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 there were no substantive decisions for orphan-care law released by the Court of Civil Appeals or the Supreme Court.[1] So, we will take this opportunity to look towards some of the potential legislative changes on the horizon. The next legislative session begins on March 5, 2015, so we have a few weeks before things get started.
First, Senator Allen (from District 21 – Tuscaloosa, Pickens, and Lamar County) is proposing a new version of the Grandparent Visitation Statute that has been under almost constant constitutional attack over the last few years. The Grandparent Visitation Statute, § 30-3-4.1, gives grandparents the right to petition the court for mandatory visitation with their grandchildren. Hopefully, this sounds a little fishy at first blush; hopefully, the first-time reader is asking him/herself: “Isn’t it the prerogative of the parent to determine if the child should be visiting with the grandparent?”
The reasoning behind this question is probably why the statute keeps getting struck down as unconstitutional; it has been re-written multiple times. The current version has not been struck down as unconstitutional—but the court has come pretty close to doing so. The most recent case discussing the current statute, Tripp v. Owen, 031414, 2120063 (Ala. Civ. App. March 14, 2014), specifically declined to hold the statute unconstitutional; however, the issue wasn’t squarely before the court to consider.
Nonetheless, perhaps out of an abundance of caution, Senator Allen is proposing a rework of the statute in SB3 . SB3 proposes three significant changes to the current statute. First, SB3 proposes a complete reorganization of the current version. I’m not one to promote change for the sake of change, but I think SB3’s organization actually clears things up. SB3 makes it clear that the court must find two things to award visitation: (1) a significant and viable relationship, and (2) that visitation would be in the child’s best interest. Let’s hope this clarification helps the statute stand up to constitutional scrutiny.
Second, SB3 gives a fairly brilliant definition of “harm”: SB3 defines harm as “[a] finding by the court . . . that without court-ordered visitation by the grandparent, the child’s emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized.” The statute then weaves the word “harm” into the criteria for the court in making its determination of relationship and best interest. This change may face future constitutional attack.
Third, SB3 provides greater specificity on what evidence a court will need to find in order to award a grandparent visitation. The proposed legislation states that “[t]his bill would specify the factors that establish a significant and viable relationship for the purposes of establishing clear and convincing evidence.” This is probably the meat of the change that this bill proposes. The current statute does not provide specific factors that the court should consider (like the statute governing termination of parental rights, § 12-15-319). Those factors are found in section (d) of the proposed bill.
The only section of this statute that gives me significant pause is section (n). Section (n) gives the court the authority to waive or limit notice requirements “to the extent necessary to protect the confidentiality and the health, safety, or liberty of a person or a child.” Notice is part of the constitutionally protected right to due process, and therefore I’m just not sure how this one is going to play out. Perhaps someone has seen a statute like this hold up before—I invite anyone to write back with some clarity on this issue.
A closing question on this topic: if we respect the fundamental right of parents to control the destiny of their children, why are people trying so hard to give grandparents the ability to intervene in this relationship contrary to the parent’s wishes? I think the answer comes back to the problem we addressed in the last Orphan-Care Law Update: every day in Alabama there are approximately 67 children born to unmarried mothers, with 15 of those children being born to teenage mothers.[2] This isn’t a problem per se, however, children in said demographic are statistically at a greater risk of abuse, neglect, and dereliction. Statistically, parents of such children are going to make less prudent decisions—even to such a degree that it may harm their children. It makes sense to allow grandparents of these children to intervene in the child’s life under very limited circumstances.
Also on the table for legislative changes this year is the Permanency for At-Risk Kids Act (“PARK Act”). The PARK Act, developed by The Adoption Law Firm and its partners, is focused on providing permanency for children in a timely manner. Sadly, children who have been abused and neglected often languish for years in foster care, when the child protection system could be allowing them to be adopted into loving families. Two years may not seem like an incredibly long time for a child to remain in foster care without permanency, but think about it from the perspective of a five-year-old: for a five-year-old, two years is almost half of their life.
The PARK Act seeks to remove barriers to permanence by lifting the child protection system out of its arenicolous daze. The PARK Act would seek to implement this objective through the following changes: (1) foster parents would have automatic standing in juvenile court if they have fostered the child for 12 consecutive months, (2) judicial loopholes in the time limits of the Best Interest of the Child Act would be closed, (3) a clearer definition for “significant parental relationship” would be provided in the adoption code, (4) a time limit for biological caregivers to come forward in foster-care situations would be imposed, (5) bonding to non-biological caregivers would be recognized as additional grounds for TPR, and (6) TPR would be removed from the permanent record of minor parents.
Other legislative items on The Adoption Law Firm’s “dream list” include: (1) Cooperative Adoption Agreements, (2) a requirement that all future probate judges be licensed attorneys, (3) a requirement that all DHR social workers maintain a license to practice social work, (4) legislation designed to implement CASA (Court Appointed Special Advocates), and (5) legislation designed to implement Safe Families or other private foster-care mechanisms.
If you have other ideas for legislative changes or you would like to help getting some of these bills implemented, please contact The Adoption Law Firm.
[1] Chief Justice Roy Moore released another dissent in a termination-of-parental rights case, Ex parte M.D. and S.W., 1140187 (Ala. February 6, 2015). However, he was alone in his dissent and there doesn’t appear to be any substantive development.
[2] Alabama Office of Vital Statistics, available at: https://acis.alabama.gov/1000/1050viewdoc.cfm?TI=249498&No=644949&Code=1182663&Type_Cd=1000
