H.B. v. J.N.

226 So. 3d 205, 2016 Ala. Civ. App. LEXIS 297, 2016 WL 7176574
CourtCourt of Civil Appeals of Alabama
DecidedDecember 9, 2016
Docket2150884
StatusPublished

This text of 226 So. 3d 205 (H.B. v. J.N.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H.B. v. J.N., 226 So. 3d 205, 2016 Ala. Civ. App. LEXIS 297, 2016 WL 7176574 (Ala. Ct. App. 2016).

Opinion

MOORE, Judge.

H.B. (“the mother”) timely appeals from a judgment entered by the Cullman Juvenile Court (“the juvenile court”) terminating her parental rights to Ca.N. (“the child”) and awarding the sole physical and legal custody of the child to J.N., the child’s paternal grandfather, and C.N., the child’s paternal stepgrandmother, who are hereinafter referred to collectively as “the paternal grandparents. We affirm the juvenile court’s judgment.

The judgment at issue provides, in pertinent part:

“1. [The child] was bom on October 8, 2012 to [the mother] and [Z.N. (‘the father’) ]. ;
[[Image here]]
“4. [The child] was declared depen-dant [sic] after having been born positive for methadone, resulting from [the mother]’s use. After treatment at Children's] Hospital in Birmingham, Alabama, the child was allowed to go home with [the mother] for one night, but the [Cullman County] Department of Human Resources [(‘DHR’)] obtained a required safety plan which placed the child and mother in the home of. [the paternal grandparents] ....
“[5]. [The mother] subsequently plefaded] ‘Guilty’ to charges of Child Endangerment. In addition, the evidence showed that [the mother] had lost custody of an older child whose whereabouts are as yet unknown by [the mother],
“[6]. [S.F. (‘the paternal grandmother’) ] shared custody of the child, along with [the paternal grandparents,] with physical possession alternating between the two homes virtually since his birth. Clearly all three grandparents love this child deeply.
“[7], Each of the parents, however, have made scant, if any progress toward rehabilitating themselves as necessary to regain custody of [the child]. The hearing in this matter has been scheduled for weeks, yet when requested by the Court to submit to a drug screen, the father refused—a tantamount admission that he would not pass such a screen. The mother did submit, but her screen showed her continued use of methadone, the drug which was the precipitating cause of the child’s dependency determination. [The mother] 'testified to more than one effort to discontinue such drug, but has not done so. In addition, she has otherwise failed to adjust her circumstances in order to parent [the child]..
“[8]. The father , spent several months in the State Penitentiary, has not maintained employment, and appears to still be using illegal drugs. In addition, he and [the mother] clearly intend to remain together, a fact which does not reassure the Court. Their relationship and conduct as a parental unit shows a continuing unwillingness to adjust their circumstances to meet the needs of [the child].
“[9]. Therefore, the Court does find, from clear and convincing evidence^] that [the child] is dependent and in need of care and protection such that the parental rights of [the mother] and [the father] should be terminated.
' “[10]. The Court must determine whether a viable alternative exists which would make termination unnecessary. The Court finds no such alternative.
'' “[11]. The mother and [the father] were directed to have only strictly supervised visitation, but evidence convinces the Court that [the paternal grandmother] has not been compliant either with the letter or spirit of such condition. Evidence reveals that she allowed significant contact between [the [208]*208mother, the father, and the child] and apparently facilitated the child’s knowledge of his parents’.residence, schedule, pictures and phone contact—all in contravention of the Court’s prior Orders. ■.Thus, the Court finds, by clear and convincing evidence, that continued .placement with [the paternal grandmother] is not a viable alternative to termination of parental rights.
“[12]. [The paternal grandparents], on the other hand, have provided a stable, loving home for [the child] , and sought out any therapy, treatment or other helpful assistance in securing his welfare. The disruptive nature of the parties’ current schedule is, in the Court’s opinion, no longer in the child’s best interests. [The paternal grandparents] have, in the past, pursuant to Court Order, attempted to provide opportunities for the parents to rehabilitate themselves, provided a home in which the parent-child relationship could be maintained in hopes of reunification. Such efforts have not been met with any meaningful cooperation by either parent.
Therefore, the Court finds, from clear and convincing evidence^] that no reasonable viable alternative exists save and except termination of parental rights of both parents.”

The judgment terminated the parental rights of the mother and the father and awarded sole legal and physical custody of the child to the paternal grandparents.1

On appeal, the mother argues solely that the juvenile court erred in terminating her parental rights because, she says, “parental rights cannot be terminated where viable alternatives to termination exist, the existence of viable relative resources being one such alternative.” Specifically, the mother maintains that, as a matter of law, a juvenile court cannot terminate parental rights when the-child at issue can be placed into the custody of fit and willing relatives, such as the paternal grandparents in this case. .The mother argued this point to the juvenile court in a motion to dismiss at the opening of the trial, in a motion for a judgment on partial findings at the close of the presentation of the evidence by the paternal grandparents, which was renewed at the end of the trial, and again in a rnotion to alter, amend, or vacate the judgment. The juvenile court rejected the argument on all occasions. Because that argument raises a pure question of law, we review the judgment of the juvenile court de novo without a presumption of correctness. See S.G. v. Barbour Cty. Dep’t of Human Res., 148 So.3d 439, 444 (Ala. Civ. App. 2013).

A natural'parent has a fundamental right to the custody of his or her child, which right may not' be severed by state-government interference without due process as mandated by the Fourteenth Amendment to the United States Constitution. See Ex parte Beasley, 564 So.2d 950, 953-54 (Ala. 1990). As a matter of substantive due process, a state can terminate parental, rights only in order to protect a child from parental abuse, neglect, or other harm, and only when less drastic measures would be unavailing. See Hunley v. Houston Cty. Dep’t of Pensions & Sec., 365 So.2d 81, 84 n.1 (Ala. Civ. App. 1978) (applying reasoning of Roe v. Conn, 417 F.Supp. 769, 779-80 (M.D. Ala. 1976)). Based on that reasoning, our supreme court has declared that a juvenile court should not terminate parental rights when a viable alternative exists. See Ex parte Beasley, 564 So.2d at 955. In Ex parte Ogle, 516 So.2d 243, 243 (Ala. 1987), our supreme court held that, when it is in the best interests of the child, placement with [209]*209a suitable relative can constitute a viable alternative to termination of parental rights. However, the mere feasibility of relative placement does not ipso facto prevent termination of parental rights under Alabama law.

In Miller v. Alabama Department of Pensions & Security, 374 So.2d 1370 (Ala. Civ. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Santosky v. Kramer
455 U.S. 745 (Supreme Court, 1982)
Miller v. ALABAMA DEPT. OF PENSIONS AND SEC.
374 So. 2d 1370 (Court of Civil Appeals of Alabama, 1979)
Roe v. Conn
417 F. Supp. 769 (M.D. Alabama, 1976)
Ex Parte Ogle
516 So. 2d 243 (Supreme Court of Alabama, 1987)
Ex Parte Beasley
564 So. 2d 950 (Supreme Court of Alabama, 1990)
Hunley v. HOUSTON COUNTY, ALA., ETC.
365 So. 2d 81 (Court of Civil Appeals of Alabama, 1978)
DMP v. State Dept. of Human Resources
871 So. 2d 77 (Court of Civil Appeals of Alabama, 2003)
S.G. v. Barbour County Department of Human Resources
148 So. 3d 439 (Court of Civil Appeals of Alabama, 2013)
A.E.T. v. Limestone County Department of Human Resources
49 So. 3d 1212 (Court of Civil Appeals of Alabama, 2010)
A.F. v. Madison County Department of Human Resources
58 So. 3d 205 (Court of Civil Appeals of Alabama, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
226 So. 3d 205, 2016 Ala. Civ. App. LEXIS 297, 2016 WL 7176574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hb-v-jn-alacivapp-2016.