Vol. 19, No. 1 • November 2014

Reinstatement of Parental Rights in NC: Myths and Facts

by David F. Hord IV, JD

In 2011, legislation was passed in North Carolina that allows a juvenile court to reinstate the parental rights of a parent whose rights have been terminated (N.C.G.S. § 7B-1114). Reinstatement of parental rights is a permanency planning option for primarily older youth in very limited circumstances.

When they first learn about reinstatement of parental rights, foster and adoptive parents often have questions, and some feel an initial concern that reinstatement isn't in children's best interests, or that it puts planned or finalized adoptions at risk.

Following is an attempt to sort the myths from the facts when it comes to reinstatement of parental rights in North Carolina.

Myth: It makes no difference whether a child is in a pre-adoptive home.
Fact: A motion to reinstate parental rights can be filed ONLY if the child is not in an adoptive placement and is not likely to be adopted within a reasonable period of time. Therefore, if the child has an identified caregiver who is willing to adopt the child, reinstatement of parental rights cannot be considered.

Myth: A parent can file a motion to reinstate his or her parental rights.
Fact: Only the juvenile, the juvenile's guardian ad litem attorney advocate (GAL), or the county department of social services (DSS) agency with custody of the juvenile can file a motion to reinstate parental rights.

Myth: Any child whose parents' rights have been terminated may be subject to a motion for reinstatement of parental rights.
Fact: Except in extraordinary circumstances, the juvenile must be at least 12 years old.

Myth: Reinstatement of parental rights is an alternative to appealing a decision to TPR.
Fact: Three years must pass between a TPR hearing and a motion to reinstate parental rights unless the court has changed the child's permanent plan or the juvenile's GAL attorney advocate and county DSS agree that the child's permanent plan is no longer adoption.

Myth: DSS, the GAL, and the juvenile can agree to change the permanent plan to reinstatement of parental rights.
Fact: One or more of these parties may file a motion to change the permanent plan, but it is up to the district court judge to decide whether reinstatement of parental rights should be granted. The standard the judge uses to make this decision is the best interest of the juvenile.

Myth: Reinstatement of parental rights can be granted even if the parent's circumstances haven't changed.
Fact: The court must determine whether the parent has remedied the conditions that led to the juvenile's removal and the termination of the parent's parental rights. The court must also determine whether the juvenile would receive proper care and supervision in a safe home if placed with the parent.

Myth: If the parent's situation has changed, the court must reinstate their parental rights.
Fact: The court's decision must always be based on the child's best interests. The court must determine the needs of the juvenile. The court should also assess what services would need to be in place if the parent's rights were reinstated.

Myth: The child doesn't have a say.
Fact: If the juvenile is not the party motioning for reinstatement, the juvenile must be properly served with the motion. ("Serving" is an official handing over of documents, to ensure the child is aware the motion has been filed.)

If a motion is filed and the juvenile does not have a GAL, the court must appoint one. The GAL represents the best interests of the juvenile at every stage of the reinstatement of parental rights proceeding. The GAL also must provide reports to the court. In addition, the court must consider the juvenile's willingness to resume contact with the parent and to have the parental rights reinstated. The juvenile is also required to receive notice of the hearings on the motion for reinstatement of parental rights.

Myth: The juvenile's foster parents don't have a say.
Fact: While they are not parties to the reinstatement proceedings, placement providers do have the right to attend hearings and provide information to the court.

Myth: A reinstatement of parental rights case will drag out for years.
Fact: The court must either dismiss or grant the motion for reinstatement of parental rights within 12 months of the motion being filed, unless the court makes specific findings as to why the decision cannot be made and specifies a time frame for when the final decision will be made.

Myth: The granting of a motion to reinstate parental rights is the same as overturning the termination of parental rights proceeding.
Fact: If a judge reinstates a parent's parental rights, the original order terminating parental rights is not vacated, deemed invalid, or overturned. Therefore, if two or more children are subject to the original termination of parental rights proceeding, but only one child is the subject of a reinstatement of parental rights proceeding, the other child is still legally free for adoption if he or she has not been adopted already. A motion to reinstate parental rights in no way affects an already-finalized adoption.

Conclusion
Reinstatement of parental rights is a fairly new permanent plan for children. It may not be a realistic plan for most children and may be emotionally charged from all sides. It is important for DSS, the GAL, the caregivers, the parent, and especially the child to fully understand what it means. As with all permanency options, considering reinstatement of parental rights must be done with the child's best interest as the central concern.

David F. Hord, IV, is a Staff Attorney Advocate for Wake County's Guardian ad Litem program.

 

~ Family and Children's Resource Program, UNC-CH School of Social Work ~