Chapter 23: Reinstatement of Parental Rights
Jana Heyd
Table of Contents
§ 23.1 History
§ 23.2 Eligibility
§ 23.3 Notification to Child
§ 23 .4 Representation of Child
§ 23.5 Preliminary Hearings
§ 23.6 Conditional Reinstatement Hearing
§ 23.7 Notification to Interested Parties
§ 23.8 Burden of Proof
§ 23.9 Considerations of the Court
§ 23.10 Prior Efforts to Achieve Permanency
§ 23.11 Timing
§ 23.12 Cause for Dismissal of Petition for Reinstatement
§ 23.13 Cause for Dismissal of Dependency
§ 23.14 Effect on Prior Termination Order
§ 23.15 Child Support Obligations
§ 23.16 Applicability
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Table of Contents
§ 23.1 History
§ 23.2 Eligibility
§ 23.3 Notification to Child
§ 23 .4 Representation of Child
§ 23.5 Preliminary Hearings
§ 23.6 Conditional Reinstatement Hearing
§ 23.7 Notification to Interested Parties
§ 23.8 Burden of Proof
§ 23.9 Considerations of the Court
§ 23.10 Prior Efforts to Achieve Permanency
§ 23.11 Timing
§ 23.12 Cause for Dismissal of Petition for Reinstatement
§ 23.13 Cause for Dismissal of Dependency
§ 23.14 Effect on Prior Termination Order
§ 23.15 Child Support Obligations
§ 23.16 Applicability
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23.1 History
A new permanency option for children who are not in permanent placements was created in July, 2007 when the Washington legislature passed ESHB 1624, the Parental Reinstatement Bill, now codified at RCW 13.34.215. Approximately 10 other states now have similar legislation.
Prior to the passage of the parental reinstatement legislation, it was not uncommon for an adolescent to request a return to the parental home even if parental rights had been terminated. Until 2007 there was not an appropriate statutory basis to allow placement. The child could request that his or her attorney (if the child had an attorney) set a motions hearing in the dependency case to request placement with a (terminated) parent. The court might have considered placement with the terminated parent if the placement with a “suitable person” or a “relative.” In family court, a terminated parent could petition for a “non-parental” custody action , but the dependency court has exclusive jurisdiction over the child, which made it difficult for the parent to bring a custody action in family court unless there was concurrent jurisdiction between both courts. Neither of these options made the parent’s rights very clear and neither gave the parent the legal ability to be heard in juvenile court where dependency cases are heard. The new statute has provided terminated parents with the option of resuming their status as the legal parent.
A new permanency option for children who are not in permanent placements was created in July, 2007 when the Washington legislature passed ESHB 1624, the Parental Reinstatement Bill, now codified at RCW 13.34.215. Approximately 10 other states now have similar legislation.
Prior to the passage of the parental reinstatement legislation, it was not uncommon for an adolescent to request a return to the parental home even if parental rights had been terminated. Until 2007 there was not an appropriate statutory basis to allow placement. The child could request that his or her attorney (if the child had an attorney) set a motions hearing in the dependency case to request placement with a (terminated) parent. The court might have considered placement with the terminated parent if the placement with a “suitable person” or a “relative.” In family court, a terminated parent could petition for a “non-parental” custody action , but the dependency court has exclusive jurisdiction over the child, which made it difficult for the parent to bring a custody action in family court unless there was concurrent jurisdiction between both courts. Neither of these options made the parent’s rights very clear and neither gave the parent the legal ability to be heard in juvenile court where dependency cases are heard. The new statute has provided terminated parents with the option of resuming their status as the legal parent.
§ 23.2 Eligibility
As of 2007, RCW 13.34.215 allows a youth who is over the age of 12 to petition the court to reinstate the parent’s previously terminated rights if the child is not in a permanent placement and at least three years have passed since the termination of rights. [1]
Legislation in 2008 allowed the court on its own motion to petition for reinstatement as well as for a child under the age of twelve (12) to petition if it is in the child’s best interest.
Most recently, in 2011, legislation again updated this law, clarifying that children who have once been in a permanent home, but have had that placement disrupted, can also petition for reinstatement.
As of 2007, RCW 13.34.215 allows a youth who is over the age of 12 to petition the court to reinstate the parent’s previously terminated rights if the child is not in a permanent placement and at least three years have passed since the termination of rights. [1]
Legislation in 2008 allowed the court on its own motion to petition for reinstatement as well as for a child under the age of twelve (12) to petition if it is in the child’s best interest.
Most recently, in 2011, legislation again updated this law, clarifying that children who have once been in a permanent home, but have had that placement disrupted, can also petition for reinstatement.
_§ 23.3 Notification to Child
If a parent of an eligible child contacts the Department of Social and Health Services (DSHS), the supervising agency, the child’s guardian ad litem (GAL) or court-appointed special advocate (CASA) regarding reinstatement, even if the child has not petitioned for reinstatement, the child must be notified by the contacted party of the right to petition.[2]
If a parent of an eligible child contacts the Department of Social and Health Services (DSHS), the supervising agency, the child’s guardian ad litem (GAL) or court-appointed special advocate (CASA) regarding reinstatement, even if the child has not petitioned for reinstatement, the child must be notified by the contacted party of the right to petition.[2]
_§ 23.4 Representation of Child
Washington’s laws regarding appointment of counsel for children can make the child’s ability to advocate for return to a terminated parent difficult in most counties in Washington because children have to first access counsel before proceeding on a reinstatement petition. In some counties, such as King County, all dependent children age 12 and older are appointed dependency counsel. However, this is not the case in all Washington counties. Children with counsel already appointed will have a much easier time navigating the reinstatement statute, yet a child may not be aware that he or she has the right to appointed counsel if a reinstatement petition is filed.
RCW 13.34.215, however, provides for appointment of counsel for any child who petitions the court for reinstatement of parental rights.[3] This is Washington’s first uniform law and practice for appointment of an attorney for a child in a dependency proceeding. The statute also allows appointment of a GAL in the proceeding.
Washington’s laws regarding appointment of counsel for children can make the child’s ability to advocate for return to a terminated parent difficult in most counties in Washington because children have to first access counsel before proceeding on a reinstatement petition. In some counties, such as King County, all dependent children age 12 and older are appointed dependency counsel. However, this is not the case in all Washington counties. Children with counsel already appointed will have a much easier time navigating the reinstatement statute, yet a child may not be aware that he or she has the right to appointed counsel if a reinstatement petition is filed.
RCW 13.34.215, however, provides for appointment of counsel for any child who petitions the court for reinstatement of parental rights.[3] This is Washington’s first uniform law and practice for appointment of an attorney for a child in a dependency proceeding. The statute also allows appointment of a GAL in the proceeding.
_§ 23.5 Threshold Hearings
Once the child files a petition to reinstate parental rights, a threshold hearing is set 30 days later.[4] At that hearing, the child must show by a preponderance of the evidence that the parent has established his or her “apparent fitness;” his or her interest in reinstatement of parental rights; and that the best interests of the child may be served by reinstatement of parental rights.[5]
Once the child files a petition to reinstate parental rights, a threshold hearing is set 30 days later.[4] At that hearing, the child must show by a preponderance of the evidence that the parent has established his or her “apparent fitness;” his or her interest in reinstatement of parental rights; and that the best interests of the child may be served by reinstatement of parental rights.[5]
_§ 23.6 Conditional Reinstatement Hearing
Approximately 60 days after the threshold hearing, the hearing to conditionally reinstate rights is held.[6] At that hearing, the petitioning child must show by clear and convincing evidence that he or she (the child) has not achieved a permanent plan which has been sustained and is not likely to achieve such a plan, and that reinstatement is in his or her best interest.[7] For children who have experienced many placements and continue to reside in temporary homes, it is fairly easy to establish the lack of a permanent plan and that the rehabilitated parent may be the only option for the child to have a permanent home. Likewise, if the birth parent is the only permanent option, the parent has stabilized and the relationship is a positive one, establishing “best interest” may be fairly straight forward.
Approximately 60 days after the threshold hearing, the hearing to conditionally reinstate rights is held.[6] At that hearing, the petitioning child must show by clear and convincing evidence that he or she (the child) has not achieved a permanent plan which has been sustained and is not likely to achieve such a plan, and that reinstatement is in his or her best interest.[7] For children who have experienced many placements and continue to reside in temporary homes, it is fairly easy to establish the lack of a permanent plan and that the rehabilitated parent may be the only option for the child to have a permanent home. Likewise, if the birth parent is the only permanent option, the parent has stabilized and the relationship is a positive one, establishing “best interest” may be fairly straight forward.
_§ 23.7 Notification to Interested Parties
Prior to any hearing, the DSHS or other supervising agency must give notice to all interested parties including the parent whose parental rights are at issue, any parent whose rights have not been terminated, the child’s current foster parent, relative caregiver, guardian/custodian, and the child’s tribe (if applicable).[8]
Prior to any hearing, the DSHS or other supervising agency must give notice to all interested parties including the parent whose parental rights are at issue, any parent whose rights have not been terminated, the child’s current foster parent, relative caregiver, guardian/custodian, and the child’s tribe (if applicable).[8]
_§ 23.8 Burden of Proof
At the threshold hearing, the court must order a hearing on the merits of the petition if it finds by a preponderance of the evidence that reinstatement is in the best interests of the child.[9]
At the conditional reinstatement hearing, the court must conditionally grant the child’s petition if it finds by clear and convincing evidence that the child has not achieved his or her permanency plan and that reinstatement is in the best interest of the child.[10]
At the threshold hearing, the court must order a hearing on the merits of the petition if it finds by a preponderance of the evidence that reinstatement is in the best interests of the child.[9]
At the conditional reinstatement hearing, the court must conditionally grant the child’s petition if it finds by clear and convincing evidence that the child has not achieved his or her permanency plan and that reinstatement is in the best interest of the child.[10]
_§ 23.9 Considerations of the Court
Generally, the children who petition for reinstatement of parental rights have maintained a relationship or contact with the parent. In some cases, the child has been living with the parent, either unofficially, or with court permission on a “visit” or other type of temporary placement. The child’s counsel is required to show that the parent(s) has dealt with the issues that caused the court to terminate rights—that the parent is currently able to care for the child. The court must consider whether the parent has remedied his or her deficiencies, the age/maturity of the child, whether reinstatement would risk the child’s health, safety or welfare and any other material changes of circumstance which would lead to the reinstatement process.[11]
§ 23.10 Prior Efforts to Achieve Permanency
DSHS or another supervising agency must provide the court with all information relating to efforts to achieve permanency so that the court may determine whether or not permanency was achieved.[12]
Generally, the children who petition for reinstatement of parental rights have maintained a relationship or contact with the parent. In some cases, the child has been living with the parent, either unofficially, or with court permission on a “visit” or other type of temporary placement. The child’s counsel is required to show that the parent(s) has dealt with the issues that caused the court to terminate rights—that the parent is currently able to care for the child. The court must consider whether the parent has remedied his or her deficiencies, the age/maturity of the child, whether reinstatement would risk the child’s health, safety or welfare and any other material changes of circumstance which would lead to the reinstatement process.[11]
§ 23.10 Prior Efforts to Achieve Permanency
DSHS or another supervising agency must provide the court with all information relating to efforts to achieve permanency so that the court may determine whether or not permanency was achieved.[12]
_§ 23.11 Timing
Washington’s law allows the child to transition home at the time the parent’s rights are conditionally reinstated, generally 90 days from the date of the filing of the petition, if all of the requirements are met. Complications arise in cases where the birth parent resides out of state, and the interstate compact process is invoked. A receiving state may not recognize a terminated parent as having the authority for placement and may refuse to conduct a home study. The child may have treatment issues that would not allow placement as early as 90 days from the date of petition (such as in the case of a child in group care or in a treatment facility.) Using the family group conference or other family support meeting process is an important resource for these types of cases.
Washington’s law allows the child to transition home at the time the parent’s rights are conditionally reinstated, generally 90 days from the date of the filing of the petition, if all of the requirements are met. Complications arise in cases where the birth parent resides out of state, and the interstate compact process is invoked. A receiving state may not recognize a terminated parent as having the authority for placement and may refuse to conduct a home study. The child may have treatment issues that would not allow placement as early as 90 days from the date of petition (such as in the case of a child in group care or in a treatment facility.) Using the family group conference or other family support meeting process is an important resource for these types of cases.
_§ 23.12 Cause for Dismissal of Petition for Reinstatement
Once the child is placed in the parent’s home, and the parent’s rights have been conditionally reinstated, a hearing is set for six months later.[13] If the child is removed from the parent due to abuse or neglect during this period of time, where the allegations are proven by a preponderance of the evidence, the court will dismiss the petition for reinstatement of parental rights.[14]
§ 23.13 Cause for Dismissal of Dependency
If the placement was successful for the six month trial period (i.e., the period during which the parent’s rights have been conditionally reinstated), the dependency will be dismissed and the parental rights will be permanently reinstated. This reinstatement of parental rights includes powers, privileges, immunities, duties and obligations of a parent to the child.[15]
Once the child is placed in the parent’s home, and the parent’s rights have been conditionally reinstated, a hearing is set for six months later.[13] If the child is removed from the parent due to abuse or neglect during this period of time, where the allegations are proven by a preponderance of the evidence, the court will dismiss the petition for reinstatement of parental rights.[14]
§ 23.13 Cause for Dismissal of Dependency
If the placement was successful for the six month trial period (i.e., the period during which the parent’s rights have been conditionally reinstated), the dependency will be dismissed and the parental rights will be permanently reinstated. This reinstatement of parental rights includes powers, privileges, immunities, duties and obligations of a parent to the child.[15]
_§ 23.14 Effect on Prior Termination Order
Reinstatement of parental rights does not alter the prior termination of parental rights.[16] The reinstatement of parental rights is a new, more recent court order which is legally enforceable.
§ 23.15 Child Support Obligations
A parent whose parental rights are reinstated is given all of the powers and obligations associated with parenthood, however child support is not owed retroactively from the time the parental rights are terminated until they are reinstated.[17]
Reinstatement of parental rights does not alter the prior termination of parental rights.[16] The reinstatement of parental rights is a new, more recent court order which is legally enforceable.
§ 23.15 Child Support Obligations
A parent whose parental rights are reinstated is given all of the powers and obligations associated with parenthood, however child support is not owed retroactively from the time the parental rights are terminated until they are reinstated.[17]
_§ 23.16 Applicability
RCW 13.34.215 applies to all children under the jurisdiction of the juvenile court regardless of the date parental rights were initially terminated.[18] Parental reinstatement, although new to Washington State, is a promising permanency option for Washington’s foster youth who are destined to age out of the foster care system. This plan allows children, especially older children, the chance to return to their birth families, return to a culturally appropriate home, and allows the return to a home that may be the only stable, permanent, and appropriate resource available.
RCW 13.34.215 applies to all children under the jurisdiction of the juvenile court regardless of the date parental rights were initially terminated.[18] Parental reinstatement, although new to Washington State, is a promising permanency option for Washington’s foster youth who are destined to age out of the foster care system. This plan allows children, especially older children, the chance to return to their birth families, return to a culturally appropriate home, and allows the return to a home that may be the only stable, permanent, and appropriate resource available.
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[1] RCW 13.34.215(1).
[2] Id. at (2).
[3] Id. at (3).
[4] Id. at (5).
[5] Id.
[6] Id. at (7).
[7] Id.
[8] Id. at (6).
[9] Id. at (5).
[10] Id. at (7).
[11] Id. at (7)(a)–(d).
[12] Id. at (8).
[13] Id. at (9)(a); RCW 13.34.215(10).
[14] RCW 13.34.215(9)(b); RCW 13.34.215(10).
[15] RCW 13.34.215(9)(c); RCW 13.34.215(10).
[16] RCW 13.34.215(11) and (13).
[17] RCW 13.34.215(12).
[18] Id. at (14).
[1] RCW 13.34.215(1).
[2] Id. at (2).
[3] Id. at (3).
[4] Id. at (5).
[5] Id.
[6] Id. at (7).
[7] Id.
[8] Id. at (6).
[9] Id. at (5).
[10] Id. at (7).
[11] Id. at (7)(a)–(d).
[12] Id. at (8).
[13] Id. at (9)(a); RCW 13.34.215(10).
[14] RCW 13.34.215(9)(b); RCW 13.34.215(10).
[15] RCW 13.34.215(9)(c); RCW 13.34.215(10).
[16] RCW 13.34.215(11) and (13).
[17] RCW 13.34.215(12).
[18] Id. at (14).
