REL: January 13, 2023
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,
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
2210452, 2210453, 2210454, and 2210455
_________________________
J.G.
v.
Lauderdale County Department of Human Resources
Appeals from Lauderdale Juvenile Court
(JU-17-189.04, JU-17-190.05, JU-17-191.06, and JU-17-192.04)
PER CURIAM.
In appeal number 2210452, J.G. ("the father") appeals from a
judgment entered by the Lauderdale Juvenile Court ("the juvenile court")
in case number JU-17-189.04, terminating his parental rights to J.E.G.,
2210452, 2210453, 2210454, and 2210455
who was born on March 14, 2006. In appeal number 2210453, the father
appeals from a judgment entered by the juvenile court in case number
JU-17-190.05, terminating his parental rights to E.D.G., who was born
on April 22, 2008. In appeal number 2210454, the father appeals from a
judgment entered by the juvenile court in case number JU-17-191.06,
terminating his parental rights to Y.L.W., who was born on August 28,
2013. In appeal number 2210455, the father appeals from a judgment
entered by the juvenile court in case number JU-17-192.04, terminating
his parental rights to S.R.G., who was born on August 25, 2015. This
court consolidated the father's appeals, ex mero motu. We reverse the
juvenile court's judgments.
Procedural History
On June 21, 2021, the Lauderdale County Department of Human
Resources ("DHR") filed petitions to terminate the parental rights of the
father and of M.G. ("the mother") to J.E.G., E.D.G., Y.L.W., and S.R.G.
("the children"). Following a trial, at which the father was not present,
the juvenile court entered separate judgments on February 18, 2022,
which, apart from each child's name, are otherwise identical and state,
in pertinent part:
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"1. [DHR] failed to meet its burden of proof required to
prove [that the children] remain[] dependent; therefore, the
court finds the [children are] not dependent and legal care,
custody, and control of [the children] is hereby awarded to [the
mother].
"2. [DHR's] petition[s] to terminate the parental rights
of the mother ... [are] hereby DENIED.
"3. [DHR] is ORDERED to implement a transition plan
for [the children] to return home to [the mother] by Friday,
February 18, 2022.
"4. It is in the best interest of [the children] to terminate
the parental rights of the father[]; therefore, [DHR's]
petition[s] to terminate the parental rights of the father ...
[are] hereby GRANTED.
"5. The parental rights of the father ... be and the same
are hereby permanently severed and terminated as to [the
children].
"6. The parties may submit legal briefs within seven (7)
days from the date of this order regarding the severance of the
father's parental rights in light of the preservation of the
mother's parental rights."
On February 28, 2022, the father filed a postjudgment motion in all
four cases, challenging the termination of his parental rights; on that
same date, the juvenile court entered separate orders in each case
denying the father's motion. The father filed a timely notice of appeal in
each case on March 2, 2022.
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2210452, 2210453, 2210454, and 2210455
Analysis
In Roe v. Conn, 417 F. Supp. 769, 779-80 (M.D. Ala. 1976), the
United States District Court for the Middle District of Alabama
determined that, under the Due Process Clause of the United States
Constitution, U.S. Const., Amend. XIV, § 1, the state can permanently
revoke a parent's fundamental liberty interest only "when the child is
subjected to real physical or emotional harm and less drastic measures
would be unavailing." Id. at 779. Our supreme court eventually
acknowledged that concept of constitutional law by holding that a
juvenile court may terminate parental rights only if it finds " 'that there
exists no viable alternative to the termination of the parent's custodial
rights.' " See Ex parte Ogle, 516 So. 2d 243, 243 (Ala. 1987) (quoting
Hickman v. Alabama Dep't of Pensions & Sec., 489 So. 2d 601, 602 (Ala.
Civ. App. 1986)). In Ex parte Beasley, 564 So. 2d 950 (Ala. 1990), the
Alabama Supreme Court reformulated the language of the test to provide
that a juvenile court "must inquire as to whether 'all viable alternatives
to termination have been considered,' " 564 So. 2d at 952, but we find no
indication that the supreme court meant that a juvenile court satisfies
the Due Process Clause when it only "considers" a viable alternative. As
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the law currently stands, if a court may achieve the compelling
governmental objective at stake through a means other than the drastic
action of permanently revoking the custodial rights of the parent, a
juvenile court cannot terminate parental rights. See J.B. v. DeKalb Cnty.
Dep't of Hum. Res., 12 So. 3d 100, 115 (Ala. Civ. App. 2008) (plurality
opinion) (authored by Moore, J., with Pittman, J., concurring, Thompson,
P.J., concurring in the result, and Bryan and Thomas, JJ., dissenting).
In the judgments in these cases, the juvenile court denied the
petitions to terminate the parental rights of the mother and ordered that
the custody of the children be returned to her. At the same time, the
juvenile court granted the petitions to terminate the parental rights of
the father, who was divorced from the mother and who had only visitation
rights with the children. In his appeals to this court, the father requests
that this court pronounce a bright-line rule to clarify that, based on the
viable-alternative prong of Ex parte Beasley, a juvenile court cannot
terminate the parental rights of a noncustodial parent when the custodial
parent can safely resume custody of the children. We decline to address
that point, however, because it is not necessary to the disposition of these
appeals, which concern solely the issue whether the juvenile court erred
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in terminating the parental rights of this particular noncustodial parent.
The resolution of that issue depends on whether placement of the
children with the mother achieves the state's compelling interest at stake
in the underlying proceedings.
The evidence in the record indicates that the father had been found
indicated for physically abusing S.W., the mother's oldest child and the
father's stepchild, in 2005. See Ala. Admin. Code (Dep't of Hum. Res.), r.
660-5-34-.07(1). The father was found indicated for neglect and abuse of
S.W., J.E.G., and E.D.G. in May 2012 as a result of domestic violence
between him and the mother. In 2017, after another incident of domestic
violence between the mother and the father, this time occurring in the
presence of Y.L.W. and S.R.G., all five children were removed from the
family home. On April 17, 2017, the mother obtained from the
Lauderdale Circuit Court a protection-from-abuse ("PFA") order
restraining the father from contacting her or the children. That PFA
order was amended in March 2018 to allow the father contact with the
children, but not the mother. Eventually, the father pleaded guilty to
assaulting the mother, and, in accordance with his plea agreement, the
Lauderdale Circuit Court entered a permanent PFA order precluding any
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2210452, 2210453, 2210454, and 2210455
contact between the father and the mother and restraining the father
from harming the children or interfering with their custody.
DHR initially offered the father parenting classes, domestic-
violence classes, anger-management classes, and counseling and referred
the father for a psychological evaluation, a substance-abuse assessment,
and drug screens. After the PFA order was amended in March 2018,
DHR also allowed the father to exercise supervised visitation with the
children. A DHR social worker testified that the father did not follow
through with the services offered to him by DHR and that, although he
had expressed to her in 2020 that he needed inpatient substance-abuse
treatment, to her knowledge, he had not enrolled in such treatment. The
DHR social worker indicated that the father's conduct during his
visitations with the children had led to multiple changes in visitation
supervisors. According to the DHR witnesses, the father had visited the
children only sporadically, sometimes missing visits due to a myriad of
health problems; the testimony indicated that the father had last visited
J.E.G. and S.W. on January 14, 2020, and had last visited E.D.G., Y.L.W.,
and S.R.G. in August 2020. The visitation supervisor for the January
2020 visits testified that, for the most part, the father had interacted
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appropriately with J.E.G. and S.W., but, she said, J.E.G. and S.W. had
constantly complained during the visits.
A therapist who was referred by DHR to provide services to the
children in 2017 testified that, in February 2020, she had recommended
that J.E.G. no longer visit the father because it had been reported to her
that the father had continued to fail drug screens and because S.W. and
J.E.G. had reported that the father had convinced J.E.G. to steal things
and deliver them to the father. The father's visitations with the children
had ceased following that recommendation. However, the mother and
the father were subsequently found indicated for "neglect, other risk of
serious harm," when the mother, who had regained custody of E.D.G.,
Y.L.W., and S.R.G., had taken those children to a party at which the
father was present. The mother and the father were later divorced by a
judgment entered by the Lauderdale Circuit Court on March 9, 2021. In
December 2021, the father contacted DHR about restarting his
visitations with the children; according to a DHR witness, a social worker
had directed him to contact his counsel and the father had not contacted
DHR again.
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At the conclusion of the trial, the juvenile court indicated that it
would be terminating the father's parental rights because it considered
him to be "an ongoing risk to the children." Presumably, the juvenile
court determined that the father had not overcome his substance-abuse
problems, his penchant for domestic violence and physical abuse, and his
criminal behavior and, thus, that he continued to present a threat of real
harm to the children. See Montgomery Cnty. Dep't of Hum. Res. v. T.S.,
218 So. 3d 1252, 1262 (Ala. Civ. App. 2016) (holding that, in reviewing a
judgment in a termination-of-parental-rights case, this court presumes
that the juvenile court implicitly made those findings of fact necessary to
sustain its judgment). Although the father maintains that the record
does not contain sufficient evidence to sustain such findings, the evidence
cited above could have led the juvenile-court judge to be clearly convinced
otherwise, and our standard of review does not permit this court to
reweigh the evidence to reach a different conclusion. See Ex parte Bodie,
[Ms. 1210248, Oct. 14, 2022] ___ So. 3d ___ (Ala. 2022). Thus, the record
substantiates that the state had a compelling interest in protecting the
children from the harmful conduct of the father.
9
2210452, 2210453, 2210454, and 2210455
Having determined that the father presented a risk of harm to the
children, the juvenile court was, at that point, required to utilize the least
drastic legal remedy available to protect the children from that harm. In
its judgments, however, the juvenile court did not expressly address
whether the children could be protected from the risk of harm presented
by the father by any means other than termination of his parental rights.
The judgments do not contain any language indicating that the juvenile
court considered and rejected other alternatives. In the orders denying
the father's postjudgment motion, the juvenile court also did not address
that point. Instead, the juvenile court simply determined that it would
be in the best interests of the children to terminate the parental rights of
the father. However, the constitutional framework acknowledged by our
supreme court requires a juvenile court to terminate a parent's parental
rights for the best interests of the children only after it has exhausted all
other viable alternatives.
In his postjudgment motion, the father asserted that the children's
being returned to the mother's custody was a viable alternative to the
termination of his parental rights. The juvenile court could have properly
rejected that alternative only if it was clearly convinced from the evidence
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2210452, 2210453, 2210454, and 2210455
that placement of the children with the mother would not adequately
protect the children from the risk of harm posed by the father. Thus, we
examine the evidence in the record to determine whether the juvenile
court received evidence sufficient to support that determination. See
K.R.S. v. DeKalb Cnty. Dep't of Hum. Res., 236 So. 3d 910 (Ala. Civ. App.
2017).
The evidence showed that, through counseling and therapy, the
mother had learned to recognize signs of abuse. The mother testified that
she would not allow the father to abuse her again or to compromise her
relationship with the children. As stated above, the mother obtained a
PFA order that prevented the father from having any contact with the
mother and the children, which she had violated on only one occasion
before the juvenile court determined that she had sufficiently
rehabilitated herself to resume custody of the children. That PFA order
was subsequently amended to permanently enjoin the father from having
any contact with the mother and from engaging in any harmful conduct
toward the mother or the children and to require law-enforcement
officials to intervene to assure compliance with the terms of the PFA
order. The mother divorced the father in 2021, and the divorce judgment
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2210452, 2210453, 2210454, and 2210455
does not give the father any specified visitation rights with the children.
A family counselor testified that the mother had adequately addressed
her past issues with abuse and that the mother had allayed the concerns
of the children regarding whether they would ever again witness
domestic violence between the mother and the father.
In J.C.D. v. Lauderdale County Department of Human Resources,
180 So. 3d 900, 901 (Ala. Civ. App. 2015), this court considered an appeal
from a judgment terminating the parental rights of J.C.D. to his children.
The judgment also directed DHR to return the children to the custody of
their mother, S.B. This court stated, in pertinent part:
"This court has consistently held that termination of the
parental rights of a noncustodial parent is not appropriate in
cases in which the children can safely reside with the
custodial parent and the continuation of the noncustodial
parent's relationship does not present any harm to the
children. See S.M.W. v. J.M.C., 679 So. 2d 256 (Ala. Civ. App.
1996); Talley v. Oliver, 628 So. 2d 690 (Ala. Civ. App. 1993);
In re Beasley, 564 So. 2d 959 (Ala. Civ. App. 1990); and Miller
v. Knight, 562 So. 2d 274 (Ala. Civ. App. 1990). See also
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)."
180 So. 3d at 901.
This court in J.C.D. proceeded to conclude that the juvenile court's
determination that the children in that case could be returned to the care
12
2210452, 2210453, 2210454, and 2210455
of S.B. amounted to an implicit finding that S.B. could adequately provide
for the safety, permanency, and other needs of the children. 180 So. 3d
at 901-02. Although there was testimony reflecting a history of abuse
between S.B. and J.C.D., this court observed that DHR had presented no
evidence indicating that J.C.D. had compromised the children's safety in
the four years preceding the conclusion of the trial or that the
continuance of J.C.D.'s status as a noncustodial parent with supervised
visitation would expose the children to the threat of physical or emotional
harm from J.C.D. Id. at 902. This court further noted that the record
contained no evidence indicating how the children would benefit from the
termination of J.C.D.'s parental rights. Id. Accordingly, in J.C.D. we
concluded that the juvenile court should have determined that the
children's being returned to the custody of S.B. constituted a viable
alternative to the termination of J.C.D.'s parental rights, and we
reversed the judgment terminating his parental rights. Id.
In the present cases, unlike in J.C.D., the juvenile court at least
implicitly determined that the mother could not adequately protect the
children from harm when it denied the father's postjudgment motion;
however, the foregoing evidence shows not only that the mother had
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rehabilitated herself to the point that she could regain custody of the
children, but also that she had sufficiently adjusted her circumstances to
prevent further abuse by the father. At the time of trial, the mother had
successfully completed therapy and counseling, had divorced the father,
had obtained a permanent PFA order for the benefit of herself and the
children, and had displayed proper protective capacity over the children.
The record indicates that the father has had no visitation with the
children since 2020 and that he has no specified court-ordered visitation
rights. Thus, the evidence shows, without dispute, that the children are
protected from having any adverse contact with the father. Contrary to
the assertion made by the dissent, the court in this opinion is not
"speculating" as to the present circumstances showing that the mother
has and can adequately protect the children from any risk of harm
presented by the father. ___ So. 3d at ___ (Thompson, P.J., dissenting).
Also, like in J.C.D., there is no evidence in the record indicating
how termination of the father's parental rights would otherwise benefit
the children. In most cases, the termination of parental rights serves to
free up children for adoption so that the children can achieve permanency
and stability. See Ex parte Bodie, ___ So. 3d at ___ (Parker, C.J.,
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2210452, 2210453, 2210454, and 2210455
concurring in part and concurring in the result). However, when a
juvenile court awards permanent custody of children to their natural
parent, their interest in permanency and stability has been satisfied and
a termination of the parental rights of the noncustodial parent will not
advance that interest in any respect. Because the mother is properly
fulfilling the parental role of providing the children with permanency and
stability, the termination of the father's parental rights is not necessary
for that purpose.
In reaching our decision, we distinguish this case from S.N.W. v.
M.D.F.H., 127 So. 3d 1225 (Ala. Civ. App. 2013), cited in the dissent. ___
So. 3d at ___ (Thompson, P.J., dissenting). In S.N.W., this court affirmed
a judgment terminating the parental rights of S.N.W. so that D.W. could
be adopted by his stepfather, V.W.H. In reaching our decision, we
examined the evidence showing that D.W., who was a teenager at the
time, had not had a relationship with S.N.W. since her infancy and did
not know S.N.W. because he had been incarcerated for stabbing D.W.'s
mother during a visitation exchange and that V.W.H. had fulfilled the
paternal role throughout D.W.'s life. In rejecting S.N.W.'s argument that
the juvenile court in that case should have maintained the status quo as
15
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a viable alternative to termination of his parental rights, this court
stated, in part, that
"preserving the status quo will prevent the child from
accessing the benefits available to her if she is allowed to be
adopted by the stepfather and, consequently, would not be in
her best interest. Thus, the juvenile court correctly concluded
that maintaining the status quo is not a viable alternative to
termination of the father's parental rights."
127 So. 3d at 1230. In this case, no one has come forward to adopt the
children, and the juvenile court was not asked to balance the benefits to
the children of adoption, which can be achieved only by termination of
parental rights, see Ala. Code 1975, § 26-10A-29(b), against the
alternative of maintaining the status quo. In S.N.W., unlike in this case,
D.W. would have been deprived of a beneficial and permanent father-
child relationship with V.W.H. if we had reversed the judgment.
Maintaining the "status quo" in this case, in which the mother will
resume sole legal and physical custody of the children, does not in any
away impair the stability and permanency interests of the children.
This case is also easily distinguishable from A.E.T. v. Limestone
County Department of Human Resources, 49 So. 3d 1212 (Ala. Civ. App.
2010), another case cited by the dissent. ___ So. 3d at ___ (Thompson,
P.J., dissenting). In A.E.T., this court determined that, when the parents
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2210452, 2210453, 2210454, and 2210455
of a child cannot be rehabilitated and family reunification is not
foreseeable in the reasonably near future, the mere existence of a relative
who could potentially serve as a placement resource does not preclude a
juvenile court from terminating parental rights. 49 So. 3d at 1219. In
this case, the father is not seeking reversal of the judgments on the basis
that a third-party relative could possibly assume custody of the children.
The father is arguing that, because the mother has, in fact, been awarded
sole legal and physical custody of the children, under the circumstances
set out above, the termination of his parental rights is not the least
drastic remedy available to the juvenile court. None of the analysis in
A.E.T. applies in this context.
We do not condone the father's behavior that led to the separation
of the family or his failure to adequately redress his issues, but the
termination of parental rights is reserved for those rare cases in which
no less drastic measure can achieve the state's compelling objective of
safeguarding children from harm or the children's interest in achieving
permanency and stability. In these cases, the record shows that the
state's goal of protecting the children from harm has been achieved by
returning the children to the custody of the mother and restricting the
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father's association with the mother and the children through other legal
remedies. The children have been provided permanency and stability
through the efforts of both the mother and the state in sponsoring her
rehabilitation. Under Ex parte Ogle and Ex parte Beasley, the
availability of a less drastic viable alternative precludes the termination
of the father's parental rights.
Conclusion
For the foregoing reasons, we conclude that the juvenile court erred
in terminating the father's parental rights to the children. See J.C.D.,
supra. We therefore do not address the father's other argument for
reversal of the judgments. We reverse the juvenile court's judgments
terminating the father's parental rights to the children, and we remand
the cases for the entry of judgments consistent with this opinion.
2210452 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
2210453 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
2210454 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
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2210455 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
Hanson and Fridy, JJ., concur.
Moore, J., concurs specially, with opinion.
Thompson, P.J., dissents, with opinion, which Edwards, J., joins.
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MOORE, Judge, concurring specially.
I concur in the main opinion. I write specially to address the
additional argument made by J.G. ("the father") as to why the judgments
terminating his parental rights to the children should be reversed.
As set out in the main opinion, the Lauderdale Juvenile Court ("the
juvenile court") determined in the final judgments that the children were
not dependent. Based on that finding, the father argues that, under Ex
parte Beasley, 564 So. 2d 950 (Ala. 1990), as a matter of law, the juvenile
court could not terminate his parental rights. In a letter to this court
explaining that it would not be filing a brief in opposition to the father's
appeals, the Lauderdale County Department of Human Resources
("DHR") noted the juvenile court's finding that the children were not
dependent and basically asserted that the judgments were due to be
reversed on that basis. However, a finding that a child is not dependent
does not preclude a juvenile court from terminating parental rights.
Ex parte Beasley involved one parent seeking to terminate the
parental rights of the other parent, and the supreme court had granted
certiorari review to address whether the 1984 Child Protection Act, Ala.
Code 1975, former § 26-18-1 et seq., required a court to make a "finding
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of dependency" before parental rights can be terminated." 564 So. 2d at
950. Nevertheless, the supreme court opined that, before a court can
terminate parental rights based on the petition of the state, the court
first must "make a 'finding of dependency' " and second, "after it has
determined that the child is 'dependent,' ... must inquire as to whether
'all viable alternatives to termination have been considered.' " 564 So. 2d
at 952 (citations omitted). In a special writing in which I concurre4d in
the result in J.C. v. State Department of Human Resources, 986 So. 2d
1172, 1201-06 (Ala. Civ. App. 2007), I explained that the statement in Ex
parte Beasley regarding a finding of dependency when the state petitions
to terminate parental rights amounted to dictum, "[a] judicial comment
made while delivering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential (although it may
be considered persuasive)," Black's Law Dictionary 569 (11th ed. 2019)
(defining "obiter dictum"), and that the statement should not be followed
in future cases. Since this court issued its opinion in J.C., these are the
first cases in which a party before this court has argued that a finding of
dependency is, in fact, required in order to terminate parental rights, as
espoused in Ex parte Beasley.
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Before 1984, the only operative statute authorizing the termination
of parental rights provided, in part, that "[i]f a child is found to be
dependent, the [juvenile] court may" "award permanent custody to the
Department of Human Resources ... with termination of parental rights
...." Ala. Code 1975, former § 12-15-71(a)(6). Naturally, based on the
plain language of that statute, this court construed that statute as
requiring a finding of dependency before a juvenile court could terminate
parental rights. However, effective January 1, 2009, the legislature
adopted the current Alabama Juvenile Justice Act ("the AJJA"), Ala.
Code 1975, § 12-15-101 et seq., so that, now, a juvenile court has
jurisdiction to terminate parental rights pursuant to Ala. Code 1975, §
12-15-114(c)(2). Section 12-15-319(a), Ala. Code 1975, provides, in
pertinent:
"If the juvenile court finds from clear and convincing evidence,
competent, material, and relevant in nature, that the parents
of a child are unable or unwilling to discharge their
responsibilities to and for the child, or that the conduct or
condition of the parents renders them unable to properly care
for the child and that the conduct or condition is unlikely to
change in the foreseeable future, it may terminate the
parental rights of the parents."
By its plain language, § 12-15-319 does not require a juvenile court to
find a child dependent as a prerequisite to exercising its jurisdiction to
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2210452, 2210453, 2210454, and 2210455
terminate parental rights. Furthermore, no language in § 12-15-319 or
any other part of the AJJA expresses that, if the juvenile court
determines that a child is not dependent, the juvenile court may not
terminate parental rights. Cf. Ala. Code 1975, § 12-15-310(b) (requiring
dismissal of a dependency action if the juvenile court determines that the
evidence fails to show that the child is dependent).
Section 12-15-319 allows a juvenile court to terminate parental
rights when the juvenile court determines that the petitioner has proven:
(1) a ground for termination, (2) that no viable alternative to termination
of parental rights exists, and (3) that termination of parental rights is in
the best interest of the child. See Ex parte Bodie, [Ms. 1210248, Oct. 14,
2022] ___ So. 3d ___, ___ (Ala. 2022) (Parker, C.J., concurring in part and
concurring in the result). In proving that a ground for termination exists,
the petitioner may incidentally also prove that the child or children at
issue are dependent, but § 12-15-319 does not require that the juvenile
court make a separate finding of dependency as a matter of substantive
or procedural law. Ex parte Beasley, 564 So. 2d at 958 (Maddox, J.,
concurring in the result).
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In Ex parte Beasley, Justice Maddox pointed out that the statement
in the majority opinion requiring a finding of dependency in state-
initiated termination-of-parental-rights cases was dictum because the
case did not involve a petition filed by the state and expressed hope that
"the rule of law will be corrected before it becomes entrenched." 564 So.
2d at 958. I agree with Justice Maddox. The issue in Ex parte Beasley
was whether a parent needed to prove the dependency of a child in order
to obtain a judgment terminating the other parent's rights to the child.
Because the case involved two competing parents, the supreme court had
no need to address the separate question of whether the state was
required to prove dependency in a termination-of-parental-rights case.
None of the statements of the law concerning state-initiated petitions to
terminate parental rights were relevant, much less essential, to the
holding in Ex parte Beasley that a dependency finding is not necessary
in a parent-initiated termination-of-parental-rights case. As Justice
Maddox indicated in his special writing, the requirement of a finding of
dependency originated in opinions of this court, see, e.g., Clemons v.
Alabama Dep't of Pensions & Sec., 474 So. 2d 1153 (Ala. Civ. App. 1985),
that were "clearly wrong and should be overruled." 564 So. 2d at 955.
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Those opinions, like Ex parte Beasley, construed the 1984 Child
Protection Act, which made no reference to dependency. This court,
however, never explained why a finding of dependency was required
under a statute that did not even mention that term. Rather, this court
simply regurgitated the law from cases construing the older statute that
did require a child to be found dependent before a juvenile court could
terminate parental rights. See Ala. Code 1975, former § 12-15-71(a)(6).
Although in Ex parte Beasley the supreme court discussed why a finding
of dependency might be necessary in a state-initiated termination-of-
parental-rights case, see 564 So. 2d at 954, that dictum does not express
any authoritative opinion that constitutional concerns for due process or
standing require a finding of dependency. The AJJA already addresses
those concerns by conferring upon the state the right to file petitions to
terminate parental rights, see Ala. Code 1975, § 12-15-317, and by
requiring clear and convincing evidence of the statutory grounds for
termination. See § 12-15-319; see also Santosky v. Kramer, 455 U.S. 745
(1982).
Since Ex parte Beasley was decided, our supreme court itself has
clarified that, "[f]or a finding of dependency, the court must consider
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whether there are grounds for terminating the parental rights." Ex
parte T.V., 971 So. 2d 1, 4 (Ala. 2007). I take that statement to mean
that, when a juvenile court makes a finding of grounds for termination,
it satisfies the first prong of the two-part test set forth in Ex parte
Beasley, without having to make any further or separate finding of
dependency. When read in this manner and in light of the actual text of
§ 12-15-319, Ex parte T.V. more aptly expresses the first requirement for
terminating parental rights, and our caselaw should reflect that by
clearly rejecting the notion that a separate finding of dependency must
be made before a juvenile court can terminate parental rights.
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THOMPSON, Presiding Judge, dissenting.
I dissent. Although the main opinion purports to decline to create a
"bright-line rule" that awarding custody to one parent necessarily
constitutes a viable alternative to the termination of the other parent's
parental rights, the result of the main opinion, in essence, creates that
rule. The main opinion concludes that, "[p]resumably, the juvenile court
determined that the father had not overcome his substance-abuse
problems, his penchant for domestic violence and physical abuse, and his
criminal behavior and, thus, that he continued to present a threat of real
harm to the children." ___So. 3d at ___. At the conclusion of the evidence,
the juvenile court found the father to be "an ongoing risk" to the children.
The main opinion acknowledges that "the record substantiates that the
state had a compelling interest in protecting the children from the
harmful conduct of the father." ___ So. 3d at ___. It then concludes that
because the children could be left in the custody of the mother, that
arrangement constituted an alternative to the termination of the father's
parental rights. I believe that that conclusion usurps the juvenile court's
discretion. It also fails to balance the father's constitutional rights with
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the children's rights to safety and security and not to be under the threat
of the father's conduct, i.e., their best interests.
The father, who was not present at the trial, has a history of
abusing his stepchild and has been found indicated for neglect and abuse
of the parties' children on multiple occasions. He also has an extensive
domestic-violence history involving the mother and a substance-abuse
history that has not been addressed during the lengthy involvement of
the Lauderdale County Department of Human Resources ("DHR") with
the family. Additionally, the father has made little effort to be reunited
with his children. He has attended only two individualized-service-plan
meetings in over four years, he has not financially supported his children,
and he has only sporadically visited the children while they have been in
foster care. A family counselor described the children as being "very
fragile and vulnerable." As opposed to the mother, who made great
strides in improving her situation, the father has failed to comply with
nearly all of DHR's requests and recommendations. As the main opinion
recognizes, the mother, who is now divorced from the father, obtained a
"lifetime" protection-from-abuse order that permanently enjoins the
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father from directing any harmful conduct toward the mother or the
children.
Appellate courts must apply a presumption of correctness in favor
of a juvenile court's findings in a termination-of-parental-rights action.
J.C. v. State Dep't of Human Res., 986 So. 2d 1172, 1183 (Ala. Civ. App.
2007). This court does not reweigh the evidence. A.A. v. Jefferson Cnty.
Dep't of Hum. Res., 278 So. 3d 1247, 1251 (Ala. Civ. App. 2018). "[W]e
will reverse a juvenile court's judgment terminating parental rights only
if the record shows that the judgment is not supported by clear and
convincing evidence." J.C. v. State Dep't of Hum. Res., 986 So. 2d at 1183.
"[M]aintaining the status quo is a viable option to terminating parental
rights when the parent and the child enjoy a relationship with some
beneficial aspects that should be preserved such that it would be in the
child’s best interests to continue that relationship." S.N.W. v. M.D.F.H.,
127 So. 3d 1225, 1230 (Ala. Civ. App. 2013). We have held, however, that
when the evidence demonstrates that a parent is incapable of being
rehabilitated or that the parent's conduct or condition is unlikely to
change in the foreseeable future, " 'obviously no alternative can be
considered viable to the end of returning the child to a normal custodial
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relationship with his or her parent.' " A.E.T. v. Limestone Cnty. Dep't
Human Res., 49 So. 3d 1212, 1218 (Ala. Civ. App. 2010) (quoting D.M.P.
v. State Dep't of Hum. Res., 871 So. 2d 77, 92 (Ala. Civ. App. 2003)
(plurality opinion)).
The main opinion speculates that the mother can adequately
protect herself and the children from the father's harmful conduct. The
juvenile court determined that the father was an ongoing risk to the
children. The evidence supports that finding by the juvenile court, and I
disagree with the implication in the main opinion that the father will not
seek to challenge or modify the current orders prohibiting him from
visiting the children. I agree with Chief Justice Parker's statement in
his special writing in Ex Parte Bodie, [Ms. 1210248, Oct. 14, 2022] ___
So. 3d ___, ___ (Ala. 2022) (Parker, C.J., concurring in part and
concurring in the result), that, "ordinarily, the viability of alternatives to
termination should be analyzed based on the circumstances that are
before the juvenile court at the time of the termination judgment, not
based on potential future circumstances." At the time of the termination
decision, the juvenile court viewed the father as an "ongoing risk" to the
children. The evidence before the juvenile court was sufficient to clearly
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convince that court that grounds for the termination of the father's
parental rights existed and that the father's conduct or condition was
unlikely to change in the foreseeable future. The evidence also supported
the juvenile court's implicit finding that no viable alternatives were
present at the time of the termination. I cannot agree with the main
opinion that the children's best interests are served by reversing the
judgments terminating the parental rights of the father.
Based on the foregoing, I would affirm.
Edwards, J., concurs.
31