Considering that the child’s welfare is an all-important factor in custody cases, all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. Thus, the juvenile courts are authorized to, if the welfare of the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures as may be proper under the circumstances.
However, the juvenile court can not completely deprive the parents of the custody of the child unless the appropriate quantum of evidence established all of the following three conditions:
- that the child remains dependent,
- that reasonable efforts at reunification have not succeeded, and
- that it is not in the best interests of the child to return to the parents’ custody.
In the recent case of E.H v. Calhoun County Department of Human Resources, 2190441 (Ala. Civ. October 2, 2020), a child was placed in the home of her paternal grandparents. The child was removed from the custody of her parents due to drug use and domestic violence.
In response, the child’s mother filed a motion seeking the return of her child custody to her. In that motion, the mother averred that she had made behavioral and lifestyle changes, that she had participated in the individualized-service-plan process, and that she had completed services through Calhoun County Department of Human Resources. The mother claimed that the child was no longer dependent and that the child’s best interest would be served by returning custody to her.
DHR had concerns that the father was living with the mother when her older child was returned to her custody in March 2019. The mother testified at trial that she ended her relationship with the father and that she no longer lived with him. She explained that she had sought and received a protection-from abuse (“PFA”) order in her favor in September 2019 based on the father’s firing a shot from a rifle into the ceiling during their altercation. However, she admitted that the father had assisted her in moving into a new mobile home in November 2019, and the father had come by her new place. During those visitations, the mother would call law-enforcement officers to report his potential violation of the PFA order.
Regarding her substance-abuse issues, the mother testified that she had participated in “drug court” for four months and that she had also completed nine months in “TASC”. “TASC” is a program through which the mother was tested for the use of illegal drugs.
Amanda Lovell, the office manager of, and a certified recovery support specialist at, New Pathways, testified that the mother had completed the outpatient drug-treatment program. She commented that the mother should not use alcohol while taking Suboxone, the prescribed medication to treat her addiction to opioids. The mother testified that she had consumed alcohol in April 2019, but she described her use as having “only a glass of wine. The use of alcohol could lead to a relapse of the mother’s drug abuse.
The father testified that when the mother’s older child was briefly returned to her custody, such child, who was approximately 16 years old at the time, was consuming alcohol. The mother denied that she had been doing shots of alcohol with her older child, but she tested positive for alcohol on the day that child was removed from her custody for a second time.
The mother had been referred by the ISP team to drug court a second time in August 2019, but she had failed to follow through and submit to a drug-court assessment.
After the second trial date, the father had been living in the barn adjacent to the paternal grandparents’ home where the child was.
The paternal grandmother admitted that she had discovered that the father had spent the night in the barn adjacent to her home a couple of nights, but that he had not been living there full-time.
On appeal, the mother argues solely that the juvenile court’s judgment is not supported by clear and convincing evidence that the child remained dependent.
Case law provides that, “In order to make a custodial disposition of the child at the time a dispositional judgment is entered, the juvenile court is required to find that the child is dependent at the time of the disposition.”
The juvenile court could continue to completely deprive the parents of the custody of the child only if the appropriate quantum of evidence established all three conditions:
- that the child remained dependent,
- that reasonable efforts at reunification had not succeeded, and
- that it was not in the best interests of the child to return to the parents’ custody.
In this case, the juvenile court made no express finding of dependency. Given the language used by the juvenile court in the final judgment, the Court agreed that was questionable whether the juvenile court impliedly found that the child remained dependent.
The Alabama Court of Appeals could not discern whether the juvenile court concluded that the child remained dependent based on the current circumstances of the mother.
Therefore, this case was remanded to the juvenile court and to determine whether the child remained dependent by entering the express findings of fact necessary to sustain its judgment.
About the Author, Samuel J. McLure, Esq.
Sam graduated from Huntington College in 2006 with a degree in Business Administration. Before transferring to Huntington College, he attended Bethune-Cookman University as the first minority-white running back in the historically black conference.
He went on to Jones School of Law and graduated with honors, cum laude. During law school, Sam had the distinguished honor of serving with the Faulkner Law Review, clerking with Alabama Supreme Court Justice Patricia Smith, clerking with the Alabama Attorney General’s Office, and studying International Law with Cornell University in Paris, France.
However, Sam’s most memorable law school achievement was adopting his first child from the Hungarian foster-care system. It was through that process that he and his wife saw the great need to protect children in the foster care system and to encourage adoption.
Sam’s law practice has maintained an orbit around protecting vulnerable and at-risk children. He and his wife have four children and have been actively engaged in the foster care system. Sam is the author of The End of Orphan Care, and book devoted to unpacking the orthodoxy and orthopraxy of orphan care; and has founded or served with ministries and community outreach initiatives such as Kiwanis, Personhood Alabama, Proposal 16, and Sav-a-Life.