Child Welfare: Laws May Change, but Attitudes Remain the Same

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LaShanda Taylor Adams, JD

The following is an excerpt. To download Reflections on Child Welfare Areas of Practice, Issues, and Service Populations, Volume 1, click here.

In 1995, Professor Martin Guggenheim of the New York University (NYU) School of Law coined the term “legal orphan” and estimated that nationwide, there were between 40,000 and 80,000 children who had been freed for adoption but had not yet been adopted (Guggenheim, 1995). By 1999, the United States had approximately 24,219 new legal orphans each year (Stack, 2005). Studies have concluded that the loss of the legal relationship can mean a loss of the physical and emotional relationship between the parent and child, which is important to children’s social and emotional development (Viboch, 2005; Cournos, 2002; Eagle, 1994). Children who age out of the foster care system without permanent homes or legal connections can experience dire outcomes across an array of well-being indicators, including homelessness, criminal involvement, mental and physical health, education, and reliance on public assistance. (Taylor, 2010; Mandelbaum, 2015). These problems are particularly acute for the legal orphans who are not adopted and who exit the foster care system through emancipation at the age of 18 or 21.

It was against this backdrop in 1999 that my NYU Family Defense Clinic partner, Joel Bergstrom, and I were assigned by Professor Guggenheim to represent Roberta Green. At the time, Ms. Green’s son had exited the foster care system as a legal orphan. She wanted her legal relationship with him to be restored. In short, she wanted to be his legal, as well as biological, mother.

While we represented several clients during our one year in the clinic, it was Ms. Green who had the biggest impact on my life. I have continued to reflect on her case several decades after its successful completion. I have written about her case in law review articles, using it to advocate for systemic reform. My reflections of the case had always been focused on the legal arguments. In 2016, I had the opportunity to speak with Joel about our client and the case. He told me then:

Two client pieces stick out: First is when you and I went to see her in her apartment. I was super nervous. For many reasons. Mainly it was the whole, ‘oh my, we have a client’ reason. Second was just how foreign it was for me. The whole thing. The intimacy of going into this person’s home. I remember her being so welcoming to us. I recall her home feeling extremely homey. By that I mean she had made it her space. What space she had was full of meaning and memory. Mementos and photos everywhere. I think back today, with so much more awareness of how systems treat people and I just wonder how it was for her. Two 20-something law students coming into her home, trying to help.

Unfortunately, at that time there was no legal mechanism for reinstating parental rights. The law was clear that once parental rights had been terminated, the parent-child relationship was permanently and irrevocably severed. In the eyes of the law, Ms. Green was no longer her son’s mother. In fact, there is a saying that a parent whose rights to a child are terminated becomes a “stranger” to that child.

Our only option was to petition the court to reopen the case and vacate the termination order based on a change in circumstances. To support our petition, we included evidence of our client’s rehabilitation, pictures of her home, and a statement from her son indicating his support of the request. Despite the absence of a statute or any real legal authority, the judge granted our petition. And, without much fanfare, Ms. Green and her son became mother and child again.

I can admit that when we first met Ms. Green in her home, I did not fully understand why having her parental rights restored mattered so much. As a young adult who had the privilege of growing up with both of my biological parents, I had never focused on the significance of the legal relationship. It was not until after the court hearing, after we had  argued that the termination of parental rights should be vacated, that I was able to fully grasp the significance of what we had accomplished. As we took pictures to memorialize the moment, it finally dawned on me what we had done that day: Joel and I had “resurrected” our client and recreated the family that she had lost.

We were not the first legal advocates to obtain this outcome for a parent; however, at the time, it felt that what we were doing was novel. I learned several years later that informal processes for vacating termination orders had been used in New York and Pennsylvania since 1997 (Stack, 2004). These processes were developed in response to a realization that existing statutes provided no remedy for legal orphans and their birth parents.

Over time, states came to the realization that laws needed to respond to the needs of legal orphans. Since 2005, 18 states have enacted laws allowing parental rights to be restored when in the child’s best interest. Commonly, the statutes contain provisions detailing: (1) whether a waiting period is required before a motion or petition can be filed; (2) who has standing to file a motion or petition; (3) the duration of trial home visits prior to the reinstatement of parental rights; (4) the role of the child welfare agency; (5) the criteria for the entry of a reinstatement order, including the standard of evidence and the required court findings; and (6) the effect of the reinstatement order on the earlier termination decree.

As a parent and child advocate, the proliferation of parental rights restoration statutes both encourages and frustrates me. On one hand, the statutes appear to evidence a recognition that parents whose rights have been terminated may provide the best opportunity for permanence for youth who would otherwise languish in the foster care system. Within that recognition is an understanding that people can change—even people who were once deemed unfit to parent. On the other hand, these statutes reflect a negative and biased view of parents whose rights have been terminated, presenting challenges for them and the lawyers who represent them.

LaShanda Taylor Adams is a Professor of Law and Associate Dean for Academic Affairs at the University of the District of Columbia David A. Clarke School of Law. She received her BA, summa cum laude, from Spelman College and her JD from the New York University School of Law.

Selected References
Cournos, F. (2002). The trauma of profound childhood loss: A personal and professional perspective. Psychiatric Quarterly, 73, 145.
Eagle, R. (1994, July). The separation experience of children in long term care: Theory, research, and implications for practice. American Journal of Orthopsychiatry, 64, 421.
Guggenheim, M. (1995). The effects of recent trends to accelerate the termination of parental rights of children in foster care: An empirical analysis in two states. Family Law Quarterly, 29, 21.
Mandelbaum, R. (2015). Re-examining and re-defining permanency from a youth’s perspective. Capital University Law Review, 34, 259.
Taylor, L. (2010). Resurrecting parents of legal orphans: Un-terminating parental rights. Virginia Journal of Social Policy & the Law, 17, 318.
Stack, B.W. (2004, September 12). In the public care system but on the lam, a teen longs for someone who cares. Pittsburgh Post-Gazette. Retrieved from https://www.post-gazette.com/uncategorized/2004/09/12/In-the-public-care-system-but-on-the-lam-a-teen-longs-for-someone-whocares/stories/200409120205
Viboch, M. (2005, December). Childhood loss and behavioral problems: Loosening the link. Brooklyn, NY: Vera Institute of Justice. Retrieved from http://www.icctc.org/August2013/PMM%20Handouts/Viboch_Childhood%20Loss.pdf

 

 

About the Author:

Rachel Adams is the managing editor of CWLA's Child Welfare journal and the editor for Children's Voice magazine, CWLA textbooks, children's books, and curricula. She updates the Children's Voice page.

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