How Long an Absence To Abandon Your Children?

How long does Dad need to be gone before it’s clear he has abandoned the children? This is the question that confronted the court in T.B. v. DeKalb County DHR, Case No. 2071122 (Ala Civ. App. December 19, 2008. DHR had opened a protective case for the children because the mother, with an IQ of 58, had proven herself unable to care for them without constant assistance. However, DHR and the juvenile court determined that the father was capable of caring for the children, so the parents received custody of the children together.

3 1/2 years later, the father, an illegal Guatemalan immigrant, returned to his home country to obtain a visa to live in the U.S. Before leaving, he arranged for the children to stay with a friend and to visit with the mother. Weeks after the father left, however, he agreed by telephone for the children to live with the mother and the mother’s friend in the mother’s trailer. The mother’s friend soon left the trailer, however, leaving the mother alone to care for the children.

Not long afterward, the mother was found walking the street, crying and asking for help in caring for the children. DHR attempted to get the father to return to the U.S. to take over the parenting of his children, but for whatever reason (perhaps because his returning would be illegal), he did not return.

The DeKalb County Juvenile Court terminated the mother’s and the father’s parental rights. At the time of the initial filing, the father had been absent from the children for 171 days, although he was back and involved in the children’s lives by the time the court made its decision. During his absence, he was in communication with the children (although he didn’t send financial support) and he was responsive at all times to DHR as it worked to persuade him to return to care for the children. He repeatedly stated that he could not return legally without a visa, that he was working to obtain a visa, and that he hoped DHR would maintain custody of the children until his return. He predicted that he would be able to obtain his visa and return within a few months, and he was in fact able to do just that.

When the father returned, hired counsel, and filed to set aside the termination, the DeKalb County Juvenile Court held a hearing at which the father was allowed to testify, but the court nevertheless terminated his parental rights.

The appeals court reversed. As it has repeatedly in other cases, the appeals court stated that termination of parental rights is reserved for the most egregious of circumstances:

The juvenile court in this case erred in finding that there were no viable alternatives to termination of the mother’s parental rights. The evidence clearly and convincingly shows that, because of the mother’s mental deficiency, she cannot properly meet the needs of the children independently. However, the mother’s mental deficiency does not endanger the welfare of the children when [the father] remains in the home to supervise the family. Consequently, rather than terminate the mother’s parental rights, the juvenile court should have placed the children in protective foster care until the father’s expected return date, ordering the DeKalb County Department of Human Resources to provide services to reunite the family at that time. That plan would have allowed the integrity of the family to be maintained, securing the permanency of the children, while simultaneously preserving the mother’s right to associate with the children. Instead, the juvenile court erroneously concluded that the father had abandoned the children and prematurely awarded permanent custody to [new adoptive parents], ultimately terminating the mother’s parental rights.

Judge Bryan dissented on the grounds that “the children’s need for permanency and stability had overcome the father’s good-faith but unsuccessful attempts to become a suitable parent to the children.” Judge Thomas dissented on the grounds that the evidence supported the juvenile court’s decision that the father had abandoned his children.