Over the last four years, many foster children have failed to achieve permanency in an adoptive homes due to the fresh-facts of dependency movement. Or, at least the perception among many practitioners of the Court of Civil Appeals’ apparent campaign to overturn a trial court’s termination of parental rights ruling. I remember when these series of cases began to hit the trial courts. Nearly all of the judges and juvenile trial attorneys I spoke with were baffled. Eventually, we figured it out. The Court of Civil Appeals would not uphold a TPR if the trial court was not presented with fresh facts of dependency.
In the beginning of this upheaval, the fresh-facts trend seemed to mean that the Civs would not support a TPR if the parent had come forward in the last few months before TPR trial and showed a modicum of effort to work their case plan. Eventually that morphed into the notion that it’s okay to use years’ past history of parents’ bad acts or omissions, i.e. dependency. However, the trial court could not rely solely on that past-history evidence. The trial court must also have fresh facts of dependency. For the purpose of stare decisis analysis, the main problem with this season of the Civs opinions was that it ignored a tremendous amount of prior case law to the contrary.
One such case that exemplifies the ignored case law of the fresh-facts movement is M.A.J. v. S.F., 994 So. 2d 280, 291 (Ala. Civ. App. 2008). M.A.J. held that, “when [the Department of Human Resources] 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.”
According to our records, the first time M.A.J. was argued for this point of law was in September 2022. In short, this was the argument presented to the Civs, and quite possibly for the first time:
To date, the child has been a ward of the state for about 30 months. The presumptively reasonable time for a child to remain in foster care is 12 months, in Alabama and many other states. L.M.W. v. Etowah Cnty. Dep’t of Hum. Res., 55 So. 3d 1204, 1214 (Ala. Civ. App. 2010); M.A.J. v. S.F., 994 So. 2d 280, 291 (Ala. Civ. App. 2008).
Prolonged foster care past 12 months is only warranted under “exceptional circumstances.” T.B. v. Cullman Cnty. Dep’t of Hum. Res., 6 So. 3d 1195, 1202 (Ala. Civ. App. 2008). After 12 months, absent exceptional circumstances and compelling reasons, the child’s “interest in permanency” overcomes the parent’s “interest in rehabilitation.” J.S. v. Etowah Cnty. Dep’t of Hum. Res., 72 So. 3d 1212, 1223 (Ala. Civ. App. 2011). See also Montgomery Cnty. Dep’t of Hum. Res. v. A.S.N., 206 So. 3d 661, 674 (Ala. Civ. App. 2016)(children in DHR care for almost 4 years deserved permanency).
At this point in time, this was a very unique argument and has arguably helped to right the course for foster children all over the State.
Let’s pick up the thread of M.A.J. historical use. Prior to September 2022, this case was never cited for the rule of law attached to it in the above argument – at least as far back as 2017.
In March 2022, M.A.J. was cited for a different rule – the rule that the Department’s duty of reasonable efforts does not mean maximal efforts. M.L. v. Jefferson County DHR, 362 So.3d 1242, 1249 (Ala. Civ. App 2022).
M.A.J. was again cited for that same rule of law in December 2021. K.R. v. Houston County DHR, 355 So.3d 350 (Ala. Civ. App. 2021).
And in September 2021. D.S.R. v. Lee County DHR, 348 So.3d 1104 (Ala. Civ. App. 2021).
In December 2018, a Guardian ad Litem argued M.A.J. in favor of permanency for a child. However, the Civs isolated the argument to the same rule of law as above: reasonable efforts by DHR does not mean unlimited efforts. However, the Civs distinguished M.A.J. and dismissed the GAL’s argument. Herring v. Madison County DHR, 279 So.3d 1151 (Ala. Civ. App. 2018).
And in October 2017 M.A.J. was cited for the same rule of law that reasonable efforts is not unlimited efforts. A.M. Houston County DHR, 262 So.3d 1210 (Ala. Civ. App. 2017).
What does all of this history tell us? At least it tells us that the Civs were not considering M.A.J. for the rule of law that was argued in September 2022: the 12-months to permanency rule.
For the first time, in November 2023, we saw the Civs release an opinion which adopted the M.A.J.’s 12-months to permanency rule that first re-emerged in September 2022.
The child has been in foster care for more than two years. Our court has explained that “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.” M.A.J. v. S.F., 994 So. 2d 280, 291 (Ala. Civ. App. 2008). See also T.B. v. Cullman Cnty. Dep’t of Hum. Res., 6 So. 3d 1195, 1202 (Ala. Civ. App. 2008) (“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.”).
J.E. v. Lawrence County DHR, —//— (Ala. Civ. App. 2023)
In J.E. the Civs cited M.A.J. for the 12-month to permanency rule of law and joined it with T.B. and improved upon the argument by parenthetically citing the entire sentence.
In the next month, December 2023, the Civs again cited M.A.J. for the 12-month to permanency rule of law:
We have explained that a parent’s attempt to remedy the conduct or condition that prevents him or her from being an adequate parent should be accomplished in a timely fashion. Talladega Cnty. Dep’t of Hum. Res. v. M.E.P., 975 So. 2d 370, 374 (Ala. Civ. App. 2007) (expressing the oft-stated principle “that there is a point at which the child’s need for permanency and stability will overcome the parent’s rights to rehabilitation by DHR”). In fact, typically, a parent should rehabilitate himself or herself within 12 months of the removal of the child or children from the home. M.A.J. v. S.F., 994 So. 2d 280, 291 (Ala. Civ. App. 2008) (explaining 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”). The juvenile court was free to give weight to the fact that the children had been in DHR’s custody since August 2018, a period exceeding four years at the time of the trial.
Despite the mother’s active participation in the program at The Lovelady Center and its positive influence on her, the record contains sufficient evidence to support the juvenile court’s conclusion that the mother was unable to properly discharge her parental responsibilities to and for the children and that the mother’s condition, although improving, was unlikely to change in the foreseeable future. As we have explained,
“[d]ue to the emphasis on prompt permanent disposition of children in foster care, the juvenile courts should only extend the period of rehabilitation when the evidence establishes that a limited additional amount of time or effort will necessarily result in the rehabilitation of the parent and accomplishment of the goal of family reunification ….”
M.A.J., 994 So. 2d at 291 (emphasis added). The children had been in the custody of DHR and in foster care for over four years at the time of the trial.
T.D.H. v. Mobile County DHR, —//— (Ala. Civ. App. 2023).
In this T.D.H., we again see the Civs improving upon the original 12-month to permanency argument from M.A.J. The Civs add the 2007 case of M.E.P. and the Civs quote a large section of text from M.A.J.
Lastly, two weeks after T.D.H. was released, the Civs released P.R. v. Houston County DHR on December 15, 2023. The majority overturned the trial court’s TPR and Presiding Judge Thompson dissented, utilizing again M.A.J.
A parent’s attempt at reunification should be accomplished in a timely manner. Talladega Cnty. Dep’t of Hum. Res. v. M.E.P., 975 So. 2d 370, 374 (Ala. Civ. App. 2007)(explaining that “there is a point at which the child’s need for permanency and stability will overcome the parent’s rights to rehabilitation by [the Department of Human Resources]”). Generally, a parent’s rehabilitation should be accomplished within 12 months of the removal of the child or children from the home. M.A.J. v. S.F., 994 So. 2d 280, 291 (Ala. Civ. App. 2008)(stating that, “when [the Department of Human Resources] 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”).
This argument is, of course, almost a direct lift from T.D.H., released two weeks before. What does that mean? It means that, at least in the mind of Presiding Judge Thompson, this M.E.P.-M.A.J. argument is bedrock.
What does that mean for foster children work?
First, these arguments need to be raised to the trial court and to the appellate court. There is a very finite number of ways that can happen: (1) the DHR Attorney makes the argument, (2) the GAL makes the argument, (3) or the foster parents’ attorney makes the argument
Second, whoever is making this argument should use it exactly as Presiding Judge Thompson did in his dissent – as solidly and frequently as possible.
About the author
Sam McLure is the Founder of The Adoption Law Firm.
Sam and his wife, Mary Beth, were inspired to establish The Adoption Law Firm during the process of adopting their first son, Robi, from the Hungarian foster care system.
Sam and Mary Beth were exposed to the great need for loving families to adopt abandoned children at home and around the world. They began to dream of a law center that could zealously advocate for children to be placed in loving homes. That dream matured when they became foster parents in Montgomery, Alabama.
The Adoption Law Firm exists to zealously advocate for orphaned children to be adopted into loving homes. The Adoption Law Firm’s practice covers most of Alabama and entails adoption, foster care, custody, guardianship, and immigration.
