The Best Interest of a Child is Paramount
A child’s best interest is not secondary to the 5th amendment rights of the child’s abuser. The Court of Civil appeals reaffirmed this in A.W. v. Jefferson County Department of Human Resources[1]. In A.W. they reiterated that a trial court does have discretion to deny a legal parent’s request to stay a termination of parental rights trial even when it would infringe upon that parent’s fifth amendment rights.
However, the court may abuse that discretion. This was the case in A.W., where the Court of Civil Appeal reversed the trial court’s judgment terminating the rights of the legal mother to a child for whom she had an active felony child-abuse case.
The Court of Civil Appeals ultimately determined that the legal mother’s right against self-incrimination outweighed the child’s need for permanency. However, it only did so by showing that the child’s best interest would not be hindered by delaying permanency. Furthermore, the Court of Civil Appeals first recognized:
“the United States Constitution … does not mandate that under all circumstances the civil proceedings in which the privilege against self-incrimination is asserted be stayed; whether to stay those proceedings is within the trial court’s discretion.” Ex parte Rawls, 953 So. 2d 374, 378 (Ala. 2006). Our supreme court has explained that, “[w]hile the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when ‘justice requires’ that it do so ‘to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’ Rule 26(c), Ala. R. Civ. P.” Ex parte Coastal Training Inst., 583 So. 2d 979, 980-81 (Ala. 1991).
A.W. at 1051.
The Court Must Balance the Need for Permanency Against the Right of the Legal Parent
There was not enough evidence in A.W. that delay was opposed to the child’s best interest.
Furthermore, in balancing the child’s need for permanency against the legal mother’s right against self-incrimination, the Court of Civil Appeals noted:
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“in cases involving dependent children, we have treated the state’s interest in protecting those children from a substantial risk of harm as a significant and weighty consideration in the balancing test,”
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“[u]ndoubtedly, the state’s interest in protecting the children of this state from a substantial risk of harm is not simply a ‘procedural consideration’ that must automatically yield to [a legal parent’s] Fifth Amendment rights,”
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“[t]he record in the present case contains very little evidence to assist us in analyzing the potential prejudice that a delay would cause the children,”
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“[the child], who had never lived with the mother, had exhibited no behavioral issues,”
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“the mother is prohibited from having any contact with the children,”
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“[t]he record does not indicate that a stay would prejudice the children, who are in stable foster care and pre-adoptive placements,” and
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“no evidence contained in the record indicates that the children, who have no contact with the mother, would suffer emotional distress or mental-health issues as a result of any delay in the trial of the termination-of-parental-rights actions.”
Here we can see clearly what the trial court was missing in order for its judgment to withstand appeal: “prejudice to the children.”
There was enough evidence in M.M. that delay was opposed to the child’s best interest.
In fact, the Court of Civil Appeals cites to Ex parte M.M.[2], where it upheld the trial court’s decision to proceed with the termination of parental rights trial over the father’s Fifth amendment objections. In fact, in that case, the Court of Civil Appeals stated: “we conclude that the juvenile court properly balanced the father’s right against self-incrimination and the best interests of the children, which demands immediate severance of the children from their relationship with the father.” M.M. at 269-270.
In support thereof, the Court of Civil Appeals pointed to the overwhelming evidence that delay would harm the children:
[T]he testimony of [a licensed psychologist] indicates that the children have experienced trauma that has led to a number of psychological and behavioral issues. He stated that the children are afraid of the father after experiencing traumatic loss and abuse at his hands. [The psychologist] testified that terminating the father’s parental rights would allow the children predictability and that delaying that sense of security for the children creates the possibility of long-term psychological and behavioral problems for them. He testified that a delay of the termination of the father’s parental rights by even a year “would more likely than not cause more problems for the children,” particularly with regard to their sense of security and permanency. Thus, contrary to the father’s assertions, the evidence does not support a finding that maintenance of the status quo, despite the present unavailability of an adoptive resource for the children, is in the children’s best interests.
M.M. at 269.
What could the petitioner in this case have done differently? Perhaps nothing. In a case where a legal parent’s fifth amendment rights are implicated and a stay of a termination of parental rights trial will cause no significant or lasting harm to the child or other parties, trial court must grant a request to stay the termination of parental rights trial. This is the Court of Civil Appeals clear directive.
However, experience has shown me that it is hardly ever the case that a child will suffer no harm due to a delay in permanency.h
Evidence Must Show a Stay is Not in The Child’s Best Interest
What could this look like? The evidence in M.M. is perhaps the preeminent example, but it does not have to be quite so extreme. After all, extreme cases of abuse bring forth extreme evidence. However, in all cases, someone must articulate the harm that a stay would cause the child or another party. This could be a social worker, a therapist, a foster parent, the child, or someone else. Moreover, this evidence largely falls into a few categories:
Fear
Does the child fear his or her legal parent? Does the child fear that the court will return him or her to that parent? Is that fear genuine and warranted? Will that fear dissipate after TPR? Will that fear cause long-term problems? The effect of a child’s fear of being returned is a compelling factor. It is not the public policy of Alabama to continue to traumatize a child with the possibility of returning that child to a legal parent who has caused the child to genuinely fear that parent. Fear was one of the factors in M.M.: “He stated that the children are afraid of the father after experiencing traumatic loss and abuse at his hands.”
Emotional Distress
Does the delay in permanency have any visible signs of emotional distress on the child? Can the child’s psychologist or therapist testify to that? Does the child dwell on the thought that the court could remove him from his desired home at the next hearing? To that end, does the child fear caseworker visits due to the thought that he may be taken away?
It is undoubtedly traumatic for a child to be in an impermanent situation for a prolonged period of time – not knowing where he or she will be the next day. It would be traumatic for anyone. Thus, it is simply a matter of finding the evidence and bringing it to the court’s attention. Again, this was one of the factors relied upon by the court in M.M.: “[The psychologist] testified that terminating the father’s parental rights would allow the children predictability and that delaying that sense of security for the children creates the possibility of long-term psychological and behavioral problems for them.”
Threats
Has the legal parent threatened the child, the court, or the other parties? Will the delay in permanency prevent the pre-adoptive parents from distancing the child from that parent and their threats?
If the legal parent credibly threatens the pre-adoptive parents, the child, or the court, the safety threat of continuing under those circumstances may be enough to override the legal parent’s objection. However, someone must admit evidence that a final order will put an end to or limit those threats. By way of example, if the legal parent credibly threatens to harm someone at one of the hearings, a final order would limit the legal parent’s opportunity to act on those threats.
Withholding Consent
Is the legal parent unreasonably withholding consent for the child to partake in important activities or operations? Is the legal parent withholding or delaying consent for the child to undergo necessary medical operations? Does this delay cause undue risk on the child? Is the legal parent withholding consent for baptizing the child? Is the legal parent withholding consent for the child to partake in other religious ceremonies? Does that cause the child distress?
A legal parent still has certain authority over a child, even when that child is not in their home. If the legal parent is being negligent in their duties or is using their remaining authority to harm the child, that could be grounds for overcoming their Fifth Amendment objections.
Loss of Benefits
In addition to a showing of harm caused by the maintenance of a relationship with the legal parent, evidence of harm caused by the inability to form a legal relationship with a pre-adoptive parent may also be persuasive.
Could the child lose out on inheritance unless he or she is expeditiously freed for adoption? Will the child lose out on veterans affairs benefits? Is the child unable to move states or countries with his pre-adoptive family? Will that cause the child to lose his adoptive placement? Will the military deploy one of the child’s pre-adoptive parents to combat soon? Imagine the following examples:
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The child’s pre-adoptive father is in the Air Force and the military is stationing him to Germany in one year. The Department is unable to provide approval to move. The Department, therefore, must place the child in another home. What trauma will that cause the child?
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Imagine instead, the Department has placed the child with a pre-adoptive mother and father since birth. He is 7 years old. The mother finds out that she is terminally ill with cancer. If she were to die before the child is adopted by her, that child will never be able to have the state legally recognize the reality that the pre-adoptive mother is that child’s mother. In addition, the child’s inheritance due to the relationship with the pre-adoptive mother will likely be affected.
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Lastly, imagine that the child is 17 years old and will receive free tuition through Veteran’s Affairs if adopted by his pre-adoptive father before he turns 18. If the court delays the the child permanency, it may cost that child tens of thousands of dollars. Or, if the child cannot afford the cost, the court’s delay may cost that child his or her education and future career opportunities.
Evidence Must Show that the Harm of a Stay Will be Lasting
Furthermore, the harm articulated needs to be more than fleeting discomfort. There must be lasting harm. The Court of Civil Appeals articulated this in M.M.:
[The psychologist] testified that terminating the father’s parental rights would allow the children predictability and that delaying that sense of security for the children creates the possibility of long-term psychological and behavioral problems for them. He testified that a delay of the termination of the father’s parental rights by even a year “would more likely than not cause more problems for the children,” particularly with regard to their sense of security and permanency.
To put it simply, while the child’s best interest is paramount, if the child’s best interest will not be irreparably harmed by a continuance, the court is required to delay permanency. However, if a child’s best interest will be harmed by a delay in permanency, the trial court should expeditiously proceed for the sake of the child.
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[1] 419 So. 3d 1048 (Ala. Civ. App. 2024).
[2] 347 So. 3d 262 (Ala. Civ. App. 2021).
