Rel: June 28, 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 published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2023-2024 _________________________
CL-2023-0576 _________________________
J.A.
v.
S.L.
Appeal from Dale Juvenile Court (JU-23-43.01)
MOORE, Presiding Judge.
J.A. ("the father") appeals from a judgment entered by the Dale
Juvenile Court ("the juvenile court") terminating his parental rights to
M.J.A. ("the child"), who was born on October 2, 2021. We reverse the
juvenile court's judgment. CL-2023-0576
Procedural History
On March 28, 2023, S.L. ("the mother") filed a verified petition in
the juvenile court seeking to terminate the parental rights of the father
to the child. The juvenile court conducted a trial of the case on August
10, 2023. On August 15, 2023, the juvenile court entered a final
judgment, in which it found, among other things, that the father had
failed to provide for the material needs of the child; had failed to pay child
support as ordered; had failed to maintain consistent contact or
communication with the child; and had failed to call, visit, or ask to visit
with the child in almost 10 months. The juvenile court concluded that,
based on those findings, the father was "presumed to have abandoned the
child." The juvenile court determined that the father was unable and
unwilling to discharge his responsibilities to the child, that his conduct
and condition was unlikely to change in the foreseeable future, and that
there existed no viable alternative to termination of the father's parental
rights. The father timely appealed.
Issue
On appeal, the father argues that termination of his parental rights
was not necessary in this case because the child is residing with the
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mother, he poses no threat to the safety of the child, and the termination
of his parental rights will not result in the adoption of the child by
another man. The father maintains that the termination of his parental
rights does not directly benefit the child and that it is, in fact, "cruel and
unjust" to the child. Father's brief, p. 15. Thus, he asserts, termination
of his parental rights is not in the best interests of the child.
Preservation of Issue
In the final judgment, the juvenile court did not expressly conclude
that termination of the father's parental rights would serve the best
interests of the child, but that determination was implicit in its
judgment. See Montgomery Cnty. Dep't of Hum. Res. v. T.S., 218 So. 3d
1252, 1262 (Ala. Civ. App. 2016) (holding that, in reviewing a judgment
in a termination-of-parental-rights case, this court presumes that the
juvenile court implicitly made those findings necessary to sustain its
judgment). The father did not file a postjudgment motion or otherwise
argue before the juvenile court that termination of his parental rights
was not in the best interests of the child. The juvenile court appointed a
guardian ad litem for the child, see Ala. Code 1975, § 12-15-304, who also
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did not argue before the juvenile court that termination of the parental
rights of the father did not serve the best interests of the child.
Ordinarily, this court may not consider a legal argument for
reversal of a judgment that has been raised for the first time on appeal.
See Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.1992). However,
as an exception to the general rule, in rare circumstances, an Alabama
appellate court may consider an issue that has not been otherwise
preserved for appeal to protect the welfare and best interests of a minor.
See Hall v. Hall, 280 Ala. 275, 192 So. 2d 727 (1966).
In Hall, B.A. Hall was required, pursuant to the terms of a divorce
judgment, to pay $75 per month to Mary Brown Hall for the support of
the parties' minor child. Subsequently, B.A. delivered $10,000 in cash to
Mary and paid 14 months of child support. In a modification action, the
Russell Circuit Court determined that Mary should retain $7,000 of the
$10,000 as a full and final settlement of her child-support claim and that
Mary should repay B.A. the remaining $3,000 of the funds along with the
14 months of child-support payments that B.A. had previously made
while his modification petition was pending, which totaled $1,050. Mary
appealed, asserting that the circuit court had erred in requiring her to
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repay the $3,000. On appeal, the supreme court unanimously affirmed
the judgment insofar as it required Mary to return the $3,000, but the
court reversed the judgment insofar as it required Mary to return the
$1,050 in past installments of child support. As to the latter ruling, the
supreme court said:
"While we have held that where the support installments to a minor that mature before a petition to modify is filed are immune from change (Scott v. Scott, 265 Ala. 208, 90 So. 2d 813 [(1956)]), we are here unwilling to hold that the petitioner, for modification, is entitled to a refund of the payments, made after petition was filed, that he elected to pay. We think this court has a duty ex mero motu to protect the welfare of its minor ward who is before the court. Pritchett v. Dixon, 222 Ala. 597, 133 So. 2d 283 [(1931)]; Doss v. Terry, 256 Ala. 218, 54 So. 2d 451 [(1951)].
"It is to be noted that the alleged agreement between [Mary] and [B.A.], according to the latter's contention, was that $7,000 of the special deposit was to be applied as a lump sum settlement in lieu of future installments, but, so far as the record shows, nothing was said between the parties about a refund of installments paid during the pendency of the petition for modification.
"Even if there were such an agreement, we wouldn't honor it as being in the best interests and welfare of the minor, whom we are lawfully enjoined to protect after the court has assumed jurisdiction of such welfare. A refund would have to come out of the $7,000 for the reason that [Mary] is not personally bound to make refund from her own assets."
5 CL-2023-0576
280 Ala. at 280, 192 So. 2d at 731 (emphasis added).
Hall recognizes that appellate courts of this state are "lawfully
enjoined to protect" the welfare and best interests of a child once the court
has assumed jurisdiction over a judgment concerning the welfare and
best interests of a child. This guardianship responsibility allows
Alabama appellate courts to act ex mero motu to raise and address an
issue affecting the welfare and best interests of a minor child in an appeal
filed by the parent of that child even when that parent has not properly
preserved the issue for appellate review. See Black's Law Dictionary 575
(6th ed. 1990) (defining "ex mero motu" as "[o]f his own mere motion; ...
voluntarily and without prompting or request," and stating that a court
acts ex mero motu "[w]hen a court interferes, of its own motion, to object
to an irregularity, or to do something which the parties are not strictly
entitled to, but which will prevent injustice"). Pursuant to Hall, upon
noticing a legal error, apparent on the face of the record, that is
prejudicial to the welfare and best interests of a child, an Alabama
appellate court should correct that error to prevent an injustice to the
child even if, under the ordinary rules of appellate procedure, that error
has not been preserved for appellate review. See, e.g., Citizens Walgreen
6 CL-2023-0576
Drug Agency, Inc. v. Gulf Ins. Co., 282 Ala. 648, 213 So. 2d 814 (1968).
Perhaps because the Alabama Supreme Court no longer has
appellate jurisdiction over child-welfare cases, see Ala. Code 1975, § 12-
3-10 (vesting the Court of Civil Appeals with appellate jurisdiction over
domestic-relations cases beginning in 1969), it has not exercised the
power it recognized in Hall since it issued that opinion. However, this
court, which is governed by the decisions of the supreme court, see Ala.
Code 1975, § 12-3-16, has twice held that it may, in discharging its duty
to treat minor children as wards of the court in appellate proceedings, act
ex mero motu to correct an obvious legal error to ensure that an order or
judgment advances the minor children's welfare and best interests.
In Stevens v. Everett, 784 So. 2d 1054, 1055 (Ala. Civ. App. 2000),
overruled on other grounds by Ex parte Fann, 810 So. 2d 631 (Ala. 2001),
a child-custody-modification case, this court raised and decided an issue
of a trial court's noncompliance with the Alabama Custody and Domestic
or Family Abuse Act, Ala. Code 1975, § 30-3-130 et seq., although that
issue had not been preserved for appellate review. Responding to
Presiding Judge Robertson's dissent arguing that the court could not
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consider the issue because it was not raised and argued in the underlying
proceedings or in the appellant's brief, the court said:
"Although the mother[, the appellant,] did not specifically raise the [Alabama Custody and Domestic or Family Abuse] Act in the trial court or on appeal, and although Judge Robertson is correct in stating that this court generally does not review on appeal arguments not raised either in the trial court or in the appellant's brief, a case involving child custody is not the 'general' case. Alabama courts have historically held that when a trial 'court has acquired jurisdiction of a child as to the child's custody and control, the child becomes a ward of the court and the parties to the suit are of secondary importance.' Thorne v. Thorne, 344 So. 2d 165, 168 (Ala. Civ. App. 1977) (citation omitted). In addition, our supreme court has held that '[t]he question of the custody of infant children is not an adversary proceeding between parents in the eyes of the law, but is a matter within the peculiar discretion of the [trial court] as to the welfare of wards of the court.' Stephens v. Stephens, 253 Ala. 315, 319- 20, 45 So. 2d 153, 157 (1950)."
784 So. 2d at 1055. This court recognized that, in an appeal from a
judgment entered in a child-custody case, the court is not bound by the
ordinary rules of appellate procedure that would otherwise prevent the
court from exercising its duty to notice and correct legal errors adversely
affecting the welfare and the best interests of the child.
In Ex parte R.H., 311 So. 3d 761, 771 (Ala. Civ. App. 2020), this
court reasoned that, even though the issue had not been properly raised
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in underlying dependency proceedings, this court could notice and correct
an error that had been committed by the Marshall Juvenile Court in
appointing a guardian ad litem to execute a pediatric, palliative, and end-
of-life care order for a dependent child, which appointment was not
authorized by the Natural Death Act, Ala. Code 1975, § 22-8A-1 et seq.
In reaching that decision, this court relied partially on Stevens and
explained that, although Stevens had been overruled by our supreme
court in Ex parte Fann, supra, our supreme court did not hold that this
court had overreached by independently raising and addressing an issue
not preserved for appeal to protect the welfare and the best interests of
the children before the court. 311 So. 3d 771 n.7.
The foregoing cases indicate that this court has limited discretion
to invoke the exception to the preservation rule for the benefit of the
welfare and best interests of a minor child. That discretion has been
exercised only to correct obvious and indisputable violations of statutory
and decisional law that clearly had prejudiced a child's substantive or
procedural rights. Alabama appellate courts have acted only to correct
misunderstandings or misapplications of Alabama law designed to
protect and benefit the child. That discretion has not been used by
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Alabama appellate courts to resolve disputed issues of fact or to consider
the sufficiency of the evidence to support a purely factual determination
made by a trial court regarding the welfare and best interests of a child.
This court has heretofore not applied the exception to the
preservation rule when reviewing a judgment terminating parental
rights. When an adult parent appeals a judgment terminating his or her
parental rights, we clearly cannot ex mero motu raise and address issues
such as whether the parent received due process or whether there are
grounds for termination and all viable alternatives have been exhausted,
see Ex parte Bodie, 377 So. 3d 1051, 1064 (Ala. 2022) (Parker, C.J.,
concurring specially), which the parent must properly preserve for
appellate review. See, e.g., J.M.L. v. Tuscaloosa Cnty. Dep't of Hum.
Res., [Ms. CL-2023-0765, Apr. 6, 2024] ___ So. 3d ___ (Ala. Civ. App.
2024). However, the welfare and best interests of a child are a paramount
consideration in termination-of-parental-rights proceedings. See J.C. v.
State Dep't of Hum. Res., 986 So. 2d 1172 (Ala. Civ. App. 2007). On
appeal from a judgment terminating parental rights, this court must
assure that the judgment serves the welfare and best interests of the
child at issue. See T.W. v. Calhoun Cnty. Dep't of Hum. Res., [Ms. CL-
10 CL-2023-0576
2022-0694, June 2, 2023] ___ So. 3d ___ (Ala. Civ. App. 2023). Consistent
with the reasoning in Hall and similar cases, this court should be afforded
the discretion to ex mero motu notice and correct an erroneous judgment
that is not in the best interests of the child. Nevertheless, in J.C.L. v.
J.B.L., 370 So. 3d 254 (Ala. Civ. App. 2022), a termination-of-parental-
rights case, a majority of this court declined to use its limited discretion
to determine whether the judgment was in the best interests of the child.
The record in J.C.L. disclosed that J.C.L. and J.B.L. had entered
into an agreement, pursuant to which J.C.L. would consent to the entry
of a judgment terminating her parental rights to their minor child in
exchange for monetary consideration, including a waiver of her obligation
to pay child support; the Autauga Juvenile Court entered a judgment
terminating J.C.L.'s parental rights based on that agreement, without
inquiring as to whether the agreement would serve the best interests of
the child. On appeal, J.C.L. asserted in one sentence in her appellate
brief that " '[t]here is nothing about the agreement suggesting that such
was done for the best interests of the child but merely a financial
arrangement.' " 370 So. 3d at 264. Over a dissent arguing that Ex parte
R.H. allowed the court to consider that argument although it had not
11 CL-2023-0576
been properly preserved for appellate review, 370 So. 3d at 267-68
(Moore, J., dissenting), a majority of this court refused to consider
whether the waiver of child support would serve the best interests of the
child.
Upon further consideration, it appears that, in J.C.L., this court
overlooked our supreme court's decision in Hall, which was not cited in
either the majority or the dissenting opinion. Hall had already
affirmatively decided that an appellate court should notice and correct
an obvious legal error that deprives a child of financial support. In J.C.L.,
this court should have applied Hall to address the error of the Autauga
Juvenile Court in improperly terminating the parental rights of a
noncustodial parent based on an agreement with the custodial parent to
waive a child's right to child support without inquiring as to whether the
agreement was in the best interests of the child. See Ex parte Brooks,
513 So. 2d 614, 617 (Ala. 1987). Instead, the majority opinion avoided
the issue by attempting to distinguish the case from Ex parte R.H. on two
grounds.
12 CL-2023-0576
First, the majority opinion insisted that Ex parte R.H. allowed the
court to review an issue raised for the first time on appeal only because
the life of a child was at stake, whereas the issue at stake in J.C.L.
concerned only the loss of child support. 311 So. 3d at 266. However, as
Hall illustrates, the life of a child does not have to be in jeopardy for this
court to apply the exception to the preservation rule, and this court may
act ex mero motu to relieve a child of an incorrect judgment adversely
affecting only his or her right to child support. The holding in J.C.L. is
clearly in conflict with the supreme court's decision in Hall. See § 12-3-
16 (providing that decisions of the Court of Civil Appeals are governed by
the opinions of the supreme court).
Second, the majority opinion reasoned that this court should not
raise an issue regarding the welfare and best interests of a minor child
when his or her guardian ad litem has elected not to do so. 370 So. 3d at
266. However, the rule prevailing in Alabama holds that a guardian ad
litem cannot waive an error affecting the welfare and best interests of a
minor child by failing to make a proper and timely objection. See
Johnston v. Shaw, 31 Ala. 592, 594 (1858) (holding that guardian ad litem
could not effectively waive objection to venue on behalf of infants by filing
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an answer on their behalf without asserting objection and holding that
chancery court could, acting ex mero motu, dismiss suit on behalf of
infants). As our supreme court recognized as far back as Clark v. Gilmer,
28 Ala. 265 (1856), an appellate court may not disregard an obvious legal
error affecting the welfare and the best interests of a child because the
error was not raised or argued by the legal representative of the child.
As the supreme court said:
"It is proper to say, that the error for which the decree is reversed, is one which escaped the notice of the solicitors and the chancellor, and was not even noticed by the counsel on the argument in this court. But, as it is an error to the prejudice of infants, and we see it on the record, and the assignment of errors is broad enough to embrace it, we cannot pass it over, nor allow the decree to stand."
28 Ala. at 266-67. The failure of a guardian ad litem to raise an objection
in the court below or to otherwise observe procedural rules for preserving
an error for appellate review does not estop an appellate court from
proactively guarding and protecting the welfare and best interests of a
child. See Jones v. Jones, 56 Ala. 612, 613 (1876); see also Haden v.
Eaves, 55 N.M. 40, 43, 226 P.2d 457, 459 (1950) (quoting 3 Am. Jur.
Appeal and Error § 249) (noting that some courts apply rules of appellate
procedure equally to infants but that " 'the better rule' " allows an
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appellate court to protect the welfare and best interests of a child even
when no objection or exception has been made in the lower court); 43
C.J.S. Infants § 468 (2014) (accord); 15 S.C. Jur. Appeal and Error § 72
("[T]he procedural delicts of adults will not be allowed to harm the
interest of minors.").
We conclude that J.C.L. does not accurately represent the state of
Alabama law on this point, and we decline to follow it in this case. We
conclude that, upon a parent's appeal of a judgment terminating his or
her parental rights, this court may exercise its limited discretion to
assure that the welfare and best interests of the child at issue have not
been compromised by an obvious legal error committed by a juvenile
court even though that issue has not been properly preserved for
appellate review. See South Carolina Dep't of Soc. Servs. v. Roe, 371 S.C.
450, 463, 639 S.E.2d 165, 172 (Ct. App. 2006) (holding that court would
consider whether judgment terminating parental rights served best
interests of child even though appellant-parent had not preserved issue
for appellate review).
In this case, the father argues only that the judgment should be
reversed because, as a matter of law, it is not in the child's best interests
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for his parental rights to be terminated. We stress that the father does
not argue that the evidence is insufficient to support the implicit
determination that the termination of his parental rights was in the best
interests of the child. The father instead argues that the juvenile court
misapplied the law to the undisputed facts to reach an erroneous legal
conclusion that the termination of his parental rights would serve the
best interests of the child. We will address that precise legal argument
despite the father's failure to raise that same point to the juvenile court.
Facts
The evidence presented indicates that the mother, who is
Caucasian, and the father, who is African-American, never married, but
had known each other since elementary school and had eventually
engaged in a romantic relationship that had resulted in the conception
and subsequent birth of the child. After his birth, the child, the mother,
and the father resided together in an apartment in Dothan. The mother
stayed at home with the child while the father worked to provide food
and shelter for the family. The father testified that, during that period,
he had worked inconsistent hours, beginning work at either 3:00 a.m. or
5:00 a.m., and that he would be tired when he returned home after work.
16 CL-2023-0576
He testified, however, that he had been familiar with caring for a
newborn because he has a daughter from a previous relationship ("the
daughter"), that he had assisted the mother in caring for the child, and
that he had helped feed the child. The mother testified that the father
had "[v]ery rarely" cared for or helped with diapering the child, that he
had "[r]arely" interacted with the child, that he had helped feed the child
"[o]n occasion," and that he had interacted with the child when he
returned home from work "[w]hen he was not tired." She stated that they
had supplemented the father's income with assistance through the
federal Special Supplemental Nutrition Program for Women, Infants,
and Children and that her parents had also assisted her and the child
financially.
The mother also testified that, on September 17, 2022, she and the
child had moved out of the apartment they had shared with the father
and had moved to Ozark, where they resided with her parents, who, she
said, had financially supported her and the child since that time. She
stated that she had last been employed when she was pregnant with the
child; that she has a Bachelor of Science degree and a clinical doctorate
in physical therapy; and that she was not licensed as a physical therapist
17 CL-2023-0576
at the time of the trial, but that she was taking an online course to
prepare for a national board exam, which she had previously taken but
had not passed. The mother testified that she is able to care for the child
on her own and that she has a support system that includes her parents,
her brother and his fiancé, and other friends and family. She stated that
the child has eczema, had undergone allergy testing, and had had surgery
for an umbilical hernia; otherwise, she said, the child does not have any
extraordinary medical issues. The mother testified that she was not in a
relationship at the time of the trial, that she was not seeking to obtain
paternal rights of the child by another, and that her brother had agreed
to act as the child's legal guardian if something happened to the mother.
According to the father, the mother had requested for him not to be
present for the child's first birthday. The mother testified that the
father's mother ("the paternal grandmother") had visited the child on
September 30, 2022; she also testified that the paternal grandmother had
contacted her on October 19, 2022, and again on April 4, 2023, but that
she had failed to respond to the paternal grandmother's last attempt to
contact her in April. The mother stated that she had last communicated
with the father on October 22, 2022, when the father had informed her
18 CL-2023-0576
that he was going to send some money and some clothes for the child and
had requested to see the child. The mother testified that the father had
sent her $202 at that time, that she had informed the father that he could
visit the child at her parents' home, that he had not responded, and that
he had not requested to see the child since that time. According to the
mother, on September 22, 2022, she filed in the Houston Circuit Court a
petition for custody of the child; on December 12, 2022, the Houston
Circuit Court entered a default judgment against the father that, among
other things, included a graduated visitation schedule, which had been
proposed by the mother and pursuant to which the father would exercise
visitation with the child to be supervised by the child's maternal
grandmother, and directed the father to pay child support to the mother
in the amount of $497 per month. The mother testified that the father
had failed to pay child support or to provide gifts for the child following
the entry of the default judgment.
The mother testified further that her attorney had brought to her
attention the possibility of terminating the father's parental rights. She
stated that she did not have any concerns that the father would act
aggressively toward the child, and she declined to describe her
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relationship with the father as having been volatile. The mother
admitted that the father had been excited about the birth of the child and
that the father exercises visitation with the daughter and has a
relationship with her. When asked whether there are "things that maybe
[she] as a mother, and as a white woman, wouldn't know for an African-
American male," the mother replied, "I agree." She testified, however,
that she had not contacted the father following their separation because
she had "wanted him to want to see his child" and had "wanted it to be
his honest and genuine feelings to see his child." When asked why she
believed that termination of the father's parental rights would be in the
child's best interests, the mother stated that, if the father's parental
rights were not terminated, she "believe[d] [the child] would live a life of
inconsistency" and that the child "deserves a parent who is willing and
wants to be in his life for the right reasons, and not just [because] he's
obligated or because he wants to appear as if he is doing the right thing."
The father testified that, since he and the mother had separated,
he had found different employment with more regular hours. He testified
that he had failed to respond to the mother's petition for custody in the
Houston Circuit Court or to request visitation with the child because he
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had not wanted to have contact with the mother following their
separation. The father stated that he and the mother had failed to
contact one another "because of pride" and that he regretted his failure
to pursue a relationship with the child. He admitted that he had failed
to pay child support; he stated that he could not afford to pay the amount
that had been awarded to the mother in the default judgment. The father
stated that he loves the child and wants to be in the child's life. He
testified also that the child and the daughter had had a great
relationship, that the child "would light up when [the daughter] came,"
and that the daughter had asked about the child and had noticed his
absence.
Standard of Review
The salient facts being undisputed, we must determine whether the
juvenile court misapplied the applicable law to those facts, which is a
question of law that we consider without a presumption of correctness.
See Brown v. Childress, 898 So. 2d 786, 788 (Ala. Civ. App. 2004).
Analysis
In 2020, our legislature amended § 12-15-319, see Ala. Acts 2020,
Act No. 2020-34, so that it now provides, in pertinent part:
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"If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[]. In a hearing on a petition for termination of parental rights, the court shall consider the best interests of the child."
(Emphasis added.)
That amendment incorporates long-standing Alabama law allowing
a juvenile court to exercise its discretion to terminate parental rights only
when it serves the best interests of the child. As explained in Ex parte
Brooks:
"Our courts are entrusted with the responsibility of determining the best interests of children who come before them. When a child's welfare is threatened by continuation of parental rights, the law provides a means for terminating those rights. When, after consideration of all evidence before it, a court determines that termination of parental rights would not serve the best interest of a child, as in the present case, parental rights should not be terminated."
513 So. 2d at 617.
Although some supreme court cases have held that this court
applies a two-prong test when analyzing the correctness of a judgment
terminating parental rights, see, e.g., Ex parte T.V., 971 So. 2d 1 (Ala.
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2007), as recently explained by Chief Justice Parker, "three elements
must be met: a ground for termination, the absence of a viable alternative
to termination, and a showing that termination is in the best interests of
the child." Ex parte Bodie, 377 So. 3d at 1064 (Parker, C.J., concurring
specially). Even in cases in which grounds for termination exist and no
other viable alternative may be implemented, a juvenile court still must
make a separate determination that termination of parental rights
serves the best interests of the child, and, if it does not, it may not
terminate parental rights. See Ex parte Brooks, supra.
"Whereas the first two elements exist to protect the parent's rights,
this third element exists to protect the child's interests." Ex parte Bodie,
377 So. 3d at 1068 (Parker, C.J., concurring specially). The best-
interests-of-the-child inquiry focuses exclusively on the impact of the
termination on the needs and interests of the child. In considering the
best interests of the child, a juvenile court is determining not whether it
can terminate parental rights, but whether it should terminate parental
rights for the benefit of the child for whom the remedy is intended. See
S.D.P. v. U.R.S., 18 So. 3d 936, 942 (Ala. Civ. App. 2009) (Moore, J.,
concurring specially).
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In examining whether termination of parental rights promotes the
best interests of the child, a juvenile court should consider all the
traditional best-interests factors, see Ex parte Devine, 398 So. 2d 686,
696 (Ala. 1981) (holding that, in deciding what is in the best interests of
the child, the fact-finder should consider, among other things, the
emotional, social, moral, material, and educational needs of the child),
but the court should primarily focus on the effect of the proposed
termination on the child's needs for security, stability, and permanency.
See S.D.P., 18 So. 3d at 944 (Moore, J., concurring specially). By allowing
a juvenile court to involuntarily sever the rights of a parent so that the
child can be adopted without the consent of that parent, termination of
parental rights is a remedy that is specially designed to meet the
particularized needs of a child for a stable and permanent custodial
arrangement. See T.W. v. Calhoun Cnty. Dep't of Hum. Res., supra.
Thus, at a minimum, when deciding whether termination of parental
rights is in the best interests of a child, a juvenile court should focus on
whether termination of the legal relationship between the child and the
parent will protect the welfare of the child and promote the stability and
permanency of the child. Id.
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In Ex parte Brooks, supra, a juvenile court denied the joint petition
of a custodial parent and a noncustodial parent requesting that the
noncustodial parent's parental rights be terminated because it concluded
that the termination would deprive the child of the future right to child
support, parental affiliation, and inheritance from the noncustodial
parent without meaningfully benefiting the child. 513 So. 2d at 615. Our
supreme court agreed that it would not be in the best interests of the
child to lose those rights, particularly the right to child support, when the
child "would receive nothing in return." 513 So. 2d at 617. The supreme
court determined in Ex parte Brooks that termination of the parental
rights of the father of the child at issue in that case was not necessary to
secure the child from parental harm because the child's father had never
harmed him. The supreme court further concluded that the termination
did not serve the child's custodial needs because the child's father was
not disrupting the stable and permanent familial relationship between
the child and his mother, who had independently raised him as a single
parent since his birth. Id. As the child's guardian ad litem further
pointed out, the termination was not accomplished in contemplation of
the future adoption of the child. 513 So. 2d at 616. Considering those
25 CL-2023-0576
circumstances, the supreme court ultimately determined that
termination of parental rights was not an appropriate remedy because it
did not serve the best interests of the child as intended by the termination
statute.
The supreme court later overruled Ex parte Brooks in part, on other
grounds, see Ex parte Beasley, 564 So. 2d 950 (Ala. 1990), and the
supreme court also subsequently clarified that a judgment terminating
parental rights does not automatically terminate a parent's obligation to
pay child support. See Ex parte M.D.C., 39 So. 3d 1117 (Ala. 2009).
However, the reasoning in Ex parte Brooks otherwise remains sound and
has been followed by this court in numerous cases in which a custodial
parent was seeking to terminate the parental rights of a noncustodial
parent. See, e.g., In re Beasley, 564 So. 2d 959 (Ala. Civ. App. 1990);
Miller v. Knight, 562 So. 2d 274 (Ala. Civ. App. 1990); Talley v. Oliver,
628 So. 2d 690 (Ala. Civ. App. 1993); and S.M.W. v. J.M.C., 679 So. 2d
256 (Ala. Civ. App. 1996).
Based on that line of cases, this court has recognized that, when a
child is safely residing in a stable and permanent custodial arrangement
with a custodial parent, and no adoption of the child is contemplated, the
26 CL-2023-0576
best interests of the child are not served by termination of the
noncustodial parent's parental rights. See J.C.D. v. Lauderdale Cnty.
Dep't of Hum. Res., 180 So. 3d 900, 901 (Ala. Civ. App. 2015)
("Termination of the parental rights of a noncustodial parent is not
appropriate in cases in which the children can safely reside with the
custodial parent and the continuation of the noncustodial parent's
relationship does not present any harm to the children."). When a
custodial parent can "adequately provide for the safety, permanency, and
other needs of the child[]," termination of the parental rights of a
noncustodial parent generally is not appropriate because the child does
not benefit from the termination of parental rights in any legally
significant way. Id. at 902.
"In most cases, the termination of parental rights serves to free up children for adoption so that the children can achieve permanency and stability. ... However, when [a judgment awards a natural parent custody of the children], their interest in permanency and stability has been satisfied and a termination of the parental rights of the noncustodial parent will not advance that interest in any respect."
J.G. v. Lauderdale Cnty. Dep't of Hum. Res., 379 So. 3d 444, 450 (Ala.
Civ. App. 2023). "Termination of parental rights is reserved for those
rare cases in which no less drastic measure can achieve the state's
27 CL-2023-0576
compelling objective of safeguarding children from harm or the children's
interest in achieving permanency and stability." Id. at 451.
In the context of termination of parental rights, "the term
'permanency' refers to a safe, stable, and nurturing custodial
arrangement lasting throughout the child's minority." T.W., ___ So. 3d
at ___. "Stability" refers mainly to "stability in the psychological and
emotional relationship a child has with his or her custodial parent." T.C.
v. Y.R., 162 So. 3d 920, 928 (Ala. Civ. App. 2014) (Moore, J., dissenting).
In this case, the undisputed facts show that the mother is adequately
meeting the child's security, stability, and permanency needs, and those
needs will not be further promoted by termination of the parental rights
of the father. The child is safely residing with the mother. The
continuation of the legal relationship between the father and the child
does not threaten the safety and welfare of the child. Maintaining the
legal father-child relationship does not imperil the child's stable custodial
arrangement with the mother or implicate his prospects for adoption.
See W.W. v. H.W., [Ms. CL-2022-0710, Apr. 14, 2023] ___ So. 3d ___, ___
(Ala. Civ. App. 2023) (holding that, given absence of adoptive resource,
termination did not serve best interests of child). Applying the law to
28 CL-2023-0576
these undisputed facts, the only legal conclusion to be drawn is that
termination of the father's parental rights is not appropriate because it
does not advance the best interests of the child, particularly those
interests most relevant in these types of cases. The juvenile court erred
in deciding otherwise.
Conclusion
Termination of parental rights deprives a child of a legal parent,
and the remedy should be invoked only when, in return, it supplies the
child with the necessary security, stability, and permanency the child
would otherwise lack by maintaining the parental relationship. See
T.W., supra. If not, the best interests of the child require that the petition
to terminate parental rights be denied. See Ex parte Brooks, supra. In
this case, the juvenile court misapplied the law to the undisputed facts
when it impliedly determined that termination of the father's parental
rights would serve the best interests of the child and imposed the extreme
remedy of termination of parental rights. We cannot allow that legal
error to go uncorrected based solely on the failure of the father to properly
preserve the best-interests-of-the-child issue for our review. Accordingly,
we reverse the juvenile court's judgment terminating the father's
29 CL-2023-0576
parental rights and remand the case for the entry of a judgment denying
the mother's petition to terminate the father's parental rights.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Edwards and Lewis, JJ., concur.
Hanson, J., dissents, with opinion, which Fridy, J., joins.
30 CL-2023-0576
HANSON, Judge, dissenting.
I respectfully dissent from the main opinion's reversal of the Dale
Juvenile Court's judgment terminating the parental rights of J.A. ("the
father") to M.J.A. ("the child"), which reversal is predicated on the ground
that the termination of his parental rights was not in the child's best
interests. The father (who is the sole appealing party) failed to raise the
best-interests issue in his appellate brief, and, even if he had properly
raised the issue, he waived the issue by failing to challenge the
sufficiency of the evidence supporting the judgment in a postjudgment
motion.
The father, in his appellate brief, did not formulate an argument,
supported by relevant authority, that S.L. ("the mother") had failed to
demonstrate that the best interests of the child would not be served by
terminating his parental rights. See Rule 28(a)(10), Ala. R. App. P. This
court has consistently acknowledged that a parent, in a dependency or a
termination-of-parental-rights case, waives an argument not properly
raised and argued in brief. See, e.g., J.C.L. v. J.B.L., 370 So. 3d 254, 267
(Ala. Civ. App. 2022) (concluding that a mother's appellate brief failed to
cite any authority in support of her cursory assertion that the juvenile
31 CL-2023-0576
court's judgment terminating her parental rights was in the child's best
interest); D.M. v. Jefferson Cnty. Dep't of Hum. Res., 232 So. 3d 237, 243
(Ala. Civ. App. 2017) (holding that this court would not consider the issue
of abandonment when a father did not challenge the juvenile court's
finding of abandonment or cite any authority in support of such an
argument); T.T. v. C.E., 204 So. 3d 436, 440 (Ala. Civ. App. 2016) (holding
that a father had waived claim that termination of his parental rights
was not in the best interests of the child by failing to set forth an
argument supported by relevant authority).
In Hudson v. Hudson, 178 So. 3d 861, 865 (Ala. Civ. App. 2014), this
court stated:
" 'Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.' White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008); see also Bishop v. Robinson, 516 So. 2d 723, 724 (Ala. Civ. App. 1987) (quoting Thoman Eng'g, Inc. v. McDonald, 57 Ala. App. 287, 290, 328 So. 2d 293, 294 (Civ. App. 1976)) (noting that an appellant should 'present his issues "with clarity and without ambiguity" ' and 'fully express his position on the enumerated issues' in the argument section of his brief); accord United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ('It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.')."
32 CL-2023-0576
The main opinion's creation of an argument on behalf of the father,
as the appellant, results in fundamental unfairness to the mother who
has had no opportunity to respond to the main opinion's sua sponte
advancement of an argument on behalf of the father because the father
had failed to raise that argument in his appellate brief. I believe that
this court must refrain from overstepping its bounds and addressing
issues not adequately presented and briefed. This court, unlike the
Alabama Court of Criminal Appeals, is not tasked with complying with
the optional "plain error" rule. See Rule 45A, Ala. R. App. P.
Furthermore, even if the father had properly asserted an argument
that the mother had failed to demonstrate that the best interests of the
child would not be served by termination of his parental rights, he
nevertheless failed to challenge the sufficiency of the evidence of the
child's best interests in a postjudgment motion. Other than
acknowledging that the father had abandoned the child for a period of
more than four months, the juvenile court's judgment did not make
specific findings of fact as to the grounds for its termination of the father's
parental rights. The father failed to file a postjudgment motion
challenging the sufficiency of the evidence supporting the judgment. A
33 CL-2023-0576
judgment terminating parental rights does not equate to a specific
finding of fact that will excuse the filing of a postjudgment motion raising
the issue of the sufficiency of the evidence to support the termination
judgment. See New Props., L.L.C. v. Stewart, 905 So. 2d 797, 801-02
(Ala. 2004) ("[I]n a nonjury case in which the trial court makes no specific
findings of fact, a party must move for a new trial or otherwise properly
raise before the trial court the question relating to the sufficiency or
weight of the evidence in order to preserve that question for appellate
review."). If the father had filed a postjudgment motion attacking the
sufficiency of the evidence, the juvenile court would have been afforded
the opportunity to review the evidence and correct any errors in its
judgment. Id.
Regarding addressing ex mero motu issues not preserved for
appeal, the main opinion relies on Hall v. Hall, 280 Ala. 275, 192 So. 2d
727 (1966), which involved the issue whether a payment by the former
husband to his former wife was a gift or whether the gift was conditioned
on the former wife's promise to hold the payment in trust for their minor
child. In explaining the nature of the payment, the supreme court
explained:
34 CL-2023-0576
"This money in a sense was the property of the minor, for her maintenance and support, although paid to the mother for administration and expenditure. The child is neither a party to this suit, nor is she represented by guardian ad litem. She is a ward of the court and entitled to its protection.
"While we have held that where the support installments to a minor that mature before a petition to modify is filed are immune from change (Scott v. Scott, 265 Ala. 208, 90 So. 2d 813 [(1956)]), we are here unwilling to hold that the petitioner, for modification, is entitled to a refund of the payments, made after petition was filed, that he elected to pay. We think this court has a duty ex mero motu to protect the welfare of its minor ward who is before the court. Pritchett v. Dixon, 222 Ala. 597, 133 So. 2d 283 [(1931)]; Doss v. Terry, 256 Ala. 218, 54 So. 2d 451[(1951)]."
Hall, 280 Ala. at 280, 192 So. 2d at 731. Both Pritchett v. Dixon, 222 Ala.
597, 133 So. 2d 283 (1931), and Doss v. Terry, 256 Ala. 218, 54 So. 2d 451
(1951), which were relied upon in Hall, involved the supreme court's
recognition that the failure to appoint a guardian ad litem for an infant
was an error that had to be noticed ex mero motu despite not having been
raised. Likewise, Citizens Walgreen Drug Agency, Inc. v. Gulf Insurance
Co., 282 Ala. 648, 213 So. 2d 814 (1968), which is cited by the main
opinion, concerned the absence of a guardian ad litem.
The main opinion cites Ex parte R.H., 311 So. 3d 761 (Ala. Civ. App.
2020), to support its contention that this court should disregard the rules 35 CL-2023-0576
governing procedure in our courts in order to raise issues and create
arguments on behalf of interested persons. This court explained in J.C.L.
v. J.B.L., 370 So. 3d 254, 265-66 (Ala. Civ. App. 2022), why Ex parte R.H.
does not support disregarding our rules except under extraordinary facts:
"The dissent attempts to broadly expand part of the holding in Ex parte R.H., 311 So. 3d 761, 771 (Ala. Civ. App. 2020), in which this court, ex mero motu, considered an issue that had not been properly argued by the petitioner. That case involved extreme facts -- the guardian ad litem for the child at issue had filed a motion in the Marshall Juvenile Court seeking an order that would allow the child's physicians to place a 'Pediatric Palliative and End of Life' ('PPEL') care order in the child's medical file; the effect of the PPEL care order would have been to allow the natural death of the child, who had a painful and terminal medical condition. In her petition for a writ of mandamus challenging an order granting that request, the mother in that case raised several issues[,] including whether the juvenile court could properly appoint the child's guardian ad litem to execute the PPEL care order, an issue the mother had not argued in the juvenile court; this court disagreed as to whether the mother's argument as to that issue in her petition for a writ of mandamus was adequate. This court also noted that, '[o]rdinarily, when a petitioner has not raised a point in support of the issuance of a writ of mandamus before the lower court, that point is not preserved for the appellate court's consideration.' Ex parte R.H., 311 So. 3d at 771. However, this court did not apply in that particular case the rules that an issue must be raised in the lower court to preserve the issue for consideration by an appellate court and that this court may not raise issues not identified by the petitioner or appellant; this court explained that, under the extraordinary circumstances of the case, the child's right to life overrode the technical rules of our courts:
36 CL-2023-0576
" 'In this case, the juvenile court committed an indisputable error of law in appointing [the guardian ad litem] as the representative of the child because [the guardian ad litem] is not within the class of persons eligible to act as a representative for a qualified minor under § 22- 8A-3(18)[, Ala. Code 1975]. That error has far more profound implications than a mere irregularity in the proceedings. The challenged order allows [the guardian ad litem] to execute a PPEL care order designed to withhold life-sustaining treatment from the child although [the guardian ad litem] does not have any custodial power over the child. That error directly impacts the fundamental right of the child to life. See United States Constitution, amend. V ("No person shall be ... deprived of life ... without due process of law ...."), and amend. XIV, § 1 ("... nor shall any State deprive any person of life ... without due process of law ...."). The child lacks any capacity, legal or actual, to raise this issue on his own. His fundamental rights should not be disregarded based on the failure of the mother to comply with technical procedural rules for preserving issues for mandamus review. To prevent an injustice of such magnitude, this court exercises its limited discretion to correct the error sua sponte.'
"Ex parte R.H., 311 So. 3d at 772 (emphasis added).
"There is nothing in the language of Ex parte R.H., supra, indicating that this court or its members should, under different facts that do not implicate a life-or-death decision regarding a child, disregard the rules governing our courts and create, elaborate upon, analyze, and support with citations to authority an argument not advanced by any of the
37 CL-2023-0576
parties. The dissent has not identified any extraordinary facts of this case that would warrant doing so.
"Moreover, in Ex parte R.H., supra, this court considered issues that implicated the authority of the child's own guardian ad litem to take action on behalf of the child. In pointing out that the child in Ex parte R.H. had no 'capacity, legal or actual, to raise this issue on his own,' this court recognized that it was considering the authority of the child's own -- and only -- representative to make a life-or-death decision on behalf of the child. Ex parte R.H., 311 So. 3d at 772. In other words, under the peculiar facts of that case, the only representative who could validly question the authority of the person making the life-or-death decision for the child was the person authorized to make that decision under the judgment at issue in that case. Although that conflict was arguably not the fault of the guardian ad litem in that case, the child had no disinterested advocate in Ex parte R.H., supra.
"In this case, however, the child was represented by able counsel in the juvenile court, and, therefore, the child, through her guardian ad litem, had the ability to assert the argument formulated by the dissent. The child has not done so. The mother is also represented by counsel and appears to have chosen not to advance the argument made by the dissent. … Also, the father has not appealed to contend that he should continue to receive child support on behalf of the child. Accordingly, we do not reach the issues advanced in the dissent to this opinion."
(Footnote omitted.)
I also note that, in Ex parte R.H., the court referenced Berry v.
Berry, 2018 Pa. Super. 276, 197 A.3d 788, 797 (2018), South Carolina
38 CL-2023-0576
Dep't of Soc. Servs. v. Roe, 371 S.C. 450, 463, 639 S.E.2d 165, 172 (Ct.
App. 2006), and In re J.E.G., 144 Vt. 309, 313, 476 A.2d 130, 133 (1984),
as supporting the proposition that the rule that an unpreserved issue
will not be considered on appeal is subject to a blanket exception when
the interests of minors and incompetents are involved. Berry involved the
divorce of a couple, who both suffered from dementia, and their adult
children purported to act on the couple's behalf. Roe involved a parent
with diagnosed mental deficiencies and that parent's failure to raise a
best-interests argument and South Carolina's clear, established
precedent allowing Courts to address, ex mero motu, issues involving
minors or incompetents. J.E.G. involved a delinquent child. Although
the decisions in those cases may have supported abandoning our rules in
Ex parte R.H., ignoring our rules is not warranted in the present case (or,
indeed, in future cases in which the best-interests issue is neither raised
nor argued by an appellant).
" ' " '[F]airness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; ... the rule promotes efficient trial proceedings; ... reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not
39 CL-2023-0576
produce the desired result; and ... there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right. The principal rationale, however, is judicial economy. There are two components to judicial economy: (1) if the losing side can obtain an appellate reversal because of error not objected to, the parties and public are put to the expense of retrial that could have been avoided had an objection been made; and (2) if an issue had been raised in the trial court, it could have been resolved there, and the parties and public would be spared the expense of an appeal.' " '
"Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So. 2d 308, 314 (Ala. 2001) (quoting Cantu v. State, 660 So. 2d 1026, 1032 (Ala. 1995) (Maddox, J., concurring in part and dissenting in part), quoting in turn State v. Applegate, 39 Or. App. 17, 21, 591 P. 2d 371, 373 (1979) (emphasis added in Ex parte Elba))."
State v. Beaird, 981 So. 2d 386, 392 (Ala. 2007).
With today’s decision, I believe this court treads upon the slippery
slope of raising issues ex mero motu in all present and future cases
involving children, regardless of the main opinion's efforts to couch the
principle it is espousing as not representing a departure from basic tenets
of preservation and argument as inherent prerequisites to principled
appellate review. The main opinion's approach places a burden not only
on the court, but also on attorneys practicing in this court: Regardless of
40 CL-2023-0576
whether an argument directed to an issue is duly raised by an appellant,
attorneys for appellees must now guess at which nonjurisdictional,
substantive issues this court will raise ex mero motu, and, in order to
protect their clients, they will need to address those issues in their briefs.
I further adhere to the view, previously expressed in my special
writing in Ex parte R.H., 311 So. 3d at 773 (Hanson, J., concurring in
part and concurring in the result), that the majority opinion in Stevens
v. Everett, 784 So. 2d 1054 (Ala. Civ. App. 2000), is not precedential. Our
supreme court in Ex parte Fann, 810 So. 2d 631 (Ala. 2001) -- a case that
also involved the interests of minor children -- quoted from the dissenting
opinion in Stevens, which had correctly indicated that the majority
opinion in Stevens, by raising sua sponte a lack of "magic words" in a
custody judgment as a basis for reversing it, had gone beyond " 'the
fundamental precepts of appellate procedure.' " 810 So. 2d at 635 (quoting
Stevens, 784 So. 2d at 1056 (Robertson, P.J., dissenting)). Although bona
fide jurisdictional defects that are fatal to the very validity of a judgment
may warrant sua sponte notice on the part of a reviewing court, such as
when our supreme court noticed defects in subject-matter and personal
jurisdiction in, respectively, Jones v. Jones, 56 Ala. 612, 612 (1876), and
41 CL-2023-0576
Clark v. Gilmer, 28 Ala. 265, 266-67 (1856), that limited exception is not
carte blanche for members of this court to impose blanket correction of
nonjurisdictional errors they may perceive to have occurred in pleading
and practice in lower courts.
Based on the foregoing, I dissent from the main opinion's reversal
of the juvenile court's judgment based on an argument that was not
properly formulated and supported by relevant authority and that the
father waived by failing to assert it in a postjudgment motion.
Fridy, J., concurs.