275 So. 3d 1135
Ala. Civ. App.2018Background
- DHR filed four petitions (June 14, 2017) in Pike Juvenile Court seeking to terminate K.J.'s parental rights to her four children (ages 18, 17, 13, and 11 at hearing); two fathers also implicated in some petitions.
- Children entered foster care after a September 2015 incident in which the mother bit one child and the oldest intervened; mother pleaded guilty to misdemeanor child abuse and was on probation at the termination hearing.
- DHR provided services (parenting, psychological evaluation/counseling, drug assessment/screens, domestic-violence and anger-management classes); mother completed some but inconsistently participated in others and had numerous positive or missed drug screens before June 2017.
- Mother increased participation and abstained from illegal drugs beginning in June 2017 (shortly after DHR filed termination petitions); juvenile court found many of those efforts were last-minute and questioned her credibility.
- Juvenile court entered four nearly identical judgments (Jan. 3, 2018) terminating the mother’s parental rights, finding clear-and-convincing evidence of dependency, abandonment, maltreatment history, failure of reunification efforts, and lack of viable alternatives.
- Appointed appellate counsel initially filed an inadequate Anders-style no-merit brief; this court found the appeal not wholly frivolous, appointed new counsel, and heard a merits brief from new counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to terminate parental rights | Mother: recent counseling, steady employment, and abstinence (since June 2017) show she can parent and evidence fails to meet clear-and-convincing standard | DHR: long history of abuse, inconsistent service participation, repeated positive/missed drug screens, and credibility problems support termination | Affirmed — juvenile court's ore tenus findings supported by record; mother failed to show error |
| Availability of less-drastic alternatives (maintaining status quo or relative placement) | Mother: status quo (continued foster care) or relatives as placement were viable alternatives; DHR did not adequately locate relatives/fathers | DHR: investigated relatives and potential fathers using available resources; relatives located were unwilling or inappropriate; status quo was not viable given mother’s limited progress | Affirmed — court found no viable alternatives; DHR’s search efforts and rejection of indefinite foster-care postponement were adequate |
| Adequacy of DHR’s efforts to locate unknown father(s) and relatives | Mother: DHR’s search methods were inadequate and antiquated; DHR should have used other databases | DHR: used Accurint and reasonable methods; mother provided limited contact info and many leads were dead ends | Affirmed — record supports DHR’s reasonable efforts to locate relatives/father(s) |
| Appellate counsel’s compliance with Anders procedure | Mother (via court review): previous counsel’s Anders brief was perfunctory and failed to identify arguable issues; required new counsel | DHR: (implicit) procedural defect in Anders brief did not necessarily alter merits | Court: granted motion to withdraw, appointed new appellate counsel, and proceeded with full review; new counsel briefed issues |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures for appellate counsel who finds appeal frivolous)
- Lassiter v. Department of Social Servs. of Durham, 452 U.S. 18 (1981) (no federal constitutional right to appointed counsel in all parental-termination proceedings)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental right as fundamental liberty interest)
- Ex parte Beasley, 564 So.2d 950 (Ala. 1990) (clear-and-convincing standard and requirement to show no less-drastic alternative)
- Ex parte State Dep’t of Human Res., 624 So.2d 589 (Ala. 1993) (deference to trial court on ore tenus evidence)
- Ex parte A.S., 73 So.3d 1223 (Ala. 2011) (status-quo placement can be a viable alternative in some circumstances)
- J.K. v. Lee Cty. Dep’t of Human Res., 668 So.2d 813 (Ala. Civ. App. 1995) (applying Anders procedure to appointed counsel in civil appeals)
- Ex parte Fann, 810 So.2d 631 (Ala. 2001) (deference to trial court’s credibility findings)
- A.H. v. Houston Cty. Dep’t of Human Res., 122 So.3d 846 (Ala. Civ. App. 2013) (reversing termination where mother had stable housing, near-clean drug record, and regular visitation)