Case Review: T.B. v. Cullman County Dept. of Human Resources, 6 So.3d 1195 (Ala. Civ. App. 2008)
—//—
Equipping Foster Parents for Gracious Advocacy Series, Part I
by Samuel J. McLure, Esq.
30-Second Summary
For the foster parents reading this article, I hope that at least one main take-a-way will stick with you. There is a common myth circulated among child welfare professionals: if a natural parent is at least devoted to visiting their child, the natural parent has shown sufficient interest and progress that it would be amoral to terminate parental rights; and that the juvenile court cannot and should not terminate the natural parents’ rights. As the cases reviewed below demonstrate, mere devotion to visitation – absent other significant progress towards rehabilitation – will not and in most cases should not result in reunification.
—//—
There is a universal principle about foster parents and the children they care for. It’s as old as time, rooted in the fabric of fallen creation, universal to all times, contexts, and cultures.
Samuel Pufendorf expressed this immovable law well in his 1660 treatise on The Elements of Universal Jurisprudence. Pufendorf delves to the very depths of the question. What rights should a natural parent have over a child they abandon vis-à-vis, the person who has raised the child as their own:
“[I]f some parents, … not only violating the law of nature but also overcoming common affection, are unwilling to nurture their offspring, and cast it forth, they cannot longer claim any right over it, nor can they demand from it longer any office due, as it were, to a parent.
…
“But he who has brought up an exposed infant succeeds to the rights of the parent … nor can [the child] go back under the authority of his natural parents [if the child’s caregiver is unwilling].”
In T.B. v. Cullman County Dept. of Human Resources, 6 So.3d 1195 (Ala. Civ. App. 2008), the Alabama Appellate Court extended this universal principle into the 21st Century. The natural mother appealed the Juvenile Court’s order terminating her parental rights. Notably, the natural mother did not argue on appeal that DHR failed to use reasonable efforts to rehabilitate her and to reunite her with her children. “Instead, she argues that those efforts succeeded.” Id. at 1199. In other words, the natural mother argued that DHR did their job so well that her children should have been returned to her, instead of the juvenile court terminating her parental rights.
The question of whether DHR’s “reasonable efforts to rehabilitate a parent have succeeded so that the family can be reunited is a question of fact for the juvenile court.” This phrase, “question of fact for the juvenile court” is important to have firmly in mind. It’s called the ore tenus presumption of correctness. It will come up a lot through this article.[1]
The juvenile court must undertake a two-prong analysis in its findings of fact relative to an order terminating a parent’s rights.
First, the juvenile court must “identify the parental conduct, circumstances, or condition that led to the removal of the children and prevented their return to the custody to the parent.” Id.
Second, the juvenile court must “consider the efforts expended by the parent in overcoming those problems and the progress the parent has made in eliminating or reducing those problems, so that they no longer constitute a barrier to reunification.” Id.
When the Appellate Court is asked to review the juvenile court’s order terminating parental rights, it can only overturn the juvenile court if the Appellate Court finds that there was a “particular finding of fact” that is “unsupported by clear and convincing evidence so as to be plainly and palpably wrong.”[2] Id.
As to the first step in the juvenile court’s analysis, the Appellate Court recounts the following facts.
DHR removed the children from the natural parents because the family was living in a mobile home with “structural, cleanliness, and other problems rending it an improper shelter.” Id. at. 1200. The children were briefly returned to the natural parents after they found other suitable housing. However, the natural parents later moved back into the very same mobile home.
The Appellate Court also recounts the mother’s pattern of inability to display basic parenting skills, even on supervised visits; unwillingness or inability to progress in parental training; continued co-habitation with the natural father despite abuse and previous agreements reached with DHR. In addition, the mother was completely financially dependent on the paternal grandfather, with whom she also began residing.
Although the mother consistently visited with the children, she “never displayed appropriate parental guidance over the children, and depended on the caseworkers and supervisors to protect and discipline the children during visitations.” Id.
The Appellate Court summarized that “[b]ased on the foregoing, and other evidence, DHR identified numerous problems preventing the mother from reuniting with the children, including; inadequate and unstable housing, domestic violence, improper discipline and parenting techniques, mental deficiencies, lack of income, and psychiatric problems.” Id. at 1201.
As to the second step in the juvenile court’s necessary analysis, the Appellate Court comments that the mother did succeed in “addressing” some of the problems that led to the children coming into DHR care and even made “progress” regarding some of those problems.
“As the mother correctly points out, she overcame some of those problems.” The mother obtained adequate housing, her psychiatric problems were being controlled through medication, she no longer lived with the natural father, and she had also learned how to deal with one of the children’s asthma problems.
The importance of the ore tenus presumption of the trial court’s correctness is next put on display by the Appellate Court. Remember, unless the juvenile court’s factual findings are “unsupported by clear and convincing evidence so as to be plainly and palpably wrong”, the Appellate Court’s obligation is to affirm the trial court. In other words, the record must be almost devoid of support for the juvenile court’s findings – specifically, in the T.B. case, that the mother had not made sufficient progress to eliminate or reduce the problems that led to the children going into DHR custody, and that those problems continue to pose a “barrier to reunification.”
In applying the ore tenus presumption of the juvenile court’s correctness, the Appellate Court goes through the evidence which supports the Juvenile Court’s findings that the mother had not sufficiently eliminated or reduced the problems which led to the children’s removal from her care. The Appellate Court focused on the natural mother’s financial dependence on the paternal grandfather and her inability to progress in basic parenting skills.
“[T]he mother remained totally financially dependent on the paternal grandfather, without any plan for meeting the children’s financial needs should he leave or die. The mother had no income of her own and testified that the only income she anticipated receiving was Social Security disability benefits, which she had been waiting to receive for over 18 months. The evidence did not reveal whether those benefits would be sufficient to meet the financial needs of three young children.”
“More importantly, despite extensive rehabilitation efforts, the mother had yet to display the ability to independently and properly care for the children. All the expert testimony and evidence in the case, and a great deal of the evidence from lay witnesses, indicated that the mother, either due to her mental limitations or lack of motivation, could not properly parent the children without full-time assistance from others. One DHR witness testified that the mother had made it through only 1 of 14 books designed to train her how to properly parent the children and that it would take the mother 3 more years to complete her training.” Id. at 1202. (emphasis added)
For the de facto parents out there (i.e., most foster parents reading this article), the Appellate Court’s next statement will come as a breath of fresh air:
“At some point, … the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.”
Amen and Amen.
“In the absence of exceptional circumstances, a parent’s efforts at rehabilitation should not extend beyond 12 months from the date the child enters foster care because our legislature has established that period as the presumptively reasonable time for conducting reunification efforts.”
In the case of T.B., the Appellate Court kept the course of hundreds, if not thousands of years of Natural Law precedent, and mercifully allowed the children to obtain permanency through adoption. Kids should not languish in foster care for years. It’s unacceptable to the higher courts, it’s unacceptable to the Legislature, and sometimes it takes a well-trained foster parent to hold their county DHR and the Juvenile Court to the same standard.
When the Appellate Court in T.B. acknowledged the justice of this universal rule of law, it cites two supporting cases: M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484 (Ala. Civ. App. 2000) and M.A.J. v. S.F., 994 So.2d 280 (Ala. Civ. App. 2008).
In M.W. the Appellate Court further explained the principle that the child’s need for permanency must, at some point, take priority over a parents unsuccessful attempts at rehabilitation:
“The mother continues to have a problem with alcohol. She admitted that she had received two DUI citations in the month before the final hearing. She had, however, passed several drug screens in the months before the final hearing. The mother lives with a man in a trailer owned by her brother. She was unemployed at the time of the final hearing. Although the mother has attempted to adjust her circumstances to meet the needs of the child, she has not had consistent success. When she does succeed, she cannot maintain her improved lifestyle. She cannot or will not admit that alcohol is a problem in her life; without such an admission, treatment for alcoholism will fail because the mother is not seeking treatment but is instead trying to satisfy DHR.
“We are not unsympathetic to the mother. She has been devoted to visitation with the child, she has attempted to do all that DHR has asked of her, and she willingly relinquished custody when she lost the ability to provide for the child, all the time intending that the child would return to her custody once she established a home and got a job, which she has not done. At some point, however, the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.” Id. at 486-487. (emphasis added).
Of note in M.W. is that the Appellate Court acknowledges the mother’s attempts to “adjust her circumstances,” her devotion to visitation, and her attempts to “do all that DHR has asked of her.” The Appellate Court then focuses on what the best interest of the child demands – the child’s need for permanency.
In M.A.J. the Appellate Court further explained the importance of the 12-month rule:
“[T]he federal Adoption and Safe Families Act (“the ASFA”) …. requires juvenile courts to hold a permanency hearing to determine a child’s disposition within 12 months of the date the child first entered foster care. Based on similar statutory provisions in their states, many other courts have concluded that their legislatures have established 12 months as a presumptively reasonable time for a parent to rehabilitate so as to be able to reunite with the child. We have recognized that, “[a]t some point, … the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.” Consistent with that statement, and the purpose behind the ASFA … to “ensure ‘that children are provided a permanent home as early as possible,’” we hold that when DHR timely exerts reasonable rehabilitation and reunification efforts, the parents generally shall have 12 months from the date the child enters foster care to prove that their conduct, condition, or circumstances have improved so that reunification may be promptly achieved.” Id. at 291. (internal citations omitted)
To continue further down the line of cases, M.A.J. cites A.D.B.H. v. Houston Cnty. Dep’t of Hum. Res., 1 So. 3d 53, 63 (Ala. Civ. App. 2008)
“When the juvenile court terminated the mother’s parental rights, [the child] had been in DHR’s custody and in various foster homes for almost four years and K.T. had been in foster care for almost two and one-half years. J.B. and K.T. had seen their two half siblings transferred to suitable relatives with stable home environments. The mother had been given ample time to rehabilitate herself so that she could regain custody of J.B. and K.T. The children should not have to spend further time in an uncertain home situation based on the mere hope that the mother may someday overcome her psychological inability to properly parent them. The juvenile court did not err in failing to grant the mother additional time to rehabilitate.” (emphasis added)
As to the amorphous second prong of TPR, “no viable alternatives,” the Appellate Court in T.B. makes two common sense assertions. First, the mother contended on appeal that DHR should have placed the children in the care of the paternal grandfather. However, the Appellate Court notes that if DHR placed the children in the paternal grandfather’s care, it would practically just be placing the child back in the natural mother’s care.
“[T]he paternal grandfather indicated … that he intended the mother to be the primary caretaker for the children because he had not parented young children in many years and he felt she would know more about it.” Id. at 1203. (emphasis added).
If the potential relative, i.e., the possible “viable alternative” to TPR is going to simply give the child right back to the offending parent, then that relative ceases to be “viable.” That’s pretty common-sense analysis.
The Appellate Court’s second assertion, as common-sense as it may be, is an anomaly in the current landscape of Alabama positive law on TPR.
“Finally, we note that the parental-rights-termination statute allows a juvenile court to terminate parental rights when the parent is unable to discharge his or her responsibilities to and for the child. Regardless of whether the paternal grandfather can assume a proper parental role, the fact remains that the mother is still unable to properly parent the children.” Id. at 1202 – 1203. (italics emphasis in original, bold emphasis added)
While the development of the “no-viable alternative” prong is beyond the scope of the current article, suffice it so say that it has pained noble jurists for some time. Its genesis and application are a matter of no little debate, leading some scholars to opine that it practically amounts to “legislation from the bench.”
Finally, the Appellate Court in T.B. humbly acknowledges that there was conflicting evidence on whether the natural mother’s rehabilitation was successful. There almost always is. That’s the whole purpose of the adversarial legal process.
“We recognize that the evidence regarding the extent of the mother’s progress was in conflict…” Id.
After acknowledging the obvious, the Appellate Court ends where it began – the ore tenus presumption of correctness:
“[H]owever, the resolution of that conflict was for the juvenile court. Clear and convincing evidence supports the juvenile court’s determination that reasonable efforts leading toward the rehabilitation of the mother had failed and that the mother was not in a position to safely reunite with the children.” Id. (internal citations omitted)
For the foster parents reading this article, I hope you will not be persuaded to “turn-off” your common sense parental instincts. The law relating to foster children, as passed down for hundreds and thousands of years, is fixed and immovable:
“[I]f some parents, … not only violating the law of nature but also overcoming common affection, are unwilling to nurture their offspring, and cast it forth, they cannot longer claim any right over it, nor can they demand from it longer any office due, as it were, to a parent.
…
“But he who has brought up an exposed infant succeeds to the rights of the parent … nor can [the child] go back under the authority of his natural parents [if the child’s caregiver is unwilling].”
And, a natural parent’s mere devotion to visiting with the child does not, and cannot, change that reality.
_______________________
1. The Juvenile Court’s final order makes factual findings on clear and convincing evidence, including ore tenus testimony presented at trial, and therefore bears a presumption of correctness. “Such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.” Ex parte State Dep’t of Hum. Res., 624 So. 2d 589, 593 (Ala. 1993). Indeed, “opportunity to observe witnesses is especially important in child-custody cases.” Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001). In cases where a relative is considered as an alternative to TPR, the Alabama Supreme Court has stated that the Court of Civil Appeals is “required to apply a presumption of correctness to the trial court’s finding.” Ex parte State Dep’t of Hum. Res., 834 So. 2d 117, 122 (Ala. 2002).[1] “On appeal from ore tenus proceedings in a termination-of-parental-rights case, this court presumes that the juvenile court’s factual findings regarding viable alternatives are correct.” J.B. v. Cleburne Cnty. Dep’t of Hum. Res., 991 So. 2d 273, 282 (Ala. Civ. App. 2008).
In Alabama, the best interest of the minor child must always be the foremost consideration in child welfare proceedings. It must be based on “the totality of the circumstances,” including relevant facts previously subject to litigation. See V.G. v. Madison Cnty. Dep’t of Human Res., 989 So. 2d 550, 554 (Ala. Civ. App. 2008); K.C.B. v. B.D.C., No. 2200740, 2022 WL 90601, at *3 (Ala. Civ. App. Jan. 7, 2022); Ex Parte H.A.S., 308 So. 3d 533, 542 (Ala. Civ. App. 2020); R.L.M.S. v. Etowah Cty. Dep’t of Hum. Res., 37 So. 3d 805, 808 (Ala. Civ. App. 2009); J.W. v. C.H., 963 So. 2d 114, 120 (Ala. Civ. App. 2007). This is settled law.
2. Clear and convincing evidence is “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” Ala. Code § 6-11-20. The Appellate Court “does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing…When those findings rest on ore tenus evidence, this court presumes their correctness.” K.R.S. v. DeKalb Cnty. Dep’t of Hum. Res., 236 So. 3d 910, 912–13 (Ala. Civ. App. 2017) (internal citations omitted). “This is especially true where … the assessment of the credibility of witnesses is involved.” Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So. 2d 92, 102 (Ala. 2001).
