A Common Myth That Keeps Kids in Foster Care for Years

There is a common myth circulated among child welfare professionals. It assumes that if a natural parent is at least devoted to visiting their child in foster care, the natural parent has shown sufficient interest and progress that it would be amoral to terminate parental rights. And that the juvenile court cannot and should not terminate the natural parents’ rights. As a result, permanency is delayed and the kid is left in foster care with an uncertain future.

Mere Devotion

Alabama law says that mere devotion to visitation – absent other significant progress towards rehabilitation – will not, and in most cases should not, result in reunification.

In T.B. v. Cullman County Dept. of Human Resources, 6 So.3d 1195 (Ala. Civ. App. 2008), the natural mother appealed the Juvenile Court’s order terminating her parental rights. Notably, the natural mother did not argue on appeal that DHR failed to use reasonable efforts to rehabilitate her and to reunite her with her children. “Instead, she argues that those efforts succeeded.” Id. at 1199. In other words, the natural mother argued that DHR did their job so well that her children should have been returned to her instead of the juvenile court terminating her parental rights.

Question of Fact for Juvenile Court

The question of whether DHR’s “reasonable efforts to rehabilitate a parent have succeeded so that the family can be reunited is a question of fact for the juvenile court.” This phrase, “question of fact for the juvenile court” is important to have firmly in mind. It’s called the ore tenus presumption of correctness. It will come up a lot through this article.[1]

The juvenile court must undertake a two-prong analysis in its findings of fact relative to an order terminating a parent’s rights.

First, the juvenile court must “identify the parental conduct, circumstances, or condition that led to the removal of the children and prevented their return to the custody to the parent.” Id.

Second, the juvenile court must “consider the efforts expended by the parent in overcoming those problems and the progress the parent has made in eliminating or reducing those problems, so that they no longer constitute a barrier to reunification.” Id.

When the Appellate Court is asked to review the juvenile court’s order terminating parental rights, it can only overturn the juvenile court if the Appellate Court finds that there was a “particular finding of fact” that is “unsupported by clear and convincing evidence so as to be plainly and palpably wrong.”[2] Id.

Juvenile Court’s First Step

As to the first step in the juvenile court’s analysis, the Appellate Court recounts the following facts.

• DHR removed the children from the natural parents because the family was living in a mobile home. The home had “structural, cleanliness, and other problems rending it an improper shelter.” Id. at. 1200. The children were briefly returned to the natural parents after they found other suitable housing. However, the natural parents later moved back into the very same mobile home.
• The Appellate Court also recounted the mother’s pattern of inability to display basic parenting skills. This was observed even on supervised visits. Also, the mother was unwilling or unable to progress in parental training. She continued co-habitation with the natural father despite abuse and previous agreements reached with DHR. In addition, the mother was completely financially dependent on the paternal grandfather. She also began residing with the paternal grandfather.
• Although the mother consistently visited with the children, she “never displayed appropriate parental guidance over the children, and depended on the caseworkers and supervisors to protect and discipline the children during visitations.” Id.
• The Appellate Court summarized that “[b]ased on the foregoing, and other evidence, DHR identified numerous problems preventing the mother from reuniting with the children, including; inadequate and unstable housing, domestic violence, improper discipline and parenting techniques, mental deficiencies, lack of income, and psychiatric problems.” Id. at 1201.

Juvenile Court’s Second Step

As to the second step in the juvenile court’s necessary analysis, the Appellate Court comments that the mother did succeed in “addressing” some of the problems that led to the children coming into DHR care. She even made “progress” regarding some of those problems.

• “As the mother correctly points out, she overcame some of those problems.”
• The mother obtained adequate housing, her psychiatric problems were being controlled through medication. She no longer lived with the natural father. And she had also learned how to deal with one of the children’s asthma problems.

The Evidence Part 1

The Appellate Court applied the ore tenus presumption of the juvenile court’s correctness. The evidence which supports the Juvenile Court’s findings are reviewed by the Appellate Court.  In short, the mother had not sufficiently eliminated or reduced the problems which led to the children’s removal from her care. The Appellate Court focused on the natural mother’s financial dependence on the paternal grandfather. The Court also focused on her inability to progress in basic parenting skills.

• “[T]he mother remained totally financially dependent on the paternal grandfather…”
• She had no “plan for meeting the children’s financial needs should he leave or die.”
• “The mother had no income of her own …”
• “[T]he only income she anticipated receiving was Social Security disability benefits, which she had been waiting to receive for over 18 months. The evidence did not reveal whether those benefits would be sufficient to meet the financial needs of three young children.”

The Evidence Part 2

• “More importantly, despite extensive rehabilitation efforts, the mother had yet to display the ability to independently and properly care for the children.
• All the expert testimony and evidence in the case, and a great deal of the evidence from lay witnesses, indicated that the mother, either due to her mental limitations or lack of motivation, could not properly parent the children without full-time assistance from others.
• One DHR witness testified that the mother had made it through only 1 of 14 books designed to train her how to properly parent the children and that it would take the mother 3 more years to complete her training.” Id. at 1202. (emphasis added)

The Resolution

For the foster adoptive parents out there, the Appellate Court’s next statement will come as a breath of fresh air:

“At some point, … the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.”

Amen and Amen.

“In the absence of exceptional circumstances, a parent’s efforts at rehabilitation should not extend beyond 12 months from the date the child enters foster care because our legislature has established that period as the presumptively reasonable time for conducting reunification efforts.”

In the case of T.B., the Appellate Court mercifully allowed the children to obtain permanency through adoption. Kids should not languish in foster care for years. It’s unacceptable to the higher courts, it’s unacceptable to the Legislature, and sometimes it takes a well-trained foster parent to hold their county DHR and the Juvenile Court to the same standard.