211 So. 3d 849
Ala. Civ. App.2016Background
- Child born Jan. 2014 was removed after an Aug. 2014 incident where father appeared intoxicated while carrying the child; DHR took custody and filed to terminate both parents’ rights in Apr. 2015.
- Parents both had substance-abuse issues; mother failed all drug tests and did not complete assessment; father completed an assessment, entered drug court, started but did not finish a private rehab program citing lack of transportation.
- ISP (Oct. 2014) required parents to demonstrate protective capacity, submit to drug testing/assessment, and maintain stable housing/income; plan noted transportation issues but DHR provided transport only for the child’s visits, not for the parents.
- After a Mar. 2015 permanency meeting (parents absent), DHR changed the plan to termination/adoption, ceased drug testing and monthly home visits, and reduced visitation frequency.
- Juvenile court terminated both parents’ rights after an ore tenus bench trial; parents appealed. The appellate court reversed and remanded, finding DHR failed to make reasonable efforts toward reunification of the father and remanding the mother’s termination as well.
Issues
| Issue | Father’s Argument | DHR’s/Mother’s Argument | Held |
|---|---|---|---|
| Whether DHR made reasonable efforts to reunite father and child | DHR failed to provide promised/necessary services (transportation, housing/employment help, continued drug testing); efforts ceased months before trial | Juvenile court found DHR made reasonable efforts; DHR points to services provided (drug testing, assessment, referral to drug court) | Reversed as to father: evidence showed DHR’s efforts were inadequate and cessation of services undermined reunification efforts |
| Whether termination could stand for mother given prior involuntary termination to a sibling | Mother argued termination was improper; father’s potential custodial suitability could provide alternative | DHR argued reasonable to terminate mother; statute allows not requiring reasonable efforts where parent previously lost rights to a sibling | Reversed as to mother and remanded because father’s restored parental prospects could provide a viable alternative to terminating mother’s rights |
| Standard and scope of appellate review for ore tenus termination findings | Father argued juvenile court’s factual findings unsupported | DHR relied on juvenile court’s credibility findings and determination that efforts failed | Court reiterated clear-and-convincing standard and narrow review but found juvenile court’s factual finding re: reasonable efforts was plainly and palpably wrong as to father |
| Whether failure to object earlier to permanency finding waived review of DHR efforts | Father noted he did not object at permanency hearing | DHR/juvenile court suggested earlier proceedings resolved reasonableness | Court (and concurrence) held Ex parte F.V.O. permits raising reasonable-efforts issue in termination proceedings and on appeal; not waived |
Key Cases Cited
- Bowman v. State Dep’t of Human Res., 534 So.2d 304 (Ala. Civ. App.) (clear and convincing standard for termination)
- L.M. v. D.D.F., 840 So.2d 171 (Ala. Civ. App.) (definition of clear and convincing evidence)
- K.P. v. Etowah Cty. Dep’t of Human Res., 43 So.3d 602 (Ala. Civ. App.) (two‑pronged test and consideration of alternatives to termination)
- D.M. v. Limestone Cty. Dep’t of Human Res., 164 So.3d 1164 (Ala. Civ. App.) (reasonable efforts include rehabilitation efforts)
- Ex parte F.V.O., 145 So.3d 27 (Ala. 2013) (permanency order finding reasonable efforts does not preclude litigating reasonableness in termination proceedings)
- M.A.J. v. S.F., 994 So.2d 280 (Ala. Civ. App.) (twelve‑month rehabilitation period and timing considerations)