The Powerful, Forgotten Right of a Foster Parent – the Importance of Intervention and Custody

Intervention and Custody are topics of great importance. A foster parent can have a tremendous, positive impact by applying these to their case. The following case (J.S. v. Greene County DHR) describes a real-life situation where the foster parents were considered irrelevant to the case at hand. How and why did this happen? Read this synopsis by our chief attorney and president Sam McLure to understand the importance of this right that every foster parent has: intervention.

J.S. v. Greene County DHR, CL-2025-0181, (August 2025)

This is an unusual case from an unusual county. The juvenile court of Greene County awarded custody of the child to the child’s maternal great-aunt (“MGA”). Greene County is a small county in West Alabama – according to Wikipedia, the population is roughly 7,000. A county the size of Greene might get 30 dependency cases in any given year, while a county like Jefferson might get 1,500.

In J.S., the Court of Civil Appeals didn’t rule one way or the other as to the propriety of MGA’s custody of the child. Instead, the Court of Civil Appeals dismissed the appeal, which isn’t in and of itself unusual, but their reasoning is quite unusual.

Cast of Characters

The cast of characters are as follows;

1. The “custodian”, a distant cousin of the child who received placement when the child was 6 weeks old.
2. The MGA who petition for custody, creating a .02 matter, and was awarded custody from the juvenile court through her .02 petition and the .01 dependency matter.
3. The Department, otherwise known as the Greene County Department of Human Resources.

When the child was 6 weeks old, she was placed with the custodian. The Court of Civil Appeals opinion is unclear as to who placed the child with the custodian. The child was born in April 2024.

The Department filed a dependency petition in October 2024. This was given case number JU-24-24-.01. As mentioned in the introduction, Greene is a small county. The second “24” in the case number indicates how many cases had been filed by October of 2024.

The Department received temporary custody through a shelter care hearing on November 4, 2024. The Department used that temporary custody to maintain the child’s living situation with the custodian. The juvenile court also required the custodian to supervise visits. This may have been a bridge too far.

Ten days later, the maternal-great-aunt filed her own custody petition. As we pay attention to all the different facts the Court of Civil Appeals give us, relative to the petition, this is the most dispositive: “On November 14, 2024, the maternal great-aunt filed a custody petition relating to the child, which purportedly commenced a separate juvenile-court action that was assigned case number JU-24-24.02 (“the custody action).

Why did the Court of Civil Appeals state “purportedly”?

This is not an unusual scenario just described by the Court of Civil Appeals. An interested person files a petition for custody and the juvenile court gives it the next decimal number in the action. Relatives do this. Grandparents do this. Foster parents do this. Routinely.

Bu there is something unusual going on in this opinion.

On February 11, 2025, in short order, the juvenile court “conducted a consolidated hearing” on both the Department’s. 01 dependency and the maternal-great-aunt’s .02 custody petitions.

On February 21, 2025, the juvenile ordered that the child was dependent and awarded custody to the maternal-great-aunt.

The custodian filed a myriad of pleadings in the juvenile court, including appeals and post-judgment motions.

Those were all denied by operation of law.

The focus of the Court of Civil Appeals analysis is the MGA’s custody petition. The Court of Civil Appeals relates that the MGA’s petition sets out a request for custody. The Court of Civil Appeals did not state this explicitly, but behind the curtain (in my opinion) is the reality that the MGA did not file a dependency action which contained a request for custody. Rather, the MGA merely asserted a request for custody. This is the issue the Court of Civil Appeals is trying to correct, from what I can discern.

The Court of Civil Appeals cites Ala. Code § 12-15-114: “(a) A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged … to be dependent.” (emphasis added) Apparently, if the MGA would have placed one line in her petition alleging dependency, all would be well. The MGA’s petition is not provided by the Court of Civil Appeals, but this begs the question as to whether an allegation of the child’s dependency can be implicitly read into the petition.

What’s the Point?

The point the Court of Civil Appeals is making for us is not that it’s improper for the juvenile court to grant custody to someone like the MGA. The point is that the juvenile court may only do that within the context of the pre-existing dependency proceeding. Apparently, this is the point.

The Court of Civil Appeals cites Ala. Code § 12-15-311 & 314 for that proposition. Specifically, Ala. Code § 12-15-311 codifies that “[i]f a child is found to be dependent, the juvenile court may … [t]ransfer legal custody to … A relative or other individual.”

Therefore, the Court of Civil Appeals abruptly takes a step outside of existing precedent. The law, as explained by the Court of Civil Appeals, “does not authorize a relative seeking the custody of a dependent child to commence a separate child-custody action for the purpose of adjudicating the custody of the dependent child.”

This is problematic. Why?

For starters, this is done all over the State, a dozen times every day.

“Rather, our caselaw has clarified that a person who is seeking custody of a dependent child but who is not already being considered a placement option for the child by the juvenile court should file a motion to intervene in the dependency proceeding regarding the child.” (emphasis added)

The Court of Civil Appeals states that case F.W. v. T.M., 140 So.3d 950, 959 (Ala. Civ. App. 2013) has clarified this point, but I doubt it. It does not stand for the proposition cited. We cite it all the time for the proposition that foster parents can intervene in juvenile court cases.

Furthermore, on what metrics has the Court of Civil Appeals gone into the decision-making domain of the juvenile court and decided that it did not have the MGA already in its purview as a potential “placement option for the child”? It seems improbable that the juvenile court would have made its order awarding custody to the MGA without already having the MGA in its purview as a possible relative placement.

The Court of Civil Appeals states that a motion to intervene would have been the appropriate avenue for MGA to invoke the jurisdiction of the court – to have standing. Motions to intervene are a great tool. And herein comes the main rub of this case. Not all juvenile court judges are going to look favorably on foster parents, relatives, and interested persons that aren’t the Department. Some judges are expressly avowed to oppose foster parent intervention.

The tool of filing a dependency petition which alleges custody … 

is an integral tool for those situations. If this case stands for the proposition that this tool is no longer permissible, then foster children will suffer because foster parents will not have access to the recourse of the judicial process.

But maybe the Court of Civil Appeals doesn’t intend this reading. Maybe it simply stands for the rule that the juvenile code “does not authorize a juvenile court to dispose of a dependent child in an action that is collateral to the dependency proceeding.”

The Court of Civil Appeals hold that MGA’s custody petition was a nullity and dismiss it. This brings me right back to the question, “What if the MGA had filed a dependency petition containing a request for custody?”

After all, the Court of Civil Appeals merely held that MGA’s custody petition “did not validly commence a separate action.”

On the other hand, the Court of Civil Appeals cite to L.B. v. R.L.B., 53 So. 3d 969, 972 (Ala. Civ. App. 2010) which stands for the proposition that a dependency petition has to do more than summarily allege that the child is dependent.  The petition must contain “specificity that the child was in need of supervision or to otherwise allege facts.” Those facts, if proven, would establish the child’s dependency. The “father, in turn, failed to properly invoke the jurisdiction of the juvenile court.”

The Court of Civil Appeals next turn their attention to the “custodian”…

… because she was not a party to the .01 dependency action. Because she was not a party, she did not have standing to appeal.

The Court’s next turn of analysis raises questions in my mind with their apparent policy intention in the case. From discussing relative placements to foster parents, the Court cites to B.V. v. Macon County DHR, in which foster parents filed a contempt motion in a dependency action, without being granted standing as a party. The Department argued that the foster parents were not parties to the action and could only become parties by intervention. The foster parents filed a custody petition “in the dependency proceeding.” The juvenile court dismissed.

The Court of Civil Appeals uses this case to remind us that foster parents are not automatically parties to a case. Noted.

Would things have been different for the foster parents if they would NOT have filed the custody petition inside the dependency action? But filed a fresh dependency action with a request for custody? They would have hereby acquired a new action number?

B.V. is an important case for a closer look. In B.V. the Court of Civil Appeals analyzed two cases of relatives or foster parents gaining custody.

In S.P. v. E.T., supra, the child’s paternal aunt and the child’s foster mother petitioned for custody of the child, but they did so only after moving the juvenile court to intervene in a dependency proceeding initiated by the State DHR. The juvenile court subsequently granted the paternal aunt’s and the foster mother’s petitions to intervene.

The second case is J.P. v. S.S.,

the child’s aunt and uncle moved to intervene in a dependency action and filed a petition seeking custody of the child; the juvenile court granted the motion to intervene.

The conclusion the Court of Civil Appeals come to is this:

Unlike the parties in S.P. v. E.T. and J.P. v. S.S., the record contains no motion filed by B.V. and D.V. to intervene in the dependency proceeding, nor did B.V. and D.V. initiate a dependency proceeding as did the great-aunt in J.W. v. N.K.M.

The juvenile court’s reasoning in B.V. was upheld by the Court of Civil Appeals:

the trial court questioned whether B.V. and D.V. had standing to bring a petition for custody, and it found, in pertinent part, that B.V. and D.V. had failed to file a motion to intervene in the dependency action. B.V. and D.V. timely appealed.

On appeal, B.V. and D.V. contend that the trial court erred when it dismissed their petition for custody on the basis that B.V. and D.V., as foster parents, were precluded from petitioning for custody of the child. In response, DHR contends that B.V. and D.V. failed to intervene in the dependency proceeding, and, therefore, that they were without standing to seek custody.

Summary Analysis of B.V.

In summary analysis of B.V. we must ask why the Court of Civil Appeals cited this case above the dozens of cases they could have cited on this topic. Could it be because B.V. uniquely criticizes the standing of foster parents?

In the case before them with J.S., the Court of Civil Appeals notes that the “custodian did not file a motion to intervene in the dependency action to petition for custody of the child.” This seems circular. A motion to intervene and a petition for custody are two different things.

The Court of Civil Appeals also held that without an order allowing intervention in the dependency action, “the custodian was not a party to the dependency action.”

On the third to last sentence of the opinion, the Court of Civil Appeals inserts a paragraph-long footnote that should not go unnoticed:

Because she did not formally intervene in the dependency action, the maternal great-aunt also was not a party to that action; nonetheless, the juvenile court had jurisdiction to award her custody of the child pursuant to Ala. Code 1975 § 12-15-314(a)(3)c. (providing that a juvenile court may transfer custody of a dependent child to “[a] relative or other individual who, after study by [DHR], is found by the juvenile court to be qualified to receive and care for the child”). Based on our disposition of this appeal, we express no opinion as to the correctness of the final judgment entered in the dependency action awarding the maternal-great aunt custody of the child.

So, by other means, the MGA gets the child anyway and the will of the juvenile court is upheld.

For foster parents in the position of MGA, we should expect similar holdings, conclusions, and analysis.

Take-a-way 1-3

1. This opinion does not deal with termination of parental rights actions. Ala. Code § 12-15-317 states that “any interested person” may file a petition to terminate parental rights.” Foster parents are within the meaning of “interested persons.” There is no prerequisite for filing a motion to intervene into the dependency action. And, a request for custody can be (and must be) woven into the petition for termination of parental rights.
2. Filing a dependency petition, which implicitly contains a request for custody, is best practice. This should be established as a distinct matter number. If the juvenile court clerk refuses to properly docket your petition, you may mandamus her/him for redress.
3. There is usually no harm to making a motion to intervene (into all open matters) at the same time as the dependency petition. And in light of this opinion, it’s probably best practice.

Take-a-way 4-6

4. Let’s return to a phrase of the Court of Civil Appeals, “a person who is seeking custody of a dependent child but who is not already being considered a placement option for the child by the juvenile court should file a motion to intervene in the dependency proceeding regarding the child.” If a child is placed in the care of a foster parent, definitionally, the juvenile court has already considered them a “placement option for the child.” Arguably, then, nothing in this opinion really concerns foster parents. It concerns relatives coming out of the woodwork and making sure they don’t uselessly disturb the stability of the child.

5. The caselaw which supports foster parents filing and being granted petitions for custody is legion and legion and …

6. Further the State-created form suggested for use by interested persons in situations such as the child in this case, bears the following title: “DEPENDENCY COMPLAINT, CUSTODY AFFADAVIT AND PETITION.” The form petition keeps to the integrity of its name and makes the point of my analysis: if MGA or the custodian in this case had filed a dependency petition which was accompanied by a custody request, then Greene County twenty-fourth case of 2024 would remain undisturbed.

Overall, I’m not really sure what bad practice the Court of Civil Appeals is trying to curtail with this opinion. The spirit of the law is upheld in the last footnote. The will of the juvenile court is sustained. Is there some rash of interested persons filing custody petition for children under their juvenile court’s jurisdiction? We aren’t provided a copy of either parties’ filings, but I imagine a generous reading of their complaints could have read an implicit claim of dependency into the filing.

Maybe I’m just too Greene to know.

 

.