Alabama Orphan-Law Update | April 3, 2015

Basics**Click here to view the full Orphan-Law Update in a new tab.**

An orphan is a vulnerable child left without adequate familial provision and protection from evil.  There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children.  Orphan Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.


This week, Alabama’s appellate courts released two new opinions that affect orphans and their families. 


The first case of the week is A.H. v. B.C., 2120877 (April 3, 2015), drafted by Judge Moore.  This decision arises out of the same facts and circumstances of Ex parte B.C., 1130250 (January 30, 2015), wherein the Court of Civil Appeals (Civs) held that, when the mother of a child brings a TPR petition against the father, there is no need to assert dependency.

The issue in the case at hand deals with the father’s argument that the juvenile court lacked subject matter jurisdiction because the mother did not file her TPR petition in compliance with § 12-15-120, Code of Alabama.  Said code section requires that at a TPR petition, when alleged in conjunction with a dependency allegation, must be filed with the juvenile court intake officer.

The Civs held that the mother’s failure to comply with the filing requirements of § 12-15-120, did not divest the juvenile court of subject matter jurisdiction.  This decision is another helpful installment for the orphan-care community in understanding the appropriate procedure for the termination of parental rights of absent fathers, when initiated by the child’s mother.


The second case of the week is S.S. v. T.Y. and D.Y., 2140045 (April 3, 2015), drafted by Presiding Judge Thompson.  The facts of this case are definitely esoteric, but the issue and result are far too common.  The juvenile court took custody of two of the mother’s children away from her and gave them to the petitioners.  That’s basically the entirety of the pertinent details that the Civs give us in this case, however, this is the second time the case has been before the Civs. The initial case was affirmed with no opinion on September 12, 2014, and styled as T.Y. v. S.S..

The issue the Civs resolved in this round of proceedings was whether the mother timely filed her Notice of Appeal.  Pursuant to juvenile law, a Notice of Appeal must be filed within 14 days of the entry or denial of a post-judgment motion (also, remember to keep in mind that a post-judgment motion is denied by operation of law after 14 days in the juvenile court).  In the case at hand, the mother filed three post-judgment motions.  However, the Civs held that the last two post-judgment motions were repetitive and basically identical to the first.  Therefore, they declined to treat the last two post-judgment motions as new motions for the purpose of calculating the time for appeal.

As a result, the Civs dismissed the appeal as being untimely filed.  This case is a reminder to orphan-care advocates to be persnickety about timelines—especially the appeal timelines, which can be unforgiving.  This case also gives a window into the unique situation where a party files multiple post-judgment motions.


Photo by libertygrace0.

 

Memorandum on House Bill 48

The Adoption Law Firm places a high priority on forwarding legislation that promotes uncompromising excellence in caring for orphans. As such, we would like to address House Bill 48, which seeks to address oversight and accountability for the child welfare system – an issue we care passionately about. In particular, we seek to respectfully address some of our concerns with the language of the bill. Please feel free to read and share our memorandum, which can be found here.

 

Outstanding Teen Comes From Foster Care with an Inspiring Message

2015_Top_5Miss Alabama’s recently crowned outstanding teen, Kaitlynn Campbell, has had some difficult experiences growing up. Having experienced life in foster care and recently settling into her own room after many months of instability, her background stands out. But more importantly, what really stands out is her stunningly beautiful attitude and heart. From al.com:

“I’ve worked with my circumstances,” Campbell says. “It has been hard. It hasn’t been easy, but it has been so worth it. It has just been an incredible journey ever since. Things have fallen together perfectly, God has just been in this whole journey all through the way.

“I’m excited to able to represent the state of Alabama and to be the voice for the kids that are going through hard times,” Campbell adds. “I’m excited to be able to use my platform as a stepping stone to change the world.”

That started when she stepped out on stage last weekend for the talent competition, singing Martina McBride’s “Concrete Angel,” a song about child abuse.

“I want to give other kids the courage to overcome any type of adversity that they’re facing, not just child abuse, not just child neglect, but teenage bullying to everything that there is in the book that teenagers face today, because it is not easy being a teenager,” Campbell says. “I know that first-hand.”

Her story serves as an inspiration not only for children who do not have permanency and the security of a forever family, but for everyone. Thanks for representing Alabama so well, Kaitlynn!

Photo available at outstandingteen.homestead.com.

“Annie” at Eastwood Christian School

Annie

 

 

Are you looking for plans next Thursday or Friday? Well, we have just the thing! Eastwood Christian School is performing “Annie” this year for their school play. The play will be held at Taylor Road Baptist Church at 6:30 p.m. on March 12 and 13 – and admission is FREE!!

“Annie” is a beautiful story of orphan care and redemption. The Adoption Law Firm will be there, along with other local orphan care and adoption organizations, to help encourage everyone to get involved in providing for the 153 million orphans in the world today.

We hope to see you there!

“Eat Mor Chikin” for First Choice Women’s Medical Center

cfa-fb-main-3Do you have dinner plans yet? Do you love Chick-fil-A (who doesn’t?) and want to support an excellent cause?

Today between 5 PM and 9 PM, the Chick-fil-A at Eastchase will be donating 20 percent of its profits to First Choice Women’s Medical Center.

Please make sure to order inside so that you can sign a sheet to specify that you would like to participate in the First Choice Women’s Medical Center benefit.

Companies That Make Amazing Products – And Support Adoption and Foster Children! Part 1

MonogramOptionsWeb_largeSwell Forever, a company that specializes in “classic heirlooms with a personalized twist,” not only creates beautiful monogrammed heirloom gifts – but also supports adoption and foster care. In fact, the company “was created with the goal of raising awareness and providing funds to help improve the chances of waiting children who need to find a Forever Family.”

Swell Forever also recently added a book on adoption to their store called, “The Blooming.” Be sure to take a look at this incredible book, which sweetly illustrates the love in the adoption process.

Swell Forever’s grant program is open to potential adoptive parents, and focuses on assisting those adopting out of foster care and special-needs adoptions.


It is inspiring to see people using their creative gifts and vision to help adoption and foster children! Please support these companies, and help spread their message of love and hope for these amazing kids.

Story from CBN: Couple Cares For Many Children in Need

This past Friday, The 700 Club featured a story on a couple who suddenly felt called to adopt. Since then, they have fostered 34 children – and adopted 17 of those children! The couple is especially focused on supporting and sharing the love of Christ with children who have a history of trauma and neglect. Many of their children also have special needs. The foster/adoptive mother says that, although there are difficulties, “with Christ in the center, no one can divide us.”

Alabama Orphan-Care Case Law Update: February 13, 2015

BasicsAn orphan is a vulnerable child left without adequate familial provision and protection from evil.  There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children.  Orphan-Care Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.

This week, Alabama’s appellate courts released three new opinions that affect orphans and their families. 


In the first case, Rasha Alsaikhan v. Ahmed Alakel, 2130870, (Ala. Civ. App. 2015), Alakel (“the husband”) filed for divorce from his wife, Alsaikhan. The husband did not mention seeking custody of their children in his complaint.

The wife, however, did seek custody of their children—and as a result the husband filed an amended complaint to seek custody of the children.

The big complicating factor in the case was the issue of subject-matter jurisdiction, which is whether or not the court has the authority to hear a given case. This issue was introduced into the case by the wife’s subsequent counterclaim, in which she filed a motion to dismiss due to the lack of subject-matter jurisdiction.

This claim was introduced because of the wife’s statement that they were both citizens of Saudi Arabia, in the U.S. on student visas with no intention of domicile (domicile is the legal term for a permanent home) in the U.S.  Therefore, she argued that her husband’s divorce action did not have subject-matter jurisdiction in that particular trial court.

The issue of subject-matter jurisdiction is where this case got messy, and ultimately, where it ended. Although the trial court purported to divorce the parties (including jointly sharing child custody, property, etc.), the wife filed a postjudgement motion to bring up the subject-matter jurisdiction issue again. The couples’ joint intention to return to Saudi Arabia emerged as a particularly relevant issue, given that: “ ‘ [A] domicile, once acquired, is presumed to exist until a new one has been gained “facto et animo” . . . And in order to displace the former, original domicile by the acquisition of one of choice, actual residence and intent to remain at the new one must concur. “Domicile of choice is entirely a question of residence and intention, or, as it is frequently put, of factum and animus.” . . . (Jacobs v. Ryals, 401 So. 2d at 778 (quoting Ex parte Weissinger, 247 Ala. 113, 117, 22 So. 2d 510, 513-14 (1945)).

There were some issues of “she said” vs. “he said,” but in the end the Court of Civil Appeals did not find enough evidence to support that the wife was an Alabama resident, and therefore, in order to have jurisdiction the Court needed evidence of the husband’s residence or domicile in Alabama.  The Court found no such evidence, and therefore the case could not move forward. This case demonstrates the importance of knowing, prior to filing, that one unquestionably has subject-matter jurisdiction. Otherwise, it will be a lot of effort and money lost for naught!


In J.B. and K.B. v. J.M., 2130648 (Ala. Civ. App. 2015), J.B. and K.B. were the legal custodians of a child. The record did not reveal exactly how they obtained custody, but at some point the child’s maternal grandmother intervened to get custody in the juvenile court, where she was able to get visitation. The custodians then filed a petition for adoption in the probate court, which was granted to them.

As an aside, it is important to know that in the past there have been jurisdictional “turf wars” between the juvenile court and the probate court.  Adoption has historically occurred in the probate court, which until 1849 was known as the “orphan’s court” in Alabama – since it was the court that provided legal protection for vulnerable children who did not have parents to care for them.

After the adoption was granted, the grandmother moved the probate court to have the adoption set aside. The probate court transferred that motion over to the juvenile court, which determined that the adoption should be set aside because there was not proper notice; the grandmother was not given proper notice as required by Ala. Code 1975, §26-10A-17(a)(6).

The mistake that the custodians of the child made after that was that they did not appeal the juvenile court’s judgement that the adoption be set aside—so when they brought the case up for review, the appellate court could not  consider their challenge.

The juvenile court subsequently granted the maternal grandmother visitation. The main take-away from this case is that attorneys need to make sure to know what needs to be appealed, and to appeal correctly. Mistakes such as this one could have serious consequences.


The last case we are looking at today is D.D.P. v. D.M.B. et al., 2130686 (Ala. Civ. App. 2015). This case deals with a father who was at war in Iraq, a mother and step-father who were allegedly abusing a child, and the biological father’s parents attempting to get custody of said child.

In April 2010, the juvenile court found the child dependent. Three years later, the court finally ended up at the dispositional hearing. The mother’s attorney came forth with the argument that there was not a current finding of dependency—the dependency was found three years ago. Initially, the court did not accept this argument and said that they were going to award custody to the biological father.

However, upon review by the Court of Civil Appeals, the three-year-old declaration of dependency did not hold up, especially given DHR’s findings that the allegations against the biological mother were “not indicated”on September 2011: “In ruling at the outset of the January 2013 hearing that the juvenile court would adhere to its nearly three-year-old oral declaration regarding the child’s dependency –– a declaration that was rendered suspect by the intervening “not indicated” finding by DHR as evidenced by the mother’s September 2011 motions –– the juvenile court deprived the mother of an opportunity to impeach the correctness of that earlier oral determination of dependency, cf. Rule 54(b), Ala. R. Civ. P. (under which “any order or other form of decision … which adjudicates … the rights and liabilities of fewer than all the parties … is subject to revision at any time before the entry of” a final judgment), as well as denying her the opportunity to demonstrate that, in any event, the child was no longer dependent under Alabama law.”

Once again, we are faced with the importance of meticulous attention to detail in resolving child custody matters.

Photo by libertygrace0.