L.M. v. Shelby County Department of Human Resources, 86 So. 3d 377

The Shelby County DHR initially removed the children in December 2007 after the youngest child tested positive for cocaine at birth.
The children were returned to the parents in December 2008, but the parents missed several drug screens in late 2008 and early 2009, leading to renewed concerns.
The children were removed again on September 16, 2009, after the mother tested positive for cocaine on September 17, 2009, and DHR filed its first petitions to terminate parental rights.
In March 2010 the juvenile court denied the first petitions to terminate, citing no illegal-drug positives since removal and ordering continued services and testing.
DHR filed a second round of termination petitions on August 9, 2010, alleging ongoing inability or unwillingness to provide a fit home; a February 2011 ore tenus hearing followed with a judgment terminating parental rights.
On appeal, the Alabama Court of Civil Appeals reversed the termination as to the father (finding no clear and convincing evidence he could not protect the children) and reversed/remanded as to the mother (finding viable custody by the father as a possible alternative).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether res judicata barred the second termination from considering pre-judgment evidence.	Father: res judicata should bar pre-judgment evidence; Mother: second bite barred.	DHR: second petition based on new, changed circumstances; not barred.	Res judicata did not bar admission of pre-judgment evidence; new facts allowed second action.
Whether the father's rights could be terminated based solely on his relationship with the mother and presumed danger from her substance abuse.	Termination proper because father did not sever the relationship and could not protect children.	Father was not shown informed of a barrier; insufficient clear and convincing evidence he failed to adjust.	Reversed as to the father; there was no clear and convincing evidence he could not protect the children.
Whether the mother's termination was supported where a viable alternative custody arrangement with the father supervision existed.	Mother's ongoing substance abuse justified termination.	Custody to the father with DHR supervision could be a viable alternative; no harm if not terminated.	Terminated mother’s rights reversed; remanded for possible custody arrangement with father supervised by DHR.

Dairyland Ins. Co. v. Jackson, 566 So.2d 723 (Ala. 1990) (same-evidence test for res judicata in separate actions)
Scott v. Prince George’s Cnty. Dep’t of Soc. Servs., 545 A.2d 81 (Md. App. 1988) (second termination trials may include prior evidence if new facts arise)
Ex parte Beasley, 564 So.2d 950 (Ala. 1990) (Beasley two-pronged test for termination; viable alternatives required)
H.H. v. Baldwin Cnty. Dep’t of Human Res., 989 So.2d 1094 (Ala.Civ.App. 2007) (communication of barriers to reunification is essential)
T.B. v. DeKalb County Dep’t of Human Resources, 12 So.3d 90 (Ala.Civ.App. 2008) (custody and visitation matters are not res judicata; changed circumstances may apply)
J.C. v. State Dep’t of Human Res., 986 So.2d 1172 (Ala.Civ.App. 2007) (ore tenus findings are presumed correct unless plainly wrong)
R.L.M.S. v. Etowah Cnty. Dep’t of Human Res., 37 So.3d 805 (Ala.Civ.App. 2009) (termination findings may rely on totality of circumstances)
V.G. v. Madison Cnty. Dep’t of Human Res., 989 So.2d 550 (Ala.Civ.App. 2008) (dependency can be based on totality of circumstances)