Reinstatement of Parental Rights After Termination

Even in states that allow reinstatement, the process can be difficult. Parents must be able to show a substantial improvement in their ability to care for a child. A court needs proof of this change before granting such a request.

This article focuses on the reinstatement of parental rights after a termination order. It includes a discussion about differences in state laws. If you have questions about reintating parental rights in your state, you can ask a family law attorney for advice.

Termination and Reinstatement of Parental Rights

Every family scenario is unique. States try to create a system that balances family unity with children’s welfare. Ending and reinstating parental rights is a key part of this system.

Since this process takes place in state courts, the laws and procedures vary from one state to the next. Yet, there are a few basic similarities in how states and courts handle these cases.

How Courts Terminate Parental Rights

When a court orders the termination of parental rights (TPR), the legal relationship between a parent and child ceases to exist. It is very rare and occurs in especially serious cases, such as those involving child abuse, severe child neglect, or abandonment. In such cases, the local department of social services or child protective services brings the TPR action to end the parent's parental rights.

If the parent does not agree to termination, then a contested hearing will go forward. The court must weigh the evidence. It will decide whether the TPR is in the best interest of the child. The court must show there is clear and convincing evidence to support its decision.

A parent might petition the court to voluntarily give up his or her parental rights. Even in such cases, the court must determine if termination is in the child's best interest.

How Courts Decide To Restore Parental Rights

Most laws allowing reinstatement came in response to older children. These children were aging out of foster care and wanted to re-establish contact with their birth family. State legislatures responded to concerns that without clear time frames, children would languish in the foster care system until emancipation.

Reinstatement is often available only on the condition that the child protective services agency has not found a permanent placement for the child within a given period of time. A foster parent normally provides a temporary home for a child. A permanent plan for placement includes an adoption or permanent guardianship.

In states where reinstatement is available, a parent or a child will file a petition with the court that originally terminated the parent's parental rights. This may be a juvenile, family, or probate court. The petitioner must serve a copy of the petition on all interested parties. The court will send out a notice of a hearing to the parties.

The court may appoint a Guardian ad Litem (GAL) to investigate and make recommendations consistent with the child's best interests. The child's Guardian ad Litem interviews the interested parties, including the former parent and the child. The GAL prioritizes the child's well-being. The court will consider the Guardian ad Litem's report and recommendations.

The court will assess whether the parent is now fit to provide a safe and nurturing home for the child. The court then determines whether there is good cause to reinstate the parent's parental rights. If the court decides that the child's parent has made substantial progress to remedy what led to termination, the court finds in favor of reinstatement.

Which States Allow Reinstatement of Parental Rights?

About half of U.S. states have laws and processes to restore a parent’s rights, including:

• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Connecticut
• Delaware
• Florida
• Georgia
• Hawaii
• Illinois
• Iowa
• Louisiana
• Maine
• Michigan
• Minnesota
• Nevada
• New York
• North Carolina
• Oklahoma
• Utah
• Vermont
• Virginia
• Washington
• West Virginia
• Wisconsin

This list may change as states continue to develop laws for reuniting parents and children. Some states only allow reunification in very limited circumstances.

Many states still don’t offer a way to get parental rights back after a court removes them. Termination is generally permanent in those states. In rare cases, parents may ask a court to appeal the original termination decision to regain parental rights.

Differences in State Laws

The laws differ among states that allow reinstatement. These differences can affect your case. Getting approval from a family court can be challenging. That’s why seeking legal advice specific to your state can help you get the most accurate information.

Proving Fitness as a Parent

States that allow for the reinstatement of parental rights may vary on the burden of proof requirement for the petitioner. Most states, including California and New York, require "clear and convincing" evidence that the parent is now fit to care for their child. The clear and convincing standard means that the evidence is highly more likely to be true.

Nevada law has a lower standard of "preponderance of the evidence." The preponderance standard means that good cause for reinstatement is more probable than not. North Carolina law allows hearsay evidence in court proceedings if it is considered "relevant, reliable, and necessary" to determine a child's best interests.

Who Can Petition for Reinstatement?

The qualifications for petitioning the court for reinstatement also vary from state to state. For instance, Alaska law restricts this remedy to only those who voluntarily gave up their parental rights. The petitioner also must file the petition before any final order of adoption. Louisiana law only allows reinstatement requests related to children in foster care who are over the age of 15.

Example: Washington Reinstatement Process

In Washington, the child brings the petition, usually through an attorney. The law requires that three years must pass from the termination of parental rights to the filing of the petition. If the child is 12 years or older, the child signs the petition.

The court follows a two-step process. If the court finds by a preponderance of evidence that there is good cause to proceed on the petition, it sets a second hearing. At the second hearing, the court must find by clear and convincing evidence that the child has not achieved the permanency plan and that reinstatement of parental rights is in the child's best interest.

In determining the child's best interest, the court must consider the following:

• Whether the parent is now fit and has corrected the deficits that led to the termination
• The age and maturity of the child and the child's ability to give their preference
• Whether reinstatement provides a risk to the health, welfare, or safety of the child
• Other material changes of circumstances that support the petition

Washington state law also provides that restoration of parental rights will not require the restored parent to pay child support from the time of the TPR to the time of restoration.

Other State Law Examples

The following summaries illustrate the legal process in other selected states:

• California: For eligibility, three years must pass from the date of termination without permanent placement. The court has some discretion to determine earlier that the child is not likely to be adopted. The child will bring the petition. The court must find that the child is not likely to be adopted and that reinstatement of parental rights is in the child's best interest. If the child is 12 or older, the child will sign the petition. If the child is under 12 years of age, then the court must provide findings of fact that reinstatement is in the child's best interest.

• Nevada: A child who has not been adopted and whose natural parent or parents have had their parental rights terminated can petition the court to have their parental rights reinstated. There is no set time required from termination to filing a petition to restore rights. If over 14, the child must consent to the restoration of the parent's parental rights. The parents must consent as well. Finally, the court must find that the child is both unlikely to be adopted as well as it being in the child's best interests. 

• New York: For eligibility, two years must pass from the date of termination without permanent placement. The child's attorney, the department of child protective services (when they have guardianship or custody), or the former parent can bring the action. The termination must have been based on certain circumstances. These include abandonment, inability to provide care due to mental illness, disability, or child neglect. There must be consent of all parties or evidence that consent is being withheld without good cause. The subject child must consent and be 14 years or older. Birth parents who are granted reinstatement will develop a reunification plan. The State will provide transition services. There can also be a trial home placement with ongoing supervision.

• North Carolina: For eligibility, three years must pass from the date of termination without permanent placement. The minor child or the child's Guardian ad Litem attorney or the department of social services (when they have custody) are eligible to file to reinstate a former parent's rights. If the child is under 12 years of age, there must be a showing of extraordinary circumstances. The court must weigh the maturity of the child along with other best interest factors. If the court reinstates parental rights, the former parent will owe no child support during the time that their rights were terminated.

Get Started on Reinstating Your Parental Rights by Talking to an Attorney

Few things are as painful as losing one's parental rights. Reinstatement of parental rights may be available in your state under certain circumstances. You can obtain vital legal information and learn more about the process of reinstatement of parental rights. Consider reaching out to a local family law attorney to discuss your particular situation.