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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 four new opinions that affect orphans and their families.
The first opinion, J.L. v. Morgan County Department of Human Resources, 2140155 (April 24, 2015), was written by astute Judge Thomas. It involves an appeal from a mother, J.L., who claims that the judgment terminating her parental rights was jurisdictionally invalid because of the juvenile court’s failure to abide by the time limits imposed by § 12–15–320(a):
“The trial on the petition for termination of parental rights shall be completed within 90 days after service of process has been perfected. The trial court judge shall enter a final order within 30 days of the completion of the trial.” (emphasis added)
Many readers may recognize this piece of legislation as being newly implemented under the Best Interest of the Child Act of 2013. This bill was undertaken by Speaker Hubbard’s office, The Adoption Law Firm, DHR Commissioner Nancy Buckner, and others. The purpose of the bill was to prevent juvenile court judges from having limitless power to delay permanency for children through meaningless delays.
Unfortunately, this case represents the second installment of case law which renders the Best Interest of the Child Act virtually powerless.
In May of 2014, seven months after Morgan County DHR was awarded temporary custody of J.L.’s two children, DHR filed a petition for TPR.
The TPR trial was held in the juvenile court in September of 2014, and the juvenile court entered judgments terminating J.L.’s parental rights 51 days later. As you may have noticed, this timeline exceeds the maximum numbers of days stated in Code Section 12-15-320 (a).
J.L. subsequently filed her appeal resulting from this issue, stating that the juvenile court lost jurisdiction as a result of failure to comply with the legislatively prescribed time limits. While the Court of Civil Appeals (the Civs) agreed that the TPR trial and the subsequent order exceeded the legislatively prescribed boundaries, it also stated that, “the juvenile court’s violation of a mandatory provision of §12–15–320(a) requires reversal only if the failure to comply with the statute impaired the mother’s substantial rights.” (emphasis added)
The Civs cite a similar case in North Carolina, in which a mother filed an appeal based on a comparable alleged NC code section violation. In this case, the appeal also fell short because mother “had failed to explain how she was prejudiced by the delay.”
Similarly, in the case at hand the Civs ultimately denied the appeal because the mother “failed to explain how she was prejudiced by the delay.”
The takeaway for child-welfare professionals is a little discouraging. The Best Interest of the Child Act was a bill grown from a sense of the genuine need to improve the plight of children in foster care. Hours of research, meetings, drafting, and tax-payer-funded legislative resources were poured into a bill that is virtually “toothless.”
The bright spot in all of this is that the Civs point to the possibility of this law aiding permanency for children – if a party can demonstrate that they were prejudiced by the juvenile court’s delay. Just how to do that is quite another question all together.
The second case of the week is J.C.D. v. Lauderdale County Department of Human Resources, 2130921 and 2130922 (April 24, 2015), drafted by Judge Moore. This case centers around two children who, like the other 67 children who are born to unmarried mothers in Alabama every day,[1] grew up without a stable father figure in the home. However, the star of the show is the children’s guardian ad litem, one Jeffrey B. Austin, who refused to wait on DHR to look out for the children’s best interest, and independently filed a petition to terminate the parental rights of the mother and father.
The court begins its analysis in logical fashion, explaining the primacy of the biological parent-child relationship and hurdle that must be overcome, under current Alabama law, to sever it:
“A parent has a natural right to the custody of his or her child, which the state may irrevocably terminate only if clear and convincing evidence shows that the parent is irremediably unfit to care for the child and that the child cannot be adequately protected by some less drastic alternative.”
This is the standard by which all TPR cases must be evaluated. First, has there been clear and convincing evidence presented. The standard of clear and convincing evidence is a mid-point standard, lower than “beyond a reasonable doubt,” yet higher than “a preponderance of the evidence.”
Second, in order to terminate parental rights the court must see clear and convincing evidence that the parent is irremediably unfit to care for the child. Usually this means that DHR has made reasonable efforts at reunification and these efforts have failed. In addition, it insinuates an observable propensity that the parent will continue to be unfit in the foreseeable future.
The last prong of the analysis is the focal point of the instant appeal—namely, whether the juvenile court heard clear and convincing evidence that the child cannot be adequately protected by some less drastic alternative. In my opinion, it’s this phrase that seems to be stumping a lot of child-welfare professionals these days. “Some less drastic alternative” could be … anything, right? In other places, this prong has been referred to as the “no viable alternative” factor; and forcefully criticized as improper judicial legislation. (See concurring opinion of Justice Stuart in Ex parte A.M.P., 997 So.2d 1008, 1024 (Ala. 2008) (“Although this judicially created test has become entrenched in our caselaw, it is nevertheless erroneous and perhaps will one day be overruled.”)).
Yet, we have the prong nonetheless. Thankfully, this and other opinions are helping the child-welfare community figure out what that phrase means. In the case at hand, the father argued that the juvenile court failed to hear clear and convincing evidence on this prong because the juvenile court judged that the children could be safely returned to the custody of the mother.
The Civs agreed with the father and reversed the juvenile court for terminating his parental rights when the “less drastic alternative” to protecting the children resided in returning the children to the custody of the mother.
This court has consistently held that termination of the parental rights of a noncustodial parent is not appropriate in cases in which the children can safely reside with the custodial parent and the continuation of the noncustodial parent’s relationship does not present any harm to the children.
In defending its reversal of the juvenile court, the Civs recount all the evidence that leads to the conclusion that the children will be safe with the mother, without terminating the father’s parental rights. The Civs recount things like the father’s phone calls and visits with the children, the fact that the father hasn’t beaten the mother since she was pregnant with one of the children, the fact that the father hasn’t endangered the children’s lives by driving with them while intoxicated since 2010, etc. Furthermore, the Civs also fault the juvenile court for failing to gather any evidence that showing “how the children would benefit from the termination of the father’s parental rights.”
The takeaway for child-welfare professionals is that the “no-viable alternative” prong of a TPR petition is alive and well. The case at hand tips the scales in the direction of not being able to find clear and convincing evidence of this prong where the child could be safely placed in the custody of the alternate parent.
For my readers out there who, like me, are fans of the Judge Thomas’ well-reasoned opinions, I encourage you to read her concurring opinion on this case. She artfully agrees with the outcome of the case while aptly attacking the decision’s potentially dangerous precedent.
P.S. The final take-away for this case … a commendation of Jeffrey B. Austin. Without his bold and risky action to initiate TPR, these children may have been stuck for years in foster-care limbo. The abused and neglected children of our state need more advocates whose consciences will not let them “go along to get along.”
The third case, James Howard Walker v. Courtney Lanier, 2130895 and 2130896 (April 24, 2015), is a complex consolidation of multiple cases relating to child custody and support, written by Judge Thompson.
The Civs’ opinion follows up on two appeals from the Lauderdale Circuit Court: one denying the State of Alabama’s request (on behalf of the father) for child support, the other modifying the physical custody of the children born of Walker’s marriage to Lanier.
A divorce judgment was entered in 2008, at which time primary physical custody of the children was awarded to the father and visitation to the mother. Although this judgment did not require her to pay child support (since she was allegedly only working part-time and not financially able), a 2010 judgment filed by the State of Alabama on behalf of the father sought to obtain child support from the mother—stating that 1) the children’s needs had since increased; and 2) the mother’s ability to provide had since increased.
The mother filed a separate pleading four months later containing a petition for contempt and a request to modify visitation, stating that the father was not allowing for the visitation plan outlined in their initial agreement.
This already complicated picture was further obfuscated by the mother’s filing of an “Emergency Motion for an Immediate Change in Custody,” alleging that she had evidence that the father was being physically abusive towards the children and requesting that she be granted physical custody.
At this point, the records get muddied. Evidence was heard and received regarding these cases three times between July 2012 and September 2013. Considering this case from the most important lens – that of stability and permanency for these children – this is an exceedingly prolonged amount of time. The Civs acknowledge this, and state that, “other than a few motions to continue, there is no explanation in the record for the delay between the first and final hearings.”
Furthermore, in May of 2014 (before the final judgments were entered by the trial court), the mother filed an additional “Renewed Ex-parte Motion for Custody,” citing further evidence of domestic abuse. The Civs state that there was “no indication in the record that the trial court held a hearing on that motion or that it granted the mother’s request,” which is thoroughly disturbing if such evidence did in fact exist.
Finally, in June of 2014, the trial court entered judgments in both the child-support and the child-custody case. As stated in the second paragraph, the father’s request for child support was denied, and the mother’s request for custody modification was granted—the parents were awarded joint physical custody.
The father filed a timely appeal for both cases, and the Civs consolidated the appeals ex mero motu. Given that the previous evidence had already been presented with the ore tenus presumption of correctness, the Civs were limited in their ability to review the matters that the father brought up on appeal.
Regarding the child-custody matter, the father asserted that the custody agreement should not be modified because the mother had not met the second prong of the McLendon standard, i.e. whether or not she had shown “that material changes affecting the children’s welfare had occurred since the initial custody determination.”
The Civs explained that the issue of whether or not the mother met the standard could only be affirmed if the mother could in fact prove that the father had been abusive. Addressing this possibility, the Civs state that, “it is sufficient to say that the evidence was disputed as to whether the father’s use of corporal punishment was appropriate or excessive.”
Since the Civs were unable to affirm that abuse had taken place, which was “the crux of the custody-modification case,” a modification of custody from sole paternal custody to joint custody would be improper. Since child-support arrangements are dependent on custody arrangements, both aspects of the case were reversed and remanded with instructions.
The final case, Mack v. Mack, 2130847 (April 24, 2015), is a per curiam opinion addressing a husband’s appeal of a Montgomery County Circuit Court judgment divorcing him from his wife. The issue at hand was not the divorce itself, but rather the assertion within the judgment that the husband could not deny his paternity to their child, since he had signed an affidavit at the hospital stating that he was the child’s “natural father.”
Both parties agreed that the child was not biologically the father’s. Tragically, this child’s biological father raped the mother and was last seen in prison. The child was born in 2005, and the two parties involved in this case met in 2007. When they became engaged to marry in 2008, they decided to go to the Center for Health Statistics of the Alabama Department of Public Health in Montgomery so that the mother and her husband-to-be could sign affidavits stating that the he was the child’s “natural father,” which would thereby allow him to be added as the child’s father on the birth certificate.
The two parties were separated in August of 2012, and in June of 2013 the husband filed for divorce and sought a determination that, although he did sign the affidavit, he was not the child’s legal father because having signed said affidavit “does not constitute a valid acknowledgment of paternity pursuant to §26-17-302, Ala. Code 1975.”
In response to the husband’s request that he should not be determined to be the legal father, the trial court stated as follows:
On August 24, 20[0]9 the Husband signed an Affidavit of Paternity with the State of Alabama swearing that he was the natural father of [E.M.]. He did not rescind the affidavit within the time provided by law. He admitted he was competent to sign, not under the influence of alcohol or drugs, there was no fraud and that he was not operating under a mistake of fact. Since that time he has treated [E.M.] like his son and listed him on military records as his son. The Husband is estopped to deny that [E.M.] is his child.
In his timely appeal, the husband claimed that the affidavit he signed is not a valid acknowledgment of paternity pursuant to §26-17-302 because, he says, it does not state:
(1) That E.M. does not have a presumed father or that the husband is E.M.’s presumed father;
(2) That E.M. does not have another acknowledged or adjudicated father;
(3) That there either has or has not been genetic testing, and;
(4) That, if there has been genetic testing, the husband’s claim of paternity is consistent with the results of that testing.
The Civs agreed, and stating that the appropriate interpretation of the Code Section boils down to the correct application of the word “must:”
“In pertinent part, § 26-17-302 provides: ‘(a) An acknowledgment of paternity must…’”
Because the word “must” is ordinarily mandatory in meaning, we conclude that § 26-17-302(a) makes the inclusion of all the information specified in that Code section mandatory in an acknowledgment of paternity and that, because all the information specified for inclusion in such an acknowledgment by that Code section is not included in the affidavit signed by the husband on August 24, 2009, it does not constitute a valid acknowledgment of paternity under that Code section.
However, the Civs clarified that the husband still could be considered the “presumed father” based on many factors, including his own testimony. As such, the Civs reversed and remanded the case with instructions to determine whether or not the husband is the presumed father, and if so, whether or not he would then be estopped from denying that he was the father based on § 26-17-608.
A pertinent takeaway for child-welfare professionals is to not solely rely on forms produced by government agencies. Just because the Executive Branch of government attempts to comply with the Legislative Branch of government doesn’t mean that the Judicial Branch of government will uphold the Executive Branch’s action. In this case, the Center for Health Statistics of the Alabama Department of Public Health in Montgomery drafted an invalid affidavit of paternity. Obviously, said agency is going to have to tweak their forms a bit.
[1] Vital Statistics at a Glance – Alabama 2013. Available at: http://adph.org/healthstats/assets/Card2013.pdf.
Photo by libertygrace0.
