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 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.
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