In S.R., the Court of Appeals rejected a constitutional challenge to the McLendon standard.
In March 2020, the juvenile court ordered that the children were dependent and awarded custody to B.G. and K.G., the custodians. The March 2020 orders were affirmed on appeal.
In May 2022, S.R., the mother, petitioned to modify custody, or in the alternative, to modify visitation. After trial, the juvenile court found a) that the March 2020 judgments were final orders, b) the McLendon standard therefore attached, and c) the mother failed to meet the McLendon standard.
The juvenile court held an additional hearing on the mother’s alternative request to modify visitation. The court issued an order setting out a visitation schedule. It also amended its order after consideration of the parties’ post-judgment motions.
The mother appealed. On appeal the mother, argued three main points: 1) the McLendon standard violates her constitutional rights to due process and equal protection; 2) the March 2020 judgments were not final because they did not award child support; and 3) the juvenile court erred by determining that she failed to meet the McLendon standard.
I. Constitutional Issue
The mother argued that the McLendon standard violates her due process right because it neuters parent’s fundamental right to custody.
The Court of Appeals explained that the mother’s fundamental right to custody was affected by the March 2020 judgments in which custody was awarded to B.G. and K.G. As a result of those judgments, she lost the parental presumption that would apply in an initial custody dispute between a parent and third party. She could therefore no longer rely on the parental presumption “to elevate her claim to the custody of the children, at least in a custody dispute with the custodians.”
The mother further argued that a child’s dependency is not resolved through their placement in the custody of a third party. The Court of Appeals disagreed. When a child is placed in a third party by a final order, “the child’s dependency is resolved because the child has a suitable custodian and is no longer in need of care or supervision.”
The Court of Appeals drew a clear distinction between a final custody decision and when the State holds custody, such as when a child enters foster care. For example, when a child is in foster care through DHR, the State’s custody is pendente lite in nature. Pendente lite custody “does not work a final effect on the parents’ fundamental rights.” But once “dependency is concluded by a final dispositional decision” and the child is placed with an individual custodian, “the parents lose the right to assert the prima facie presumption that they are entitled to custody as against such custodian.”
The Court therefore held that the mother had been provided all the due process to which she was entitled, and that the McLendon standard did not violate any of her due process rights.
The mother also argued that the McLendon standard violates her right to equal protection because it treats her differently than other similarly situated parents – parents who have lost custody to DHR in a dependency action – based on differences that are not related to a legitimate government objective. She argued that an award of a dependent child’s custody to a suitable individual should be considered as pendente lite “so as to provide the opportunity for parents to rehabilitate and resume custody of the child.”
The Court, however, explained that the March 2020 judgments were final judgments awarding custody to the custodians. Those judgment were not pendente lite in nature. The mother had stipulated to dependency, and had appealed the March 2020 judgments, which were affirmed. The children were placed with suitable custodians, and were no longer dependent. The Court therefore concluded that S.R. was “not similarly situated to parents who have dependent children in the pendente lite custody of DHR.”
The mother further argued that the McLendon standard “ends up granting the nonparent custodians a quasi-protected interest to the natural parents’ child that was created by the state despite the fact that the nonparent custodians have no interest to protect.” The Court disagreed, explaining that McLendon “is concerned not with the rights of the custodian of a child, but the interests of the child whose parent has lost his or her custodial presumption.” The child’s interests are in “stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood.”
II. Finality Issue
The mother argued that the March 2020 judgements were not final because they did not award child support.
The Court noted that it affirmed the March 2020 judgments and “did not observe a jurisdictional defect.” In those judgments, the juvenile court had deferred the calculation of child support. There had been no indication that the mother or father had the financial ability to pay child support.
III. Evidentiary Issue
The mother finally argued that the juvenile court erred by determining she had failed to meet the McLendon standard. She argued that she and the children have the “right to the preservation of family integrity.”
However, that right had been affected by the award of custody to the custodians. Further, the Court noted that the “resumption of the biological relationship between a child and a parent is not, in and of itself, sufficient to offset the negative uprooting effect that would accompany a change of custody.”
The mother argued that the custodial arrangement was denying the children the chance to form a normal sibling bond with their younger sibling and denying them a chance to bond with extended family members. However, the mother did not successfully argue that “forging those bonds would somehow materially promote the best interest and welfare of the children to such a degree as to warrant a modification of custody.”
The Court recognized that the mother appeared “to have overcome the issues that resulted in the removal of the children from her custody.” However, she did not meet the McLendon standard. Ultimately, the Court of Appeals affirmed the juvenile court’s orders.
Gretchen Nicole Hedke came to The Adoption Law Firm in May 2021 as an intern during her 2L summer at the University of Alabama School of Law. Gretchen began practicing law in October 2022 and officially became an associate attorney with the firm.
Gretchen received her B.S. in Political Science and French, summa cum laude, from The University of Alabama in 2019 and her J.D. from The University of Alabama School of Law in 2022. There, she was a member, Secretary, and then President of the Saint Thomas More Society.
Gretchen focuses primarily on post-TPR adoptions out of foster care and appellate writing.