembly has also declared it public policy to give a foster parent “the right to be considered, where appropriate, as the first choice as a permanent parent” for a foster child she has kept for more than 12 months. OCGA § 49-5-281(a)(20). The legislature has directed DFCS to consider the Foster Parents Bill of Rights when developing policies regarding foster care and adoption. OCGA § 49-5-281(b). In the interest of Goudeau, 305 Ga. App. 718, 700 S.E.2d 688 (2010).” 15 For a child in DFCS custody, it would infringe upon the Department's authority to determine the physical placement of a child.” Long v. Long, 303 Ga. App. 215, 220(2), 692 S.E.2d 811 (2010).
- 16 OCGA § 15-11-103(a)(1). Because "there is no conclusive preference given to relatives, the juvenile court is afforded wide discretion to determine whether a child should be placed with a relative or kept in a stable foster home." (Citation and punctuation omitted.) In the Interest of K.W., 283 Ga. App. 398, 402-403(2), 641 S.E.2d 598 (2007). 17 OCGA § 19-8-3 establishes that a prospective adoptive parent must be at least 25 or married and living with his or her spouse, and must be “financially, physically, and mentally able to have permanent custody of the child.” OCGA § 19-8-3(a)(4). If the prospective parent is married, the petition must be filed in the name of both spouses. OCGA § 19-8-3(c). Otherwise, “ [a]ny adult person, including but not limited to a foster parent, meeting the requirements of subsection (a) of this Code section shall be eligible to apply to the department or a child -placing agency for consideration as an adoption applicant in accordance with the policies of the department or the agency.”
- 18In the Interest of T. H., A11A1028 August 26, 2011, 11 FCDR 2754 (09/16/11); In the Interest of H. L. H. , 297 Ga. App. 347, 351 (677 SE2d 396) (2009); See also In the Interest of J. L. C., 292 Ga. App. 763, 768 (666 SE2d 98) (2008).
- 19 But see In the Interest of K.W. et al., 662 S.E.2d 255, 291 Ga. App. 623 (2008). The father contends that the juvenile court erred in setting aside its February 2004 order, arguing that the mother's surrender of parental rights and the termination of her parental rights based thereon was res judicata. "[R]es judicata and estoppel by judgment will not bar ... a motion to set aside such [a] judgment ... based upon newly discovered evidence. [Cits.]" Herringdine v. Nalley Equip. Leasing, 238 Ga.App. 210, 214-215(3)(a), 517 S.E.2d 571 (1999).
- 20http://www.ncsl.org/?tabid=21770 21Judicial Guide to Implementing the Fostering Connections to Success and Increasing Adoptions Act of 2008 http://www.grandfamilies.org/images/pdf/Judicial%20Guide%20to%20Fostering%20Connections%202011.pdf This practical guide contains an analysis of the barriers faced by courts as well as implementation strategies to overcome these barriers. For each section of Fostering Connections, the Judicial Guide provides: • An overview of the law • Judicial considerations for successful implementation • Questions to ask from the bench to help ensure compliance with the law and best practice • Resources from national experts to direct further reflection and analysis 22ROLE OF GUARDIAN – TO DO WHAT IS IN CHILD’S BEST INTERESTS, OR WHAT CHILD WANTS? Again, this is very controversial. See In the Interest of A. P., A08A0372 (Ga. App. 5/13/2008) (Ga. App., 2008), the children expressed a desire to be returned to the mother but the Guardian Ad Litem advocated that the mother’s rights be terminated. The Court noted that such a dual appointment has been expressly approved by the legislature. OCGA § 15-11-98 (a) provides that: “In any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as the child's counsel and may appoint a separate guardian ad litem or a guardian ad litem who may be the same person as the child's counsel." Contrary to the mother's assertions, such a dual appointment is possible precisely because it involves no conflict of interest. As this Court has recognized, the fundamental duty of both a guardian ad litem and an attorney is to act in the best interests of the party whom they represent. See In the Interest of A. M. A., 270 Ga. App. 769, 773-774 (2) (607 SE2d 916) (2004). See also Paul v. Smith, Gambrell & Russell, 267 Ga. App. 107, 110 (599 SE2d 206) (2004). ("A lawyer should always act in a manner consistent with the best interests of his client.") (Citation and punctuation omitted.) Moreover, the mother's argument represents an implicit admission that being returned to her was not in the best interest of the children. Thus, even had a separate attorney been appointed to represent the expressed desires of the children, the juvenile court, by law, would nevertheless have been obligated to terminate the mother's parental rights. See In the Interest of J. A. S., 287 Ga. App. 125, 130 (650 SE2d 788) (2007).