Restoration of Parental Rights Allowed for Virginia Foster Care Children

19 Nov

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During the 2012 General Assembly Session, Delegate David Toscano and Senators George Barker and Barbara Favola introduced legislation to provide a process for the restoration of parental rights for those parents whose rights to their child were previously terminated. The Senate and House Courts of Justice Committees reviewed these bills and, determining that further study was appropriate, requested the Commission on on Youth investigate the feasibility and policy implications of such legislation.

In January 2013, the Commission on Youth produced Report 12, recommended adoption of the changes to allow restoration of parental rights after termination.  The legislation was approved and signed by the Governor on March 14, 2013.

Here is an excerpt of the executive summary of that report that led to the modified statutes adoption (§ 16.1-283.2. Restoration of parental rights.):

Foster care is intended to be a temporary safety net for children who are abused or neglected. Ideally, children exit foster care by reunifying with a birth parent, living with a guardian, or being adopted. However, the child welfare system does not locate a family for every child. In 2010, 25.5 percent of children exiting the Virginia foster care system did so by “aging out,”1 meaning they were emancipated from foster care at the age of 18 or older without a safe and permanent placement.

Youth who age out of foster care face particularly difficult odds. They lack the moral and financial support of parents and relatives. Studies show they are at an increased risk for homelessness, involvement in the criminal justice system, and a lifetime dependence on public assistance. There are also increased rates of high school dropouts, alcohol and substance abuse, and unwanted pregnancies.

Some of the youth aging out of foster care were in the foster care system as a result of their parents having had their parental rights terminated by the court. In these cases, the court has intervened in the family and severed the familial connection. These children are then legal orphans, waiting in foster care for a permanent placement. In 2011, the Virginia Department of Social Services reported that eighteen youth aged out of foster care following the termination of their parents’ parental rights. Restoration of parental rights would provide the courts with a tool to reunite these youth with their parents in those situations where the court and the local department of social services find it is safe and in the best interests of the youth.

At the Commission’s meeting on May 14, 2012, the Commission on Youth adopted a study plan to study the feasibility of creating a procedure for the restoration of parental rights and to further study the policy implications of such a procedure. The study plan included convening an advisory group to assist in the effort. Findings and recommendations were to be reported to the Commission prior to the 2013 General Assembly Session.

At its December 3, 2012 meeting, the Commission on Youth approved a recommendation to amend the Code of Virginia by adding a section number 16.1-283.2 to provide a procedure for the restoration of previously terminated parental rights, with the following conditions:

  • Age of Juvenile: 14 years of age
  • Exceptions to Age Requirement
    • Younger Sibling Exception. The juvenile must be a certain age, or a younger sibling of a juvenile of sufficient age for whom restoration is being sought, and the younger sibling independently meets the criteria for restoration; and
    • Local Department of Social Services (LDSS) and Guardian ad Litem (GAL) File Jointly A restoration petition may be filed for a juvenile who does not meet the age requirement where his or her guardian ad litem and the local department of social services jointly file the petition for restoration.
  • Who May File: the local departments of social services (LDSS) or the juvenile’s guardian ad litem 
  • Required Time Period Post-Termination: Two years
  • Time Period Exception:  18th Birthday Exception  Where the required two year time period would expire after the juvenile’s 18th birthday, the petition may be brought sooner.
  • Who Must Consent: the juvenile and the parent whose rights are being restored
  • Use a best interests standard with a clear and convincing burden of proof.
  • Allow for the participation of a court-appointed special advocate (CASA) and include a CASA volunteer in the list of people who receive notice and reports
  • Limit the availability of the restoration procedure for those cases in which a parent’s parental rights were terminated pursuant to §16.1-283(B), (C), or (D).
  • Provide for a transitional period, during which the juvenile is in the physical custody of the parent and the legal custody of the local department of social services.

This is good news for children like Ashlie.  It will allow her mother’s parental rights to be restored because her family really does love her, the erroneous removal of her from her family from the beginning, and the fact that she would certainly be better off with them than in a taxpayer funded institution.

Read More: Report 12