GGU Law Review Blog

Remove Time Limits on Reunification; Choose Guardianship over Adoption


Permanence is the goal for children in foster care. To achieve this goal, adoption is used if reunification with birth parents can not be accomplished within fifteen months. This is detrimental to children whose natural parents suffer from the chronic disease of addiction. Recovery within fifteen months is difficult for an addict and if recovery is not achieved, adoption strips natural parents of any future possibility of reunification. While long stays in foster care should be avoided, adoption should be discarded in favor of guardianship to ensure the possibility of reunification no matter how long recovery takes. Unlike adoption, guardianship does not terminate parental rights, but instead allows another caregiver to assume physical and legal custody of the child until reunification is possible. Guardianship is in the best interests of the child, allowing the creation of new attachments with guardians without severing the possibility of repairing the attachment ruptures between addicted parents and their children.

Drug addiction is an epidemic in the United States. Its most detrimental effects are felt by children whose natural parents suffer from the disease. A parent’s drug addiction can cause an absence in the child’s life, which prevents attachment between parent and child. According to attachment theory, children who are unable to attach to a natural parent will have future problems with emotional regulation and social relatedness, creating an increased risk of depression, anxiety, and behavioral problems. This separation also often results in child neglect, increasing the child’s risk of being placed into foster care. Dependency courts may find drug-addicted parents are unfit to manage the custody and care of their children.

If natural parents can regain their fitness, reunification should occur no matter the length of separation from their children. The connection between a natural parent and his or her child should be protected. This assertion is supported by the United Nations and Supreme Court; as well as attachment theory, which posits the attachment between a natural parent and child is essential in the healthy development of the child.

In foster care, though, since permanence is the goal for the child, adoption occurs if reunification is unsuccessful within fifteen months. Adoption and reunification plans are even developed simultaneously. This focus on permanence prevents reunification for many natural parents suffering from the chronic disease of addiction because recovery within fifteen months is difficult. Recovery is a long process and relapse is common. Approximately half of drug addicts will relapse within the first year of sobriety. Furthermore, available treatment services are unable to support the need. At least ninety days of residential treatment are necessary for long-term abstinence, and one year of treatment is preferred. Dependency drug courts were created to address drug addiction in parents, but these courts lack sufficient space and some parents are ineligible to participate. Moreover, a parent’s inability to maintain sobriety, which is a common symptom of the disease of addiction, may result in termination from the program. This makes reunification within fifteen months difficult.

Child welfare laws do not specifically discuss the reasons for a focus on permanency, but a child’s health and safety are listed as paramount concerns. As discussed, the health and safety of a child are strongly influenced by the ability to attach to a stable caregiver. The longer a child is unable to attach to any caregiver, the more prolonged the negative effects will be. If children are unable to attach to a natural parent, they can attach to a different caregiver instead. Therefore, an argument in favor of permanence is that attaching to a caregiver within fifteen months, through reunification or adoption, will minimize the attachment disruption created when the child was placed into foster care, thereby minimizing any negative effects.

Unfortunately, this argument is flawed. While minimizing attachment disruptions is of the utmost importance, terminating parental rights to ensure permanency is unnecessary and not in the best interests of the child. Children can form attachments with many caregivers at the same time, so it is possible to maintain contact with birth parents without compromising new attachments developed with guardians. Maintaining contact with a natural parent benefits the child. Guardianship allows the child to create new, stable attachments with his or her new caregivers while still allowing for a repair of the attachment with the child’s natural parents. Other caregivers oversee the custody and care of the child, but the natural parents’ rights are not terminated. Guardianship ensures reunification can occur at any point in the child’s life. In contrast, adoption prevents natural parents from repairing attachment disruptions with their children due to a strict legal separation. Therefore, guardianship should be favored over adoption.

Once a parent has fully recovered and become fit to care for the child, attachment ruptures that may have occurred between the child and natural parent can be repaired. Since continuity is important, and to ensure another disruption does not occur when children are finally reunified with their natural parents, the timeline for the reunification process can be adjusted based on the amount of time the natural parent and child have been separated. Supervised or restricted visits may be necessary initially to ensure the health and safety of the child.  This process is similar to the reunification process that occurs if one natural parent reappears to share custody with another natural parent. Courts generally try to reunite natural parents with their children without regard for the length of separation when a custody dispute is between two natural parents. This practice should apply no matter who is the caregiver of the child during the natural parent’s absence.

To ensure natural parents always have the possibility of reunification, adoption should be discarded in favor of guardianship. To provide for the best interests of the child, natural parents should never be severed from repairing the attachment disruptions their addictions have caused.

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