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Three separate studies since 1996 have found that 30 percent of America's foster children could be safely in their own homes right now, if their birth parents had safe, affordable housing.

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CA: AB 519 - Hope for Legal Orphans and Their Families

Posted: November 30, 2005

Read Caitlin's Story

AB 519, was signed into law on October 7th, 2005 and will go into effect on January 1, 2006. The bill was introduced to address the problem of legal orphans in the State of California and is a step in the right direction.

"Legal orphans" are dependent children who have been legally freed for adoption but never adopted. California law previously provided no remedy for these children. Adoption is the preferred permanent plan for abused or neglected children who cannot be reunified with their parents.

Termination of Parental Rights

However, in order to free a child for adoption, the juvenile court must terminate all parental rights based on a finding that the child is likely to be adopted. The reality, however, is that older children, children with special physical or emotional needs, and children who are part of a sibling group are often only likely to be adopted by a specific, identified prospective adoptive parent. For too many of these youth, after the court terminates parental rights, the adoptive placements fail and these children end up becoming legal orphans -- severed from all family ties.

As of July 2002, there were 5,846 legally-freed children in California who were not yet placed in an adoptive home. For nearly 1,000 of these freed youths, adoption is no longer even the goal of their case plan. Children who never receive the benefit of adoption should not have to suffer the permanent loss of their legal relationships to their parents, grandparents, siblings, and other relatives, nor should they have to bear the stigma of being labeled a "legal orphan."

Creating a permanent class of legally-orphaned children is clearly contrary to California's public policy and its mandate to act in the best interest of abused and neglected children.

AB 519 (Leno) does the following:

  • Authorizes a child who has been legally freed for at least three years, or who all parties stipulate is no longer adoptable, to petition the juvenile court to reinstate parental rights.
  • If the court finds there are changed circumstances since the termination of parental rights that indicate the child is no longer likely to be adopted, and if the court also finds, by clear and convincing evidence, that reinstatement of parental rights would be in the child's best interest, the court shall reinstate parental rights. Since the petition may only be brought by the child, the law will still protect termination orders from being collaterally attacked by parents, while at the same time providing a remedy to dependent children who would otherwise be left legal orphans by the state.
  • Requires a child over the age of 12 to sign the petition, or show cause as to why the child could not sign the petition.
  • Requires that prior notice be given to the child's former parent(s) (whose parental rights were terminated) in the manner prescribed by subdivision (c) of Section 294 where the recommendation is adoption. Section 294 is the most extensive notice provision in the law. It calls for notice to be completed at least 45 days before the hearing date, if by personal service or mail, and at least 30-days before the hearing date if by publication. The notice must include, among other things, the date, time and place of the hearing, the nature of the proceedings and an advisement of the right to appear. The parent would be expected to fully participate in the hearing and, accordingly, would have the opportunity to be heard on the issue and to bring in any relevant evidence.

Caitlin's Story - One Legal Orphans Battle

Caitlin B. of Sutter County is only one child who will benefit from the new law. Caitlin was three years old when she was taken into the foster care system, along with her two brothers, ages 7 and 1. Her youngest brother was adopted soon after the termination of parental rights for him and Caitlin. Her older brother had significant medical problems, so parental rights were never terminated for him.

The children's mother, Michele Boutt-Behm, has since received the drug treatment and other services she needed to reclaim and care for her oldest son. She has been clean and sober since 1997 (shortly after the children were taken into protective custody), has maintained steady employment since 1998, owns her own home and recently remarried.

Caitlin is now 12 years old. She was never adopted and has bounced unsuccessfully from placement to placement for nine years. Because her older brother was returned home many years ago, Caitlin cannot understand why she is still being held captive by the system. She desperately wants to be returned to her family. And her former mother desperately wants her to come home.

Just recently, Child Protective Services of Sutter County has begun the process of placing Caitlin with her former mother in a legal guardianship, with the intention of reinstating parental rights.

Caitlin's Mom Holds Out Hope

Michele Boutt-Behm had this to say:

I have recently been granted, by the graciousness of CPS, contact with my daughter Caitlin, of whom my parental rights were terminated almost six years ago.

It looks as though, thanks to Assemblyman Mark Leno and his assemblybill AB519, that will allow the juvenile court to reinstate parental rights to parents whose child or children has not been adopted three years after termination of parental rights or is found not to be adoptable any longer.

My daughter just turned 13 and has been bounced from foster home to home for the last 9 years. The bill was signed by the governor and becomes effective on January 1. Her attorney is already prepared to petition the court at my daughters request to have my parental rights reinstated so she can finally be where she belongs, at home with her mommy. We go back to court on January 12, 2006 for the continuance of the review hearing for Caitlin.

At this time her attorney will have filed the motion to modify the current order and ask the judge to reinstate my parental rights. When all of this started the social worker asked me, "Would you be willing to place your son if you could have your daughter back with you." Nice lady huh?

Anyway, I told her no way would I sacrifice one child for another, but I would take her back in a heart beat. With that I petitioned the court to reinstate my parental rights so I could get Caitlin back. Unfortunately the judge could not do anything as much as he wanted to, but, at the objection of CPS, he gave me two weeks to find law that would allow him to do so. At that time there was no such law.

I called Pat Miller to see if she knew of any law that would allow this. She said she did not know, but she knew of AB 519 that had just been introduced into legislation.

When I went back to court I presented this bill to the judge, Caitlin's attorney and CPS' attorney. The judge was very interested in the bill and again at CPS' objection allowed the introduction of the bill into record. I have been working very closely with Caitlin's attorney and he is very involved in getting her back home where she wants and needs to be.

There are pictures of Caitlin, my son Daniel and myself on Caitlin's webpage. I have been praying for this for so long and my prayers are finally being answered. God is so good.

Michele Behm

Peace does not dwell in outward things, but in the heart prepared to wait trustfully and quietly on Him who has all things safely in His hands.

We wish Michele, Caitlin and her family all the best! They have waited a longtime for a little happiness in their lives.