FROM THE ALABAMA LAWYER: Representing Foster Parents in Adoptions
Published on May 11, 2022
By Samuel J. McLure
Timothy (this is an entirely hypothetical case) came into foster care at the age of 11 months. He had five broken bones, gangrene, and a g-tube. He was diagnosed as suffering from failure to thrive, he was globally developmentally delayed, and he had extensive unexplained scarring on top of old scarring. He was in foster care for 13 months, where he thrived, grew, healed, caught up developmentally and began to swallow, eat, talk, walk, laugh, and play. He first word was “mommy,” and it was to his foster mother.
However, the juvenile court sent him back to his abusers – his biological family. To be fair, the Alabama Juvenile Justice Act requires the court and DHR to reunite a child with the child’s biological family as quickly as they safely can. Ala. Code § 12-15-101 (b) (3).
However, when he went back home, he was again abused by his biological family, though it took a while for that to come to light. Thankfully, DHR stepped in again, filed a new dependency petition, the juvenile court agreed, and returned Timothy to foster care. This time DHR placed him with a different foster family. After an additional 13 months in foster care, DHR was planning, again, to return Timothy to his biological family.
There seems to be a common misperception in our culture that biological parents not only love their children, but love them better, and more fiercely, than non-related family ever could. To borrow from another author, to believe this is always and everywhere true is to stick your head in the sand with a blindfold on.
There is little dispute that the best-case scenario for a child is to be born into a family of a married mother and father who love each other and love their children and who are committed to a permanent relationship with each other.
Sadly, too many children aren’t born into those homes. Many are unwanted from conception and treated as such by their biological family. Some of them come into foster care. Children who come into foster care may have been beaten, starved, used as an ashtray (with the burns to prove it), pimped out for drugs, sexually assaulted, suffered bones broken, have their spirits crushed, and the list could go on.
In the case of Timothy, many blood relatives filed their own petitions for custody. All of them believed, and testified in court under oath, that no abuse occurred, that things were blown out of proportion, and, many believed, that Timothy harmed himself. They testified that they were a good family. The truth was that their beliefs were misplaced.
The only hope that Timothy had was a string of foster families who were willing to put everything on the line for him. They hired an attorney, went to court, and worked together in an effort to protect Timothy’s safety. Along with some deeply loving medical professionals, they persuaded DHR to pursue termination of parental rights, all of which was followed by an adoption. Timothy was adopted by a foster family who protects him and loves him. He is thriving.
Sometimes a child’s best hope is a foster family who will be a real family and fight like a mama bear for him – for the rest of his life.
Approaching Foster Parent Representation
Many foster parents lack the tools and knowledge to advocate for the best interests of the child in their care. All foster parents have to go through a Trauma Informed Parenting for Permanency and Safety class (TIPS) where they learn that their role is to provide a temporary safe home for a child while the Department of Human Resources (DHR) works with parents to alleviate the underlying causes of dependency.
So, when a lawyer is consulted by foster parents who feel at odds with the system, what does that lawyer do?
The first hurdle a practitioner must overcome is the Foster Parent Agreement (FPA) signed by every Alabama foster parent. Section 9 of the FPA states that a foster parent will not “file a petition in any court pertaining to any child placed in our home by the Department of Human Resources, or take any steps toward the adoption of the child, or take any steps to obtain any order granting us legal or physical custody or placement of the child without the WRITTEN CONSENT of the State Department of Human Resources.”
To the extent this agreement is a contract, the lawyer should argue that it is either void or voidable. In light of the nearly-dozen Alabama appellate cases affirming the dignity of foster parents and non-biological caregivers to seek permanency for the children in their care through independent court actions, section 9 of the FPA can be argued to be void as a violation of public policy.
Section 5 of the FPA states that the foster parent agrees to “treat the children who we may receive for care as well as we would treat members of our family.” Even if the agreement were not void or voidable, Section 5 can be argued to have overruled Section 9: what family would stand idly by while their biological child is sent to live with an abuser? Furthermore, even if all of the above were not true, our courts have held that DHR is the only party who has the standing to advance the argument that a foster parent has failed to honor the FPA.
The practitioner should not be surprised if their representation of foster parents is sometimes not well-received, depending on the local juvenile court and the local DHR. However, it is important to demonstrate that the foster parents often are the only stable caregiver in the child’s life: they go to medical appointments, sporting events, every birthday party, and they tuck the child into bed every night – adding up to many hours of attention and care. Sometimes, they’ve observed the parents in a way that DHR has not. Often, they have information – first-hand – that no one else does. They can bring a lot to the table.
Every foster parent struggles with the tension of advocating for the child without rocking the boat. In 2004 the legislature codified certain protections for foster parents in the Foster Parents’ Bill of Rights. Included in those enumerated rights is the right of foster parents to “provide input to the department in identifying the types of resources and services that would meet the needs of the children currently in their care…and to advocate for the same without threat of reprisal.” Additionally, the Alabama Supreme Court has routinely held that the juvenile courts are open to foster parents intervening in juvenile court proceedings concerning the child.
Legal Mechanisms to Aid Foster Parents in Gracious Advocacy
Foster parents may seek to intervene in the juvenile court case involving a child in their care. Intervention is governed by Rule 24 of the Alabama Rules of Civil Procedure. As with all initial pleadings before the juvenile court, a motion to intervene, accompanied by a notice of appearance, must be hand-filed with the juvenile court.
Additionally, foster parents can petition for legal custody of the child in their care under any one of several theories.
Foster parents can also file their own petition for termination of parental rights in the juvenile court. Section 12-15-317 provides that a petition to terminate parental rights may be filed by “any interested person.” In most cases, DHR’s own policy allows or requires it to join the foster parents’ petition to terminate parental rights.
Lastly, foster parents can petition the probate court for adoption – even without DHR’s consent.
The Probate Court’s Duties for Orphans
The Alabama Constitution, 1901, Amendment 354, S, § 6.06, provides that the probate court shall have general jurisdiction over “orphans’ business.” Prior to 1854, the Alabama Probate Court was referred to as the Orphans’ Court. Many states, such as Maryland and Pennsylvania, still use the name Orphans’ Court. Prior to 1973, the probate courts performed the duties of juvenile courts such as issuing judgments and orders for custody, discipline, supervision, care, protection, or guardianship of minors. After 1973, juvenile courts became separate, and probate courts were granted original jurisdiction over adoption. Petitions for adoption must be filed in the probate court, and probate courts have original jurisdiction over all proceedings brought under the Alabama Adoption Code.
The functional goal of the juvenile court is to preserve the child’s biological family unit wherever possible; the goal of the probate court is to provide permanence and stability for the child. Both considerations stand on equal footing, and the paramount consideration is the best interest of the child. In achieving its goal of providing permanence for children, the probate court performs an incredibly important role in seeking the child’s best interest.
Contrary to popular opinion, a probate court’s jurisdiction over an adoption petition does not conflict with a juvenile court’s jurisdiction. A probate court does not have to postpone an adoption while a case concerning the adoptee is pending in juvenile court. Indeed, a probate court’s “orders, judgments, and decrees . . . are accorded the same validity and presumption accorded courts of general jurisdiction.”
Ex parte A.M.P.
So, what happens when a juvenile court and a probate court each have ongoing matters related to the minor child?
In Ex parte A.M.P., the great-aunt, great-uncle, and biological mother appealed the probate court’s final order granting the adoption petition of the adoptee’s foster parents, who filed their petition after caring for the adoptee for nearly five years. One main issue of the appeals was whether the probate court erred by failing to transfer the adoption petition to the juvenile court that was overseeing matters related to the adoptee.
The Supreme Court of Alabama held that a juvenile court has no authority to stay or interrupt the sovereign domain of the probate court. The court reached this conclusion by analyzing four statutory provisions that provide when the adoption proceeding can or must be transferred to another court. Three out of four of the provisions are completely discretionary.
First, a probate court may transfer an adoption to district court on motion of any party.
Second, if other custody actions are pending in another court, the probate court may transfer and consolidate the adoption with that custody action.
Third, the probate court may transfer a contested adoption hearing, rather than the entire adoption proceeding, to the juvenile court, which, once disposed, is remanded back to the probate court.
Finally, the probate court is mandated to transfer the matter to the juvenile court for the limited purpose of termination of parental rights where a party whose consent is required fails or is unable to consent.
Another issue on appeal in A.M.P. was whether there was clear and convincing evidence that the biological mother impliedly consented to the adoption. If the probate court does not transfer the proceedings, “it is the probate court that hears and determines whether all necessary consents or relinquishments, either express or implied, are present.” Such a determination occurs during the dispositional hearing, or, if there has been a contest, the contested hearing.
Ultimately, the Court in A.M.P. recognizes that “[a] fair reading of the Alabama Adoption Code is that the court with original jurisdiction over adoptions should be able to determine whether a parent whose consent is required has, through his or her acts or omissions, impliedly consented to an adoption.”
Further, when DHR is involved in the life of a juvenile, the type of custody that DHR holds determines whether DHR’s consent is required. There may arise a situation where pre-adoptive parents seek permanency for the adoptee in probate court after the child has been in foster care for years but DHR does not consent to the adoption. The A.M.P. Court recognized that DHR’s consent is not required if DHR has only temporary custody.
In K.P. v. G.C., the Alabama Court of Civil Appeals affirmed a final decree of adoption even though DHR held custody, moved the child to another home, and opposed the adoption.
Once a child has been received in the home of the petitioners for the purposes of adoption, the probate court issues an interlocutory decree granting the petitioners custody and care of the adoptee pending the final order. However, in T.C.M. v. W.L.K, a juvenile court issued a pick-up order directing law enforcement to remove the child from the home of the petitioners, who at the time had been granted an interlocutory decree from the probate court. The Alabama Court of Civil Appeals resolved the conflicting orders between the juvenile and probate court in favor of the probate court, holding that a juvenile court lacks authority to enter an order that “seeks to supplant the currently valid interlocutory custody order entered by the probate court in the adoption action.”
A probate court has a duty to hear the merits of the adoption petition. By its own handbook, a probate court “may not dismiss a petition for adoption prior to a dispositional hearing due to the court’s own concerns that it lacks jurisdiction.” If there is no motion for a contested hearing, a dispositional hearing is the only one necessary to complete the adoption and must be held as soon as possible after the home study has been completed.
Any matters still pending in the juvenile court after the probate court grants a final decree of adoption become moot. Adoption creates a new legal person and renders all other proceedings related to the child in juvenile court moot.
Termination of Parental Rights v. Implied Consent
In juvenile court, DHR or any interested party can file for termination of parental rights. Some statutory grounds for the petition include abandonment, excessive use of drugs or alcohol, abuse, felony conviction, failed rehabilitation, failure to provide for the material needs of the child, and failure to maintain consistent contact or visits.
In a related, but completely separate framework and code section, the probate court has authority to find that a biological parent has given implied consent to an adoption. The probate court may consider the parent’s abandonment of the adoptee, leaving the adoptee without provision for the adoptee’s identification for 30 days, knowingly leaving the adoptee without provision for support and communication, otherwise not maintaining a significant parental relationship, failing to respond within 30 days to notice of an adoption, and failing to register with the Putative Father Registry. As stated above, the Alabama Supreme Court has affirmed a probate court’s authority to determine whether a biological parent has given implied consent even while matters are pending in the juvenile court.
Like Timothy, there are many children across the state who, for years, remain in foster care or are juggled through the child-protection system without any significant movement toward permanency. In some of those cases, the best route a foster parent can take is to turn from the juvenile court to the probate court and file to adopt their foster child. In A.M.P., Justice Stuart examined these situations: “Furthermore, even under existing law, relatives of the child who . . . belatedly come forward seeking custody only when the termination of parental rights is imminent are in almost all cases not a viable alternative to the termination of parental rights and the placement of the child for adoption. This fact is especially true in a case such as this one, where the result of the effective termination of the mother’s rights and adoption is a continuation in the custody of the only people the child has known as parents. . . So long as our child-protection system does not promote the best interest of our children, concerned parties with the best interest of the children at heart will continue to turn to the probate courts of our State in appropriate cases.”
Probate courts have the ability to grant adoptions for children who need the permanency of a loving home – which oftentimes becomes the only remaining path to permanency for children like Timothy.
 There is another common but wrong perception that DHR removes children over light recreational drug use. Generally, DHR removes a child for much more serious reasons, and there are probably no people more acquainted with the worst child abusers than DHR case workers.
 Ex parte A.M.P., 997 So. 2d 1008, 1015 (Ala. 2008) (holding that the probate court was not required to transfer adoption proceeding to juvenile court for termination of parental rights, before entering final order of adoption in favor of child’s foster parents; probate court had jurisdiction to find, and did find, that each parent had impliedly consented to the adoption, so there was no basis for transfer); Ex Parte J.W.B., 933 So. 2d 1081 (Ala. 2005) (affirming the probate court’s denial of the putative father’s contest despite litigation in multiple courts in two states); Ex Parte C.L.C., 897 So. 2d 234 (Ala. 2004) (holding that the entry of an adoption decree by a juvenile court constituted error due to the exclusive jurisdiction of the probate court over adoptions); M.M. v. B.L., 926 So. 2d 1038 (Ala. Civ. App. 2005) (reversing an adoption decree entered by a juvenile court because the probate court has original and exclusive jurisdiction over adoption); L.C.S. v. J.N.F., 941 So. 2d 943 (Ala. Civ. App. 2005) (holding that the probate court has the authority to refuse to transfer an adoption case to juvenile court, that the probate court did not have to stay the adoption due to a pending juvenile case, and that the adoption case rendered the juvenile proceeding moot); L.E.D. v. State Dept. of Human Resources, 888 So. 2d 1239 (Ala. Civ. App. 2004) (holding that the probate court, rather than juvenile court, was the proper forum for foster parents to seek an adoption of three foster children; probate court had jurisdiction over proceedings brought under the adoption code); and K.P. v. G.C., 870 So. 2d 751 (Ala. Civ. App. 2003) (the probate court granted an adoption where the petitioners had the birth mother’s consent, even though DHR held custody, had moved the child to another home, and opposed the adoption).
 Ex parte A.M.P., 997 So. 2d 1008, 1021 (holding that DHR is the proper party to decide how to best protect its interest in the foster-care agreement with the foster parents).
 Ala. Code §§ 38-12A-1 to -2 (1975).
 See endnote 2.
 Permanency and Concurrent Planning Policy, Alabama Department of Human Resources, revised August 5, 2019, pgs. 8, 11.
 A constitutional amendment is on the ballot for November 8, 2022 under Senate Bill 68, which would remove “orphans’ business” from the jurisdiction of the probate court.
 The Handbook for Alabama Probate Judges, (10th ed., vol. 1, 2019), at 9.
 Ex parte A.M.P., 997 So. 2d 1008, 1016 (Ala. 2008).
 Ala. Code § 12-15-101 (2021). However, in the context of termination of parental rights cases, “the paramount consideration of the trial court . . . is the best interests of the children involved.” B.S. v. Cullman County Dep’t of Human Res., 865 So. 2d 1188 (Ala. Civ. App. 2003), citing A.R.E. v. E.S.W., 702 So. 2d 138, 139-40 (Ala. Civ. App. 1997).
 A.M.P., 997 So. 2d at 1024 (Stuart, J., concurring).
 Id.; See also Ala. Code § 12-15-101(b)(3) (identifying the following as one of the goals of a juvenile court: “To reunite a child with his or her parent or parents . . . unless reunification is judicially determined not to be in the best interests of the child.”); In re Smith, 469 So. 2d 659, 661 (Ala. Civ. App. 1985) (“[T]he natural parent has a prima facie right to the child’s custody. However, the right is not absolute, but is subject to the equally well-settled rule that the best interest and welfare of the child are controlling in child custody cases.”) (citing Borsdorf v. Mills, 275 So. 2d 338 (1973)).
 L.C.S. v. J.N.F., 941 So. 2d 973, 978 (Ala. Civ. App. 2005) (holding that “we perceive no legal impediment to the probate court’s exercise of its statutory jurisdiction to determine whether a man may be deemed to have consented to an adoption petition simply because a dispute exists concerning the validity of another court’s judgment declaring that that man is, in fact, the father of the proposed adoptee”).
 Handbook at 9.
 A.M.P., 997 So. 2d at 1010-1.
 Id. at 1015.
 See id.
 Id. at 1016 (citing Ala. Code § 12-12-35).
 Id. at 1017 (citing § 26-10A-21).
 Id. at 1017 (citing § 26-10A-24).
 Id. at 1017-8 (citing § 26-10A-3).
 Id. at 1015.
 Id. at 1018.
 Section 26-10A-25(b)(2); § 26-10A-24(a)(3).
 A.M.P., 997 So. 2d at 1019.
 Id. at 1019-20 (citing § 26-10A-7(a)(4))(holding that § 26-10A-7(a)(4) requires DHR’s consent only if DHR holds permanent custody, and DHR only holds permanent custody after the juvenile court terminates all parental rights, and even then it can grant the adoption over DHR’s objection if it finds the objection to be unreasonable).
 K.P. v. G.C., 870 So. 2d 751 (Ala. Civ. App. 2003).
 Section 26-10A-18.
 T.C.M. v. W.L.K., 208 So. 3d 39, 42 (Ala. Civ. App. 2016).
 Id. at 44 (citing Ex Parte A.M.P., 997 So. 2d at 1022-23).
 Handbook, at 106 (citing § 26-10A-25; In re Adoption of F.I.T., 43 So. 3d 621 (Ala. Civ. App. 2010)).
 Id. at 105.
 See § 26-10A-29(b) (“Upon the final decree of adoption, the natural parents of the adoptee . . . are relieved of all parental responsibility for the adoptee and will have no parental rights over the adoptee.”)
 See § 12-15-317.
 Id. at § 12-15-319(a)(1)-(12).
 Id. at § 26-10A-9.
 A.M.P., 997 So. 2d at 1019.
 Id. at 1024-5 (Stuart, J., concurring).