Paternal Relatives’ Objections to Termination of Dad’s Child Custody Rights Overruled, for now…
Really, really sad fact pattern / story including violence against family members and children considered by the Court of Civil Appeals and discussed here so proceed with caution or avoid if the legal discussion and information isn’t worth reading about some really sad stuff.
A maternal grandfather with Sole Physical Custody subject to the visitation and Joint Legal Custody of a paternal aunt and uncle has successfully appealed a “dismissal” of his petition to terminate the rights as to two children of a father that murdered the mother of the children as well as a sibling of the children.
I’ll go ahead and tell you, the law here is a lot more complex than most of you reading think it should be.
To summarize, (read the full opinion here: https://bit.ly/36Bcgh0), the procedural posture is that the trial court dismissed the Maternal Grandfather’s petition to terminate parental rights based on the objections of the Paternal Aunt and Uncle, but the Court of Civil Appeals found (1) that the trial court applied the wrong standard when it applied a dismissal standard rather than a “Motion for Summary Judgment” standard and (2) that relatives or interested parties cannot object to a termination of parental rights on behalf of a parent against whom the petition is filed.
I’m certainly sympathetic to the Maternal Grandparent here. His daughter was murdered. This victory on appeal might be a moral one, at best, though. If this Judge is disinclined to Terminate Rights all the Court has to do is hold an ore tenus hearing and deny the Petition. Consider the dicta from the Civ Apps in their reiteration that “the [trial] court must find that there exists no viable alternative to termination of parental rights.” This wasn’t an accident. The paternal aunt and uncle, themselves joint legal custodians who we may presume are duly exercising their visitation, aren’t going anywhere. And, if the effect of an adoption is to establish full parental rights and authority in a petitioner and sever any and all rights of others, this well-meaning and sympathetic Petitioner in this case isn’t going to get anywhere with any adoption he might ever file.
On the other hand, that doesn’t mean that termination is not without practical application. There is nothing preventing the Father, from a jail cell and with little demands on his time, from mailing in his petitions for further disposition in the dependency case. But Stephen, he’s not going anywhere! Yeah, but an open-minded Judge would be well within his or her discretion to establish some visitation schedule and some obligation for someone to bring the children to visit the Father at the penitentiary, especially as they get older. Even if such a petition is denied, the lack of a termination leaves the door open to further petitions after a reasonable amount of time and perhaps some rehabilitative efforts while incarcerated. Neither the Court nor this Maternal Grandfather can ignore these petitions. Essentially…
you run into the classic conundrum of a Custodian wanting to answer, once and for all, the question of “Can a parent come back and get custody and visitation later on no matter what they’ve done to lose it?” Until termination, the answer is “yes, hypothetically, they can.”
That’s why termination has value here even if any future adoption won’t get off the starting block.
Here are some quick things we learned from this case…
- Does summary judgment exist in Termination of Parental Rights? Strong yes. (This and several other tools available under the Alabama Rules of Civil Procedure are waaay underutilized in Juvenile Court and Child Custody cases.)
- Can the Court consider a notice of appearance as a Motion to Intervene? Strong Yes. (Remember, the “title” of a pleading or motion doesn’t matter, the cards speak for themselves. This is especially important for pro se litigants to remember.)
- Can a relative intervene in a Termination of Parental Rights proceeding? Yes, and especially if there’s no objection. (And often they darn well should. They can’t object on behalf of the parent, as we saw here, but they can certainly present themselves as a resource and a “viable alternative” to termination, especially in DHR cases).
- Can relatives “answer” and or object to a petition to terminate the rights of a parent? Strong no. Parent is on their own, procedurally.
If you or a relatives’ Parental Rights are being terminated or you believe it would be in the best interests of a child close to you that termination be considered, it’s important to know how complex and difficult the process is. Do not try this without a Child Custody lawyer without a great deal of specific experience dealing with these types of issues. You may book online with Foxtrot Family Law by visiting www.ThinkFoxtrot.com/public_calendars.
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