Bio Family 2.0: Can the American Child Welfare System Finally Find Permanency for ‘Legal Orphans’ with a Statute to Reinstate Parental Rights?

The American child welfare system terminates parental rights for thousands of children each year even though adoptive families have not yet been identified for the children. Every year, there are more than 100,000 of these “legal orphans” waiting for new families. Given the lower rates of adoptions for children of color and older children, and the poor outcomes for most youth who age out of the foster care system, the American child welfare system must start to think differently about permanency options for children. This Article proposes a model statutory provision to reinstate parental rights under certain circumstances to give these “legal orphans” a second chance with their rehabilitated biological parents. Although several states have enacted reinstatement provisions, the criteria and processes for reinstating parental rights differ significantly among their statutory schemes. The model statute outlined in this Article uses child welfare data reported by each state to determine when and how reinstatement of parental rights should be evaluated by the courts.