On January 7, 2022, the Court of Civil Appeals released K.C.B. and D.E.B. v. B.D.C., (2200740), authored by Presiding Judge Thompson. The overarching issue before the Court concerned the trial court’s denial of an “offer of proof.” However, Presiding Judge Thompson took the opportunity to push back against what many trial attorneys and trial judges call “the Fresh Facts Movement” sweeping the State over the last year.
PJ Thompson writing for the Court notes that
[T]he juvenile court apparently erroneously concluded that only a parent’s current condition pertains to the issue of a child’s dependency. However, in addition to considering a parent’s current circumstances, in determining whether a child is dependent a juvenile court may consider the family’s history. This court has stated that “[e]vidence of a parent’s past conduct is admissible if it assists the juvenile court in assessing and weighing the evidence regarding current conditions, but evidence of past conditions cannot be the sole basis for finding a child to be dependent.” (emphasis added) (citations omitted)
On January 7, 2022, the Court of Civil Appeals released R.R. v. Chilton County Department of Human Resources (2200709 and 2200710) authored by Judge Edwards. The overarching issue of the case was the father’s appeal of the Juvenile Court’s finding of dependency. The Court held that “[t]he juvenile court had before it sufficient evidence to conclude that the child remained dependent as a result of his father’s failure to participate in reunification efforts.” (emphasis added) The Court notes that
The father had not visited with or maintained any contact with the child in the two years preceding the trial. He did not testify at the trial because, according to his attorney, he was at the emergency room with one of his other children.
The father has barely participated in DHR’s reunification efforts and has not bothered to maintain, much less improve, his relationship with the child.
To be sure, DHR’s ability to explain why the child still should not be reunited with the father suffered as a result of his failure to participate in services or to cooperate with DHR. The record reflects that DHR knew little about the father’s circumstances, mostly because the father had not kept in contact with DHR, had hidden his address from DHR, and had refused to complete the necessary paperwork and to select a time for DHR to perform a home study.
Interestingly, the Court didn’t give the father a free pass:
The father’s reticence to cooperate with DHR is itself significant proof that the father has not addressed the issues that had resulted in the child’s removal and the dependency finding in the November 2018 judgment.
We have explained, albeit in the context of termination-of-parental-rights actions, that the reunification process requires DHR to make reasonable efforts to rehabilitate a parent but also requires the parent to participate in the services offered by DHR in an attempt to ameliorate the conduct or condition that led to DHR’s involvement with the family.
The father has barely participated in DHR’s reunification efforts and has not bothered to maintain, much less improve, his relationship with the child. (emphasis added)
Judge Edwards writing for the Court takes the time to make this point even more clearly by citing Montgomery Cnty. Dep’t of Hum. Res. v. A.S.N., 206 So. 3d 661, 673 (Ala. Civ. App. 2016):
“Central to a determination whether reasonable efforts at rehabilitation have failed is not only the consideration whether a parent has complied with the reunification plan established in the [individualized service plans] so that ‘the parental conduct, condition, or circumstance that required separation of the child [can be] satisfactorily eliminated,’ see R.T.B. v. Calhoun Cty. Dep’t Human Res., 19 So. 3d 198, 205 (Ala. Civ. App. 2009), but also whether the parent has made ‘himself or herself available to DHR’ and has made ‘an effort to address his or her issues and improve his or her circumstances.‘ A.M.F.[ v. Tuscaloosa Cnty. Dep’t of Hum. Res.], 75 So. 3d [1206,] 1212 [(Ala. Civ. App. 2011).] In A.M.F. we relied on, in part, In re Tiffany B., 228 S.W.3d 148, 159 (Tenn. Ct. App. 2007), overruled on other grounds, In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015), as authority for the aforementioned principle. The quotation we provided in the parenthetical explanation of the relevance of the citation to In re Tiffany B. is extremely apt here:
” ‘ “Reunification of a family, however, is a two-way street, and neither law nor policy requires the Department [of Children’s Services] to accomplish reunification on its own without the assistance of the parents. Parents share the responsibility for addressing the conditions that led to the removal of their children from their custody. They must also make reasonable efforts to rehabilitate themselves once services have been made available to them.” ‘ ” (emphasis added)
On January 7, 2022, the Court of Civil Appeals released D.M.G. and T.F.F. v. C.W.S. and R.G.S.(2200427) authored by Judge Hansen. In a very short span, D.M.G. surveys the complex transfer mechanisms of adoptions from Probate Court to Juvenile Court. Judge Hansen writing for the Court notes:
Speaking through Justice Bolin, himself a former probate-court judge, our supreme court noted that § 26-10A-24(e), unlike Ala. Code 1975, §§ 12-12-35 and 26-10A- 21 (statutes providing for transfers of “entire adoption proceedings” from probate courts to circuit courts), provides for a limited transfer.
The Court held that in cases where an adoption is transferred under § 26-10A-24(e), the adoption proceeding must be “remanded to the probate court for further action.” Any final decree of adoption entered by the Juvenile Court under such a transfer would be null and void.