REL: February 10, 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,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-0694 and CL-2022-0695
_________________________
T.W.
v.
Calhoun County Department of Human Resources
Appeals from Calhoun Juvenile Court
(JU-19-972.02 and JU-19-973.02)
MOORE, Judge.
In appeal number CL-2022-0694, T.W. ("the mother") appeals from
a judgment entered by the Calhoun Juvenile Court ("the juvenile court")
terminating her parental rights to S.H.W., who was born on September
4, 2012. In appeal number CL-2022-0695, the mother appeals from a
CL-2022-0694 and CL-2022-0695
separate judgment entered by the juvenile court terminating her
parental rights to H.T., who was born on February 2, 2017. We reverse
the juvenile court's judgments.
Procedural History
On August 24, 2021, the Calhoun County Department of Human
Resources ("DHR") commenced an action by filing a petition to terminate
the parental rights of the mother and of J.T. ("the father") to S.H.W.
That same date, DHR commenced a separate action by filing a petition
to terminate the parental rights of the mother and of the father to H.T.
The juvenile court consolidated the actions for the purposes of trial,
which commenced on November 19, 2021, and was concluded on April 26,
2022. On April 26, 2022, the juvenile court entered a separate judgment
in each action terminating the parental rights of the mother and the
father to S.H.W. and J.T. ("the children"). 1 The mother filed a
postjudgment motion in each action on May 4, 2022; the juvenile court
entered orders denying those motions on May 11, 2022. The mother filed
1The father has not appealed the judgments terminating his
parental rights.
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a timely notice of appeal in each action on May 25, 2022. This court
consolidated the mother's appeals ex mero motu.
Facts
The facts pertinent to the disposition of these appeals are as follows.
The children were residing with the mother and, apparently, at times,
the father, in a mobile home in Calhoun County until October 2019, when
DHR removed the children from the mother's custody. While the children
were in her custody, the mother, who was disabled and unemployed,
financially provided for the children through benefits received from
governmental-assistance programs. S.H.W., who was six years old when
she was removed from the mother's custody, had been diagnosed with a
"speech impairment" and a learning disability. S.H.W. was receiving
speech therapy and attending special-education classes to address her
special needs. The mother testified that she was taking online college
courses to learn more about how to address S.H.W.'s special needs. H.T.,
who was three years old when she was removed from the mother's
custody, had been diagnosed with various dental problems for which she
was regularly receiving treatment, according to the mother.
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In September 2019, DHR received a report that substance abuse
was occurring in the family's home. At that time, the father tested
positive for methamphetamine. DHR entered into a safety plan with the
mother, who had received a negative drug-test result, pursuant to which
she was allowed to retain custody of the children, provided that the father
was not allowed to reside in the home; the mother was also required to
supervise the father's visitations with the children. According to the
safety plan, the mother showed "great aptitude toward protecting her
children as evidenced by her motivation to create a safe environment for
her children." The mother was also "fully willing to cooperate" with DHR.
In October 2019, the mother tested positive for methamphetamine.
Based on that positive drug-test result, DHR terminated the safety plan,
removed the children from the mother's home, and placed the children
into foster care, where they have since remained. DHR subsequently
completed a child-abuse-and-neglect investigation and determined that
the children were at risk of harm from the mother as a result of her
positive drug-test result. The mother denied that she had ever used
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illegal drugs and testified that she could not explain the positive drug-
test result.
DHR immediately instituted a plan requiring the mother to submit
to a substance-abuse assessment, drug testing, and substance-abuse
counseling. The mother cooperated with that plan. The mother testified
that she had learned a great deal about substance abuse during her
counseling sessions, which she had completed in the summer of 2020.
Between November 2019 and August 2021, the mother submitted to
numerous drug tests and did not produce a single positive result for
methamphetamine use after January 2020. At trial, the mother
continued to maintain that she had never used illegal drugs and that she
had never had a substance-abuse problem. A DHR social worker testified
that she had no concerns that the mother was using illegal drugs.
As the case progressed, DHR shifted its focus from the mother's
suspected drug abuse to concerns regarding the mother's home
environment. The mother had agreed, as part of a family-reunification
plan with DHR, that she would maintain stable, clean, and appropriate
housing with working utilities for the children. The mobile home in
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which the mother was residing at the time the children were removed
from her care was described by the children's Court Appointed Special
Advocates ("CASA") worker as hazardous, unsanitary, and flea infested.
DHR provided the mother with intensive in-home services through
programs from ECA FOCUS ("FOCUS") designed to teach her better
housekeeping skills. Although the mother testified that she had
benefited from those services, the CASA worker testified that she had
seen no improvement in the condition of the mobile home throughout
2021 and that any efforts that the mother had made to better her
housekeeping skills had proven unsuccessful. The CASA worker and a
DHR social worker testified that the mother, who, despite having a
learning disability, had obtained an associate's degree in
"childcare/preschool" and was, at the time of the last trial date, working
toward a bachelor's degree in child psychology, did not seem to
understand the severity of the conditions of her residence and did not
consistently apply what she had been taught to address those conditions.
In the fall of 2021, the mother moved into a newer and larger mobile
home, which the mother described as being clean and in good repair with
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working utilities. However, a DHR witness who had inspected that
mobile home described it as being in the same or even worse condition
than the original mobile home, such that DHR could not approve of the
children's visiting there. According to DHR's witnesses, it seemed that
the mother was permanently incapable of maintaining a safe and
sanitary home, and DHR cited that problem as the main factor
supporting its petition to terminate the mother's parental rights. The
mother disputed that testimony and testified that, by the time of the last
day of trial, the second mobile home had been renovated, repaired, and
cleaned so that it was safe and suitable for the children.
While working with DHR to improve her housekeeping skills, the
mother maintained regular visits with the children. At first, she visited
the children for two hours every two weeks under supervision. The
mother began having unsupervised visits with the children in December
2020, and, eventually, in 2021, the mother began keeping the children
overnight every two weeks. The mother testified that the children were
excited to visit with her and enjoyed their visits. During the visits, the
mother would give the children food, clothes, and other presents, and, on
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CL-2022-0694 and CL-2022-0695
at least one occasion, money, and the mother would play games with the
children to entertain them. A social worker employed by Alabama
Baptist Children's Home ("ABCH") testified that the mother appeared to
have benefited from the parental counseling that she had received, that
the mother had been consistent with her visitations with the children,
that she was attentive and had acted appropriately toward the children
during visitations, and that the children "absolutely" love the mother and
"[y]ou can definitely tell there is an attachment there." The children's
CASA worker also testified that the mother had displayed a proper
general protective capacity over the children when the CASA worker had
observed them visiting at the mother's residence and that the children
appeared to be happy and bonded with the mother.
Some evidence, however, indicates that the mother sometimes
communicated improperly with S.H.W. during visits, that the mother
appeared to have failed to give S.H.W. medication during one overnight
visit, and that, on another occasion, had provided the children with food
that was past its expiration date. Also, after visits, the children would
often smell of cigarettes or other foul odors and would appear unclean
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and afflicted by flea bites as a result of the condition of the mother's
residence.
On June 10, 2021, the mother became involved in a domestic
dispute involving a neighbor of the children's aunt. The mother testified
that she was visiting the aunt when, she said, the neighbor became
verbally abusive and began acting aggressively toward the aunt and the
mother. The aunt called the police, which, the mother said, had ended
with the neighbor, not the mother, being arrested. The mother testified
that she considered herself to have been a victim in that domestic
dispute. Nevertheless, DHR ceased allowing the mother to exercise
unsupervised visits with the children or to communicate with them over
the telephone, and DHR changed its permanency goal 2 from returning
the children to the custody of the mother to adoption over the objection
of the mother. All family-reunification services, except for drug testing
and in-person visitations, ended at that point. The mother testified that
2As discussed infra, the term permanency, in this context, refers to
a safe, stable, and nurturing custodial arrangement lasting throughout
the child's minority.
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CL-2022-0694 and CL-2022-0695
it was her understanding that the June 10, 2021, domestic dispute had
caused DHR to take the abrupt change in its course of action.
At trial, several DHR witnesses testified that, based on their visits
to the mother's residence, they had developed concerns that the mother
was maintaining a relationship with the father, who, they said, had
consistently tested positive for illegal drugs, had refused to participate in
any services offered by DHR, and had completely abandoned the children
after June 2020. The mother testified that she had ended her
relationship with the father in September 2019 and that, at the time of
the first trial date, she had not seen him in over one year. However, the
juvenile court heard evidence, although disputed by the mother,
indicating that the mother had kept men's clothes and shoes in her
residence, that she had corresponded with the father through social-
media platforms, that she and the father had together attended
supervised visits with the children in 2019 and 2020, that the father had
received service of legal process at the mother's residence, and that the
father had been seen mowing the mother's lawn on one occasion, all
indicating that the mother and the father had remained together.
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Additionally, the mother resided in an area owned or controlled by the
father's relatives, which, according to the DHR witnesses, made her
living situation unstable.
The CASA worker, the ABCH worker, and a DHR social worker all
testified that the children needed a suitable permanent home apart from
the mother. DHR's witnesses acknowledged that the mother had
cooperated with the family-reunification process but stated that the
mother had not shown sufficient and consistent improvement to the point
that DHR could recommend that the children be returned to her custody.
Testimony indicated that the foster parent with whom the children had
primarily resided since October 2019 had provided the children with a
suitable home. During their time in foster care, the children's physical,
mental, dental, and educational health had significantly improved,
although H.T. had been diagnosed with a speech problem for which she
was receiving speech therapy. The foster parent would not agree to adopt
the children, however. The DHR social worker assigned to the case at
the time of the last trial date asserted that adoption would be the only
option to provide the children with permanency. Upon the conclusion of
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the trial, the children's guardian ad litem also recommended that the
juvenile court terminate the mother's parental rights so that the children
could achieve permanency through adoption. Although DHR had
changed the permanency plan to adoption in June 2021, by the last day
of trial on April 26, 2022, DHR had not identified an adoptive resource
for the children.
Standard of Review
A judgment terminating parental rights must be supported by clear
and convincing evidence, which is " ' "[e]vidence that, when weighed
against evidence in opposition, will produce in the mind of the trier of fact
a firm conviction as to each essential element of the claim and a high
probability as to the correctness of the conclusion." ' " C.O. v. Jefferson
Cnty. Dep't of Hum. Res., 206 So. 3d 621, 627 (Ala. Civ. App. 2016)
(quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002), quoting
in turn Ala. Code 1975, § 6-11-20(b)(4)).
" '[T]he evidence necessary for appellate
affirmance of a judgment based on a factual
finding in the context of a case in which the
ultimate standard for a factual decision by the
trial court is clear and convincing evidence is
evidence that a fact-finder reasonably could find to
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clearly and convincingly … establish the fact
sought to be proved.'
"KGS Steel[, Inc. v. McInish,] 47 So. 3d [749] at 761 [(Ala. Civ.
App. 2006)].
"… [F]or trial courts ruling … in civil cases to which a
clear-and-convincing-evidence standard of proof applies, 'the
judge must view the evidence presented through the prism of
the substantive evidentiary burden[,]' [Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986)];; thus, the appellate
court must also look through a prism to determine whether
there was substantial evidence before the trial court to
support a factual finding, based upon the trial court's
weighing of the evidence, that would 'produce in the mind [of
the trial court] a firm conviction as to each element of the
claim and a high probability as to the correctness of the
conclusion.' "
Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008). This court does not
reweigh the evidence but, rather, determines whether the findings of fact
made by the juvenile court are supported by evidence that the juvenile
court could have found to be clear and convincing. See Ex parte T.V., 971
So. 2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence,
this court presumes their correctness. Id. We review the legal
conclusions to be drawn from the evidence without a presumption of
correctness. J.W. v. C.B., 68 So. 3d 878, 879 (Ala. Civ. App. 2011).
13
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Issue
The mother argues on appeal that the juvenile court's conclusions
in its judgments that the mother was unwilling or unable to discharge
her parental responsibilities to the children and that DHR had made
reasonable efforts to rehabilitate her are not supported by clear and
convincing evidence; that there was insufficient evidence of the mother's
current conditions to warrant the termination of her parental rights; that
DHR failed to establish that there were no viable relative resources; and
that the juvenile court erred in terminating her parental rights because
maintenance of the status quo was a viable alternative to termination.
We find the mother's last argument dispositive of these appeals.
Analysis
Section 12-15-319, Ala. Code 1975, a part of the Alabama Juvenile
Justice Act ("the AJJA"), Ala. Code 1975, § 12-15-101 et seq., provides
that a juvenile court may terminate the parental rights of a parent when
clear and convincing evidence shows that the parent cannot or will not
discharge the duty of providing his or her children with a safe, clean, and
suitable home. See generally H.B. v. Mobile Cnty. Dep't of Hum. Res.,
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236 So. 3d 875, 882 (Ala. Civ. App. 2017) (holding that a juvenile court
may terminate parental rights when a parent, due to an uncorrectable,
permanent inability or unwillingness, cannot or will not provide a home
free from "chronic, recurring unsanitary conditions" that "endanger the
health of the child"); L.M. v. Shelby Cnty. Dep't of Hum. Res., 86 So. 3d
377, 387 (Ala. Civ. App. 2011) (recognizing that the rights of a parent
may be terminated when that parent fails or refuses to protect his or her
children from threat of harm presented by the other unfit, abusive, or
neglectful parent by allowing the other parent access to family home).
However, because a parent has a fundamental right to the custody of his
or her natural children, Santosky v. Kramer, 455 U.S. 745, 758-59, 102
(1982), due process demands that a juvenile court terminate a parent's
parental rights only when some other, less-drastic measure would be
unavailing, Roe v. Conn, 417 F.Supp. 769, 779 (M.D. Ala. 1976), or, as
Alabama appellate courts have stated more commonly, a juvenile court
may terminate a parent's parental rights only when clear and convincing
evidence shows that no other viable alternative to termination exists. Ex
parte Ogle, 516 So. 2d 243, 243 (Ala. 1987).
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Termination of parental rights is the most extreme measure the
state can undertake to redress parental unfitness, abuse, or neglect.
See Santosky, supra; M.H. v. Cleburne Cnty. Dep't of Hum. Res., 158 So.
3d 471, 482 (Ala. Civ. App. 2014). Termination of parental rights involves
the complete, permanent, and irreversible extinguishment of a parent's
right to custody, control, and even association with his or her children.
Id. Through termination of parental rights, a juvenile court assures that
a parent has no legal means of accessing the child to expose the child to
the threat of harm arising from the unhealthy parent-child relationship.
See S.M.M. v. R.S.M., 83 So. 3d 572, 573 (Ala. Civ. App. 2011) ("The
purpose of the statute authorizing termination of parental rights is to
protect children from harm emanating from an adverse parental
relationship."). But the state has other means of adequately protecting
a child from the threat of parental harm, including placing the child out
of the family home and in the sheltered environment of foster care with
contact between the parent and the child being monitored and any
personal visits being supervised. See, e.g., Ex parte T.V., supra. If that
alternative is available, it would serve as a less-drastic means of securing
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the safety and welfare of the child, militating against termination of
parental rights. Id.
However, foster care is intended primarily to secure to a child a safe
and nurturing home temporarily during the period in which the child's
custodial parent works toward rehabilitation to the point when the
family can be safely reunited. K.W. v. J.G., 856 So. 2d 859, 873 (Ala. Civ.
App. 2003). The Adoption and Safe Families Act of 1997 ("the ASFA"),
42 U.S.C. §§ 671 and 675, was enacted to prevent a child from
languishing in foster care after it has been determined that the goal of
family reunification cannot be accomplished. See Robert M.
Gordon, Drifting Through Byzantium: The Promise and Failure of the
Adoption and Safe Families Act of 1997, 83 Minn. L. Rev. 637, 642 (1999).
The ASFA rests on the premise that all children need "permanency" to
thrive and to mature properly into responsible adults and citizens. Id.
In this context, the term "permanency" refers to a safe, stable, and
nurturing custodial arrangement lasting throughout the child's minority.
See generally B.W.C. v. State Dep't of Hum. Res., 582 So. 2d 579, 580
(Ala. Civ. App. 1991); In re Interest of Sarah K., 258 Neb. 52, 57, 601
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N.W.2d 780, 784 (1999) (applying federal guidelines for applying the
ASFA). To obtain this goal, the ASFA requires states that receive federal
funding for their foster-care programs, like Alabama, to use reasonable
efforts to expeditiously move children out of foster care and into
permanent homes, preferably through termination of parental rights
with adoption. Ramesh Kasarabada, Fostering the Human Rights of
Youth in Foster Care: Defining Reasonable Efforts to Improve
Consequences of Aging Out, 17 CUNY L. Rev. 145, 157 (2013). Because
long-term foster care does not provide children with the permanency
contemplated by the ASFA, "generally speaking, maintaining a child in
indefinite foster care is not a viable alternative to termination of parental
rights." T.L.S. v. Lauderdale Cnty. Dep't of Hum. Res., 119 So. 3d 431,
439 (Ala. Civ. App. 2013).
Our legislature has enacted various statutes to comply with the
ASFA, including Ala. Code 1975, § 12-15-315, which is based on 42 U.S.C.
§ 675(5) (defining "case review system"). Section 12-15-315(a) requires
juvenile courts to conduct a "permanency hearing" for the purpose of
determining the "permanency plan" for a dependent foster child within
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12 months of the placement of the child in foster care and at least
annually thereafter. Section 12-15-315 lists various custodial
arrangements a juvenile court may approve as the permanency plan for
a foster child, including: adoption, relative placement, kinship
guardianship, and "[a]nother planned permanent living arrangement,"
meaning long-term foster care. See Ex parte Bodie, [Ms. 1210248, Oct.
14, 2022] ___ So. 3d ___, ___ (Ala. 2022) (Parker, C.J., concurring
specially) (citing Josh Gupta-Kagan, The New Permanency, 19 U.C.
Davis J. Juv. L. & Pol'y 1, 9 n.3 (2015)). Consistent with the intention
behind the ASFA to move children out of foster care, § 12-15-315(b)
provides that a juvenile court shall determine that the permanency plan
for a foster child shall be placement in another planned permanent living
arrangement only when a "compelling reason" shows that it is not in the
best interests of the child to return to his or her home or to be placed for
adoption, placed with a relative, or placed in a kinship guardianship.
Section 12-15-315(b) does not set forth the compelling reasons that
may justify a juvenile court leaving a child in long-term foster care rather
than terminating parental rights and placing a child for adoption.
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However, the caselaw from this court recognizes that, when a foster child
shares a beneficial emotional bond with a parent, continued visitation
with the parent serves the best interests of the child, and the prospects
for the child to be adopted or placed in some permanent custodial
arrangement is indefinite, speculative, or unlikely, the court should not
terminate parental rights under those circumstances, but, instead, it
should maintain the status quo by leaving the child in long-term foster
care. See C.M. v. Tuscaloosa Cnty. Dep't of Hum. Res., 81 So. 3d 391
(Ala. Civ. App. 2011); B.A.M. v. Cullman Cnty. Dep't of Hum. Res., 150
So. 3d 782, 784-86 (Ala. Civ. App. 2014); T.N. v. Covington Cnty. Dep't of
Hum. Res., 297 So. 3d 1200 (Ala. Civ. App. 2019); D.S.R. v. Lee Cnty.
Dep't of Hum. Res., 348 So. 3d 1104 (Ala. Civ. App. 2021).
Recently, in his special concurrence in Ex parte Bodie, supra, Chief
Justice Parker explained the primary basis for this line of cases. Because
of the fundamental rights of parents to a relationship with their children,
the state may not terminate parental rights except when no other less
restrictive means are available to achieve its dual objectives of protecting
children from parental abuse and neglect and meeting the needs of the
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child for permanency. As Chief Justice Parker put it, when a child is
secured from the threat of parental abuse or neglect through placement
in foster care, but adoption is not a viable option, "termination is not only
not the least restrictive means, it is not a means at all," ___ So. 3d at ___
(Parker, C.J., concurring specially), for providing a child with
permanency. "Accordingly, to meet the no-viable-alternative element, at
a minimum DHR must prove by clear and convincing evidence that
adoption is a viable option ...." Id. If the state fails to carry that burden,
the juvenile court cannot terminate parental rights.
The party seeking to terminate a parent's rights bears the burden
of proving that the termination of those rights is the appropriate remedy.
K.W. v. J.G., 856 So. 2d 859, 874 (Ala. Civ. App. 2003). In this case, DHR,
as the petitioner, bore the burden of proving that termination of the
mother's parental rights was the only avenue available to advance the
government's compelling interest in protecting the children and meeting
their need for permanency. The evidence presented by DHR showed that,
at the time of trial, the children were residing with the foster parent,
subject to the supervised visitation of the mother outside of her home,
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and, thus, were adequately protected from the identified threats to their
health, safety, and welfare from the mother's home environment or her
continuing association with the father. DHR's witnesses testified that
the children needed permanency and that the mother could not provide
that permanency, which, according to DHR, could be achieved only
through termination of parental rights with adoption. However, DHR
did not present any evidence to prove that adoption was presently a
viable option for the children.
The undisputed evidence in the record shows that the foster parent
did not agree to adopt the children and that DHR did not identify any
other adoptive resource for the children. The record does not disclose
whether DHR searched for a suitable adoptive home for the children, but
the record does indicate that DHR changed the permanency plan to
adoption in June 2021, and the AJJA specifically states that "reasonable
efforts shall be made to place the child in a timely manner in accordance
with the permanency plan ... and to complete whatever steps are
necessary to finalize a permanent plan for the child." Ala. Code 1975, §
12-15-312(b). Furthermore, DHR regulations explicitly allow DHR to
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place children in a pre-adoptive foster home pending legal proceedings to
terminate parental rights. See Ala. Admin. Code (Dep't of Hum. Res.), r.
660-5-22-.03(2). Thus, we can infer that DHR had made some efforts to
place the children for adoption but that those efforts had not succeeded
in identifying a readily available, suitable adoptive placement for the
children in the 10 months since the permanency plan had been changed
to adoption.
Additionally, the evidence in the record reveals that H.T. and,
possibly, S.H.W., continue to have special needs that may affect their
prospects for adoption. See Talladega Cnty. Dep't of Hum. Res. v. J.J.,
187 So. 3d 705, 713-714 (Ala. Civ. App. 2015) (requiring juvenile courts
to consider special needs of child that may impede permanency).
Furthermore, under the ASFA, the state must develop a plan to use
reasonable efforts to place the children together in the same adoptive
home unless doing so would be contrary to their safety or welfare, see 42
U.S.C. § 671(a)(31)(A), which does not seem to be the case here. Those
circumstances may adversely affect the ability of DHR to find a suitable
adoptive home for the children, but no DHR witness testified about those
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potential impediments to adoption or how DHR had addressed or even
planned to address those issues. The children, now ages 10 and 6 years
old, may well be adoptable despite those circumstances, but DHR did not
present any evidence to prove their adoptability, and the juvenile court
could not assume that fact, which was not proven by clear and convincing
evidence.
In the final judgments, the juvenile court simply awarded DHR
permanent custody of the children with "discretion in planning and
placement." The judgments may have freed the children for adoption,
but they do not actually achieve the goal of the ASFA to provide the
children with permanency. The entire purpose of the ASFA is to remove
dependent children from "foster care limbo." Kasarabada, supra, at 157.
However, the judgments leave the children in foster care indefinitely,
without any proven prospect for acquiring a substitute parent or parents
through adoption or any other means, and, now, facing the added stressor
of the permanent loss of their relationship with the mother.
Section 12-15-35, Ala. Code 1975, authorizes a juvenile court to
terminate parental rights even when DHR has not identified an adoptive
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resource. In R.B. v. State Department of Human Resources, 669 So. 2d
187 (Ala. Civ. App. 1995), this court held that a juvenile court may
terminate parental rights even though the child may not be immediately
adopted. In reaching that conclusion, the court reasoned that, even if an
adoptive resource has not materialized, a juvenile court should be
allowed to terminate parental rights in "egregious" circumstances. Id. In
R.B., this court did not specify what "egregious" circumstances would
warrant the entry of a judgment terminating parental rights that leaves
a child an orphan with no definite prospect of adoption or other
permanent custodial arrangement, but the cases applying R.B. have
since clarified that that drastic remedy is appropriate when maintaining
any relationship with the parent would only subject the child to
continuing emotional or physical harm. For example, in T.L.S. v.
Lauderdale County Department of Human Resources, 119 So. 3d 431
(Ala. Civ. App. 2013) (authored by Moore, J., with Pittman, J.,
concurring, and Thompson, P.J., and Thomas, J., concurring in the
result), this court affirmed a judgment terminating the parental rights of
T.L.S. to her two children despite the lack of an identified adoptive
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resource. The evidence in that case showed that T.L.S. had been
convicted of abusing one of the children, who had since come to fear
T.L.S., that the other child had resented that T.L.S. had not believed that
she had been sexually abused while in the custody of T.L.S., that both
children suffered from severe emotional and behavioral problems
stemming from their abuse, and that the children would regress
behaviorally after visiting with the mother. In cases like T.L.S., although
termination of parental rights does not achieve permanency, it is justified
as being the least restrictive means of accomplishing the compelling
governmental interest of securing the child from parental abuse or
neglect that emanates from the mere continuing existence of the parent-
child relationship.
On the other hand, in Talladega County Department of Human
Resources v. J.J., 187 So. 3d 705 (Ala. Civ. App. 2015), this court affirmed
a judgment in which the Talladega Juvenile Court declined to terminate
the parental rights of the parents of an autistic child, who had special
educational and caregiving needs, due to the lack of an identified
adoptive resource and the " 'strong possibility of [the child at issue] being
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a legal orphan for her life' " if parental rights were terminated. 187 So.
3d at 709. The undisputed evidence in J.J. showed that the child had
been placed in a therapeutic foster home and that any adoptive resource
would have to cater to the special needs of the child, including providing
the child with constant supervision. The state had not identified an
adoptive resource and intended only to place the child on the state
adoption registry upon termination of parental rights. A witness for the
state testified that the child would remain in long-term foster care if no
adoptive resource was located. In addressing whether the lack of an
identified adoptive resource alone was a sufficient basis for denying the
petition to terminate parental rights, this court acknowledged the
holding in R.B. but concluded that the Talladega Juvenile Court had not
erred in considering the lack of an adoptive resource when concluding
that maintaining the status quo would be a viable alternative to
termination of the parents' parental rights. This court reasoned that,
when the likelihood of adoption has not been proven, the state has failed
to prove by clear and convincing evidence that termination of parental
rights will provide the child with permanency. This court held that, in
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such cases, the juvenile court may properly consider the fact that the
termination of parental rights may not achieve " 'the desire for
permanency,' " 187 So. 3d at 713-14 (quoting C.M., 81 So. 3d at 398), and
can leave the child in long-term foster care, if that option is available, in
order to preserve a relationship between the parent and the child that
will not harm the child.
As the foregoing cases illustrate, when the state fails to prove that
termination of parental rights will meet its goal of providing a child with
permanency, the state may justify terminating parental rights only when
no other available custodial alternative will satisfactorily protect the
child from parental harm. Termination of parental rights with no
identified adoptive resource or other definitive prospect for permanency
would be an overly broad measure when termination is unnecessary for
the protection of the child. See B.A.M, 150 So. 3d at 786. In such cases,
if the evidence shows that, in fact, long-term foster care is a viable
alternative that accomplishes the goal of protecting the child from
parental harm, a juvenile court must employ that option instead of
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terminating parental rights to protect the constitutional rights of the
parent to a relationship with his or her child.
In this case, the record shows that the juvenile court could have
maintained the status quo. Although the foster parent would not agree
to adopt the children, DHR did not present any evidence indicating that
the foster parent would not continue to provide the same level of care to
the children in which they have been thriving since October 2019. The
current long-term foster-care arrangement satisfies the children's basic
health and safety needs while protecting them from the identified threats
to their welfare posed by the mother. The record does not disclose the
availability of any other permanent custodial arrangement for the
children. A judgment terminating parental rights must be based on
current circumstances. See A.P. v. Covington Cnty. Dep't of Hum. Res.,
293 So. 3d 892 (Ala. Civ. App. 2019). Unless and until the circumstances
proven by the evidence change, long-term foster care appears to be the
only current available option to advance the government's interest in the
welfare of the children.
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We conclude that DHR did not prove through clear and convincing
evidence that termination of parental rights was the least restrictive
means to protect the children from the mother or that termination of the
mother's parental rights would provide permanency for the children
through adoption. Because maintenance of the status quo is a viable
alternative to termination of the mother's parental rights to the children
in this case, as we concluded in C.M. and other similar cases, we reverse
the juvenile court's judgments and remand the cases to the juvenile court
for the entry of judgments consistent with this opinion.
CL-2022-0694 -- REVERSED AND REMANDED.
CL-2022-0695 -- REVERSED AND REMANDED.
Edwards, Hanson, and Fridy, JJ., concur.
Thompson, P.J., concurs in the result, with opinion.
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THOMPSON, Presiding Judge, concurring in the result.
I agree that the termination of parental rights should occur only in
extreme circumstances in which it is demonstrated that a parent cannot
or will not be successfully reunited with his or her child. I concur in the
result reached by the main opinion that, under the unique circumstances
of this case, leaving these children in foster care with continued contact
with the mother was a viable alternative to the termination of the
mother's parental rights and was in the children's best interests. D.M.P.
v. State Dep't of Hum. Res., 871 So. 2d 77, 97 (Ala. Civ. App. 2003); C.M.
v. Tuscaloosa Cnty. Dep't of Hum. Res., 81 So. 3d 391, 398 (Ala. Civ. App.
2011) ("[W]e conclude that, in this exceptional case, termination of the
mother's parental rights was not in the best interests of the children
because of the beneficial relationship between the mother and the
children."). In this case, the evidence supports the determination that
allowing the children to continue to visit the mother is a viable
alternative that would be beneficial to the children.
I disagree with that part of the analysis in which the main opinion,
without an argument on the issue having been made by the appellant,
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attempts to broaden the law concerning viable alternatives to
termination. In this case, DHR failed to present any evidence regarding
whether the children at issue are considered to be adoptable, i.e., whether
they might be adopted in the future. I agree that, in the absence of such
evidence, when the record demonstrates that, as here, the child and the
parent share a strong emotional bond such that it would be beneficial to
the child at issue to maintain a relationship with the parent, the parent's
parental rights should not be terminated. In my opinion, however, the
main opinion errs in attempting to expand the law to hold that where a
strong emotional bond exists between a parent and a child, but no
adoptive resource is identified at the time of the termination-of-parental-
rights hearing, the juvenile court may terminate parental rights only in
the most extreme or egregious cases in an attempt to achieve permanency
for the child.
Each termination-of-parental-rights action concerning a child must
be resolved on its own specific facts, and the broad holding of the main
opinion precludes such a case-specific determination. See L.M. v. D.D.F.,
840 So. 2d 171, 179 (Ala. Civ. App. 2002) ("Due to the serious nature of
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the action of terminating a parent's parental rights, this court must
carefully review the unique set of facts established in each case in
determining whether clear and convincing evidence was presented to
support the termination of those rights."). Not all prospective adopters
are willing to come forward and expose themselves to the uncertainties
inherent in the judicial process concerning the termination of a parent's
parental rights to a prospective adoptee. In a case like this one involving
the termination of parental rights where a strong bond between the
parent and the child has been established, DHR should present evidence
regarding whether adoption is a viable alternative for achieving
permanency for the child. However, I see no reason, when a juvenile court
is addressing whether the termination of parental rights will provide the
child with permanency, to impose an additional requirement that
mandates that, except in the most extreme and egregious cases, an
adoptive resource must be identified at the time of the termination-of-
parental-rights hearing.
33