Can Foster Parents File Their Own Custody Petition or Termination of Parental Rights Petition?
Foster parents can seek to become parties to the juvenile court case through intervention, but this isn’t guaranteed. Currently in Alabama, a foster parent’s right to intervene is within the sound discretion of the juvenile judge. That means the juvenile judge can deny a foster parent’s request for intervention, and the higher courts will not overturn their decision.
However, a petition for custody or a petition for termination of parental rights gives a foster parent almost automatic standing in the case.
Section 38-12A-2(14) states that foster parents have “[t]he right to notice and an opportunity to be heard.” Section 12-15-307 provides foster parents with the right to be heard “in any juvenile court proceeding being held with respect to a child in their care.” As stated above, foster parents are not automatically made parties to juvenile proceedings but must seek intervention. “[B]oth statutes provide that foster parents are entitled to notice and a right to be heard but are not to be compelled to be parties. . . . [F]oster parents may seek and be granted intervention in a dependency action.” F.W. v. T.M., 140 So. 3d 950, 958 (Ala. Civ. App. 2013).
The F.W. case is important for any inquiring foster parent to understand. A link to the actual case can be found here. In F.W., the Department opposed the foster parents overtures to advocate for their child in the judicial branch. Ultimately, the Appellate Court found that it was in the child’s best interest to grant the foster parents legal and physical custody of the child.
This case should blow the doors off the false narrative that foster parents are not permitted to hire an attorney, petitioner the court for custody, and receive custody. Sadly, in many counties across the state, foster parents are intimidated by DHR workers’ using the bully tactic that DHR will remove the child from their home if they go to the court for accountability – petition for custody. While it’s best practice to seek the consent of State DHR prior to taking legal action, it’s not required.
Similarly, in M.C. and V.C. v Lee County Department of Human Resources et al., the Court of Appeals upheld the juvenile court in granting the foster parents’ “claim for custody of the child” M.C. and V.C. v. Lee County Department of Human Resources et al 374 So. 3d 711, 714 (Ala. Civ. App. 2022). The foster parents demonstrated concern about relative visitation because they did not think that the minor child was familiar enough with them for it to be in the minor child’s best interest. The child was almost one and a half and had been with the foster parents for a year. Throughout the case, the longevity of the child’s stay in the foster home was a reason for ultimately awarding the foster parents custody over his own blood relatives.
In T.B. v. Lee County Department of Human Resources, the Court of Appeals again dealt with child placement. The Appeals Court cites approvingly the F.W. case and upheld that the ultimate factor is the best interest of the child.
“The plain language of § 12–15–314(a) (3)c. requires a juvenile court to award custody to an appropriate relative over a nonrelative unless the juvenile court finds it is not in the best interest of the child. See C.K.L. v. C.L.M., 192 So.3d 18 (Ala.Civ.App.2015). In this case, the juvenile court impliedly found that, at the time of the trial, it was in the best interest of the child to remain in the custody of the custodians with whom the child had been living for the three years preceding the trial. Based on our review of the record, we cannot say that the juvenile court exceeded its discretion in making its custodial disposition”
T.B. v. Lee County Department of Human Resources, 216 So. 3d 1246, 1253-1254 (Ala. Civ. App. 2016) (emphasis added).
In C.S. v. Morgan County Department of Human Resources, the Court noted approvingly that the foster parents “commenced their own independent custody action, commenced action to terminate the parental rights of mother and father, and filed petition in probate court to adopt the child.” C.S. v. Morgan County Department of Human Resources — So. 3d — (Ala. Civ. App. 2024)
So, in conclusion, can foster parents file their own petition for custody of the child? Yes.
Can foster parents file their own petition for termination of parental rights? Yes.
Foster parents are interested persons who may file a petition to terminate parental rights ( Code § 12-15-317) and its lesser genre, petition for custody. In B.J.C. v. D.E. the Court of Civil Appeals found that “the term “interested party” in [§ 12-15-317] provided statutory authority to allow foster parents to seek the termination of a parent’s parental rights. N.A. v. J.H., 571 So.2d 1130 (Ala.Civ.App.1990)” B.J.C. v. D.E., 874 So. 2d 1109, 1116 (Ala. Civ. App. 2003), overruled on other grounds by F.G. v. State Dep’t of Hum. Res., 988 So. 2d 555 (Ala. Civ. App. 2007).
It’s also important to keep in mind that the presumptively reasonable time for a child to remain in foster care is 12 months. M.W. v. Etowah Cnty. Dept. of Human 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).
The Appellate Court has “long held that a parent’s good-faith efforts to change his. . .circumstances must come to fruition in a timely manner or a child’s need for permanency will outweigh those efforts.” Montgomery Cnty. Dept. of Human Res. v. O.W., 255 So.3d 221, 237 (Ala.Civ.App.2017) (internal quotations omitted) (reversing and remanding with instructions to terminate parental rights).
Parents share the responsibility for addressing the conditions that led to the removal of their children. See A.M.F. v. Tuscaloosa Cnty. Dept. of Human Res., 75 So.3d 1206, 1212 (Ala.Civ.App.2011).
In A.B.D.H. v. Houston County Department of Human Resources, 1 So. 3d 53, 63 (Ala. Civ. App. 2008) the Appellate Court articulated the necessity of stability for a child in the foster care system and affirmed the trial court’s order terminating the natural parent’s rights:
The children should not have to spend further time in an uncertain home situation based on the mere hope that the mother may someday overcome her psychological inability to properly parent them.
(emphasis added)
In essence, children should not bear the punishment of growing up with the mere hope that their natural parents may one day overcome their inability to properly parent and care for them.
In W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 486-7 (Ala. Civ. App. 2000), without negating the positive improvements the natural parents made, the Court unequivocally indicated that permanency for the child is paramount over unsuccessful and inconsistent attempts at rehabilitation:
Although the mother has attempted to adjust her circumstances to meet the needs of the child, she has not had consistent success. When she does succeed, she cannot maintain her improved lifestyle….We are not unsympathetic to the mother. She has been devoted to visitation with the child, she has attempted to do all that DHR has asked of her … At some point, however, the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.
(emphasis added)
In an ideal world, the State would efficiently and effectively achieve permanency for the foster child in your home. We don’t live in an ideal world. Sometimes – many times – the child in your care needs you to file your own petition for custody or termination.
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