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.