Ever since the passage of the Adoptions and Safe Families Act (Pub. L. No. 105-89) by Congress in 1997, the several states have been under a mandate to achieve permanence for juveniles in foster care at the earliest possible time. To this end, the Act imposes a mandate to initiate termination of parental rights proceedings if a child has been in the custody of a county department of social services 15 of the most recent 22 months, unless the court finds that termination of parental rights is not in the child's best interest or certain other, limited exceptions exist. (See 42 U.S.C 675(5)(E). North Carolina shortens this period to requiring the initiation of termination proceedings where a child has been in custody 12 of the most recent 22 months. (see N.C. Gen. Stat. 7B-907). As a result of this race to permanence, many states have been faced with an unintended result of mandated termination of parental rights cases: the creation of legal orphans when a plan of adoption falls by the wayside following the termination hearing.
This year the North Carolina General Assembly took a step to correct this condition by enacting N.C. Gen. Stat. 7B-1114. The statute, which provides for the reinstatement of parental rights following a termination of parental rights proceeding, is significantly restricted in application to those circumstances where a child is at least 12 years old or where there are significant circumstances justifying parental right restoration, where the juvenile has no legal parent, is not in an adoptive placement and is not likely to be adopted within a reasonable period of time. In addition, the termination order must have been entered at least three years prior to a motion being filed to restore parental rights unless the court finds or the DSS and GAL agree that the permanent plan is no longer adoption.
If successful, the movant (either the juvenile, the DSS or the GAL) can initiate proceedings which in the end can lead to the restoration of a legal relationship between former parents and the the ir child. While this is a useful first step, the likelihood that this legislation is going to substantially irradicate the specter of the legal orphan is slim. Termination proceedings, at least when conducted within the confines of an abuse, neglect or dependency case, tend to result when there is significant failure on the part of a parent. Quite frequently this is due to significant substance abuse or mental health problems which are not likely to magically go away, especially when there is no longer an incentive to address such issues when the department of social services ceases to be actively involved in the life of the parent. Thus, the parent whose rights were terminated is likely to still be in the grip of those problems that led to the termination in the first place. The trial court, when confronted with a motion to reinstate parental rights must take into consideration what efforts the parent has made to rehabilitate themself. It also must consider the child's best interest. Taken together, few will be the cases where a parent will have done enough to serve as a permanent caretaker for a child who the law requires be provided safety and permanence.
And so, while great energy and no doubt, enthusiasm, went into the creation of this legislative effort, the North Carolina legislature has still failed to squarely address the underlying issues that lead to the creation of legal orphans: a failed mental health system which prevents parents from being properly treated for mental health and substance abuse related issues, an over-all erosion of public morality which enables bad behavior by parents to thrive, and the propensity in some judicial districts for there to be a hair trigger, where the first day after twleve months have elapsed is the day when a termination action is being filed.
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