Legislature Ups the Ante for Parents, Relatives and Foster Parents in Child Custody cases…

Legislature Ups the Ante for Parents, Relatives and Foster Parents in Child Custody cases…

Termination of Parental Rights in Child Custody cases is known as the “civil death penalty,” and as if the stakes weren’t already high enough, the Alabama State Legislature has amended the Alabama Code to up the ante for the parents, relatives and foster parents involved. It’s now more important than ever for all parties and stakeholders to understand their rights to the advice and advocacy of competent, experienced and aggressive Child Custody counsel.

As I read the bill, known as HB 157, there are 2 things to focus on…

First, the Court must now consider the relationship between the child and any current foster parents when ruling on Termination of Parental Rights cases. Previously, “TPR” was more of a determination only of how egregious or negligent a parent’s behavior was. Less egregious behavior might not warrant termination but more egregious behavior would. Now, though, it’s more of a balancing test for the Court. Perhaps a parent’s behavior is less egregious or negligent but the bond between a child and foster parent is really, really strong.

Second, biological relatives need not be considered as an alternative to Termination unless they have made efforts to be a placement resource for the child in what the legislature deems a timely fashion. So, and this is important, for caring relatives to prevent termination and subsequent adoption of children in their families, they have two options: (1) identify themselves to DHR as soon as possible and jump through all of DHR’s hoops over however long a period of time seeking approval by DHR subject to their unilateral revocation or (2) lawyer up themselves and file a Motion to Intervene in the case and seek custody directly through the Courts. These options are not mutually exclusive, so there’s no legal advantage for caring relatives to avoid getting a lawyer and bringing their own case before the Court other than the practical reality of avoiding any infringement on DHR’s position that they are “the way and the truth and the life” and that “[n]o one comes to the Father except through [them].”

On that note, Foster Parents have a lot to consider here, too. As I said, this raises the stakes for everyone. What was previously a case solely about a parent’s behavior is now going to delve into the nuanced, complex and previously private dynamic of the Foster Parents’ household. To add further complexity, Foster Parents, by contract with DHR, are prevented from retaining counsel of their own and must rely (a) on whatever DHR’s position in the case is and (b) on the advocacy and litigation of DHR counsel, who does not on any technical level represent the Foster Parents. DHR counsel does have the distinct advantage of being free and privately retained counsel is certainly expensive. But, if a Foster Parent is willing to go “all in” for a given child, then it may be worth both the expense and the risk to an ongoing contractual relationship with DHR.

(This is where I mention this article is nothing and nowhere close to legal advice for any reader’s unique situation and it behooves any parent, relative or foster parent to consult with Child Custody counsel when making decisions on these kinds of issues).

Let’s conclude, for now, with some “be careful what you wish for” unintended consequences. Foster Parents were previously shielded from the rigors and stresses of litigation because their relationship with the child was technically irrelevant. Now…it is anything but. That means Foster Parents, and the voluminous and intensely private information they’ve provided to DHR to become Foster Parents in the first place, may be exposed to discovery procedures under the Alabama Rules of Civil Procedure, including but not limited to depositions and requests for production of documents, all while they’re contractually prevented from retaining their own counsel. 

Don’t worry, Foster Parents, your handlers at DHR have told us repeatedly that if the parents and relatives we represent “have nothing to hide” then there’s no reason not to take every drug test and submit to every inquiry DHR or opposing counsel or the Juvenile Court sees fit. Welcome to the fray and keep our contact information handy. 

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This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot