T.M. v. M.D.B.

REL: 07/03/2014

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014

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1130811
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Ex parte T.M.

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS

(In re: T.M.

v.

M.D.)

(DeKalb Juvenile Court, JU-08-117.02;
Court of Civil Appeals, 2121005)

WISE, Justice.

WRIT DENIED. NO OPINION.
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Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,

JJ., concur.

Moore, C.J., dissents.

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MOORE, Chief Justice (dissenting).

This petition raises important questions about the

propriety of terminating the parental rights of a natural

father, T.M., to satisfy the desire of the mother's new

husband to adopt the father's child as his own. The natural

father poses no danger to the welfare of his child, whose only

supposed benefit from the termination of his father's parental

rights is that the child will be spared from learning of his

true paternity until many years in the future.

Because I believe that the Court of Civil Appeals

seriously erred in affirming the termination of T.M.'s

parental rights, I respectfully dissent from the denial of

T.M.'s petition for a writ of certiorari.

I. Facts and Procedural History

T.M. ("the father") and M.D. ("the mother") began dating

in high school when they were 17 years old. During their

senior year, the mother, who was living with her parents,

became pregnant. The father and the mother concealed the

pregnancy from everyone, including the mother's parents, who

learned one night in September 2007 that the mother needed to

go to the hospital to give birth. In February 2008, the couple

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consented to transferring temporary legal custody of the child

to the mother's parents. The mother continued to live with her

parents and cared for the child with her parents' help.

A year after the child's birth, the couple broke up.

Although the father had visited the child regularly up to that

point, his visits after the breakup became sporadic. The last

time he saw the child before the termination hearing in July

2013 was on his son's third birthday in September 2010. He

claims that his visits ceased because the mother and her

parents deliberately avoided him and he eventually gave up

trying to see the child. The father's sister provided some

corroboration of this testimony, but the mother and her

parents denied that they had avoided the father. The father's

pastor testified that the father came to him in 2009 and asked

for help in getting to see his son. The father testified that

he hired a lawyer in the fall of 2012 to seek visitation but

that he was unable to effect service on the mother.

In 2010, the father married and started a family. He has

a daughter who is now three years old. In May 2012, the mother

married and moved from her parents' home to live with her

husband and the child, who calls the husband "Daddy." The

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father would like his son to know that he is the father and is

willing to have a gradual structured reintroduction to his son

that would not be disorienting to the child. The mother claims

that simply knowing about the father would be emotionally

stressful for the child.

In February 2013, in order to facilitate a stepparent

adoption of the child by her husband, the mother moved the

juvenile court to terminate the father's parental rights. The

father counterclaimed for an order declaring paternity and for

custody. He also sought temporary visitation.

The juvenile court heard testimony from 10 witnesses.

Finding that the father had abandoned his son, a statutory

ground for the termination of parental rights, § 12-15-

319(a)(1), Ala. Code 1975, the juvenile court terminated the

father's parental rights in order, it reasoned, to provide the

child with "stability." The juvenile court did not discuss or

analyze any viable alternatives to termination. The Court of

Civil Appeals affirmed the juvenile court's ruling on the

ground of abandonment and the lack of viable alternatives.

T.M. v. M.D., [Ms. 2121005, April 11, 2014] ___ So. 3d ___

(Ala. Civ. App. 2014). However, the Court of Civil Appeals did

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not seriously consider the alternative of maintaining the

status quo and allowing the father visitation.

II. Analysis

"[U]nder Ex parte Beasley, [564 So. 2d 950 (Ala. 1990),]

upon finding that abandonment constitutes a ground for a

termination of parental rights, a trial court must consider

whether viable alternatives to termination exist." Ex parte

J.E., 1 So. 3d 1002, 1013 (Ala. 2008) (Cobb, C.J., concurring

specially). In previous cases in which a custodial parent has

initiated a termination-of-parental-rights proceeding,

appellate courts have been reluctant to affirm the severance

of the parental bond between the child and the noncustodial

parent in the absence of evidence that the noncustodial parent

poses some tangible threat to the child's welfare.

"Since [1987] this court has consistently held that
termination of parental rights is not appropriate in
cases like this one in which the children are safely
residing with the custodial parent and the
continuation of the noncustodial parent's parental
rights does not present any harm to the children."

A.J.H.T. v. K.O.H., 983 So. 2d 394, 406-07 (Ala. Civ. App.

2007) (Moore, J., concurring in part and dissenting in part).

See also Ex parte M.D.C., 39 So. 3d 1117, 1143 n.14 (Ala.

2009) (Murdock, J., dissenting) (noting that cases "come

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before the appellate courts of this State in which the record

suggests that an effort to terminate has occurred because of

animosity or spite, out of convenience, or simply to

accommodate a new spouse who wishes to adopt a child"

(emphasis added)).1

In Ex parte A.S., 73 So. 3d 1223 (Ala. 2011), the mother

was incarcerated, and the grandmother had sole legal custody

of the child. The grandmother petitioned to terminate the

mother's parental rights in order to adopt the child. The

trial court terminated the mother's parental rights, and the

Court of Civil Appeals affirmed the termination. This Court

reversed the Court of Civil Appeals' judgment, holding that

"[t]he grandmother's maintaining custody of the child and

having the ability to determine and supervise the mother's

visitation with the child is a viable alternative to

termination of the mother's parental rights ...." 73 So. 3d at

1
The concept that a custodial parent may initiate the
termination of the parental rights of a noncustodial parent
seems inherently dubious to me. What is the purpose of
terminating the parental rights of the noncustodial parent
when the child is already experiencing permanency with the
custodial parent? See S.D.P. v. U.R.S., 18 So. 3d 936, 944
(Ala. Civ. App. 2009) (Moore, J., concurring specially)
(noting that "[t]he record indicates that the continuation of
the father-child relationship does not currently affect the
stability and permanency of the child in any manner").
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1229. In S.M.M. v. R.S.M., 83 So. 3d 572 (Ala. Civ. App.

2011), the father of the child, who had sole custody, sought

to terminate the parental rights of the mother, who had a

prison record. The trial court terminated the mother's

parental rights. The Court of Civil Appeals reversed its

judgment, holding that "[m]aintenance of the status quo and

allowing the mother continued supervised visitation with the

child adequately protects the welfare of the child while

allowing for a beneficial relationship with both parents." 83

So. 3d at 577. The court specifically noted that "no evidence

was offered to suggest that [the mother] posed a physical

threat to the child." Id. at 576.

In this case no evidence was presented indicating that

the father posed a threat of physical harm to the child.

Instead, the mother predicted that the child would experience

emotional conflict by knowing his father while being raised by

the husband. The Court of Civil Appeals considered this

testimony to be clear and convincing evidence that no viable

alternative to the termination of the father's parental rights

existed:

"The mother and her witnesses offered testimony in
opposition to the grant of visitation, saying that

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visitation would cause the child to experience pain,
a broken heart, and emotional conflict because he
has no knowledge of his biological relationship to
the father and believes that the husband is his
father.

"The evidence was sufficient to support the
juvenile court's finding that no viable alternative
to the termination of the father's parental rights
existed."

T.M., ___ So. 3d at ___. The father argues that "[p]arenting

time or visitation could have been awarded incrementally,

gradually and even supervised if necessary." T.M.'s brief, at

7. The Court of Civil Appeals rejected as unviable the

alternative of "gradual visitation with the child." T.M., ___

So. 3d at ___.

The difference between this case and those cited above in

which the child was residing safely with the custodial parent

and thus "continuation of the noncustodial parent's parental

rights [did] not present any harm to the children," A.J.H.T.,

983 So. 2d at 407, is the presence of a new substitute

"Daddy," who is now married to the mother. This circumstance

supposedly creates a heart-wrenching conflict for the child

that can be remedied only by terminating the parental rights

of the natural father. But what about the emotional impact

upon the child when years later he learns the identity of his

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natural father, whose existence has been deliberately

concealed from him?

The mother offered the testimony of a social worker who

had known the mother and the grandparents for many years and

who had recently interviewed the child. When asked if it would

be in the child's best interests for the father's parental

rights to be terminated, he stated: "I don't know all the

factors in the case, so I can't really state that at this

point in time." Cutting the child off from knowledge of his

natural lineage and a relationship with the father's immediate

and extended family -- contact that is more likely to nurture

than to harm the child -- seems intuitively detrimental to the

child's sound emotional development. See Ex parte Monroe, 727

So. 2d 104 (Ala. 1999) (reinstating a trial court's judgment

that awarded a change of custody for the purpose of preserving

a child's ties with his extended family).

Even were the child to benefit from having his natural

father erased from his life,2 that fact would not justify

2
"Termination of parental rights, by abrogating the
parent's legal right to visitation, normally forecloses the
child's opportunity to visit or communicate with the parent
until the child reaches the age of majority." D.M. Blair,
Parent-Initiated Termination of Parental Rights: The Ultimate
Weapon in Matrimonial Warfare, 24 Tulsa L.J. 299, 328 (1989)
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terminating the father's parental rights. The state may not

terminate a parent's rights simply because a child will

supposedly experience superior nurturing from an adoptive

parent. "[T]hat a more ideal living situation exists for the

children provides no basis for terminating the parental rights

of the [father]." S.U. v. Madison Cnty. Dep't of Human Res.,

91 So. 3d 716, 722 (Ala. Civ. App. 1988). "[T]he courts of

this state do not have the power to sever the bonds of blood

relationship merely in order to gain some real or fancied

advantage for a minor child." Griggs v. Barnes, 262 Ala. 357,

362, 78 So. 2d 910, 916 (1955). A trial court, facing similar

facts, stated:

"'[T]he Court does not find that it is in the best
interests of the child to terminate the parental
rights of the biological father merely to delay the
child's knowledge of the truth or to avoid or delay
facing the same in an organized and therapeutic
manner, merely to assist the stepfather in his
desire to become an adoptive father.'"

K.H.M. v. D.L.I., 895 So. 2d 950, 953 (Ala. Civ. App. 2003)

(quoting trial court's order and affirming the trial court's

(footnote omitted).
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judgment, with one judge concurring and another concurring in

the result).3

The right of a father and his son to enjoy their unique

natural relationship is fundamental in our law. "The father

and the child share reciprocal fundamental constitutional

rights to association with one another." Meadows v. Meadows,

3 So. 3d 221, 236 (Ala. Civ. App. 2008) (Moore, J., concurring

in the result). The state may sever this bond only if clear

and convincing evidence exists that demonstrates the father's

unfitness. "The clear and convincing evidence must demonstrate

... that the state has a compelling interest requiring

interference with the rights of the parents and that that

interest is being advanced by the least restrictive means." Ex

parte E.R.G., 73 So. 3d 634, 645 (Ala. 2011). In the

circumstances of this case, in which the child resides in a

secure and nurturing environment with his mother and her

husband, the state has no compelling interest in severing the

natural father's parental rights. Furthermore, even if the

state had an interest in protecting the child from the

3
In the context of a custody contest between a natural
father and a stepfather, the law recognizes a presumption in
favor of the natural parent. Ex parte D.J., 645 So. 2d 303,
305-06 (Ala. 1994).
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potential emotional upset that might attend learning the truth

about his conception, alternatives exist that are less drastic

than a permanent severance of the child's filial bond with his

natural father. See Franz v. United States, 707 F.2d 582, 602

(D.C. Cir. 1983) ("Severance of the filial bond ... obviously

cuts deeply into the emotional interests of both parent and

child ...."); Corey L. v. Martin L., 45 N.Y.2d 383, 392, 408

N.Y.S.2d 439, 443, 380 N.E.2d 266, 271 (1978) ("The filial

bond is one of the strongest, yet most delicate, and most

inviolable of all relationships ....").

Although "[a] juvenile court has an imperative duty to

exhaust all viable alternatives before terminating a parent's

parental rights," S.U., 91 So. 3d at 723, in this case the

juvenile court did not consider any alternatives to

termination of the father's parental rights.

"[I]f some less drastic alternative to termination
of parental rights can be used that will
simultaneously protect the children from parental
harm and preserve the beneficial aspects of the
family relationship, then a juvenile court must
explore whether that alternative can be successfully
employed instead of terminating parental rights."

T.D.K. v. L.A.W., 78 So. 3d 1006, 1011 (Ala. Civ. App. 2011)

(emphasis added). See also Ex parte Beasley, 564 So. 2d 950,

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955 (Ala. 1990) (reversing the Court of Civil Appeals'

affirmance of the termination of the parental rights of the

noncustodial parent because the Court of Civil Appeals did not

address "the issue of whether other alternatives, less drastic

than termination of parental rights, were available to protect

the best interests of the child").

Maintaining the status quo and allowing the father

visitation on a gradually increasing basis is a viable

alternative to termination of the father's parental rights.

Granting the father visits with his son would preserve the

child's current home environment with the mother and the

husband while allowing both father and child to enjoy their

unique relationship.4 In short, "the evidence at this time

does not rise to a level of being so clear and convincing as

to support termination of the parental rights of the [father],

such action being the last and most extreme disposition

permitted by statute." East v. Meadows, 529 So. 2d 1010, 1012

(Ala. Civ. App. 1988) (emphasis added). See also Beasley, 564

4
Another alternative to terminating the parental rights
of the natural parent as a prelude to adoption is to recognize
the stepparent as a legal custodian of the child. See
Elizabeth J. Aulik, Stepparent Custody: An Alternative to
Stepparent Adoption, 12 U.C. Davis L. Rev. 604 (1979).
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So. 2d at 952 ("[A] court should terminate parental rights

only in the most egregious of circumstances.").

III. Conclusion

"The first official action of this nation declared
the foundation of government in these words: 'We
hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain unalienable rights, that among
these are life, liberty, and the pursuit of
happiness.'"

Gulf, Colo. & Santa Fe Ry. v. Ellis, 165 U.S. 150, 159-60

(1897) (quoting the Declaration of Independence ¶ 2 (1776)).5

The Creator has also ordained natural parenthood, "and a

fallible judge should disturb the relationship thus

established only where circumstances compel human

intervention." Ex parte Sullivan, 407 So. 2d 559, 563-64 (Ala.

1981) (emphasis added). Because such circumstances are not

present in this case, I dissent from the denial of the

father's petition for a writ of certiorari.

5
The United States Code, "the official codification of the
general and permanent laws of the United States," includes the
Declaration of Independence in the section entitled "The
Organic Laws of the United States of America." See Black's Law
Dictionary 1274 (10th ed. 2014) (defining "organic law" as
"[t]he body of laws (as in a constitution) that define and
establish a government").
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