Imagine with me that you have been the foster parents of a three year old girl named Zoe from the time she was born at the hospital. The unthinkable happens: the system cannot achieve permanency for Zoe and the natural parents come forward within the last three months. The juvenile judge is of the opinion that blood is always best and places custody with the legal mother. However, the trial court determines that the legal mother remains unfit – Zoe remains dependent as to the legal mother.
In addition, the juvenile judge wants to give visitation rights to you, the foster parents, every other weekend. Is this legally permissible?
The question of the trial court’s authority to grant visitation to the foster parents is a question of law. Questions of law are subject to de novo review if appealed. L.B.S. v. L.M.S., 826 So.2d 178, 185 (Ala.Civ.App.2002).
The trial court has authority to grant visitation to the foster parents if visitation with the foster parents is in the best interests of Zoe. J.S.M. v. P.J., 902 So.2d 89, 94-95 (Ala.Civ.App.2004). Whether or not visitation is in Zoe’s best interests is an issue of fact. When a trial court receives ore tenus evidence, “its determinations based on that evidence are entitled to a presumption of correctness on appeal and will not be reversed absent a showing that they are clearly erroneous.” Id. at 96.
Zoe’s dependency status permits the trial court jurisdiction under § 12-15-314 to grant visitation to the foster parents. Where a child is determined to be dependent, the juvenile court has authority under § 12-15-314(a)(4) to make any order in furtherance of the welfare and best interests of the child.
We should also acknowledges Ex parte L.E.O. and its progeny, which are determinative of this matter. 61 So.3d 1042 (Ala.2010).
In Ex parte L.E.O., L.E.O. and P.O., non-relatives to the child, petitioned for custody of the child. Id. at 1043. The child had been living with L.E.O. and P.O. Id. The trial court held that the child was not dependent and dismissed the petition. Id. The appellate court affirmed the trial court’s judgment. Id. The Supreme Court of Alabama reversed, holding that the child was dependent. Id.
The Court first explained that a child is dependent if the child meets one of the categories listed in § 12–15–1(10) (amended and renumbered as § 12–15–102(8)) and is “in need of case or supervision.” Id. at 1046-47. In determining whether a child is “in need of care or supervision,” the juvenile court “must consider whether the child is receiving adequate care and supervision from those persons legally obligated to care for and/or to supervise the child.” Id. at 1047 (emphasis in original).
The Court then concluded that “both persons legally obligated to care for and/or to supervise” the child, the mother and father, had abandoned the child. Id. at 1050. The child was therefore dependent. Id.
A legal parent might argue that Ex parte L.E.O. is not applicable because he has never been a “joint custodian.” (J.B. Br. at 37). However, M.C.A. does not require that the legal parent was a “joint custodian” at the time of the adjudication of dependency. M.C.A. v. Etowah Cnty. Dept. of Human Res., [Ms. CL-2023-0286, January 31, 2024] ___ So.3d ___ (Ala.Civ.App.2024).
In M.C.A., this Court explained that, “[i]n Ex parte L.E.O., our supreme court held that a child is dependent if he or she does not receive ‘adequate care and supervision from those persons legally obligated to care for and/or to supervise the child.’” M.C.A. at *14. (emphasis added) This Court continued to explain that “Persons’ is a plural form of the word ‘person,’” and therefore “even if a child has a fit joint custodian, that child can still be ‘in need of care or supervision’ with regard to the child’s other joint custodian, and, therefore, the child can be a dependent child.” Id.
This Court in M.C.A. was using the term “joint custodian” to refer to the “persons legally obligated to care for and/or to supervise the child”: the parents. At the time of the trial court’s disposition, the Department had temporary custody of the children. Id. at *4.
The father, relying on Ex parte E.D., 266 So.3d 740 (Ala.Civ.App.2018), even specifically argued that “a child who has a fit custodial parent who is capable of protecting the child may not be determined to be dependent because of the conduct of the noncustodial parent that might otherwise render the child dependent.” Id. at *11. The Court of Civil Appeals disagreed and overruled Ex parte E.D. to the extent that is failed to follow Ex parte L.E.O. Id. at 14; see also T.K. v. M.G., 82 So.3d 1, 4 (Ala.Civ.App.2011) (overruled on other grounds) (“Given the foregoing, we cannot say that, as a matter of law, a child cannot be deemed dependent when a fit parent is willing and able to care for the child.”).
Therefore, as in M.C.A., even though Zoe might have a fit custodial parent, Zoe can still remain dependent due to the conduct of the other parent, who is a person legally obligated to care for Zoe.
Ultimately, the trial court is permitted to award visitation to the foster parents if Zoe is dependent as to her parents, and her best interests will be served due to the ties of affection resulting from years of association between the Zoe and the foster family.
Tears of Joy in a Courtroom
