Appeals Court Reverses Preservation of Parental Rights

Keep your eyes peeled; you may see this case again soon on appeal. The Alabama Court of Civil Appeals is famous for reversing hapless trial court judges who terminate parental rights, fond as it is of lecturing the trial courts that there are two tests that must be satisfied before a trial court can terminate parental rights. See, as two of many examples, S.D.P. v. U.R.S., Case No. 2070977 (Ala. Civ. App. March 13, 2009); P.H. v. Madison County DHR, 937 So. 2d 525 (Ala. Civ. App. 2006). As any self-respecting reader of this blog knows all too well, the two tests are (a) whether sufficient grounds exist for termination of parental rights, and (b) whether the court has considered and properly rejected all viable alternatives to termination.

Now the appeals court has reversed another parental rights termination case, this time overturning the judgment of the juvenile court to preserve parental rights. The case is Montgomery County DHR v. W.J., Case No. 2080350 (Ala. Civ. App. October 2, 2009). The child is three years old. Mom is long since out of the picture, being an habitual drug user and having voluntarily signed over her parental rights. This case is a contest between DHR in Montgomery County and Dad, who has a drug history and a habit of missing the appointments DHR sets up for him for drug screenings, drug rehabilitation, and parenting classes.

Dad’s Mom is able and willing to help Dad care for the child, but she has her own history of positive drug tests for cocaine (even though she denies actually using it more than once). And after DHR set up parenting classes for her, she failed to attend them, citing the need to walk five miles to attend a class. Tellingly, the guardian ad litem for the child recommended termination of Dad’s parental rights.

The juvenile court refused to terminate Dad’s parental rights. It stated that Dad had fallen short in fulfilling his responsibilities as a parent but that he had demonstrated willingness to exercise his duties. The court also noted that both DHR and the paternal grandmother were available to help Dad care better for the child.

The appeals court was not pleased. Reciting the litany of Dad’s lapses and failures (wouldn’t one be able to recite a litany of lapses and failures with any of the parents who are the subject of a procedure to terminate parental rights?), the appeals court said Dad seemed to be in the process of becoming less committed to obtaining custody of the child as the proceedings continued.

The juvenile court has effectively set aside the child’s  right to permanency and stability in favor of awarding the father and the paternal grandmother further opportunities to rehabilitate themselves. The child should not be forced to suffer a lack of permanency due to the father’s and paternal grandmother’s inability to provide, in a timely manner, a drug-free, safe, and stable home. We have held that, “at some point, [a child’s] need for permanency must outweigh repeated efforts by DHR to rehabilitate” a parent. N.A. v. J.H., 571 So. 2d 1130, 1134 (Ala. Civ. App. 1990) (citing § 26-18-7(b)(4), Ala. Code 1975)). Further, “[i]n R.L.B. v. Morgan County Department of Human Resources, 805 So. 2d 721, 725 (Ala. Civ. App. 2001), this court held that maintaining a child in foster care indefinitely is not a viable alternative to termination of parental rights.” T.G. v. Houston County Dept of Human Res., [Ms. 2070841, April 24, 2009]     So. 3d    ,    , 2009 Ala. Civ. App. LEXIS 112, *16 (Ala. Civ. App. 2009). Therefore, we conclude that maintaining the child in foster care while the father and the paternal grandmother attempt to rehabilitate themselves was error. Montgomery County DHR at 18-19.

Judge Pittman dissented, joined by Judge Moore. The essence of their dissent is that the Alabama Supreme Court has instructed the appeals court to apply a presumption of correctness to a determination about the viability of an alternative to termination. “The evidence adduced in the juvenile court concerning the father and the paternal grandmother and their current circumstances, although certainly not all favorable to their interests, is not so overwhelming as to require a conclusion that the juvenile court acted outside its discretion in concluding that DHR had not adduced the clear and convincing evidence necessary to negate the prospect that the paternal grandmother may serve as a viable alternative to termination until a time when the father may ultimately rise above his current deficiencies.” Montgomery County DHR at 21-22.

10 comments

  1. Stephanie says:

    I was wondering if I can file for divorce (Alabama) using my married name even though I never changed my SS card info>? Will the divorce still be legal doing this?

  2. Christina says:

    I do have a question, did not know where to leave it. I am headed to trail for modification of custody, we have 50/50 right now. My ex is pushing for my perental right to be terminated. Can he have this done.The case is in Jefferson County DR court. I do not live in Alabama, only did for a month of our marriage. Can the judge grant this? I also have no lawyer b/c I do not live in Alabama and do not qualify for legal aid.

  3. Lee Borden says:

    That’s quite a change, from 50/50 to termination of parental rights? Wonder what his grounds would be?

    In answer to your question, yes, the judge could grant this. You need to take it seriously, and you may have no choice but to hire a lawyer to represent you, even though I know it will be expensive.

  4. Christina says:

    Thanks, the reason is he called DHR on me, I got a letter with a “no indication” from them right before he filed for modification, he and his attorney do not know this, yet. But I do have one more question, he has an indicated file from ’91, he was a child, for sexual abuse towards his sister, found this out through our involvement with DHR. Does that carry any weight when the Judge makes his decision?

  5. Amber says:

    Hi. Paternal rights question. I’m currently 17 and 6 months pregnant. My son’s father is 20. He hasn’t made an effort to help me with anything in the pregnancy, hasn’t helped financially at all, and has tried to basically bully me into marrying him. His mother has also tried to do the same thing. He lives with his parents. His mother and father are both unstable, and smoke marijuana and cigarettes in their house. She has tried to stab my son’s father four different times in recent years. I believe my son’s father to also be unstable, though, from what I’ve observed. My mother and I both agree that he has legitimate psychological problems from things he has said, done, and the way he speaks to me. He has tried to verbally manipulate me numerous times, and has tried to corner me into leaving my family, where my son and I will BOTH have a stable home emotionally, physically, mentally, and financially. He and his family are financially unstable, and he doesn’t even have his own vehicle; he relies on his father to lend him his truck.

    He hasn’t contacted me recently. I’m not planning to put him on my son’s birth certificate when he is born or trying to get child support– there would be nothing there; how would I go about getting him to sign over rights? We both live in Houston County, AL.

  6. Lee Borden says:

    The fastest way I know to get a man to sign over parental rights is to pursue aggressively the collection of child support and to have another man waiting in the wings ready to take on the role of daddy if Biodad signs over rights.

  7. Michelle says:

    Question-is there anything that can be stipulated when relinquishing parental rights that neither parent can contact the other or their families after the process is complete? i.e. he cant contact mine and I am not allowed to contact his? Also, if he chooses not to sign over rights, what kind of custody/visitation could he get if he lives in TX and Im in Alabama? My child is about to be a year old and he pays child support(not court mandated) but hasnt come to see our child.

  8. Lee Borden says:

    I honestly don’t know, but I would guess this would vary by county and even by judge, with most having little or no interest in any sort of restraining order in the absence of a clearly demonstrated danger.

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