Equipping Foster Parents for Gracious Advocacy Series, Part II: The Golden Calf of “No Viable Alternatives”
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by
Gretchen N. Hedke, Esq.
Samuel J. McLure, Esq.
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In order for the Juvenile Court to terminate the parental rights of a foster child, the Juvenile Court must find clear and convincing evidence that:
1) The legal parents are unable or unwilling to discharge their responsibilities to the child, and they cannot be rehabilitated in the foreseeable future.
2) There are no viable alternatives to terminating the parents’ rights.1
The second prong, “no viable alternatives,” has a particularly questionable origin, and its application has prevented many foster children from achieving permanency. In 2008, Justice Stuart’s concurring opinion from Ex parte A.M.P. makes this point:
“I write to reemphasize the problem with the court-created “no viable alternative” second prong of the termination-of-parental-rights test. . . I have written at length concerning the origin of this judicial engraftment of a requirement outside the statutes and its subsequent modification, which made bad caselaw worse. See Ex parte F.P., 857 So.2d 125 (Ala.2003) (Stuart, J., dissenting). Although this judicially created test has become entrenched in our caselaw, it is nevertheless erroneous and perhaps will one day be overruled.”2
Justice Stuart’s comments in Ex parte A.M.P. are famous. She was a lioness on the Court. Rarely are grace and clarity of vision so harmoniously possessed. Before we progress to her other comments in A.M.P., let’s heed the sage’s advice and investigate her writing in Ex parte F.P.
Justice Stuart’s dissenting opinion in F.P. preceded A.M.P. by five years. Supreme Court Justices don’t often get the opportunity to review and opine on child welfare cases. 99% of child welfare cases meet their end at the Court of Civil Appeals. When the Supreme Court does grant certiorari (agree to review a lower court’s ruling), it’s going to be a fight. We know our Supreme Court Justices care about child welfare issues, but they only get an opportunity to set policy once every three years or so. When we get a child welfare opinion from our Supreme Court, it is usually their most thoughtful work.
By the time the A.M.P. case came across Justice Stuarts desk, she had already been deeply pondering the problems with the no-viable-alternative prong for at least five years.
In F.P., Stuart first noted that the the no-viable-alternative prong is not contained in any statutory provision of Alabama law.3 The “viable alternatives” language originated in child-abuse and neglect cases involving the Department of Human Resources. Stuart identified an unusual federal case that parties pursuing a “viable alternatives” argument cited to for authority: Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976).
Stuart then reported that Alabama courts have stated that they will not be bound by Roe v. Conn. However, those same courts, such as the Court of Appeals in Lovell v. Department of Pensions & Sec., have also stated that “less drastic measures than permanent removal of custody” from a parent “is such a factor the trial court should consider.”4 The Lovell court held that trial courts, “in determining the best interest of children, should look to viable alternatives before terminating parental rights.”5
Stuart explained that, over the years, the preceding phrase was repeated while omitting the phrase “in determining the best interest of the children.”6 Instead of being considered one of several criteria, it was transformed into the second prong of a two-pronged test. It was, “without analysis,” applied to termination-of-parental-rights cases not involving the State or [DHR].7
Justice Stuart concluded:
“[I]t is simply not part of the statutory scheme adopted by the Legislature in the Child Protection Act; its continuation is by judicial engraftment only and is wrong.”8
Fighting words. If a sitting appellate judge wants to start a war with her colleagues, there is no surer path than to write this way. Stuart’s straightforward pronouncement that the Court’s previous rulings on the no-viable-alternative prong are simply “wrong” and “engraftment” are the sort of mic-drop moments that define a jurist’s legacy.
Justice Stuart’s tone carries the gravitas of the moment; you can feel it in her deliberate and methodical cantor. The no-viable-alternative standard is based on bad law and should be overruled and abandoned. Justice Stuart grounds her resolve in history, starting with her predecessor, Justice Maddox.
“[B]ecause dictum sometimes has a habit of growing full-blown into precedent, I felt compelled to express my views on the matter, in the hope that the rule of law will be corrected before it becomes entrenched.”9
Every appellate jurist knows the inherent risk in overturning past precedent. Every such opinion carries the risk of diluting the efficacy of their own rulings. Justice Stuart’s resolve to challenge the no-viable-alternatives standard as “judge-made” can be traced back to a 1975 Alabama Supreme Court case that called undue deference to past rulings “the Golden Calf of precedent.”
“We do not overrule old case law lightly or flippantly. But, where precedent can no longer be supported by reason and justice, we perceive it our duty to reexamine, and if need be, overrule court made law.
The quaint poetic lines of Sam Walter Foss put in perspective the philosophy of those courts which feel compelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent.”
“One day through the primeval wood
A calf walked home, as good calves should;
But left a trail all bent askew,
A crooked trail, as all calves do.
Since then, three hundred years have fled,
And, I infer, the calf is dead.
But still he left behind this trail,
And thereby hangs my moral tale.
…
A hundred thousand men were led
By one calf near three centuries dead.
They followed still his crooked way,
And lost one hundred years a day;
For thus such reverence is lent
To well-established precedent.
…
But how the wise old wood-gods laugh,
Who saw the first primeval calf!
Ah! many things this tale might teach;
But I am not ordained to preach.”10
And what are the consequences of following the “viable alternatives” Golden Calf? It is hardly a laughing matter. Let’s continue our journey through Justice Stuart’s 2008 A.M.P. concurring opinion.
Stuart finds that subsequent interpretations of the “viable alternatives” prong has “exacerbated the problem the test creates in child-welfare practice.”11 In Ex parte T.V., for example, the Court suggests that DHR, before filing a TPR petition, “must pursue any viable relative resource, no matter how long a child has been in foster care and, in my opinion, no matter how beneficial a child’s proposed permanent placement.”12 Stuart concluded, based upon T.V., that the Court has overlooked the “best interest of the child” standard. Instead, Stuart argues, the Court has “mistakenly placed ‘family reunification’ in a position superior to ‘permanency for the child’ as a consideration in child-welfare cases.”13
Stuart, however, insisted that “‘family reunification’ and ‘permanency for the child’ stand on equal footing,” and “‘the best interest of the child’ must always be paramount in cases involving child custody.”14
Stuart then discusses relatives who fail to come forward to seek custody of the child in a timely manner. Such relatives, Stuart finds, who “belatedly come forward seeking custody only when the termination of parental rights is imminent,” are “in almost all cases not a viable alternative” to TPR and adoption.15
In most cases where relatives have failed to come forward in a timely manner and the foster parents are the only true parents the child has known, “only [TPR] and adoption promotes the best interest of the child and provides the permanence desperately needed by a child who, through no fault of his or her own, is placed into our foster-care system.”16
Last comes Justice Stuart’s call to action:
“So long as our child-protection system does not promote the best interest of our children, concerned parties with the best interest of the children at heart will continue to turn to the probate courts of our State in appropriate cases.”17
Although A.M.P. laid significant groundwork for foster parents to achieve permanency of the children they care for, another interpretation of the “viable alternatives” prong has been identified that every foster parent should be made aware of:
On August 19, 2022, the Alabama Court of Civil Appeals again expanded the “viable alternatives” prong to now include a foster parents’ amenable relationship with the natural parent.
In A.B. v. Montgomery Cty. Dep’t of Human Res., the child had been in the home of the foster parents for 21 months at the time of trial.18 One DHR case worker testified that the natural mother had significant mental health problems, had evaded DHR’s request that the natural mother submitted to a psychological evaluation, and the natural mother had failed to complete mental health counseling. Even though several witnesses testified that the child was bonded with the foster mother, the Court of Civil Appeals held that maintaining the status quo was a viable alternative to termination of parental rights.
According to the Court of Civil Appeals, the foster mother testified that
“she would continue to allow the mother to have contact with the child. She explained that she had a good relationship with the mother and that the child loves the mother and the child loves her. Although she testified that the mother spoke with the child every other week, she indicated that she sometimes had the child initiate telephone contact with the mother and also that, if too much time elapsed between contact between the mother and the child, the child tended to act out.”
In addition, the seven year-old child in the case testified that
“if I can’t go back with my mom, I really want my foster mom to adopt me. But I can still see my mom and call her because I know where she lives and I know her phone number.”
The Court of Civil appeals twice alluded to, what appears to be their desired outcome, the possibility that the Court could have, and should have, granted permanent custody to the foster parents.
“When pressed on cross-examination, [DHR Case Worker 1] admitted that permanent placement of the child with the foster family might be an option available to DHR.
…
“Unlike [DHR Case Worker 1], [DH Case Worker 2] was adamant that DHR could not place the child in the permanent custody of the foster parents and that the child must be adopted by them to obtain permanency.”
The natural mother argued on appeal that placing legal custody of the child with the foster parents was a viable alternative to termination, precisely because the foster mother had an amicable relationship with the natural mother.
The Court agreed, stating:
“As we explained in P.M., when foster parents are amenable to continued contact between the child and the parent and when the evidence suggests that such contact is beneficial for the child, maintenance of the status quo or permanent placement with the foster parents can be a viable alternative to the termination of a parent’s parental rights.
While the A.B. decision appears to any foster parent to be unmoored in reality, A.B. is moored in the Court’s precedent.19 The P.M. case, referenced by the Court in A.B., came out almost a year prior to A.B. In P.M., the Court of Civil Appeals found that, even thought the natural mother admitted that removing the child from the foster parents was not in the child’s best interests, continued placement with the foster parents was a viable alternative to termination. This is because the foster parents “clearly indicated that they both intended and expected the mother to have continued involvement in the child’s life.”20
The A.B. court whole-heartedly endorsed the analysis and conclusions of the P.M. court:
“Like the. . . foster parents in P.M., the foster mother in this case testified that she has a good relationship with the mother, that the child loves the mother, and that she intended to allow the child and the mother to have continued contact no matter the outcome of the termination-of-parental-rights proceeding.”21
On this judicially-engrafted reasoning, the Court of Civil Appeals overcame the ore tenus presumption of correctness22 and reversed the Juvenile Court’s termination of parental rights. The Court of Appeals was willing to overlook independently sufficient TPR grounds, such as the child’s emotional bond with the foster mother, and the detrimental harm that would result from a disruption to that relationship — all for the purpose of maintaining the status quo of limbo without permanency.
Not only is the Court of Appeals’ opinion flat “wrong,” it undercuts prior decisions. In A.B.D.H. v. Houston County Department of Human Resources, the court powerfully articulated the necessity of stability for a child in the foster care system and affirmed the trial court’s order terminating the natural parent’s rights:
“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.
In essence, the 2008 Court of Appeals would not be able to stomach the 2022 Court’s A.B. opinion. Children should not bear the punishment of growing up with the mere hope that their natural parents may one day overcome their inability to properly parent and care for them.”23
The 2000 Court of Appeals staked out the same common-sense position in M.W. v. Houston County Dep’t of Human Res.. Without negating the positive improvements the natural parents made, the Court unequivocally indicated that permanency for the child is paramount over unsuccessful and inconsistent attempts at rehabilitation:
“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….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 … 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.“24
In 1973, the Court of Appeals made several profound statements that reflect the reality that many children in foster care experience:
“The principle of priority of right of a parent to custody is founded upon the premise that because of a blood relation and instinct, such parent will better love and care for a child than one not so related. Such premise may be theoretically correct but practical experience has often proved it incorrect.”25
The Bosdorf Court’s articulation of the mercy of TPR for children in prolonged foster care rings with as much truth today at it did in 1973:
“The bonds of love between parent and child are not dependent upon blood relation and instinct, but may be forged as strongly in the crucible of day to day living. Out of the actual relationship of parent and child love grows. It is not merely a product of the biological function of conception and giving birth. To give paramount consideration to the principle of parental priority or ownership in custody decisions would often be an anathema to the best interest of the child.”
We would be remiss if we did not acknowledge that the healthiest foster parents are those open to engaging with their child’s natural parents. The ideal foster parent, holding no airs of superiority, can sympathize with the underlying issues that resulted in the removal of the child from the natural parents’ home. Every foster parent knows that assisting the natural parents in rehabilitation, in order to be reunified with their child, is part of the job description. For the first 12 months.
Child welfare law codifies what some folks call common sense, and other folks call universal law (like gravity). Natural parents have a divine right to control the destiny of their children. If those natural parents, unmoved by the normal current of parental affection, abdicate their core duties of maintenance, affection, and education, then the foster parents who have raised the child succeed to the role of parent. The positive law must take cognizance of this to truly achieve the best interest of the child.
Both state and federal law prescribe that if the natural parents have not worked their case plan and have not rehabilitated after 12 months, then the child welfare system must shift its focus completely. We must look for avenues to achieve permanency through the termination of the natural parents’ rights and adoption by their de facto (psychological) parent; typically the foster parent.
Something of the Court of Appeals’ opinions in A.B. and in P.M. smacks of injustice. For the foster parent reading this article, you likely feel as though your kindness to the natural parent will be used against you and against the child. That’s painful. You are doing exactly what your training tells you to do. You are doing exactly what your heart tells you to do. The Court of Civil Appeals, on the other hand, has laid down the gauntlet: if you express any amicable good will towards the natural parent, then permanency is not in the cards.
So, what’s the answer? Cut off the natural parents? Show them no kindness?Ignore their efforts to communicate with the child and drag anchor on their every attempt? None of those options ring with the love of our Heavenly Father.
We encourage foster parents to lean into authentic discipling or mentoring relationships with the natural parents. However, after 12 months, we have to think about whether or not this is good for the child. In light of these recent opinions from the Alabama Court of Civil Appeals, foster parents should be wary of their good intentions being misinterpreted in a light that could negate permanency.
If the child has been in your home for 12 months, and DHR has not filed for TPR, chances are that DHR is either ignoring law and policy, or lacks the resources to provide your foster child with adequate attention. DHR is mandated to file for TPR if a child has been in the care of the Department for 12 of the last 22 months.26
Ultimately, we want foster parents to feel encouraged to lean into kindness with natural parents. If you find yourself close to the 12 month mark and there does not seem to be satisfactory progress toward Termination of Parental Rights, that’s the time to call in support and expert guidance.
DHR has their attorneys. The child has an attorney. The natural parents have attorneys. Foster parents should not be disadvantaged by approaching the legal process without legal counsel.27 If a foster parent is ever intimidated with false claim that hiring an attorney to guide them through the process is foul play, that’s when they should realize they are dealing with a system seeking to make deals in the shadows.
To elevate the principle of “parental priority or ownership” for the mere hope that the parents may one day overcome their obstacles to suitable parenting is – to the child’s best interest – anathema.
1See J.S. v. Etowah County Dep’t of Human Res., 72 So. 3d 1212, 1219 (Ala. Civ. App. 2011)
2Ex parte A.M.P., 997 So. 2d 1008, 1024 (Ala. 2008) (Stuart, J., concurring).
3Ex parte F.P., 857 So. 2d 125, 144 (Ala. 2003).
4Id. (citing Lovell v. Department of Pensions & Sec., 356 So.2d 188 (Ala.Civ.App.1978)).
5Id. (citing Lovell v. Department of Pensions & Sec., 356 So.2d 188 (Ala.Civ.App.1978)).
6Id.
7Id.
8Id.
9Id. at 139 (citing Ex parte Beasley, 564 So. 2d 950, 958 (Ala. 1990)).
10Lorence v. Hosp. Bd. of Morgan Cty., 294 Ala. 614, 617–19, 320 So. 2d 631, 634–35 (1975) (citing Stevenson, The Home Book of Verse, Henry Holt & Co., N.Y., 7 ed., 1940, at p. 1896.)
11A.M.P., 997 So. 2d at 1024.
12Id. (citing Ex parte T.V., 971 So. 2d 1 (Ala.2007)).
13Id.
14Id.
15Id. (emphasis in original).
16Id. (emphasis in original).
17Id. at 1025.
18A.B. v. Montgomery Cty. Dep’t of Human Res., No. 2210106 (Ala. Civ. App. August 19, 2022).
19In V.G.J. v. Tuscaloosa DHR, 2210176, 2210187, and 2210188 (Ala. Civ. App. June 17, 2022) the Court of Civil Appeals overturned the Juvenile Court’s termination of parental rights. The natural mother’s status as a deported illegal immigrant was a focal issue in the Court’s mind. Here also, the Court gave great weight to the foster mother’s amenable kindnesses to the natural mother:
“At some point, the foster parents took the children to a family gathering involving the children’s extended family, during which J.H.’s paternal relatives provided the foster parents information to contact the mother and the father through “WhatsApp.” The foster mother informed the social worker that the children had videoconferenced with the mother at least once a week since that time. . . After the mother was deported, the mother consistently communicated with the children through “WhatsApp.””
20Id. (citing P.M. v. Lee County Dep’t of Human Res., 335 So. 3d 1163 (Ala. Civ. App. 2021).
21Oddly, the same day as A.B. was released, the Court of Appeals released an opinion that reached the opposite conclusion on similar facts. H.F. v. Elmore County DHR, 2210192, 2210193, 2210194, and 2210195 (Ala. Civ. App. August 19, 2022). The only perceivable differences between H.F. and A.B. are that (1) the child had been in the foster home since the day he was born, and (2) there was evidence in the record to support the natural parents allegation that maintaining the status quo would be beneficial for the child. Translation: the foster parents didn’t state under oath that they had kind, amicable feelings or intentions toward the natural parents.
22The typical, deferential standard applied on appeal wherein a juvenile court’s factual findings are presumed correct.
23A.B.D.H. v. Houston County Department of Human Resources, 1 So. 3d 53, 63 (Ala. Civ. App. 2008) (emphasis added).
24M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 486-7 (Ala. Civ. App. 2000) (emphasis added).
25Borsdorf v. Mills, 275 So.2d 338, 341 (Ala. Civ. App. 1973)
26Ala. Code § 12-15-317(1)(a). There are a very narrow range of acceptable exceptions listed in Ala. Code § 12-15-317(2). These exceptions must be properly documented and open to review by the Court.
27Much more, child welfare litigation is concerned with the most treasured of rights in our civilization. The rights of parents (natural, legal, and foster) to control the destiny of their children.
