Lead Opinion
C.S. (“thе mother”) appeals from a judgment of the Mobile Juvenile Court terminating her parental rights as to a 12-year-old minor child, A.L.C. (“the child”), in response to a petition filed by the Mobile County Department of Human Resources (“DHR”) and after holding an ore tenus proceeding at which a DHR caseworker and her supervisor, a psychologist who had evaluated the mother, a mental-health therapist who has counseled the child, a family counselor, the child’s foster father, and the child’s maternal grandmother testified. In pertinent part, the judgment under review provides as follows:
“[The child] is a dependent child as that term is defined in the Code of Alabama having been adjudicated to be a dependent child by order of this Court lastly in 2004. The child has remained in the custody of [DHR] since [that] time.
“... This Court previously issued an order terminating the rights of the mother and the father, [R.C.,] but the mother appealed said judgment and the same was reversed [see C.S.B. v. State Dep’t of Human Res.,26 So.3d 426 (Ala.Civ.App.2009) (‘C.S. I’)]. The father did not appeal and this Court determines that the father’s rights have been terminated.
“... Subsequent to remand to this Court, the Court dismissed the termination of parental rights petition and [adjudicated in the mother’s favor] a subsequent termination of parental rights petition [via a] summary judgment [see Mobile Cnty. Dep’t of Human Res. v. C.S.,89 So.3d 780 (Ala.Civ.App.2012) (‘C.S. II’)]. The Court thereaftеr directed [DHR] to resume efforts at reunification.
“... From the evidence presented this date, the Court finds [DHR] exercised all reasonable efforts to promote a reunification plan but that said plan failed because the mother is incapable of taking care of the child and providing for the child’s needs.
“... The Court finds that although [DHR] has made little if any efforts to find relative placement ... the evidence shows that only the maternal grandmother is a relative who has had any involvement with the child[] and the mother, and that the maternal grandmother has never sought custody of the child. The Court further finds that the matеrnal grandmother is well aware of the circumstances surrounding the child and the mother, and that her failure to seek to intervene in this matter establishes, in the Court’s opinion, that she is not a viable placement resource. The Court therefore concludes that there are no relatives who are able or willing to take the care, custody, and control of [the] child.
“... The Court further finds that the child has been in the care of the current foster parents for most of the child’s life, has formed a significant bond with said foster parents, and that said foster parents are desirous of adopting this child. The Court finds that it is in the bеst interest of the child that she be allowed to be adopted by said foster parents.
“... The Court concludes from all of the evidence that although the mother and child have a relationship, the child has a more significant relationship with the current foster parents and that said relationship should be made permanent by adoption and that therefore it is necessary to terminate the parental rights of the mother.
“... Given the age of the child, and the relationship between the child and the mother and the relationship between the mother and the foster parents, this Court is convinced that the fоster parents, (and later the adoptive parents),*683 will allow the child to maintain a significant relationship with the mother and that the same would be in the best interest of the child.
“... Wherefore the Court finds that termination of parental rights is in the best interest of the child.”
As a prefatory matter, we note that, in C.S. I, although a majority of this court opined that while the juvenile court could properly have determined the mother to have a mental defect and that “expert testimony should not be required to prove an obvious mental deficit,” 26 So.Sd at 433 (Moore, J., concurring specially but agreeing to proposition asserted in dissent authored by Thomas, J., аnd joined by Bryan, J.), a different majority of this court simultaneously concluded that DHR had failed to secure the admission of “evidence as to the extent of the mother’s limited mental capacity, whether the mother’s mental limitations prevent her from being able to fulfill her parental responsibilities to the child, and whether the mother’s condition is likely to change” and noted that DHR had not appealed from the judgment to the extent that the juvenile court had excluded testimonial and documentary evidence of the mother’s mental evaluations that might have supported the initial termination judgment.
One of the means by which DHR sought to fulfill that burden in this third termination prоceeding was by soliciting the expert testimony of the psychologist who had evaluated the mother in 2012. Trial counsel for the mother objected to that evidence on two grounds: (a) the purported applicability of the psychotherapist-patient evidentiary privilege and the absence of a valid release waiving the privilege and (b) contravention of federal medical-nondisclosure laws. After trial counsel for DHR argued that the psychotherapist-patient privilege did not apply in cases involving the custody of children, citing Rule 503(d)(5), Ala. R. Evid., the juvenile court overruled the mother’s оbjection; that court later denied a motion to strike asserted after the psychologist had given testimony in the case. The mother’s appellate brief, filed by newly appointed counsel, raises as its first issue the propriety, in light of the psychotherapist-patient privilege, of the juvenile court’s ruling allowing the admission of the psychologist’s testimony.
We conclude that DHR’s position, that the psychologist’s testimony was admissible, is the correct one. Rule 503(d)(5), Ala. R. Evid., provides that “[t]here is no privilege ... for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.” Although the mother’s point that a termination action does not easily fit within the boundaries of a “child custody case” is facially sound, the mother overlooks the fact that Rule 503(d)(5) “continues Alabama’s preexisting, judicially created, exception to the psychotherapist-patient privilege.” Rule 503, Ala. R. Evid., Advisory Committee’s Notes.
“Our courts have consistently held that the paramount consideration in a custody matter is the child’s best interests. A court cannot determine the best interests of the child without considering whether a party to a custody proceeding is physically, financially, or mentally able to care for the child. We find it significant that the legislature in [Ala. Code 1975, § 26-18-7, the statutory predecessоr to current Ala.Code 1975, § 12-15-319,] indicates that a court may consider a parent’s mental illness or deficiency in determining whether to terminate parental rights. Particularly, where the state has petitioned our court to terminate a mother’s custody of her children because of her mental instability, the court should be permitted to investigate her mental health records in order to determine whether a termination is necessary.
“We recognize that the psychologist-patient privilege is an important one, not to be easily disregarded. We do not seek to discourage troubled parents from obtaining professional help. However, we are convinced that where the issue of the mental state of a party to a custody suit is clearly in controversy, and a proper resolution of the custody issue requires disclosure of privileged medical records, the psychologist-patient privilege must yield.
“Substantial doubt was cast on [the respondent’s] ability to care for her children. We find, therefore, that the trial court had sufficient evidence before it concerning [her] instability to warrant an inspection of her medical records.”
The mother’s remaining arguments concern whether the juvenile court correctly determined that DHR had made reasonable efforts to effect reunification, that no viable alternative to termination existed (such as, the mother suggests, continued visitation without custody or relative placement with the maternal grandmother), and that termination of parental rights is in the best interest of the child. Those arguments, in effect, largely challenge the sufficiency of the evidence to support the judgment of termination as provided for in § 12-15-319(a), Ala.Code 1975, which authorizes termination of parental rights upon a judicial determination, based upon clear and convincing evidence, that a child’s parents “are unable or unwilling to discharge their responsibilities to and for the child” or that “the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future,” and caselaw interpreting that statute and its predecessors. In making that determination, the pertinent court is directed to consider certain factors, including whether a parent suffers from “[e]motional illness,
Apart from asserting that the juvenile court should have excluded certain evidence regarding the extent and severity of the mother’s mental conditions (ie., mental retardation and schizophrenia of the paranoid type), the mother does not assеrt on appeal the insufficiency of the evidence adduced at trial to support the juvenile court’s conclusion that she “is incapable of taking care of the child and providing for the child’s needs” — that is, that the mother is unable to discharge her parental responsibilities. In that respect, the procedural posture of this appeal is markedly different from C.S. I, in which the sufficiency of the evidence to support the mother’s incapacity was squarely at issue, and C.S. II, in which evidence that might have supported a different outcome was not timely tendered by DHR.
As to the remaining specific issues raised by the mother in this appeal, we сannot conclude that the juvenile court erred. The mother first asserts that DHR was required to exert reasonable efforts toward reunification and generally posits that DHR failed to undertake such efforts in this case. Notably, the mother’s two-page argument contains no citations of legal authority supporting her position to the effect that DHR failed to discharge any legal duty it might have had with respect to effecting possible reunification between the mother and the child, and that omission arguably warrants affirmance on that ground. See Rule 28(a)(10), Ala. R.App. P.; L.T. v. W.L.,
Moreover, we disagree with the mother that the juvenile court erred in declining to implement the two less drastic alternatives to termination she has advanced. With respect to maintaining the
As to placement of the child with the maternal grandmother, the sole relative resource the mother identified, the record reflects that the maternal grandmother declined to respond to a DHR inquiry сoncerning her willingness to assist the mother in caring for the child, that the maternal grandmother admitted at trial to having no interest in visiting with the child, and that the maternal grandmother had not previously presented herself as a potential custodian during the nine-year history of the case. As we noted in M.J.C. v. G.R.W.,
Based upon the foregoing facts and authorities, the juvenile court could properly have determined, as it did, that the mother’s parental rights as- to the child werе subject to termination under Ala. Code 1975, § 12-15-319(a)(2). Further, that court, in light of the evidence that the child and the mother had no significant relationship whose severance would have harmed the child, could properly have determined that the termination of the mother’s parental rights in order to facilitate the child’s adoption by her long-term foster parents would be in her best interests. We therefore affirm the judgment of the juvenile court.
AFFIRMED.
Notes
. Our conclusion as to that issue obviates any need to consider DHR’s obligation to make reasonable efforts in light оf DHR's having adduced evidence demonstrating that the mother’s parental rights to a sibling of the child had been terminated in 2001. Cf. Ala. Code 1975, § 12-15-312(c) (indicating that reasonable efforts to preserve and reunify families are not required if a juvenile court determines that parental rights to a sibling have been involuntarily terminated).
. In his special writing, Judge Moore takes issue with our reliance upon the foregoing evidence in reaching the conclusion that the juvenile court’s judgment was correct, opining that "the juvenile court obviously rejected that evidence when it found, based on the evidence favorable to thе mother, that the mother and the child share a 'significant relationship’ and that it would serve the best interests of the child to maintain that relationship.”
Concurrence in Part
concurring in the result in part and dissenting in part.
I concur that the expert testimony of Dr. Jack Carney, a licensed psychologist, was admissible and that reasonable reunification efforts were made in this case; however, I do not agree "with all of the statements of the law made in the main opinion to reach those conclusions. Moreover, as to the remaining issues addressed in the main opinion, I respectfully dissent.
At the trial of the third рetition to terminate the parental rights of C.S. (“the mother”) to her natural child, A.L.C. (“the child”), the Mobile Juvenile Court (“the juvenile court”) received evidence indicating that, although the child had been removed from the custody of the mother in 2004, when the child was 2 years of age, the mother and the child had since consistently visited with one another both formally and informally 2 to 4 times a month for 45 minutes to an hour at a time. Carmelita Millsap, a caseworker for the Mobile County Department of Human Resources (“DHR”), who had observed the visitations between the mother and the child since 2008, testified that, during the visitations, the mother and the child had interacted with one another, had played, had snacked, had done homework, had watched television, and had talked, all typical things a parent would do with a child during visitation. Millsap also testified that the child knows the mother as her “other mom,” that the child greets the mother with a hug, that the mother and the child love one another, that the mother and the child look forward to their visitations together, and that the child still wants to visit with the mother. B.S. (“the maternal grandmother”) testified that, during the informal visits, the child had appeared happy to see the mother and that the mother and the child had talked, laughed, аnd joked together; she also testified that the mother and the child share a mother/daughter bond.
In its final judgment, the juvenile court determined that, “although the mother and child have a relationship, the child has a more significant relationship with the current foster parents”; however, the juvenile court also found as follows:
“Given the age of the child, and the relationship between the child and the mother and the relationship between the mother and the foster parents, this Court is convinced that the foster parents, (and later the adoptive parents), will allow the child to maintain a significant relationship with thе mother and that the same would be in the best interest of the child.”
(Emphasis added.) Reading the foregoing provisions of the judgment in pari mate-ria, so as to give effect to every word used by the juvenile court, see Moore v. Graham,
The judgment, when read as a whole, cannot reasonably be interpreted in any other way. The juvenile court stated exactly those words in its judgment when it found that the foster parents would allow “the child to maintain a significant relationship with the mother and that the same would be in the best interest of the
Instead of applying the law to the facts as found by the juvenile court, the main opinion purports to make its own finding of fact as to the relationship between the mother and the child. The main opinion recites some of the evidence that is unfavorable to the mother and then concludes that “no such significant, meaningful relationship exists between the mother and the child.”
Applying the law to the facts as actually found by the juvenile court, and not as found by the main opinion, the judgment should be reversed.
Some jurisdictions allow for parents to mаintain their visitation rights even after termination of their parental rights, see Kristina V. Foehrkolb, When the Child’s Best Interest Calls for It: Post-Adoption Contact By Court Order in Maryland, 71 Md. L.Rev. 490 n. 4 (2012) (citing Md. Fam. Law § 5-324(b)(l)(ii)(5)), or even after adoption by a third party, id. at 510 n. 145 (citing Annette Ruth Appell, Reflections on the Movement Toward a More Child-Centered Adoption, 32 W. New Eng. L.Rev. 1, 3 n. 6 (2010)), if it is in the best interests of the child. However, Alabama law provides that a judgment terminating parental rights concludes the parent’s right to any contact or association with the child. See Ex parte M.D.C.,
That does not mean that a juvenile court that finds that it is in the best interests of the child to maintain the parent-child relationship must sacrifice the child’s interest in permanency and stability. Our legislature has recognized that termination of parental rights and adoption by foster parents is only one of many ways to achieve permanency for a dependent child. See Ala.Code 1975, § 12-15-315(a)(2). A juvenile court may also achieve permanency by placing a child “in another planned permanent living arrangement,” Ala.Code 1975, § 12 — 15—315(a)(6), which would include permanent placement of the child in a long-term foster home without a termination of parental rights and adoption. See Department of Human Servs. v. G.N.,
In this case, the mother, through her attorney’s questioning of Ashley Carlock, Millsap’s supervisor, adduced evidence indicating that the foster parents, who have already raised the child in their home for the last 10 years, were committed to the child regardless of whether the mother’s parental rights were terminated and regardless of whether they were allowed to adopt the child. Carlock essentially admitted that the foster parents would continue to raise the child under another planned permanent living arrangement (“APPLA”). However, Carlock testified that she, as the DHR representative, did not recommend APPLA because “APPLA is not permanency. APPLA is letting this child linger in foster care until she ages out....” On that point, Carlock is incorrect. APPLA is a legislatively acknowledged form of a permanent-custody arrangement for a dependent child.
Carlock also testified that
“[w]e have a family that is willing to provide a permanent home for [the child] through adoption. APPLA is normally a plan that’s utilized once all other plans have been exhausted. And, also due to [the child’s] age. She’s only 12. APPLA is not usually a plan that we apply to children until they’re age 14.”
However, Alabama law provides that all viable alternatives must be exhausted before terminating parental rights. See Ex parte Beasley,
When a viable APPLA exists, neither DHR nor a juvenile court can simply elect to pursue termination of parental rights with adoption because it considers that to be a better option for the child. Parents and children have a fundamental right to maintain association with one another. K.W. v. J.G.,
The main opinion provides that
“[t]he juvenile court’s aspirational expectation that the child’s long-term foster parents would permit some continued postjudgment contact between the child and the mother in no way' undercuts the force of that court’s determination to the effect that the child in this case, after almost 10 full years in foster care, deserves the stability and permanency of adoption by her long-term foster caregivers.”
The mother argued before the juvenile court, and now argues before this court, that the judgment terminating her рarental rights should be reversed because the juvenile court failed to exhaust all viable alternatives. The main opinion affirms the judgment based on a distorted version of the facts, but not on an application of the law to the facts as actually found by the juvenile court. When the law is applied to the facts as actually found by the juvenile court, the only legally correct result is a reversal of the judgment. Therefore, I cannot concur with the decision to affirm the judgment of the juvenile court terminating the mother’s parental rights.
. Notably, DHR also failed to present any expert testimony as to the expected psychological effect on the child of the termination of the mother's parental rights.