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 affects orphans and their families.
C.C. v. L.J., 2120534 (Ala. Civ. App. March 6, 2015), was initially heard on remand from the Alabama Supreme Court on January 16, 2015. At this time, the Court of Civil Appeals (the Civs) reversed the juvenile court’s termination of the biological father’s parental rights. The reasoning behind this decision was, although there were grounds for TPR under § 12-15-319, Code of Alabama, the lower courts had not proven the second part of the standard for TPR: that there were no other viable alternatives to TPR.
The original opinion (released January 16, 2015) stated that the mother claimed to be terminating the father’s parental rights to “protect the child’s safety and to make sure the child was not confused or hurt in any way”—but there was no indication that the child would be in danger if the parental rights were not terminated. See the entire Orphan-Law summary here.
In the per curiam decision released today, the opinion from January 16, 2015, was withdrawn and substituted with an affirmation of the juvenile court’s opinion.
The Civs did reaffirm that there had been parental abandonment based on clear and convincing evidence as per § 12-15-319, Code of Alabama. The issue at hand was a re-visitation of the second requirement for TPR: “the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered.”[1]
The issue behind the “viable alternatives” consideration requires a little bit of history – so with that disclaimer, here is the gist of their opinion.
The Civs elucidated that:
The requirement that a juvenile court consider viable alternatives arises not from the language of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975, but from the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which provides that “[n]o State shall … deprive any person of life, liberty, or property, without due process of law.”[2]
This application of the Due Process Clause originated from Roe v. Conn, 417 F. Supp. 769, 779-80 (M.D. Ala. 1976), in which:
The United States District Court for the Middle District of Alabama opined that citizens of this country have a fundamental right to family integrity. Under the Due Process Clause, the government can permanently revoke that substantial liberty interest ‘only when the child is subjected to real physical or emotional harm and less drastic measures would be unavailing.’
This application was reiterated and resolved through multiple subsequent cases in Alabama, and further defined by the U.S. Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1983). The U.S. Supreme Court’s point of clarification essentially stated that: “the Due Process Clause protects only actual established familial relations from unwarranted governmental interference.”
The Civs drew from this that, “[b]ased on the reasoning in Lehr, an unwed father who voluntarily, intentionally, and unjustifiably fails or refuses to assume a parental role is not entitled to the constitutional protection afforded by the Due Process Clause.” (emphasis added)
This opinion marks a very significant delineation of the second part of the two-pronged requirement for TPR, stating that abandonment precludes the necessity of the due-process laws that require the juvenile court to explore alternate possibilities before TPR; essentially, clarifying that the second prong of the TPR requirement should not be viewed as a means of granting a parent who has abandoned their child and a new door back into said child’s life.
The takeaway for practitioners is summarized by the Civs:
[A] noncustodial parent who has abandoned his or her child does not have a sufficient familial relationship that merits due process protection and that a juvenile court may terminate the parental rights of that parent without exhausting other viable alternatives if to do so would be in the best interest of the child.
The second opinion, written by the Honorable Judge Moore, reversed the awarding of custody of two children to DHR.
This appeal, L.F. v. Cullman County Department of Human Resources, 2130916 and 2130917 (Ala. Civ. App. March 6, 2015), resulted from the July 17, 2014 hearing, after which custody of N.M.F. and D.M.F., the biological children of mother L.F., was awarded to Cullman County DHR.
At the adjudicatory hearing, the juvenile court stated that the case would be reviewed in 90 days, pending a mental health evaluation and analysis for the biological mother. Then, the juvenile court adjourned the hearing, finding both children to be dependent and transferring their custody to DHR.
This opinion is a consolidation of two appeals from the Cullman County Circuit Court and the Alabama Court of Civil Appeals.
As the opinion states, dependency can only be determined based on clear and convincing evidence (§ 12-5-311[a], Ala. Code 1975) – and the record in this case did not contain any such evidence.
On the day scheduled for the adjudicatory hearing, the juvenile court didn’t hear any evidence, but rather the hearing merely consisted of “assertions of counsel regarding the scheduling of a mental-health evaluation and the visitation between the mother and one of the children.”
Also on the issue of evidence, “DHR refers to court reports contained in the record,” but these reports were not submitted into evidence at the adjudicatory hearing. As the opinion states, the mother didn’t really have an opportunity to object to the consideration of evidence that was never formally submitted. On those grounds, the finding of dependency and grant of custody to DHR was reversed.
The takeaway for practitioners on this case is one we’ve heard before: there are no shortcuts to caring for practical orphans in the juvenile courts. We must be meticulous to follow the procedures, so that our efforts will not be in vain.
[1] Ex parte Beasley, 564 So. 2d 950, 954 (Ala. 1990).
[2] U.S. Const., Amend. XIV, § 1.
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