70 The Alabama Lawyer 428 (2009). Dependency Cases - Litigate or Mediate?.

• Author: BY SARAH CLARK BOWERS

The Alabama Lawyer

2009.

70 The Alabama Lawyer 428 (2009).

Dependency Cases - Litigate or Mediate?

Dependency Cases - Litigate or Mediate?BY SARAH CLARK BOWERSAs an experienced guardian ad litem (GAL) for dependent children, my initial response to the suggestion of dependency mediation was immediately doubtful. Child safety and well being were not issues open to mediation for my young clients. It is not unusual for attorneys involved with dependency cases to be initially skeptical regarding mediation and resist participation. Attorneys are trained in the adversarial process. Particularly for those educated before alternative dispute resolution became part of law school curriculums, embracing mediation as a viable means of client representation is unlikely to be a first reaction. Yet the collaborative resolutions that mediation can produce make it a process that deserves the utmost consideration in serving dependent children and their parents or custodians.

In Alabama a child may be adjudicated dependent:

* Whose parent or custodian subjects to child to abuse or neglect; * Who is without a parent or custodian willing and able to provide for the care, support or education of the child; * Whose parent or custodian refuses to provide medical care necessary for the health and well-being of the child; * Whose parent or custodian fails, refuses or neglects to send the child to school in accordance with compulsory attendance laws; * Whose parent or custodian has abandoned the child; * Whose parent or custodian is unable or unwilling to discharge his responsibilities to the child; * Who has been placed for care or adoption in violation of the law; and * Who, for any other cause, is in need of the care and protection of the state. See Ala. Code § 12-15-102 (8)a.

Once a child is adjudicated dependent by clear and convincing evidence, the court faces the important task of making a disposition in the case. See Ala. Code § 12-15-311. Alabama's Juvenile Justice Act of 2008 establishes not only protection of the child as a goal, but also preservation and strengthening of the child's home environment, removal from home only if it is in the child's best interest, a timely and safe reunification with parents, and provision of a continuum of services. See Ala. Code § 12-15-101 (a) and (b). Where the child will live, who will make decision regarding medical and educational needs, fulfillment of special care or rehabilitation needs, and right of visitation by parties who do not hold physical custody are all issues that may be addressed by the court in the dispositional phase of the case. Termination of parental rights may be the issue before the court if reasonable efforts have been made and were unsuccessful in maintaining a child in his home. See Ala. Code § 12-15-301 et. seq.

There are often multiple parties involved in dependency cases with grandparents opposing parents and parents opposing each other. The Department of Human Resources (DHR) is a party if they file a petition based on a need for protection of the child. Alternatively, DHR may play a role as a service provider. Other cases do not involve DHR, but are brought before the court by a relative or other adult concerned for the child's welfare. It is not unusual for multiple dependency petitions to be pending. As required by Alabama law, the child who is the subject of the case must have an attorney appointed as his GAL to represent his best interest. See Ala. Code § 12-15-304 (a). Dependency cases can become chaotic with many differing perspectives on what is in the best interest of the child. Litigate or mediate? How will the child's best welfare truly be served?

Consider the following fact pattern. It is one, based not on a similar and infamous case involving the late Michael Jackson's children, but on a case currently in my open files. A single young mother lies dead in her bed of a sudden heart attack. Her two young children are found at her side waiting for their mother to wake up. The maternal grandmother who lives nearby immediately takes the children into her home and begins caring for them. She files a dependency petition and requests that custody of the children be placed with her. A presumed father, who lives out of state, appears to request that the petition be dismissed. He intends to take one of the children back to his home state to live with him. A multitude of legal issues are unresolved. Can the father be adjudicated the legal father of one or both of the children? If adjudicated the legal father, will a presumption in favor of a natural parent prevail? How will the court view separation of the children? Does the fact that the father has never provided monetary support for the children and had infrequent contact with them constitute abandonment? Litigate or mediate? If litigated, these children are likely to suffer greater loss as hurtful accusations are made by the parties against each other. The chances that the parties will work together for the benefit of the children will be greatly reduced. For these children to thrive after the traumatic death of their grandmother, it is imperative that a mutual agreement be reached that allows for the healing process these children so desperately need. Both parties have much to contribute to the wellbeing and safety of the children. Mediation can be a powerful tool to sort out the appropriate role for each of the remaining parental figures in the lives of these children.

Although not all dependency cases are appropriate for mediation, the child benefits when all parties are committed to resolving a problem through mediation, rather than defending a position. My previous assumptions that mediation marginalizes the safety and wellbeing of the child are not true...