Our American system of government is not shocked when a trial court judge makes a wrong decision. In fact, our American systems assumes that judges will make bad decisions, and not infrequently. If you’ve had a foster child in your home for over a year and geared up for the termination trial in hopes of permanency and adoption for your foster child, you know how heartbreaking it can be to get a denial by the juvenile court judge.
Thankfully, we live in a country where such bad decisions can be appealed. This isn’t the case everywhere, and it’s not perfect, but it a certain cause for thankfulness to the God of all Justice. We are not due this kind of kindness in this life.
In a recent case from the Montgomery County Juvenile Court*, the Court of Civil Appeals reversed the juvenile court’s denial of a petition to terminate parental rights. How did this happen? Let’s go straight to the source and look at what the Court of Civil Appeals said:
“Although the juvenile court stated that “th[e] father may have failed to claim the rights of a parent, or to perform the duties of a parent,” the juvenile court appeared to blame DHR for failing to locate the father earlier. Ultimately, the juvenile court concluded that DHR had not met its burden of proving abandonment of the child by the father.”
“Cheatham [the case worker] testified that she had been the child’s caseworker for approximately two months. Although she indicated familiarity with the case file, she often indicated when testifying that she was uncertain or unsure of certain facts and dates preexisting her brief tenure. She testified that DHR had not offered the father any services because, she said, she understood that DHR had not been able to establish contact with the father.”
“[Cheatham] said that DHR personnel had not had any contact with the father since the November 2023 trial. She also indicated that she did not have a telephone number for the father. … She did clearly state, however, that the father had not “come forward attempting to be involved in any services.””
“Regarding the child’s prospects for adoption, Cheatham testified that she was aware of a person named “S.L.” who was a potential adoptive resource. Cheatham indicated that S.L. was interested in pursuing adoption of the child; she testified that S.L. had requested “to start doing the overnight visits on the weekend.””
“When questioned about DHR’s procedure for identifying adoptive resources, Foote testified that, once termination of parental rights occurs, a child is placed on “the Heart Gallery website” so that prospective adoptive parents can apply to adopt that child.”
“The child testified that she desired to be adopted. She explained that she knew two potential adoptive resources, S.L. and Y.O. She said that both women had been visiting her for about one year and that both had taken an interest in her. She said that S.L. had spent time with her, had come to her soccer games, and had spoken to her every day.
“Similarly, Foote testified that, as far as she was aware, the father had not had contact with the child or with DHR before November 2023. The juvenile court even found that “the … child has resided in foster placement for many years, with little to no contact with the father.”
“The juvenile court therefore erred in concluding that DHR failed to prove that the father had abandoned the child in the four- month period preceding the filing of the termination-of-parental-rights petition.”
“Because the father abandoned the child, the juvenile court was not required to determine whether viable alternatives to the termination of his parental rights existed.
“By abandoning [his] child, [the father] ‘lost any due-process rights that would have required the juvenile court to explore other alternatives before terminating [his] parental rights.’ Because the father abandoned the child, the juvenile court was not required to consider whether maintenance of the status quo would be a viable alternative to the termination of the father’s parental rights, and it erred in doing so.” (internal citations omitted)
The Court also evaluated the best interest prong: “The child has been in DHR’s custody for nearly six years. The child has never had a beneficial relationship with the father, with whom she likely had had no contact before November 2023.”
The Court that it was relevant that the child testified: “The child testified that she did not desire to maintain contact with the father and that she instead desired to be adopted. Foote testified that the child is adoptable and that DHR is actively seeking a prospective adoptive home for her, even having had the child attend home visits with two potential adoptive parents.”
Ultimately the Court of Civil Appeals found that (1) “the evidence does not support the juvenile court’s conclusion that the child’s best interest would not be served by termination of the father’s parental rights” and (2) “the juvenile court’s judgment fails to apply the rebuttable presumption arising under § 12-15-319(d) that the father is unable or unwilling to serve as a parent. The evidence, which indicated that the father does not have the means to provide for the child, does not support a conclusion that that presumption was rebutted.
If you are a good and earnest foster parent with a termination of parental rights trial on the horizon, we would love to discuss how you can most effectively advocate for you foster child.
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*Fernando Morgan, as guardian at litem for K.J.W. v. T.R.W., CL-2024-0273 (December 13, 2024 Ala. Civ. App.)
