“The foster mother did not testify that she intended to adopt the children.”
Today we cover D.M. v. Dale County DHR, released on September 20, 2024, in which Presiding Judge Moore’s writes for the majority. In D.M. the Court of Civil Appeals (Civs) reversed the trial court’s order to terminate parental rights. To understand this decision, it’s important to know the Civs reasons.
First, it’s really hard for the appellate court to overturn the trial court. The ore tenus presumption of the trial court’s correctness is the axis around which the common law has spun for the last, oh … 1,000 years.
Second, the Civs spent a lot of time in this decision discussing evidence that would support a TPR. The mother tested positive for marijuana and methamphetamine. The mother abandoned the children by moving to another state and failing to provide for the children. The father abandoned the children as well. He did not show up to any visitation, any birthdays. The father made no inquiries into the children’s welfare and was a registered sex offender due to “lewd and lascivious conduct with a minor female” On the date of the trial, the father tested positive for cocaine, marijuana, and alcohol. Most notably,
“The father, who was 45 years old at the time of the trial, spent a lot of his social time skateboarding and hanging around a young, drug-fueled crowd.”
This type of writing is unusual. It screams one thing: The case for TPR could not have been more clear!
Third, the Civs note how long the children (two siblings) had been residing together in the same home: three years. That’s three times longer than the presumptively reasonable time to permanency.
Fourth, I believe the Civs write this way to emphasize the next point: the TPR must be reversed because the juvenile court did not make a “separate determination that termination of parental rights serves the best interest of the child.” (Citing J.A. v. S.L., June 28, 2024)
Here, the juvenile court found that there was a bond between the children and the foster parent. The juvenile court found that separating the siblings was not in the best interest. The juvenile court even went so far as to find that it would serve the children’s best interest for their parental rights to be terminated “so that the children could be freed for adoption.”
However, the Civs held that because “the foster mother did not testify that she intended to adopt the children, and DHR did not present any evidence identifying any other adoptive resources willing to adopt,” there was not sufficient evidence to support the juvenile court’s finding that TPR was in the child’s best interest. The TPR must be reversed.
We saw Presiding Judge Moore foreshadow this holding with his dissenting opinion from K.K. and J.G. v. Escambia County DHR, August 23, 2024. In that dissenting opinion, he took the position that a legal parent can challenge a “termination of their parental rights as not being in the best interests of the children [if] the record lacks evidence that the children would achieve permanency through adoption if parental rights were terminated.” That dissenting opinion is now clearly the rule of law.
For practitioners, Presiding Judge Moore cites a few seminal cases on the issue: T.W. v. Calhoun Cnty. Dep’t of Hum. Res., [Ms. CL-2022-0694, June 2, 2023] ___ So. 3d ___ (Ala. Civ. App. 2023); T.D.H. v. Mobile Cnty. Dep’t of Hum. Res., [Ms. CL-2023-0033, Dec. 1, 2023] ___ So. 3d ___, ___ (Ala. Civ. App. 2023); and T.D.K. v. L.A.W., 78 So. 3d 1006, 1011 (Ala. Civ. App. 2011).
Good sense and the appellate courts need to see clear evidence that there is someone, somewhere, willing and able to adopt a child before the trial court should terminate parental rights.
If that’s you, foster parent, remember that you have a statutory right to be heard at the TPR trial. You also have the right to seek intervention to become a party in the judicial process and make your love for the child known. If you are called to the stand, testify clearly that you love the child, the child is bonded to you in a real parent-child relationship, that anything short of TPR and adoption is not in the child’s best interest, and you sincerely, unequivocally desire to adopt the child.
For any questions relating to helping your child achieve permanency through adoption please reach out to The Adoption Law Firm.
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