Ex Parte As
73 So. 3d 1223
Ala.2011Background
- Child born in 2007 during mother's incarceration for felonies; grandmother (mother's adoptive mother) has permanent custody and cares for child; mother, with prior shoplifting and escape-related convictions, was on probation and later imprisoned; grandmother sought termination to allow adoption; juvenile court terminated mother's rights in May 2010; Court of Civil Appeals affirmed; Alabama Supreme Court granted certiorari to review the termination decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there clear and convincing evidence of dependency and lack of viable alternatives to termination? | A.S. argues viable alternatives existed (grandmother custody with supervised visitation). | I.M.S. contends incarceration plus failures support dependency and no less drastic option. | No, viable alternatives existed; termination premature. |
| Did the juvenile court err by not showing no viable alternatives before terminating rights? | The court failed to prove no viable alternatives; status quo with grandmother feasible. | Termination warranted given mother's incarceration and history. | Reversed for remand to consider viable alternatives. |
| Should the court rely on future rehabilitation prospects rather than current conditions? | Future prospects (probation release) supported continued parental rights. | Current incarceration and dependency justify termination. | Court should not rely on speculative future release to sustain termination. |
Key Cases Cited
- Ex parte Beasley, 564 So. 2d 950 (Ala. 1990) (two-pronged test: dependency and viable alternatives to termination)
- Ex parte Fann, 810 So. 2d 631 (Ala. 2001) (fact-finding standards in ore tenus proceedings; deference to trial court)
- Ex parte Ogle, 516 So. 2d 243 (Ala. 1987) (clear and convincing standard; burden on party seeking termination)
- D.O. v. Calhoun County Dep't of Human Res., 859 So. 2d 439 (Ala.Civ.App. 2003) (consider viability of alternatives to termination)
- Ex parte T.V., 971 So. 2d 1 (Ala. 2007) (limits on reliance on current conditions; require consideration of viable alternatives)
- D.M. v. Walker County Dep't of Human Res., 919 So. 2d 1197 (Ala.Civ.App. 2005) (presumption of findings necessary to support judgment if supported by evidence)