When Adoption is Totally Uncertain and Strictly Speculative

When Adoption is Totally Uncertain and Strictly Speculative.

When adoption is “totally uncertain and strictly speculative,” TPR will not be upheld on appeal. This was the holding of T.W. v. Calhoun County DHR, 2023 WL 3768317 (Ala. Civ. App. June 2, 2023), an opinion authored by Presiding Judge Thompson. T.W. takes some interesting turns, especially with the concurring opinion of Judge Moore.

However, our main interest in T.W.’s comes by reinforcing the principle that foster parents must take an active role in the litigation process. Judge Moore cited cases from Oregon and Pennsylvania to bolster this point:

I agree with the Oregon Supreme Court that a permanency plan calling for the placement of a foster child for adoption “implicitly requires that adoption appear to be a likely outcome.”

I also agree with the Supreme Court of Pennsylvania that “termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home”.

The fatal flaw for T.W.’s TPR was the complete lack of evidence in the record that the foster parents, or some other possible parent, was willing to adopt the child.

Before the Civs announce its ultimate ruling to reverse the trial court’s TPR orders, the Civs build on the dissonance by reminding us how important TPR is for children in appropriate cases.

The purpose of the statute authorizing termination of parental rights is to protect children from harm emanating from an adverse parental relationship

[F]oster care is intended primarily to provide a child with a safe and nurturing home temporarily while the child’s custodial parent works toward rehabilitation to the point that the family can be safely reunited. The Adoption and Safe Families Act of 1997 (“the ASFA”), 42 U.S.C. §§ 671 and 675, was enacted to prevent a child from languishing in foster care after it has been determined that the goal of family reunification cannot be accomplished.

The ASFA rests on the premise that all children need “permanency” to thrive and to mature properly into responsible adults and citizens. Id. In this context, the term “permanency” refers to a safe, stable, and nurturing custodial arrangement lasting throughout the child’s minority.

To obtain this goal, the ASFA requires states that receive federal funding for their foster-care programs, like Alabama, to use reasonable efforts to expeditiously move children who cannot be safely returned to their family home out of foster care and into permanent homes, preferably through adoption following termination of parental rights.

Because long-term foster care does not provide children with the kind of permanency contemplated by the ASFA, “generally speaking, maintaining a child in indefinite foster care is not a viable alternative to termination of parental rights.”

This is a well written opinion. It reads like a novel. The Civs, in reciting the strength of all that law, are making the point with an exclamation mark. If the record does not show by clear and convincing evidence that the child has an adoptive resource, then a TPR order will not stand.

However, as the mother points out, DHR did not identify an adoptive resource for the children.

It is undisputed that DHR had not identified an adoptive resource for the children.

Most particularly, DHR did not offer any testimony or other evidence regarding the adoptability of the children or the likelihood that adoption would be achieved in the foreseeable future.

The Civs continued to clarify their position, specifically tailored to the arguments that the Guardian ad litem and DHR made during the application for rehearing. DHR and the GAL argued that even though the record didn’t specifically contain evidence for the children’s adoptability, the Civs could “infer” that evidence.

The Civs didn’t buy it. Instead the Civs looked to the child’s qualification as special needs under Ala. Admin. Code (Dep’t of Hum. Res.), r. 660-5-22-.06

This court has repeatedly emphasized that, before proceeding to terminate the parental rights of the parents of special-needs children, a juvenile court must consider whether the children will likely achieve permanency through adoption.

The Civs also evaluated whether there would be any harm to the children by continuing supervised visits with the natural mother.

In these cases, it is undisputed that the children can continue to reside with the foster parent and that DHR has and can facilitate supervised visitation between the mother and the children

DHR presented no evidence indicating that the mother has acted in any disruptive, antagonistic, or any other manner that makes the continuation of that arrangement untenable.

[N]othing in the record indicates that continued supervised visitation would inadequately protect the children from parental harm.

The best source of evidence to demonstrate the existence of an adoptive resource and harm to a child of visitation with the natural parents is, or course, the foster parent/ adoptive resources.  If you are the foster parent of children moving toward TPR, we urge you to have face to face meetings with your child’s Guardian ad litem and the Department’s attorney to discuss these issues.

If that doesn’t provide satisfactory traction, then consider asking the Court to intervene in the matter, as a party, in order to protect the child’s best interest.

The Department can be a great friend to foster children and assistant to foster parents. However, that doesn’t mean foster parents should fall asleep at the wheel and let DHR do all the driving. The best outcomes for children come when foster parents are partnering with the Department throughout the course of litigation.

The Civs remind us of this point with its cautionary voice.

In order for the juvenile court to consider that factor, it was incumbent upon DHR to present clear and convincing evidence of the viability of adoption so that the juvenile court could make an informed evaluation and decision.

However, DHR did not even attempt to introduce any evidence on that point.

As the evidentiary record in these cases stands, the prospects of the children to be adopted remain totally uncertain and strictly speculative.