K.K. v. Escambia County Department of Human Resources (Appeal from Escambia Juvenile Court: JU-21-142.03).

• Court: Court of Civil Appeals of Alabama
• Decided: August 23, 2024
• Docket: CL-2023-0627
• Status: Published

Opinion

Rel: August 23, 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 SPECIAL TERM, 2024 _________________________

CL-2023-0624, CL-2023-0625, CL-2023-0626, and CL-2023-0627 _________________________

K.K.

v.

Escambia County Department of Human Resources

Appeals from Escambia Juvenile Court

(JU-21-139.03, JU-21-140.03, JU-21-141.03, and JU-21-142.03)

_________________________

CL-2023-0632, CL-2023-0633, and CL-2023-0634 _________________________

J.G.

Appeals from Escambia Juvenile Court CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023- 0632, CL-2023-0633, and CL-2023-0634

(JU-21-139.03, JU-21-140.03, and JU-21-141.03)

HANSON, Judge.

CL-2023-0624 -- AFFIRMED BY UNPUBLISHED

MEMORANDUM.

CL-2023-0625 -- AFFIRMED BY UNPUBLISHED

CL-2023-0626 -- AFFIRMED BY UNPUBLISHED

CL-2023-0627 -- AFFIRMED BY UNPUBLISHED

CL-2023-0632 -- AFFIRMED BY UNPUBLISHED

CL-2023-0633 -- AFFIRMED BY UNPUBLISHED

CL-2023-0634 -- AFFIRMED BY UNPUBLISHED

Fridy, J., concurs. Lewis, J., concurs in the result, without opinion. Edwards, J., dissents, with opinion, which Moore, P.J., joins.

2 CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023- 0632, CL-2023-0633, and CL-2023-0634

EDWARDS, Judge, dissenting.

I respectfully dissent from the affirmance of the judgments entered

by the Escambia Juvenile Court ("the juvenile court") terminating the

parental rights of K.K. ("the mother") and J.G. ("the father") to their

children, L.D.G., J.A.G., and A.L.G., and terminating the parental rights

of the mother to her child, E.L.K. Although the mother argues that

maintaining the status quo is a viable alternative to the termination of

her parental rights, and although the father only briefly refers to the

maintenance of the status quo in the conclusion section of his brief on

appeal, I believe that the parents' arguments, however sparse, can also

be construed as a challenge to the termination of their parental rights as

not being in the best interests of the children because the record lacks

evidence that the children would achieve permanency through adoption

if parental rights were terminated. See T.W. v. Calhoun Cnty. Dep't of

Hum. Res., [Ms. CL-2022-0694, June 2, 2023] ___ So. 3d ___ (Ala. Civ.

App. 2023).

In T.W., this court explained that, "before proceeding to terminate

the parental rights of the parents of special-needs children, a juvenile

court must consider whether the children will likely achieve permanency

3 CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023- 0632, CL-2023-0633, and CL-2023-0634

through adoption." ___ So. 3d at ___; see also T.D.H. v. Mobile Cnty. Dep't

of Hum. Res., [Ms. CL-2023-0033, Dec. 1, 2023] ___ So. 3d ___, ___ (Ala.

Civ. App. 2023). Moreover, we cautioned in T.W. that, "[i]n order for the

juvenile court to consider [whether a special-needs child will likely

achieve permanency through adoption], it [is] incumbent upon [the

Department of Human Resources] to present clear and convincing

evidence of the viability of adoption so that the juvenile court [can] make

an informed evaluation and decision." Id. at ___. Even in cases not

involving children classified as "special needs," this court has stated that,

"[i]f some less drastic alternative to termination of parental rights can be

used that will simultaneously protect the children from parental harm

and preserve the beneficial aspects of the family relationship, then a

juvenile court must explore whether that alternative can be successfully

employed instead of terminating parental rights." T.D.K. v. L.A.W., 78

So. 3d 1006, 1011 (Ala. Civ. App. 2011).

The record reflects that L.D.G., J.A.G., A.L.G., and E.L.K. ("the

children") range in age from 15 to 9 years. Thus, the children qualify as

"special-needs children," as that term is defined in Ala. Admin. Code

(Dep't of Hum. Res.), r. 660-5-22-.06, which addresses adoption subsidies

4 CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023- 0632, CL-2023-0633, and CL-2023-0634

offered to adoptive parents of children who are determined to have

special needs. All four of the children are age five years or older, see Ala.

Admin. Code (Dep't of Hum. Res.), r. 660-5-22-.06(2)(a)2.(iv), and, if the

Escambia County Department of Human Resources ("DHR") is able to

place the children "in the same [adoptive] home at the same time," r. 660-

5-22-.06(2)(a)2.(v), as it is required to attempt, see 42 U.S.C. §

671(a)(31)(A), the children will also be "member[s] of a sibling group of

two (2) or more being placed for adoption .…" r. 660-5-22-.06(2)(a)2.(v).

In addition, the record reveals that, in an August 2022 individualized

service plan ("ISP"), DHR indicated that the foster-care placement for

A.L.G. and J.A.G. was designated as a "therapeutic foster home," as

opposed to a traditional foster home, indicating that those two children

suffered from "a DSM-IV psychiatric, emotional or behavioral diagnosis."

See Ala. Admin. Code (Dep't of Hum. Res.), r. 660-5-28-.07(16)(e)(2).

(describing "therapeutic foster care"). 1 A.L.G. and J.A.G., therefore, each

1Rule 660-5-28-.07(16)(e)(2) provides:

"Therapeutic foster care is provided in a foster home that is equipped and trained to provide care for the emotionally and/or behaviorally disturbed children. It is the least restrictive community based care provided for emotionally/behaviorally disturbed children. Children 5 CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023- 0632, CL-2023-0633, and CL-2023-0634

also qualify as a "special needs child" under Ala. Admin. Code (Dep't of

Hum. Res.), r. 660-5-22-.06(2)(a)2.(ii), which provides that a child is

considered a special-needs child for purposes of an adoption subsidy when

"[t]he child has a known emotional disturbance/behavioral issue that

requires on-going treatment and that has been documented by a mental

health professional."

My review of the record reveals that DHR presented no evidence

indicating that the children were adoptable. Jessica Jackson, the social-

service supervisor over foster care and ongoing services for DHR, testified

that the permanency plans for the children were "adoption with no

identified resource" and that DHR would, once the termination of

parental rights was accomplished, "fill[] out all required paperwork for

the state office to begin identifying a forever home." Other than that

meager testimony, the record does not mention the future adoptive

prospects of the children.

receiving therapeutic foster care must have a DSM-IV psychiatric, emotional or behavioral diagnosis and an identifiable special need related to that diagnosis that requires care beyond 'ordinary parental duties.' " 6 CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023- 0632, CL-2023-0633, and CL-2023-0634

A review of the ISPs contained in the record indicates that, in July

2021, the children were placed together under a safety-plan agreement

with safety-plan providers, T.B. and A.B.; that, in October 2021, L.D.G.

and A.L.G. were placed in the home of foster parents, C.C. and E.C., and

J.A.G. and E.L.K. were placed in the home of foster parents, S.B. and

B.J.B.; and that, in March 2022, the children were placed together in the

home of foster parent, D.S. Although the mother indicated in her

testimony that, in February or March 2023, the children had been moved

from the home of D.S. to a new foster home in which they were living at

the time of the August 2023 trial, the record does not contain an ISP

reflecting that change in placement. Nothing in the record reveals the

reason that the children were moved from one foster home to another. At

least three of the ISPs indicate that one or more of the children received

counseling at various times; the most recent ISP in the record, dated

August 28, 2022, indicates that the children were all receiving "school-

based therapy" through a mental-health-care provider. Furthermore,

some testimony in the record indicates that, at least at some point, J.A.G.

was in a "facility" where he was attended by both a nurse and a therapist,

indicating that he may have been either hospitalized or institutionalized.

7 CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023- 0632, CL-2023-0633, and CL-2023-0634

The children are unquestionably considered to be special-needs

children under DHR's own regulations, yet DHR failed to present any

evidence, much less clear and convincing evidence, indicating that

adoption would be a likely outcome for any of them or that adoption would

serve their best interests. We cannot affirm the termination-of-parental-

rights judgments in the absence of such evidence. Accordingly, I must

dissent.

Moore, P.J., concurs.