218 So. 3d 1246
Ala. Civ. App.2016Background
- DHR filed to terminate C.F.’s parental rights to her child on Sept. 24, 2015; trial was set within 90 days per §12‑15‑320(a).
- Mother was incarcerated throughout proceedings and did not move to be transported or to submit a deposition in lieu of live testimony; counsel sought a continuance the day of trial because counsel could not contact the mother; the juvenile court denied the continuance.
- Child entered DHR custody after an August 2013 incident; mother tested positive for cocaine, was expelled from drug court for noncompliance, failed to complete required services, lost housing, and repeatedly lost contact with DHR.
- Mother intermittently claimed sobriety and provided one clean test in Nov. 2014 but refused random screens, visited inconsistently, and was later incarcerated in federal prison; she had not visited since Nov. 2014 and provided no support or proof of completed services.
- Juvenile court found abandonment and terminated parental rights; mother appealed, arguing denial of continuance (due process) and insufficiency of the evidence, including failure to consider relative placement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of continuance / right to secure testimony | Mother: denial deprived her of due process because she could not secure testimony (e.g., by deposition) while incarcerated | State: counsel never raised the constitutional due‑process argument below; procedural default | Court: constitutional claim not preserved on appeal; court declines to address due‑process contention |
| Sufficiency of evidence to terminate | Mother: evidence insufficient to prove statutory grounds or that termination was necessary | State: clear‑and‑convincing evidence of abandonment and inability/unwillingness to parent | Court: record contains clear‑and‑convincing evidence supporting termination (abandonment shown) |
| Application of statutory presumption under §12‑15‑319(b) | Mother: did not rebut presumption of inability/unwillingness after abandonment | State: presumption applies where abandonment occurred in 4 months before petition; burden shifts to mother | Court: mother failed to rebut presumption; incarceration and lack of evidence she could parent in foreseeable future support termination |
| Consideration of viable alternatives / relative placement | Mother: juvenile court should have considered placing child with relatives before terminating rights | State: where abandonment and loss of significant parental relationship exist, parent lacks due‑process right to insist on exhausting relative placements | Court: because juvenile court found abandonment, it was not required to consider relatives; any failure to consider relatives was harmless given abandonment and record support for rejection of proposed relatives |
Key Cases Cited
- Pignolet v. State Dep’t of Pensions & Sec., 489 So.2d 588 (Ala. Civ. App. 1986) (incarcerated parent may present testimony by deposition where represented by counsel)
- Smith v. State Dep’t of Pensions & Sec., 340 So.2d 34 (Ala. Civ. App. 1976) (constitutional issues not raised below are not considered on appeal)
- Ex parte Beasley, 564 So.2d 950 (Ala. 1990) (termination only after less‑drastic measures are unavailing)
- Ex parte Mclnish, 47 So.3d 767 (Ala. 2008) (appellate review standard for clear‑and‑convincing findings)
- Ex parte T.V., 971 So.2d 1 (Ala. 2007) (presumption of correctness for ore tenus findings)
- J.L. v. State Dep’t of Human Res., 961 So.2d 839 (Ala. Civ. App. 2007) (incarceration considered with parent’s conduct before/after imprisonment in abandonment analysis)
- C.C. v. L.J., 176 So.3d 208 (Ala. Civ. App. 2015) (substantive due‑process protection tied to ongoing, significant parental relationship)
- Lehr v. Robertson, 463 U.S. 248 (U.S. 1983) (parental rights and scope of due‑process protections)