The bond between parents and children, even in families where abuse and neglect occurs, can be quite strong. Children who enter foster care after spending years with their birth family never forget their family of origin, and some never lose the primal desire to return home. For teens in foster care who lack other permanency resources, connections with birth family members, including those whose rights were legally severed, can be a link to meaningful permanence.
When Placing a Youth Back with Birth Parents Can Work
Reunification with birth parents after their parental rights are terminated (post-TPR) is by no means a placement solution for all older youth in foster care, but it is an option that bears careful consideration. As Karen Walker Bryce at Lawyers for Children in New York City asserts, “it’s a reality for older kids;” when they go missing from foster or group homes, or age out of care, birth families are a very common destination.
Michele Cortese, deputy director at New York City’s Center for Family Representation, also points out that “alternatives for these kids are bleak.” Released early this year, a Chapin Hall Center for Children study notes how teens in foster care face significant challenges, including schooling deficits, mental health problems, early child-bearing, and financial insecurity. Foster youth who age out of care without a permanent family connection are highly prone to homelessness, joblessness, crime, and addiction.
For the option to be feasible, birth parents cannot be in the same place they were when their rights were terminated. In general, they must:
- have made meaningful progress toward addressing issues (such as drug addiction) that would prevent them from properly caring for their teenage child
- be committed to meeting the youth’s current needs and welcoming the youth home
- have adequate housing and an income
- have a reliable support system
Several other factors must be taken into account for youth. Youth need to have:
- exhausted other permanency options
- an established relationship with the birth parent, and a desire to live with the parent
- good self-preservation and self-care skills
Naturally, both the birth parent and youth must be actively involved in the planning process too.
Supporting Birth Parent Placements
Once those elements are in place, with support from the youth’s worker, the worker’s supervisor, and other adults in the child’s life, a willing family court judge can make the placement a reality. “The more parties who support the plan, the better,” observes Barry Chaffkin, founder of CT Wocat, Ltd. (Changing the World One Child at a Time) and a former director of foster care and adoption at Harlem Dowling—West Side Center for Children and Family Services.
After the placement is approved, workers should assess the situation and offer supports that will help make the placement work. Every case and family situation is unique, but common services might include family counseling, periodic caseworker visits, housing assistance, or respite care planning, as well as referrals to other programs or classes suited to a parent’s or youth’s individual needs.
Methods of Post-TPR Placement
As suggested above, perhaps the most common way older youth rejoin their birth families is by voluntarily returning home—either after running away from another placement or aging out of care. There are, however, several drawbacks to that approach. First, youth under 18 in state care will not be allowed to stay with their birth parents. Second, physical custody does not equal legal custody.
Once a parent’s rights are terminated, she has no legal relationship with her birth child. As such, even if the child lives with her, she cannot register the youth for school, sign school permission slips, make medical decisions, provide health care for the child through her policy, etc. In addition, the child has no inheritance rights.
Some states have worked to address the legal connection issue by naming birth parents as their children’s guardian after a TPR. But while legal guardianship allows the parent to sign permission forms and the like, it does not permanently resolve the issue of an ongoing legal connection. Guardianships typically end when a child reaches 18, leaving the child and parent once more as legal strangers.
Some states have also allowed qualified birth parents to regain custody of their children after TPR through adoption. Under this option, birth parents undergo background checks, go through the home study process, and receive the same training as other adoptive parents. The only difference is that birth parents who adopt their children are not eligible for adoption assistance benefits.
While adoption re-establishes a permanent legal connection, it is a time-consuming process that is only feasible for parents who have the qualifications, courage, and time to get an approved home study and meet the training requirements. A more logical, though not always less onerous, method of bringing birth parents and children back together is to allow family court judges—when appropriate—to reverse or vacate TPR orders. Once a TPR is vacated, birth parents naturally regain legal responsibility for their children.
Making the Option More Possible
Effective January 1, 2006, a new California law (based on AB 519, passed in 2005) allows youth in foster care to petition the juvenile court to reinstate their parents’ rights. Filed by the child’s attorney, a petition will be considered if it has been more than three years since the TPR, the child is unlikely to be adopted or does not have a case goal of adoption, and there is compelling evidence that it is in the child’s best interests to overturn the TPR. Birth parents must also indicate that they wish to reconnect with the youth.
Tiffany Collins, who runs the Permanency Partners Program (P3) at the Los Angeles County Department of Children and Family Services, is excited about the possibilities. P3, an initiative aimed at identifying legally permanent families for older youth, now has another avenue for permanence. “It’s only logical,” she adds. “A lot of youth in our county are still in contact with their birth families.”
Guidelines issued in June 2003 by New York City’s Administration for Children’s Services stress the importance of permanent, nurturing family connections for teens and point out that, with appropriate supports, “many adolescents in care could be discharged to their parents or members of their extended families or find adoptive families.” The guidelines also note that in certain special cases, “the best permanency resource for a young person who has been freed for adoption may be a member of the child’s birth family, including a parent from whom the child has been freed.”
Section 5015 of the New York Civil Practice Law and Rules provides for possible relief from a judgment or order (such as a TPR). “But it’s not easy,” warns Gary Solomon from the Legal Aid Society of New York. Judges are not inclined to reverse something as serious as a TPR without irrefutable evidence that a child’s best interests are served by the reversal.
Barry Chaffkin has been involved in four cases where youth found permanence with their birth parents after a judge vacated the TPR. The way he describes it, the process involves about nine steps.
- At each service plan review, workers discuss permanency options with waiting youth. If a youth’s parent is doing well or has expressed a desire to parent again, and the youth is interested, workers consider the option.
- The birth parent comes into the agency and workers assess his or her commitment to parenting and progress with identified problems.
- If the parent has overcome issues that would interfere with parenting and is genuinely interested in caring for the teen, workers promise nothing, but discuss with the youth and parent the challenges of a possible placement.
- Once the public agency buys into the plan, workers seek support from others—the youth’s attorney, CASA, guardian ad litem, foster parents, etc.
- A lawyer drafts and files a motion to vacate the TPR.
- The agency gathers all the evidence it can to prove that the birth parent is capable of caring for the teen.
- The case goes to court. If, based on the evidence presented, the law guardian and the public agency agree it is best to restore the birth parent’s rights, the judge is more likely to vacate the order of termination.
- The youth, who remains in state custody, begins day visits, and workers plan appropriate support services. If all goes well, the visiting process expands to overnights and weekends.
- The child leaves state custody and goes home for good, but is monitored by the agency for three to six months.
A Case in Point
During the crack epidemic of the 1980s and early ’90s, Barry Chaffkin recalls, a sibling group of six entered foster care due to their mother’s drug addiction. The siblings were placed together with a foster mom who kept in touch with their birth mom, Jackie.* Soon, however, Jackie’s rights were terminated, and the foster mom moved south with the kids.
A few years later, the foster mother was preparing to adopt the siblings (with Jackie’s blessing), but was having a hard time handling the oldest girl, 15-year-old Sandra.* As it happened, the foster mom adopted the five younger kids, and Sandra moved back to New York where she bounced around in foster care.
Meanwhile, the agency learned that Jackie had overcome her addiction to drugs and gotten her life back on track. Workers approached her about the possibility of bringing Sandra home. Once Jackie warmed to the idea, workers took the plan to Sandra. Sandra was thrilled by the prospect of living with her mother.
Over the next several months, workers collected negative drug tests from Jackie, helped her to find new housing, and created a service plan for Jackie and Sandra that included family counseling. The judge could see that Jackie was ready to parent and that Sandra needed a permanent home, so he vacated the TPR order, and Sandra began visitation with Jackie.
About a year after the agency approached Jackie about reuniting with Sandra, the mother and daughter finally moved in together. Sandra, then 17, was excited to be back living with her mother, and Jackie was glad she could truly be there for her daughter.
The Importance of Alternatives
Teens must feel that they have some control over their future and the people they consider family. As Michele Cortese puts it, youth always feel a “residue of mistrust” toward options the system offers, so the more choices youth have, the more likely it is they will find an option they can own. If a youth has an ongoing relationship with a birth parent who may finally be ready to parent again, that alternative should not be ignored.
As more older youth stand poised to age out of foster care with no legal tie to another human being, workers must work diligently to seek enduring connections. Not every youth will be able to return to a birth parent, but in situations where it could work, it should be an option. When it comes to helping older youth find some degree of permanence, we cannot leave any stone unturned.
* Names changed to protect privacy.