Alabama Orphan-Care Case Law Update: January 30, 2015

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-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 one new opinion that affects orphans and their families.


There were 58,162 children born in Alabama in 2013.  Of that number, 42 percent of those children were born to unmarried mothers.  If you do the math, that’s 24,566 children born without a legal father. [1]  Certainly, some of these DNA-fathers have stepped up, cared for these children, and even married the mothers; however, it is also certain that many of these fathers have not.

The recent opinion of Ex parte B.C., Pet for Cert, 1130250 (Ala. January 30, 2015), written by Justice Bolin, deals with an example of what can occur when unmarried parents have relational challenges while caring for children.  The child in B.C., like thousands of children in Alabama, had a father who had “abandoned the child . . .  failed to maintain contact with the child . . . and failed to provide financial support for the child.”  In short, he was a deadbeat and the child’s mother wanted his rights terminated, so she initiated a termination-of-parental-rights proceeding in the juvenile court.

At this point, we should ask ourselves, “Why would the mother want to do that?”  Well, the case doesn’t tell us, but if you ask mothers in similar situations, they may respond something like this: “Joe Blow and I were not in a long-term relationship. I told him about the pregnancy and he didn’t want anything to do with the child.  He has never provided one cent of support or ever laid eyes on his child.  I’m afraid he will come around years from now and try to play ‘Mr. Super Dad’—I can’t risk that for my child.”

I think it’s safe to assume that the mother in B.C. was thinking something along these lines.  Whatever the specifics of her story were, the trial court accepted it and terminated the father’s parental rights.  The father’s attorney filed an appeal and asserted that the juvenile court does not have jurisdiction to terminate the parental rights of a child when the petition is brought by one of the child’s parents; i.e., when the child cannot found to be “dependent.”[2]

The exact issue that the Supreme Court decided was “whether a juvenile court may exercise jurisdiction under § 12-15-144 over a termination-of-parental-rights petition when the ground for seeking the termination does not include [dependency].”  The answer to the question is, “Yes.”  The answer turns on a recent case by the Supreme Court (Ex parte L.J. [Ms. 1121462] (Ala. September 30, 2014) and a lot of complicated statutory analysis.

The bottom line is that, for the mothers of the 25,000 children born in Alabama every year without legal fathers, you can provide a little more stability for your children and a little more peace of mind for yourself by terminating the parental rights of absent biological fathers in the juvenile court.


In other case-law news, the Chief Justice of the Alabama Supreme Court, Chief Justice Roy Moore, released two new writings that add to his lengthy repertoire of dissents which seek to strengthen the legal communities’ respect for the God-given bonds of biological parents and children.  Unpacking the history of Chief Justice Moore’s writings and views on this topic are beyond the scope of this article.  Suffice it to say for now, the dissents in Ex parte R.G., 1140191 (Ala. January 30, 2015) and Ex parte D.E., 1140207 (Ala. January 30, 2015) represent the most recent installment in what may be a changing tide of sentiment in the legal community relating to the Supreme Court’s review of termination-of-parental-rights cases.  Namely, Chief Justice Moore believes that “constitutional concerns implicated in every termination-of-parental-rights case command stricter scrutiny than the ore tenus rule provides.”  R.G.  Hopefully, we will give a full treatment of this development in future editions.


[1] Alabama Office of Vital Statistics, available at: https://acis.alabama.gov/1000/1050viewdoc.cfm?TI=249498&No=644949&Code=1182663&Type_Cd=1000. One positive signal is that 186 children were given the name “Samuel” in 2013, although sadly it is down from 207 in 2012.

[2] Interestingly, the father didn’t even show up at the trial—but his attorney did. “Who paid for his attorney to show up at trial and appeal the decision?” Most likely, “You did.” The juvenile court is legally obligated to appoint an attorney to an indigent parent.

12th Annual Camp APAC

Camp APAC 2015 - banner 648x185Alabama Pre/Post Adoption Connections (APAC) is holding its 12th Annual Camp APAC from June 16-19 at Camp Chandler in Wetumpka, Alabama.

From APAC’s website:

This wonderful event is for adopted children ages 9 to 18, along with their siblings (birth and foster siblings living in the same household) who are connected to DHR (i.e. at least one camp applicant must be adopted from foster care). Children in permanent custody of DHR with a plan of adoption by their current placement are also eligible to attend. Limited slots will also be available for non-DHR connected families at a cost of $175 for these 4 great days of fun! 

The application deadline is on February 15.

Click here to apply to be a camper, and learn more about Camp Chandler on their website.

Alabama Orphan-Care Case Law Update: January 16, 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 five new opinions that affect orphans and their families.


Let’s take the shortest opinion first. B.C. and T.C. v. Cullman County Department of Human Resources, 2140100 (Ala. Civ. App. 2015) is the most recent installation of decisions that relate to the competing jurisdiction between the juvenile courts and the probate courts. In B.C., the foster parents, after caring for a child for two years came to the firm conviction that Cullman County DHR was not acting in the child’s best interest. So, they hired their own attorney and filed a petition for custody in the Juvenile Court. In response, DHR made a move that (purportedly) they do in juvenile courts all over the state: they asked the court to enjoin the foster parents from filing any pleadings pertaining to the adoption and/or custody of the child in any court other than the instant juvenile court.  And, the court granted said motion.

Today, the Court of Civil Appeals (Civs) closed the door on this practice. The foster parents argued that “the juvenile court ‘lacked the authority to restrain [the] parties from legitimate legal recourse to the judicial process’ and that the order violated their First Amendment right to access the courts.” The Court of Civil Appeals based its decision on the landmark case, Ex parte A.M.P., 997 So.2d 1008, 1021 (Ala. 2008), which held that “adoption proceedings are outside the jurisdiction of the juvenile court unless transferred there.”

Thus, B.C and T.C. is a check in favor of the power of the probate court to hear and decide adoption matters. The Civs concluded that “the juvenile court did not have the authority to enjoin [the foster parents] from proceeding with a petition for adoption in the probate court.”


Now to the longest and most complex: I.B. v. T.N. and C.N., 2130668 (Ala. Civ. App. 2015). T.N. and C.N. where foster parents through Montgomery County DHR. For three years they cared for the child, while the child remained in the temporary custody of DHR. The foster parents took in the child when the child was around 5 months old. The child lived with the foster parents continually until the Juvenile Court of Montgomery County pushed back against the foster parents’ decision to file a petition for adoption in the Probate Court of Elmore County. After the foster parents filed the petition for adoption, the Juvenile Court of Montgomery County removed the child from their home, and (one day before the adoption hearing) stripped DHR of custody of the child – giving custody to the foster mother of the biological mother.

Which begs the question, “Why did the biological mother have a foster mother?” The biological mother was, herself, a ward of the state; coming into care of DHR at the age of 14, and remaining there through the instant legal proceedings.

I.B. is a relatively long opinion, and the Civs makes a good effort to give a clear picture of the facts behind their decision. Even though the Court of Civil Appeals reversed the grant of adoption, they admitted that the adoption was, in fact, in the child’s best interest.

“How can the Court of Civil Appeals reverse an adoption that is in the child’s best interest?” Section 26-10A-24, Code of Alabama, prescribes that in a contested adoption proceeding, the trial court must find both that the adoption is in the child’s best interest, and that the biological parent has given their implied consent. In the case at hand, the Court of Civil Appeals did not believe that there was clear and convincing evidence that the biological mother gave her implied consent.

“Where does the Court of Civil Appeals think the probate court went wrong?” To answer that question, we have to look back a little bit to the history of the development of adoption law in Alabama. In 2008, the Alabama Supreme Court released Ex parte A.M.P., 997 So.2d 1008, 1021 (Ala. 2008). A.M.P. represents the zenith of support for adoptive parents, foster parents, and the plight of orphaned children lost in the so-called child protection system. In A.M.P., the court held that “maintaining a significant parental relationship requires more than a mere sporadic showing of interest or concern.” The Court went on to explain that even a parent placed in prison could maintain a significant parental relationship.

This zenith was to be short lived. In 2013 the Court of Civil Appeals released S.A. v. M.T.O., 143 So.3d 799 (Ala. Civ. App. 2013) (cert denied on Friday, December 6, 2013). In S.A., the court held that the most litigated prong of implied consent, namely §26-10A-9(a)(3), Code of Alabama (“Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months”) must be (1) voluntary, and (2) understood in conjunction with a biological parent’s withholding of “provision for support” and “communication.”

What did the court mean by voluntary? Apparently, the court means that if a parent’s bad acts result in the child going into the care of the state, then the parent’s lack of parental relationship with the child is not “voluntary,” and thus implied consent cannot be found. The Court didn’t say this explicitly in S.A., but that’s the gist. Sooner or later a case will come along that finds the limits of this new judicial factor.

What did the Court say about understanding this provision in conjunction with provision and communication? The Court said that the phrase “not otherwise” means this: whatever else can be said about a parent not having a relationship with a child, implied consent cannot be found unless that failure of significant parental relationship was from lack of provision for support and lack of communication.

Many in the adoption community thought S.A. was an outlier case – a case whose ruling would be swallowed up in the forward momentum of cases more like A.M.P. After today’s ruling in I.B., it appears the Court was serious about these new aspects of implied consent. The ground-breaking rulings mentioned in S.A. were almost repeated verbatim as holdings in I.B.

There are two other noteworthy (and troubling) aspects of I.B. First, the Civs were strangely silent on the long-standing principle of the ore tenus presumption of correctness (that thing about giving the trial court deference in their decisions … remember that?). Second, the Civs overturned the trial court for its finding that the biological mother implicitly consented to the adoption by failure to respond to notice of the adoption within 30 days. § 26-10A-9, Code of Alabama. The Civs seemed to also lose sight of their adoption-law catechism: “Adoption is purely statutory. The adoption code most be closely adhered to. Adoption to not spring up from the common law.” What message does this ruling send to the trial courts? “Yeah, we know that the Legislature set out some time lines, but these aren’t really important. You shouldn’t expect any certainty that your rulings on such statutes will hold up on appeal.”

Hopefully, the Civs’ decision in I.B. will not be the final word for the orphan-care community – the Alabama Supreme Court may get a swing at it too.


In other news, the Civs reversed the juvenile court’s termination of a biological father’s rights in C.C. v. L.J., 2120534 (Ala. Civ. App. 2015). The biological father appealed the termination of his parental rights on the grounds that the trial court lacked clear and convincing evidence. The Civs begin their opinion by stating the long-held standard in Alabama for TPR cases: (1) there must be grounds for TPR under § 12-15-319, Code of Alabama, and (2) there must be no viable alternatives.

The Civs affirmed the trial court in its determination of the first factor. The biological father basically had no relationship with the child, didn’t support the child, had abused the mother, and the mother was attempting to terminate his rights to “protect the child’s safety and to make sure the child was not confused or hurt in any way.”

But, don’t be hasty – “[e]ven when the evidence is undisputed that a parent has abandoned a child . . . the parental rights of that parent may be terminated only if no other viable alternatives exists that would protect the child from parental harm.” While the appellate court’s apply the ore tenus presumption of correctness, they also perform a “careful search of the record” in order to honor the sanctity of the parental relationship.

Interestingly, the Civs bifurcated classes of TPR cases into two categories: (1) cases where the child is at risk of harm from the biological parent by maintaining the status quo, and (2) cases where the child faces no risk of harm by maintaining the status quo. If a case falls into the second category, the trial court must maintain the status quo.

So, the take away from this case is, when one biological parent is trying to terminate the parental rights of another parent, it’s not enough to show that the absent parent is unfit – you must also show that the absent parent would be a danger to the child. Otherwise, the trial court is bound to maintain the status quo.


The last update of the week comes from C.E. v. M.G., 2140008 (Ala. Civ. App. 2015).   This case gives a caution to attorneys and judges alike. First, the caution to attorneys: Be on time to your hearing. The court doesn’t have to wait for you. Second, the caution to trial-court judges: when giving notice regarding a hearing, make sure you stick to the subjects for which notice was issued.

Let’s unpack the warning for attorneys: In C.E., the biological father asked the court to grant him emergency temporary custody because he believed the mother and/or the mother’s boyfriend were beating the child.   On the day the court set the hearing, the mother’s attorney was detained with some other engagement. The court appropriately waited for a few minutes, then in the absence of the mother’s attorney, the court proceeded.

The biological mother argued that the trial court deprived her of due process by conducting the hearing in the absence of her attorney. The Court of Civil Appeals did not agree. The mother was afforded due process because she was personally at the hearing and available to present evidence. The Court of Civil Appeals held that “[a]lthough the juvenile court delayed the hearing to allow the mother’s attorney time to arrive, the juvenile court acted within its discretion in proceeding with the hearing when, after reasonable period, the mother’s attorney failed to appear.”

Now, let’s unpack the warning for judges: this case stands in a long tradition of constitutional jurisprudence which states that, in order to afford a party due process, parties must be reasonably notified regarding the issues to be litigated at the hearing. In the case at hand, the trial court gave notice regarding the petition for emergency custody. However, the trial court heard evidence on this issue and on dependency. The trial court subsequently found the child to be dependent.

The Civs held that the trial court’s ruling on dependency is reversed because the notice of the hearing did not apprise the mother that dependency would be on the table at the hearing.

Photo by libertygrace0.

Sanctity of Human Life Sunday

But God, being rich in mercy, because of His great love with which He loved us, even when we were dead in sins, made us alive together with Christ (by grace you have been saved), and He raised us up and seated us together in the heavenly places in Christ Jesus, so that in the coming ages He might show the surpassing riches of His grace in kindness toward us in Christ Jesus. – Ephesians 2:4-7

Sanctity of Human Life Sunday is coming up this weekend, and to honor that we would like to share what we believe adoption has to do with the sanctity of human life.

At any stage of life, a human is a human – loved profoundly by our Creator. God knows us before we are even born, as expressed in Jeremiah 1:5. Hopefully you have felt and experienced how much God loves you firsthand. It is also described throughout the Bible, such as in Ephesians 2: “because of His great love with which He loved us, even when we were dead in sins, made us alive together with Christ.”

It is this love, from God, that teaches us to love and protect one another. As it is written in 1 John 4:19-20, “We love Him because He first loved us. If anyone says, ‘I love God,’ and hates his brother, he is a liar. For whoever does not love his brother whom he has seen, how can he love God whom he has not seen?”

Jesus Christ especially cared about the most vulnerable members of society, and encourages us to do the same: “But when you give a banquet, invite the poor, the crippled, the lame, the blind, and you will be blessed.” (Luke 14:13)

Loving other people, and protecting the vulnerable, of course means ensuring that the innocent are not killed by human hands. In fact, in Proverbs 6:16-19 it is stated that the Lord hates hands that shed innocent blood.

Some who argue in favor of allowing abortion argue that there are too many orphans, and that allowing a child to be born into a difficult life is more cruel than killing said child in utero. This rationalization leads to the evil taking of an innocent life, and does not solve any real issues.


It is true, however, that the plight of orphans is a very serious and tragic problem that deserves our utmost attention. 17.8 million children worldwide have lost both parents, according to the Christian Alliance for Orphans.

As mentioned in a previous post, we think orphan care encompasses a broad range of issues. An orphan is a vulnerable child left without adequate familial provision and protection from evil. So, by this definition orphans include many, many more children.

In order for these children to have the life, love and protection that we know they need—and should have—in order to thrive, it is absolutely essential that Christians answer God’s call to care for orphans.

Job 31:16-19 states, “If I have denied the desires of the poor or let the eyes of the widow grow weary, if I have kept my bread to myself, not sharing it with the fatherless– but from my youth I reared them as a father would, and from my birth I guided the widow– if I have seen anyone perishing for lack of clothing, or the needy without garments, and their hearts did not bless me for warming them with the fleece from my sheep, if I have raised my hand against the fatherless, knowing that I had influence in court, then let my arm fall from the shoulder, let it be broken off at the joint.” Job says to curse himself if he does not do these things (and notice how many times he mentions the fatherless specifically)—that is how important they are to God!

Caring for the fatherless is also discussed in Exodus (22:22-4), Isaiah (1:17), Psalm (many times!), Deuteronomy (14:28-9), Jeremiah (also many times), Malachi (3:5) and Hosea (14:3). There are probably even others beyond those!

In the New Testament, orphans are also mentioned many times. James 1:27 states that, “Religion that is pure and undefiled before God, the Father, is this: to visit orphans and widows in their affliction, and to keep oneself unstained from the world.”


john1418_finalEveryone starts life as a spiritual orphan—whether or not we have human parents—because we are orphaned from God. But as Jesus states in John 14:18, “I will not leave you as orphans; I will come to you.” It is stated in Ephesians 1:5-6 that God “predestined us to adoption as sons to Himself through Jesus Christ according to the good pleasure of His will, to the praise of the glory of His grace which He graciously bestowed on us in the Beloved.”  God addresses our condition of spiritual fatherlessness through spiritual adoption.

We know that children are a blessing just from interacting with them. Psalm 127:3 even says that children are a gift and a reward from God. Children and humans at all stages of life need advocates, and as James 1:27 reminds us, visiting orphans is a necessary part of pure religion. For some of God’s children, visiting orphans will look like extending the offer of adoption to those yet to be born.

Whether God is calling you to adoption or to some other form of orphan care—such as getting involved in an organization that advocates for orphans who may be at-risk in the womb—remember what He says about caring for those in need in Matthew 25:40: “And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brothers, you did it to me.’”

Sam McLure is a MCBA Board of Directors Candidate

We are excited to announce that Sam McLure is a candidate for the Montgomery County Bar Association Board of Directors! Please share this news with other MCBA members to support his election. 

S_McLureSam McLure is originally from Marianna, Florida. He moved to Montgomery in 2004, and graduated from Huntington College with a B.A. in Business Administration. 

Sam graduated, cum laude, from the Faulkner School of Law in 2011, where he was a member of the Law Review and active with the Christian Legal Society. Upon graduation, he established The Adoption Law Firm – a firm dedicated to zealously advocating for orphaned children to be adopted into loving homes. 

Sam and his wife Mary Beth were inspired to advocate for orphaned children through the adoption of their first son, Robi. Prior to the establishment of The Adoption Law Firm, he worked in the private sector, civil defense, and the government sector.

Sam is an active member of Eastwood Presbyterian Church, where his eldest son also attends school. Sam and Mary Beth have three children: Robi is 7, Andrew Glen is 3, and Mary Claire is 3 months.   Sam enjoys hiking with his sons, and watching The West Wing with his wife and daughter.


 

Top 3 Reasons Why You Should Vote for Sam McLure for the MCBA Board of Directors  

  1.  Sam McLure is committed to seeing you get the most value out of your membership;
  2.  Sam McLure is committed to training young lawyers in their commitment to justice;
  3.  Sam McLure built a chicken coop in his backyard!

chicken coop

Lifeline Webinar on Special Needs Adoption

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Lifeline is having a webinar on Thursday, January 29th from 10-11AM on special needs adoption. The webinar, entitled “Life Matters: The Beauty of Special Needs Adoption,” is designed to assist families and anyone else who would like to learn more about special needs adoption. From Lifeline’s website:

During this Sanctity of Human Life month, Lifeline wants to clearly proclaim the truth that all persons, from conception, are created in the image of God and, therefore, are inherently valuable.

We could not agree more!

Click here to learn more about this event.

Alabama Orphan-Care Case Law Update: January 9, 2015

BasicsWe are excited to provide a new opportunity for those passionate about law that pertains to adoption and child welfare: a weekly summary of relevant case law or legislative changes and why these matter for orphan care.

We are casting a wide net in defining which cases are relevant because we believe that orphan care encompasses a broad range of issues. 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-Care Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.

 C.H. and R.H. v. Franklin County Department of Human Resources, 2130757 and 2130758 (Ala. Civ. App. 2015).

For the professional orphan-care community, this case exemplifies the hard lesson that there are no shortcuts – or at least that shortcuts often have high costs. Like surgeons, orphan-care professionals hold children’s lives in their hands. We must maintain meticulous attention to detail.

For Franklin County DHR, this case should have been a home run. After all, they had previously successfully terminated the parental rights of three of C.H. and R.H.’s other children. Termination of this fourth child’s parental rights should have been a foregone conclusion – right?

Perhaps this is why Franklin County DHR presented an “Amended Petition,” asserting the successful termination of parental rights (TPR) of R.H. and C.H.’s three other children as an additional basis for TPR of the child in this case. Franklin County DHR even went so far as to ask the Juvenile Court to take “judicial notice of everything . . . set out in the [a]mended [p]etition.”

The child in the case at hand was born almost a year prior to the entry of the order terminating the older three children’s parental rights. The child was picked up by DHR at the hospital, and the child continuously remained in foster care. Franklin County DHR’s initial plan for the child was reunification. However, that plan changed to termination of parental rights after the three older children’s parental rights were terminated.

Although § 12-15-319, Code of Alabama, certainly permits the juvenile court to consider termination of a siblings’ parental rights as a factor in a TPR petition, the court must take into account “evidence regarding their current circumstances” regarding “inability or unwillingness” of the biological parent to care for their child. On appeal, C.H. and R.H. argued that the court and DHR failed to do just that – take their present circumstances into account.

The Court of Civil Appeals agreed with C.H. and R.H. and stated that taking current conditions of the biological parents into consideration “is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” The Court of Civil Appeals builds its case for what was lacking in the record and what evidence should have been presented (which I encourage our professional community to reference on page 11 of the attached opinion). The Court of Civil Appeals’ frustration with the situation, and their unanimous decision, seems to come through in their summary statement: “The entire transcript in this case is 31 pages long and contains very little relevant evidence.”

For the lawyer-folks out there, the holding in the case is as follows: “Given the paucity of evidence DHR presented in support of its petition to terminate the parents’ parental rights to the child, we conclude that the juvenile court erred in determining that DHR had met its burden of presenting clear and convincing evidence that grounds existed warranting the termination of the parents’ parental rights.”

What lessons are here for the orphan-care community? There are no shortcuts to caring for orphans. It should have been a no-brainer to terminate C.H. and R.H.’s parental rights. Meticulous attention to detail matters in both brain surgery and orphan-care law.

Lest you walk away thinking that the Court of Civil Appeals is composed of heartless judges that sit in an ivory tower of books and esoteric words like “paucity,” I will leave you, in closing, with the last sentence of the opinion: “We note, however, that, if the situation warrants and the best interests of the child would be served, DHR may file a new petition to terminate the parents’ parental rights and seek to present evidence demonstrating that termination of parental rights is appropriate.”

If at first you don’t succeed, try, try again.

Read the entire case file here.

Photo by libertygrace0.

A Couple’s Story of Faithfully Waiting Through the Adoption Process

Bonnys-Adoption-Story-1We were touched by this story of a couple who met through orphan care in Brazil, got married, and faithfully waited through the intricate and sometimes difficult process of international adoption.

The adoptive mother writes, “We flew down to Florida, as soon as we were able to. We brought our daughter with us to meet her new little brother. I can picture the room we were in as we signed the paperwork. I can picture the faces of the sweet ladies who took care of our son. I remember my heart beating in my ears as I waited, for what seemed like eternity, for our son to be walked down the hallway and placed in my arms.”

Read more of their story on Adoption Mama!