78 So. 3d 994
Ala. Civ. App.2011Background
- Mother appeals termination of her parental rights to N.J. and award of custody to the great-grandparents; juvenile court found mother’s lifestyle and mental health issues unsuitable and terminated rights; case involves custody and visitation arrangements with nonparent guardians; termination occurred nine months after removal from mother; supreme court Ex parte A.S. governs viable alternatives to termination.
- Great-grandparents petitioned to terminate mother’s rights on Sept. 21, 2010, seeking to retain custody and restrict visitation; restraining order granted at that filing.
- Evidence at hearings (Dec. 8, 2010 and Jan. 5, 2011) included concerns about mother’s multiple partners, unmedicated mental illness, child’s psychiatric care, and multiple moves affecting stability.
- The trial court concluded no viable alternatives to termination existed and terminated rights on Jan. 12, 2011.
- Court upon review reversed and remanded, applying Ex parte A.S. and holding termination premature due to available custody/stability arrangements with a nonparent and mother’s progress toward rehabilitation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was premature given viable nonparent custody and progress toward rehabilitation | Mother argues viable alternative exists due to great-grandparents’ custody and visitation control | Great-grandparents contend termination necessary to protect child | Termination reversed; remanded for further proceedings |
Key Cases Cited
- F.I. v. State Dep’t of Human Res., 975 So.2d 969 (Ala.Civ.App.2007) (clear-and-convincing standard; deference to factual findings)
- Ex parte State Dep’t of Human Res., 834 So.2d 117 (Ala.2002) (presumption of correctness when based on conflicting ore tenus evidence)
- Ex parte A.S., 73 So.3d 1223 (Ala.2011) (viable alternative to termination when nonparent has custody and visitation oversight; progress toward rehabilitation)
- D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439 (Ala.Civ.App.2003) (quoting rationale on termination standards; evidence not always clear and convincing for termination)
- V.M. v. State Dep’t of Human Res., 710 So.2d 915 (Ala.Civ.App.1998) (prematurity concerns in termination decisions)