T.D.K. v. L.A.W. and T.M., 2011 Ala. Civ. App. LEXIS 222

Mother appeals termination of parental rights to two children, father awarded legal custody and L.A.W. physical custody with visitation denied to mother.
Children lived with father since 2007 and with L.A.W. since 2008; mother performed poorly in providing stability or care.
DHR became involved after the 2006 scalding of T.O.M. and a 2007 investigation of physical abuse by mother's boyfriend G.H.; evidence showed abuse of both children and coercive parenting by mother.
G.H. was convicted of child abuse; mother admitted knowledge of abuse and inability to stop it; safety plan was created.
Mother admitted lack of job, income, vehicle, housing stability and ongoing contact with G.H.; she failed to demonstrate efforts to improve circumstances.
Nov. 2010 – June 2010: petitions for termination and custody filed; juvenile court terminated rights on March 1, 2011 after ore tenus proceeding; standard of review requires clear and convincing evidence to support termination.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether grounds exist to terminate parental rights	Mother unable/unwilling to care for children	Beasley standard supports termination given history and current condition	Yes; grounds exist for termination
Whether viable alternatives to termination were exhausted	Reunification attempts should be considered if possible	No viable alternative due to abuse and lack of improvement	No viable alternatives; termination affirmed
Whether present circumstances justify termination despite family rights	Past history and current condition show inability to care	Family rights and potential for restricted visitation not adequately explored	Present circumstances justify termination

Ex parte Perkins, 646 So. 2d 46 (Ala. 1994) (standard for factual-findings presumption in ore tenus judgments)
Ex parte T.V., 971 So. 2d 1 (Ala. 2007) (credibility of witnesses; standard for ore tenus review)
Ex parte Fann, 810 So. 2d 631 (Ala. 2001) (reliance on ore tenus factual findings; deference on appeal)
Ex parte Beasley, 564 So. 2d 950 (Ala. 1990) (two-step analysis for termination: grounds then alternatives)
Ex parte J.E., 1 So. 3d 1002 (Ala. 2008) (examination of grounds and viable alternatives in termination)
D.O. v. Calhoun Cnty Dep't of Human Res., 859 So. 2d 439 (Ala. Civ. App. 2003) (present vs past conditions implicit in termination analysis)
W.P. v. Madison Cnty Dep't of Human Res., 980 So. 2d 1016 (Ala. Civ. App. 2007) (court may consider past history and present circumstances in termination)
Santosky v. Kramer, 455 U.S. 745 (1982) (fundamental right to family integrity; narrowly tailored state action)
Roe v. Conn, 417 F.Supp. 769 (M.D. Ala. 1976) (due process; avoid unnecessary severance of family ties)
D.M.P. v. State Dep't of Human Res., 871 So. 2d 77 (Ala. Civ. App. 2003) (viable alternatives when parent cannot be rehabilitated but bond remains)