In
2013, the North Carolina Legislature responded to concerns about large numbers
of foster children becoming “legal orphans”. This situation arose when the
parental rights of the foster child’s biological parents had been terminated
but for one reason or another the child could not be adopted. On occasion, the
biological parents sought to reform their behavior following the termination of
their parental rights and despite their previous misdeeds, became appropriate
and fit persons to raise children once again. When faced with a lack of placement options, some county social services agencies sought out these reformed parents
as a placement for the parents’ former children. Sometimes the placement worked
well.
Normally when an appropriate
placement is found that supports and maintains a juvenile over the long haul, a
county social services agency will assist the placement in adopting the child.
However, in the case of placement with reformed parents, something seemed
awkward about a biological parent having to adopt their own child. Moreover,
the fact of past parental unfitness presented a real conundrum for clerks of
court who would have to approve the adoptions. To overcome these problems, the
Legislature developed a statutory scheme for reinstatement of parental rights.
While seldom used in day to day practice in Juvenile Court, the
reinstatement of parental rights provision of the Juvenile Code found at
General Statute §7B-1114 can be a most useful alternative to allowing a foster
child to languish is foster care until they reach the age of 18. To qualify,
the foster child must be at least 12 years of age (absent extraordinary
circumstances); must not have a legal parent; must not be in an adoptive
placement; and must not be likely to be adopted in a reasonable period of time.
(N.C. Gen. Stat. §7B-1114(a)) Additionally, the plan for the child must no
longer be adoption or, in the alternative, the order terminating parental rights must have been
entered at least three years before the filing of a motion to reinstate
parental rights. Id. The juvenile
whose parents’ rights have been terminated, the county social services agency
with custody of the juvenile, or the guardian ad litem attorney all have
standing to file a motion to reinstate parental rights but not the child’s former legal parents. Id.
Once filed a motion to reinstate
parental rights is required to be scheduled within 60 days by the clerk for a preliminary
hearing. (N.C. Gen. Stat. §7B-1114(e)). Notice must be given of the hearing to
the juvenile, the juvenile’s GAL, the county department of social services, and
the former parent whose rights the motion seeks to reinstate. Id.
At the preliminary hearing, the
court may consider any evidence (even hearsay evidence) that is relevant,
reliable and necessary to determine whether reinstatement of parental rights is
consistent with the juvenile’s best interests. (N.C. Gen. Stat. §7B-1114(g)).
After hearing the evidence, the Court must make written findings of fact
regarding relevant criteria which might include the efforts made to achieve
adoption or permanent guardianship for the juvenile; whether the former parent
has remedied the conditions that led to the juvenile’s removal from the home
and placement in foster care; the age and maturity of the juvenile; the former
parents’ as well as the juvenile’s willingness to resume contact and have
parental rights reinstated; and services that would be needed by the juvenile
and the former parents if parental rights were reinstated. Id. At the conclusion of the hearing, the court must either dismiss
the motion or order that the juvenile’s permanent plan become reinstatement of
parental rights.
When a court changes a plan to
reinstatement of parental rights, the court must continue to conduct reviews at
least every six months which may be combined with required post termination of
parental rights review hearings. At any subsequent review hearing, the court
may order visitation between the juvenile and the parents and may order
placement in the parents’ home subject the supervision and placement
discretion of the county department of social services. (N.C. Gen. Stat. §7B-1114(i)).
Finally, absent exceptional
circumstances, within twelve months of the change in the juvenile’s plan, the
court must either dismiss or grant the motion for reinstatement of parental
rights. (N.C. Gen. Stat. §7B-1114(j)). An order granting a motion to reinstate
parental rights restores all rights and obligations that would be normally be
bestowed upon a parent, except that it alleviates the obligation to pay child
support for services provided the child from the date of parental right
termination to the date of parental rights reinstatement. (N.C. Gen. Stat. §7B-1114
(k); (n)). Oddly, while the order of the court reinstates parental rights, it does not vacate the prior order terminating parental rights.
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