146 So. 3d 425
Ala. Civ. App.2013Background
- DHR removed four children from parents' custody after parents tested positive for controlled substances and the home had prior neglect (clutter, roach infestation, prior fire); children had been receiving DHR services since 2009 and were removed July 12, 2010.
- Mother: congenital hip pain, intermittent misuse of prescription opiates, inconsistent completion of DHR-ordered classes, maintained recent employment, obtained cleaner housing before trial, continued visitation but sometimes late or missed visits; positive drug test two months before trial.
- Father: physical injuries (hand, back), intermittent employment, moved to Ohio in Aug 2011, initially participated in services but later out-of-state and not receiving DHR services there; tested positive for marijuana at trial (claimed medical use); limited in-person contact after moving but had telephone contact.
- DHR provided multiple services and recommended additional parenting/anger-management classes; both parents made partial progress but were found by DHR to have recurring lapses.
- Paternal grandmother later expressed interest in taking the father’s two children; DHR delayed initiating the interstate home-study under the ICPC until months after she expressed interest and after termination petitions were filed.
- Juvenile court terminated both parents’ rights in March 2013; parents timely appealed. Appellate court reviews termination orders under clear-and-convincing-evidence standard and presumes trial-court factual findings correct where ore tenus evidence exists.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether termination of mother’s parental rights was supported by clear and convincing evidence that she was unable/unwilling to care for children and condition unlikely to change | Mother: she had housing, employment, transportation, was attending classes, and had made progress toward DHR goals; not shown she cannot parent now or in future | DHR/juvenile court: mother had inconsistent parenting, ongoing misuse of prescription opiates, missed/late visits, failed to complete services, and housing potentially unsuitable | Reversed as to mother — record lacked clear and convincing evidence of inability/unwillingness; termination premature |
| Whether termination of father’s parental rights was supported by clear and convincing evidence, including consideration of viable alternatives (relative placement) | Father: DHR failed to make reasonable reunification efforts after he moved out of state and did not timely pursue relative-placement investigation | DHR/juvenile court: father moved out of state and therefore could not effectively utilize DHR services; had prior service opportunities and missed/failed to complete some | Reversed as to father — DHR failed to prove no viable alternatives (ICPC/home-study for paternal grandmother was not timely pursued), so termination was improper |
| Whether DHR met its burden to show no viable alternatives (e.g., kinship placement) before terminating parental rights | Parents: alternative placements (paternal grandmother) were not adequately investigated before termination petitions; possible placement existed | DHR: argued that relative placements were considered and that father’s relocation limited reunification services | Court: DHR did not present clear and convincing evidence that no viable alternatives existed; delay in ICPC/home-study undermined showing of no alternatives |
| Whether DHR’s out-of-state service obligations absolved after parent moved | Mother/father: (father specifically) argued DHR must investigate/provide services even if parent moved out of state | DHR: cannot be required to provide services in other state once parent elects to move and DHR notified him services wouldn’t be available; father chose to move | Court: DHR was not required to continue in-state services to father after his voluntary move; but termination still improper due to failure to establish absence of alternatives |
Key Cases Cited
- Ex parte Beasley, 564 So.2d 950 (Ala. 1990) (parental-rights termination should occur only in the most egregious circumstances)
- Ex parte T.V., 971 So.2d 1 (Ala. 2007) (reversal where parent met DHR goals and alternatives to termination remained viable)
- J.C. v. State Dep’t of Human Res., 986 So.2d 1172 (Ala.Civ.App.2007) (standard of appellate review in termination cases; ore tenus presumption)
- A.H. v. Houston Cnty. Dep’t of Human Res., 122 So.3d 846 (Ala.Civ.App.2013) (reversed termination where DHR failed to show ongoing addiction or inability/unwillingness)
- M.H. v. Calhoun Cnty. Dep’t of Human Res., 848 So.2d 1011 (Ala.Civ.App.2002) (DHR’s duty to investigate/provide services to out-of-state parent depends on context and prior efforts)
- D.S.S. v. Clay Cnty. Dep’t of Human Res., 755 So.2d 584 (Ala.Civ.App.1999) (DHR must investigate and, if necessary, provide out-of-state services before terminating)
- C.E.W. v. P.J.G., 14 So.3d 166 (Ala.Civ.App.2009) (burden on party seeking termination to prove no viable alternatives exist)
- D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439 (Ala.Civ.App.2003) (termination is drastic; poverty or housing instability alone insufficient)
- Ex parte A.S., 73 So.3d 1223 (Ala. 2011) (emphasizing high evidentiary burden and permanence of termination)