**Click here to view the full Orphan-Law Update in a new tab.**
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 affect orphans and their families.
The first case of the week is J.S.L. v. Jefferson County Department of Human Resources, 2131064 (April 17, 2015), drafted by Judge Thomas, who often drafts the most well-reasoned opinions. This case centers around the child, J.Z.L.. J.Z.L.’s father is unknown and absent, and … well, for all practical intents and purposes – dead.
As we go through the pertinent facts relating to J.Z.L.’s biological mother, it will be important to pay special attention to the dates of key events. On December 5, 2012, the juvenile court determined (with the mother’s agreement) that J.Z.L. was dependent – meaning that J.Z.L.’s mother was unable or unwilling to safely parent J.Z.L.
The juvenile courts laid only the modest burden on J.Z.L.’s mother to “submit to a substance-abuse assessment, to obtain and maintain housing, to complete domestic-violence prevention classes, and to complete a series of parenting classes.” Apparently, J.Z.L.’s mother was “unable or unwilling” to meet this meager challenge. Subsequently, on September 19, 2013 (11 months after J.Z.L. was taken into DHR care), DHR asked the court to relieve DHR of its duty to provide “reasonable efforts” to reunite J.Z.L. with her mother.
In an effort to read between the lines here, it seems apparent that DHR really believed in its decision to permanently separate J.Z.L. from her mother. On the state-wide level, DHR receives approximately 42 million dollars every year from the Federal Government under what is classified as IV-E Funds. These IV-E Funds are disseminated to DHR based on its execution of “reasonable efforts” towards reunification. In the case at hand, DHR felt so strongly about J.Z.L.’s best interest apart from her mother that they were willing to forego their federal funding.
The juvenile court granted DHR’s request in December 2013, partly on the basis that J.Z.L.’s mother didn’t bother to show up to court to oppose DHR’s request and, four months later, on March 12, 2014, DHR asked the juvenile court to terminate J.Z.L.’s biological parents’ rights. The juvenile court granted DHR’s request for TPR on September 3, 2014. If you’re keeping an eye on the timeline, that’s almost two years after the child was taken into care. That’s pretty good time for DHR.
The Court of Civil Appeals (Civs) tells us that “[t]he juvenile court based its termination judgment on its findings that the mother’s parental rights to the siblings had been involuntarily terminated, that the mother had ‘not ever cooperated’ with DHR, that the mother was unemployed, that the mother resided in subsidized housing, and that the mother had failed to support the child.” On the other hand, “juvenile court noted that the mother had visited the child and that she had completed a drug treatment program, a domestic-violence-prevention program, and a series of parenting classes.” The mother made a timely appeal based on lack of clear and convincing evidence.
In keeping with Judge Thomas’ tradition of well-written opinions, she starts out here analysis with the standard of review; i.e., the ore tenus presumption of correctness: “a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong.”
Part of the mother’s argument to the juvenile court in opposition of the TPR was that she needed “a continuance because, she argued, that same morning the mother had informed her for the first time that she had successfully completed a substance-abuse program.” It should be noted here that a biological parent’s “last minute efforts” have historically delayed TPR hearings and “scared off” some juvenile court judges from ruling in favor of terminating parental rights.
Here, however, the juvenile court was unswayed and the Civs gave their support:
“the evidence presented by DHR demonstrated that the juvenile court’s December 5, 2012, dependency judgment had required the mother to submit to a substance-abuse assessment, to complete domestic-violence-prevention classes, and to complete a series of parenting classes. Although commendable to some degree, the mother’s completion of those requirements in 2014 amount to “last-minute efforts undertaken in anticipation of the impending termination-of-parental-rights trial.”
The Civs, with the famous Judge Thomas writing, concludes by applying the ore tenus presumption of correctness:
“Viewing the evidence before the juvenile court, including the mother’s history and her current conditions the determination that the mother’s intellectual disability rendered the mother unable to discharge her parental responsibilities to and for the child and that that condition was unlikely to change in the foreseeable future is supported by clear and convincing evidence.” § 12-15-319(a), Ala. Code 1975. Furthermore, the juvenile court heard testimony indicating that DHR’s reasonable efforts to rehabilitate the mother had failed, § 12-15-319(a)(7), that the mother’s parental rights to the child’s siblings had been involuntarily terminated, § 12-15-319(a)(8), that the mother had failed to support the child, § 12-15-319(a)(9), and that the mother had failed to cooperate with DHR, § 12-15- 319(a)(12).”
That last paragraph is key for understanding this case’s usefulness. Often biological parents who have effectively abandoned their children will show up on the day of the TPR hearing and allege some type of substantial improvement. For child-welfare professionals (social workers, attorneys, and judges), we have here a useful tool to rebuff these spurious parenting efforts. As long as evidence is presented which conforms to the above list of elements, a judgment terminating parental rights should stand on appeal. Also reading between the lines, we should note that this was the fifth child to which the mother’s parental rights had been terminated.
The second case of the week is Civs modified opinion in I.B. v. T.N. and C.N., 2130668 (April 17, 2015), drafted by Judge Donaldson. The original decision was released on January 16, 2015 and discussed in the January 16 Orphan Law Update. Today’s modification is a denial of an application for rehearing filed by T.N. and C.N.
The Civs modifications relate only to pages 5 and 38 of the original opinion. The only apparent change on page 5 is the correction of a date in the first full sentence. The only apparent change on page 38 is updated citation information for a supporting case.
Photo by libertygrace0.