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 two new opinions that affect orphans and their families.
The first case, K.J.M and C.L.D. v. State of Alabama, 2130911, 2130966 (Ala. Civ. App. 2015), authored by Judge Donaldson, is a consolidation of two separate appeals. The question presented in this case was “a matter of first impression” for the Court of Civil Appeals (the Civs). A “matter of first impression” means that the court has never decided the question that the case raises. In K.J.M. and C.L.D., the Civs were determining if the juvenile court could rely on the school board’s definition of “truancy” in “determining if a child is in need of supervision under the Alabama Juvenile Justice Act,” if the school board’s definition of “truancy” is at variance with the Alabama Juvenile Justice Act’s definition of “truancy.”
To resolve the question, the Civs went to the plain meaning of the controlling statute, § 12-15-102(4)a., and held that the Legislature delegated to the Alabama State Board of Education the authority to define “truancy” for the purpose of the Alabama Juvenile Justice Act. The local school board, in this case Marshall County, defined truancy as five or more absences—but the Alabama State Board of Education defined truancy as seven or more absences.
The Civs held that the statute, which delegated the authority to define “truancy” to the Alabama State Board of Education, was not ambiguous. The Civs explained that if a statute is not ambiguous, “then ‘[p]rinciples of statutory construction instruct [a court] to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.’”
While it may not seem that anything earth-shattering was decided in this case, it is good to see the Civs staying within their constitutionally-delegated perimeters: interpreting the law, not creating it.
The second case, B.M. and S.M. v. Jefferson County Department of Human Resources, 2130880, 2130924 (Ala. Civ. App. 2015), authored by Judge Thomas, is also a consolidation of two separate appeals. B.M and S.M. are the biological parents of children who were taken into the care of DHR because of reports of physical abuse, neglect, and illegal substance abuse. After B.M. and S.M. failed to respond to DHR’s tax-funded efforts at rehabilitation, the Juvenile Court of Jefferson County ordered that B.M. and S.M.’s parental rights be terminated. In the final outcome of the case, the Civs affirmed the trial court’s determination that S.M. and B.M.’s parental rights should be terminated.
Unfortunately, the facts of this case are all too common. In fact, situations just like this present the most pressing orphan crisis for Alabama. “How can we call these children orphans, if their parents are still living?” Remember, we believe an orphan is a child left without familial provision or protection from evil. Even though the parent may be living, it doesn’t necessarily mean that the parent is providing for the child or protecting the child. Sometimes, the parent is even deliberately or recklessly subjecting the child to evil. Such was the case at hand.
In 2003, DHR received reports that the parents, B.M. and S.M., had engaged in “‘physical abuse,’” were abusing illegal substances, and that their two-year-old son, Sc.M., was “‘dirty’” and was not being provided with adequate shelter.
Just one month after the second child was born in 2005, DHR received another report that “the parents had abused alcohol and that the father had threatened to kill the mother,” after which B.M. (the mother) entered into a safety plan to ensure that she and the children would seek shelter from the S.M. if necessary. However, S.M. and B.M. were married on November 24, 2009.
DHR received a report that B.M. and the children were often seen walking in downtown traffic without B.M. watching either of them. Both parents also suffered from psychological and emotional challenges.
After filing for a protection-from-abuse petition against S.M. and moving into a domestic-abuse shelter with the children, B.M. revealed that she has had psychotic episodes and other major psychological disturbances.
The children were found dependent and placed in foster care on February 22, 2012, with Sc.M. being placed in therapeutic foster care due to issues with anger and aggression. A year later, S.M. was convicted of a “DUI,” for driving under the influence of drugs, and was subsequently incarcerated (potentially for additional reasons—although she was transported to her June 30, 2014 termination trial from jail, the reason for her incarceration is unclear from the record).
In deciding to uphold the trial court’s termination of parental rights (TPR), the Civs appropriately started with the standard of review: the ore tenus presumption of correctness. The ore tenus standard states that the role of the appellate court is to uphold the trial court’s determination, unless the trial court’s ruling was “plainly and palpably wrong.” The trial court has the benefit of seeing the witnesses, while the appellate court only has the cold record. The appellate court’s role is to take the final order from the trial court and say to themselves, “I’m going to assume the trial court got this right. Let me see if the record supports that assumption. I’m only going to overrule the trial judge if I find a total lack of credible evidence that supports his decision.”
The main issue on appeal was whether the juvenile court “failed to consider maintaining the status quo as a viable alternative to termination of parental rights.” Interestingly, there is precedent which states that a child should remain in foster care, with the parental rights intact, when there is a “beneficial emotional bond with a parent and the custodial arrangement ameliorates any threat of harm presented by the parent.”
Despite evidence of the mother’s bi-weekly visitation with the children, the Civs note that there was no evidence presented that “the children had a strong emotional bond with the mother.” This is a remarkable example of appropriately applying the ore tenus presumption of correctness. Despite the fact that there was “some testimony indicating that the mother felt emotionally bonded with the children,” the Civs affirmed the trial court … because that’s how our legal system works. Only if the trial court’s findings are “so unsupported by the evidence as to be plainly and palpably wrong” should these findings be disturbed by the appellate courts.
On this issue, the Civs concluded that, “under the circumstances in this case, the juvenile court did not err by concluding that maintaining the status quo while the mother continued to attempt to rehabilitate herself was not a viable alternative to the termination of the mother’s parental rights.”
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