Ex parte E.C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: E.C. v. DeKalb County Department of Human Resources) (DeKalb Juvenile Court: JU-22-64.02 Civil Appeals CL-2023-0257)

• Court: Supreme Court of Alabama
• Decided: January 26, 2024
• Docket: SC-2023-0874
• Status: Published

Opinion

Rel: January 26, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA OCTOBER TERM, 2023-2024

_________________________

SC-2023-0874 _________________________

Ex parte E.C.

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

(In re: E.C.

v.

DeKalb County Department of Human Resources)

(DeKalb Juvenile Court: JU-22-64.02; Court of Civil Appeals: CL-2023-0257)

SELLERS, Justice.

WRIT DENIED. NO OPINION. SC-2023-0874

Shaw, Wise, Bryan, Mendheim, Stewart, Mitchell, and Cook, JJ.,

concur.

Parker, C.J., dissents, with opinion.

2 SC-2023-0874

PARKER, Chief Justice (dissenting).

I respectfully dissent from the Court's denial of certiorari review in

this termination-of-parental-rights case. I believe the experience of the

two oldest children and the presumption against separating siblings in

Alabama law present a likelihood that a viable alternative to terminating

the parental rights of E.C. ("the mother") existed. Therefore, the Court of

Civil Appeals' decision to affirm the DeKalb Juvenile Court's judgment

terminating the mother's parental rights to her youngest child likely

conflicts with Ex parte Beasley, 564 So. 2d 950 (Ala. 1990), and J.B. v.

DeKalb County Department of Human Resources, 12 So. 3d 100 (Ala. Civ.

App. 2008) (plurality opinion).

According to the facts before us, the mother gave birth to her third

child in 2022. The DeKalb County Department of Human Resources

("DHR") immediately removed that child from her custody, because she

had tested positive for marijuana five times during her pregnancy. That

child was placed with N.F., a foster parent. DHR had already removed

the mother's two oldest children from her custody and placed them with

the same foster parent. DHR prepared an individualized service plan

3 SC-2023-0874

("ISP") for the mother to regain parental fitness and get her children

back. The mother has so far failed to reach the goals listed in her ISP.

DHR filed a petition to terminate the mother's parental rights to

her youngest child. At the hearing, the mother failed to appear. The

juvenile court heard testimony ore tenus from a DHR caseworker and

entered a judgment terminating the mother's parental rights to her

youngest child. The mother appealed to the Court of Civil Appeals, which

unanimously affirmed the juvenile court's judgment in an unpublished

memorandum. See E.C. v. DeKalb Cnty. Dep't of Hum. Res. (No. CL-

2023-0257), ____ So. 3d ____ (Ala. Civ. App. 2023) (table). The mother

timely sought certiorari review from this Court.

Before DHR began the termination proceeding regarding the

youngest child, it had filed petitions to terminate the mother's parental

rights to the two oldest children. Those two children were living in the

same home as the youngest child, under the care of the same foster

parent, N.F. At no point in those proceedings did N.F. petition for custody

or intervene in any way. In those proceedings, however, the juvenile court

did not terminate the mother's parental rights. Instead, it entered an

order permanently placing the two oldest children in the custody of N.F.

4 SC-2023-0874

The record of those proceedings is not before us. But it is undisputed that

this arrangement has not been problematic.

Under Alabama law, parental rights may be terminated only if: (1)

the court finds, by clear and convincing evidence, that grounds exist for

terminating parental rights and (2) the court considers all available

alternatives to termination of parental rights and concludes that no

viable alternative to termination exists. Ex parte Beasley, 564 So. 2d at

954-55. The mother does not argue in her certiorari petition that no

grounds exist for terminating her parental rights. Rather, she argues

that the juvenile court overlooked a viable alternative to terminating her

parental rights. She argues that the juvenile court could have done with

the youngest child what it did with the two oldest children, namely, place

the youngest child permanently in the custody of N.F.

I see no reason, based on the facts before us, why this would not

have been a "viable alternative" to terminating the mother's parental

rights to the youngest child. DHR argued before the Court of Civil

Appeals that this would essentially be maintaining the status quo of

foster care. The Court of Civil Appeals has pointed out that:

"when foster parents are amenable to continued contact between the child and the parent and when the evidence 5 SC-2023-0874

suggests that such contact is beneficial for the child, maintenance of the status quo or permanent placement with the foster parents can be a viable alternative to the termination of a parent's parental rights."

A.B. v. Montgomery Cnty. Dep't of Hum. Res., 370 So. 3d 822, 829 (Ala.

Civ. App. 2022) (citing P.M. v. Lee Cnty. Dep't of Hum. Res., 335 So. 3d

1163, 1172 (Ala. Civ. App. 2021)) (emphasis added). In this case, the

Court of Civil Appeals held in its unpublished memorandum that the

record did not indicate that N.F. was amenable to further contact

between the mother and the youngest child or that further contact with

the mother would be beneficial to that child. However, the facts before us

do not show why the juvenile court did not apply the same reasoning it

had applied with respect to the two oldest children. The experience of the

two oldest children would seem to indicate that N.F. was amenable to

such a placement. And in any case, the presumption under Alabama law

is in favor of continued contact with the parents. J.B., 12 So. 3d at 115

(holding that "[p]arents and their children share a liberty interest in

continued association with one another, i.e., a fundamental right to

family integrity") (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982))); 1

1I note here that J.B. was a plurality opinion, and plurality opinions

that have not been adopted by a majority of the judges on the Court of 6 SC-2023-0874

see also Ex parte E.R.G., 73 So. 3d 634, 646 (Ala. 2011) (plurality opinion)

(holding that for a visitation statute to pass constitutional muster, it

must "recognize the fundamental presumption in favor of the rights of

the parents"). The question is therefore not whether there is clear and

convincing evidence demonstrating that continued contact with the

mother would be beneficial to the youngest child, but whether there is

clear and convincing evidence demonstrating that it would not be. See,

e.g. Ex parte Brooks, 513 So. 2d 614, 617 (Ala. 1987) (holding that, "[i]n

Civil Appeals are not 'decisions' of that court for the purposes of Rule 39, Ala. R. App. P. See Ex parte Ball, 323 So. 3d 1187, 1187-88 (Ala. 2020) (Parker, C.J., concurring specially). However, a majority of the judges on the Court of Civil Appeals later adopted this rule from J.B. in Montgomery County Department of Human Resources v. N.B., 196 So. 3d 1205, 1214 (Ala. Civ. App. 2015) (quoting J.B., 12 So. 3d at 115), elevating the opinion of the J.B. plurality to a precedential decision of the court. See Ex parte Wood, 852 So. 2d 705, 709 n.3 (Ala. 2002) (citing Ex parte Cranman, 792 So. 2d 392 (Ala. 2000)) (explaining that, although Ex parte Cranman was a plurality decision, its later adoption by a majority of this Court justified its citation as binding precedent). E.C. also could have presented this issue as a matter of first impression, but she did not. See Ex parte Ball, 323 So. 3d at 1118 (Parker, C.J., concurring specially) (arguing that conflict with a plurality opinion really presents a question of first impression, not conflict with a prior decision). Regardless, because the Court of Civil Appeals subsequently adopted the rule she cites as binding precedent in a later case, I believe E.C., although she referred to the initial plurality opinion of J.B., has effectively alleged a conflict ground with what is now a decision of the court. See Ex parte Wood, 852 So. 2d at 709 n.3. 7 SC-2023-0874

the absence of clear and convincing evidence that termination of …

parental rights is the appropriate remedy, we cannot agree with the

Court of Civil Appeals that the trial court erred in denying the …

[termination] petition"), overruled on other grounds by Ex parte Beasley,

supra.

The possibility that a viable alternative to termination exists in this

case is rendered more likely by the fact that it is generally in the best

interest of children not to be separated from their siblings. In 1986, the

Court of Civil Appeals adopted the general rule that "siblings should not

be separated in the absence of compelling reasons." Jensen v. Short, 494

So. 2d 90, 92 (Ala. Civ. App. 1986). However, in 2009, Judge Moore wrote

that the Court of Civil Appeals often failed to follow the compelling-

reason standard and was really following the best-interest-of-the-child

standard instead. Alverson v. Alverson, 28 So. 3d 784, 790-94 (Ala. Civ.

App. 2009) (Moore, J., joined by Bryan, J., concurring in part and

concurring in the result in part). Later that year, the Court of Civil

Appeals rejected the compelling-reason standard and held that "our

caselaw more accurately holds that siblings may be separated if the trial

court concludes, based on sufficient evidence in the record, that the

8 SC-2023-0874

separation will serve the best interests of the children at issue." A.B. v.

J.B., 40 So. 3d 723, 729 (Ala. Civ. App. 2009) (citing, among other

authority, Alverson, 28 So. 3d at 790 (Moore, J., concurring in part and

concurring in the result in part)).

The Court of Civil Appeals later clarified that, under A.B., trial

courts should "not focus solely on the biological relationship between

children" but, rather, on "the actual interpersonal relationship between

the children and how that relationship will be affected by their

separation." K.U. v. J.C., 196 So. 3d 265, 273 (Ala. Civ. App. 2015) (citing

Alverson, 28 So. 3d at 790, 793 (Moore, J., concurring in part and

concurring in the result in part)). The Court of Civil Appeals also clarified

that it did not mean that trial courts should "disregard the relationship

between the children and inquire into the best interests of each child in

isolation." Id. at 274 (emphasis added). Thus, the current doctrine

appears to be that trial courts must evaluate whether to separate siblings

under the best-interest standard but must consider the actual

relationships between the children as part of making that decision.

Exactly how keeping siblings together plays into the best-interest

standard is a question that neither this Court nor the Court of Civil

9 SC-2023-0874

Appeals has answered. In his influential special writing in Alverson,

Judge Moore, joined by Judge Bryan, attempted to address that question

as follows:

"Rather, it appears to me that siblings may be separated if the trial court concludes, based on sufficient evidence in the record, that the separation will serve the best interests of the children at issue. In making that determination, the trial court should consider the factors traditionally cited by the appellate courts in this state, see Ex parte Devine, 398 So. 2d 686, 696-97 (Ala. 1981), but it should also consider factors such as the interrelationship of the children, the children's ages, the similarity of interests and activities of the children, whether the children previously resided with the custodial parent, the parents' involvement in the children's upbringing, the parents' emotional stability, the parents' previous lack of cooperation regarding visitation, the children's preference, parental agreement providing for siblings to be together frequently, and the location of the parents' residences. Annotation, Child Custody: Separating Children by Custody Awards to Different Parents-Post-1975 Cases, 67 A.L.R.4th 354 (1989); see also Dronen v. Dronen, 764 N.W.2d 675, 686 (N.D. 2009). I believe each case should be decided on its own factual basis and that the decision should ultimately come down to employing that custody arrangement that serves the best interests of all the children involved."

Alverson, 28 So. 3d at 793 (Moore, J., concurring in part and concurring

in the result in part).

It appears to me that the current doctrine requires the following.

First, children may be separated if, and only if, separation will serve their

best interests. A.B., 40 So. 3d at 729; Alverson, 20 So. 3d at 793 (Moore, 10 SC-2023-0874

J., concurring in part and concurring in the result in part). Consequently,

although the presumption that siblings should stay together is not as

strong as it was under the compelling-reason standard, there is still a

presumption that siblings should stay together unless the evidence

proves otherwise. See also Russell v. Self, 334 So. 3d 229, 239-40 (Ala.

Civ. App. 2021) (Thompson, P.J., dissenting) (citing A.B. and asserting

that a "judgment that separates siblings should be a rare and unusual

occurrence"). Second, a trial court may not consider merely the best

interest of each child in isolation but, rather, must consider the actual

relationship between the children and how separation will affect that

relationship. K.U., 196 So. 3d at 273. Finally, the trial court should

consider the other relevant factors listed in Judge Moore's special writing

in Alverson.

Here, the juvenile court's judgment as to the youngest child raises

the real possibility that the youngest child will at some point be

separated from the two oldest children. While the mother retains her

parental rights to the two oldest children, there is always the possibility

that she could regain parental fitness and their custody. If she does so,

and the juvenile court's termination judgment as to the youngest child

11 SC-2023-0874

stands, the two oldest children and the youngest child will inevitably be

separated. I do not believe we can lightly overlook this possibility.

However, nothing in the facts before us indicates that the juvenile

court considered whether the potential separation of siblings was in the

children's best interest. There is no indication that the juvenile court

even heard or considered any evidence as to the possibility of the

separation of the siblings. The facts before us therefore do not indicate

that the juvenile court adequately considered the possibility that its

judgment could result in the separation of siblings. The presumption in

favor of the fundamental liberty interest in family integrity lends even

more weight to this view. J.B., 12 So. 3d at 115. We therefore have all the

more reason to grant certiorari review to determine whether a permanent

placement like that of the two oldest children would be a viable

alternative to the termination of the mother's parental rights to the

youngest child.

A termination of parental rights is a drastic action, the equivalent

of a civil death penalty. See M.E. v. Shelby Cnty. Dep't of Hum. Res., 972

So. 2d 89, 102 (Ala. Civ. App. 2007) (plurality opinion). I do not believe

the facts before this Court sufficiently establish that such a drastic action

12 SC-2023-0874

was necessary here. Given the previous experience of the two oldest

children and the possibility of the siblings being separated in the future,

I think the mother has presented a likelihood of merit in her argument

that a viable alternative to the termination of her parental rights to her

youngest child existed. I therefore think there is a strong likelihood that

the Court of Civil Appeals' decision conflicts, as the mother argues, with

Ex parte Beasley and J.B.

For the foregoing reasons, I respectfully dissent.