J.S. v. J.C.
219 So. 3d 666
Ala. Civ. App.2016Background
- Child born June 4, 2009; mother died April 2010. Maternal uncle and aunt obtained custody in mid-2011 and filed to terminate father's parental rights in 2014.
- Father was incarcerated (convicted of theft and statutory rape involving a minor) and would be required to register as a sex offender; he was not transported to the termination trial and remained in prison at the time of the rehearing.
- After this court remanded for appointment of counsel (father had been unrepresented at the original termination trial), the juvenile court appointed counsel, denied the father's motion for transport, granted a short continuance, and held the rehearing on May 28, 2015.
- At the rehearing only the maternal aunt and the paternal grandfather testified; testimony showed limited, inconsistent visitation and little or no financial support from the father, and the child had no bond with him.
- The juvenile court terminated the father's parental rights relying principally on his felony conviction and imprisonment and on findings that his conduct and circumstances were unlikely to change.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Maternal uncle/aunt & juvenile court) | Held |
|---|---|---|---|
| Right to be transported / personally present at trial; opportunity to present testimony by deposition | Denial of transport and refusal to continue deprived due process; he could not prepare a deposition in time | Father had counsel; deposition was an available alternative but was not requested before or at trial; counsel had notice of trial date | No reversible error: presence not required where counsel represents inmate and deposition option exists; father failed to seek deposition leave in a timely manner |
| Denial of continuance to prepare deposition | Needed more time after appointment of counsel and late denial of transport | Court granted a short continuance; counsel could have moved to take a deposition but did not | Denial of further continuance was not reversible; father did not timely pursue deposition remedy |
| Termination based solely on felony conviction | Conviction alone insufficient; must consider rehabilitation prospects and less drastic alternatives | Statute lists conviction/imprisonment as a factor; court also relied on lack of support, poor visitation, and sex-offender status | Affirmed: conviction and imprisonment were lawful ground and supported by additional evidence showing inability/unwillingness to parent |
| Availability of less drastic alternative (status quo) | Maintain custodial arrangement while father rehabilitates and preserves family integrity | Father had no bond with child, provided no support, had diminished contact, and conviction involved sexual abuse of a minor | Maintaining status quo was not viable; termination narrowly tailored to child’s best interests |
Key Cases Cited
- Pignolet v. State Dep’t of Pensions & Security, 489 So.2d 588 (Ala. Civ. App. 1986) (incarcerated parent need not be present if represented and deposition is available)
- Valero v. State Dep’t of Human Resources, 511 So.2d 200 (Ala. Civ. App. 1987) (same due-process framework where notice, counsel, and deposition opportunity exist)
- M.T.D. v. Morgan County Dep’t of Human Resources, 53 So.3d 966 (Ala. Civ. App. 2010) (failure to seek deposition or move to attend undermines due-process claim)
- Ex parte McInish, 47 So.3d 767 (Ala. 2008) (standard for appellate review where clear-and-convincing proof is required)
- Ex parte T.V., 972 So.2d 1 (Ala. 2007) (appellate deference to ore tenus findings in termination cases)
- S.U. v. Madison County Dep’t of Human Resources, 91 So.3d 716 (Ala. Civ. App. 2012) (conviction/imprisonment not dispositive where parent can adjust post-release)
- Ex parte A.S., 73 So.3d 1223 (Ala. 2011) (consider alternatives and evidence of rehabilitation before termination)
- T.D.K. v. L.A.W., 78 So.3d 1006 (Ala. Civ. App. 2011) (state must use narrowly tailored means and explore less drastic alternatives)
- S.N.W. v. M.D.F.H., 127 So.3d 1225 (Ala. Civ. App. 2013) (status quo not viable when no beneficial parent-child relationship exists)