Usually not, but in some instances, yes.
First, we need to ascertain if there would be injury to any party by the juvenile court dismissing the TPR without hearing evidence. In most instances, the court’s dismissal order is injurious to the foster parents and harms the child. The child’s days, hours, and formative moments are not fungible. The child will suffer the irreparable injury of delayed permanency by a juvenile court’s order of dismissal.
Second, the standard governing whether an order of dismissal is appropriate is called “abuse of discretion.” The juvenile court has free reign to order dismissal of a TPR action, so long as this order is not an abuse of discretion. The sanction of dismissal should only be imposed as the most severe sanction, to be used in the most extreme situations. Smith v. Wilcox County Board Of Education, etc., et al., 365 So.2d 659 (Ala.1978).
Third, let’s take a look at instances that do not rise to an abuse of discretion.
- Want of Prosecution: The first appropriate ground for dismissal of a TPR action is “want of prosecution.” Harris v. Cleveland, 979 So.2d 78 (Ala.Civ.App.2007). The juvenile court can dismiss an action if a party files a complaint, then sits on their hands and does nothing to move the case forward. However, such a decision would be carefully scrutinized by appellate courts. If you have taken the effort to read this article, it safe to assume that you would never come close to an allegation of want of prosecution. Thompson v. McQuagge, 464 So.2d 105 (Ala.Civ.App.1985); See C. v. Autauga County Board of Education, 325 So.3d 793 (Ala.2020).
- Not Proved: Another possible appropriate ground for an order of dismissal may be found in R. Juv. P. 25(2). This rule directs that dismissal may be proper where “the facts alleged in the petition are not proved or that the child is not in need of care or rehabilitation or supervision.” However, this provision would almost always be inapplicable, if only on the threshold observation that nothing has been proved or disproved either way to the court, prior to hearing evidence. Rule 25(a) further directs that the court “shall” hear testimony and “shall” conduct a hearing. Thus, if the court has not heard evidence prior to dismissal, its order of dismissal would be an abuse of discretion. A.C. v. L.H., 160 So.3d 15 (Ala.Civ.App.2014).
- Contumacy: A third possible appropriate ground for dismissal is contumacy. It is within a trial court’s discretion to dismiss an action when a party has failed to prosecute its action under circumstances evidencing purposeful delay, willful default, or some other contumacious conduct on the part of that party. McDaniel v. Harleysville Mut. Ins. Co., 84 So.3d 106 (Ala.Civ.App.2011).
If the juvenile court orders dismissal of a TPR action outside of these instances, the appellate court is likely to order the trial court to amend its order and proceed with the TPR trial.
In advocating for this end, it’s important to remind the juvenile court of a few things.
- The juvenile court has a duty to complete the termination of parental rights trial within 90 days of service to all parties. This is not discretionary. See generally Ex parte Marshall County DHR, 252 So.3d 1105 (Ala.Civ.App.2017); L. v. Morgan County DHR, 182 So.3d 570 (Ala.Civ.App.2015). To fail to complete the trial within those parameters is an abuse of discretion.
- Humanly speaking, the juvenile court alone holds the power to accomplish permanency and adoption for the child. Remind the court that it alone has the power to provide the path for the child to have a safe family – to care for her and protect her.
- Remind the juvenile court of what the Court of Civil Appeals held in a case where an involuntary dismissal was overturned:
“The law strongly favors disposition of cases, particularly domestic-relations cases, on the merits and that interest may be overcome and an involuntary dismissal affirmed only when, upon carefully scrutinizing the case, this court determines that there is a clear record of delay, willful default, or contumacious conduct.” J.A.S. v. S.W.S., 390 So. 3d 1136, 1143–44 (Ala. Civ. App. 2023).
In conclusion, unless the foster parents “willfully and contumaciously fail or refuse” to comply with an order of the juvenile court; unless there is a “clear record of delay” or “willful default”, a juvenile court’s order of dismissal will likely be ruled an abuse of discretion. Such an erroneous dismissal by the court is injurious to the foster parents and harms the child. As stated before, a child’s days, hours, and formative moments are not fungible. An erroneous order of dismissal will cause the child to suffer the irreparable injury of delayed permanency.