Rel: December 13, 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, 2024-2025 ________________________
CL-2023-0899 ________________________
P.R.P.
v.
Marshall County Department of Human Resources
Appeal from Marshall Juvenile Court (JU-19-739.02)
MOORE, Presiding Judge.
P.R.P. ("the mother") appeals from a judgment entered by the
Marshall Juvenile Court ("the juvenile court") terminating her parental
rights to J.A.J.-R. ("the child"). We reverse the judgment and remand the
case for further proceedings. CL-2023-0899
Background
The mother is a Guatemalan citizen; she gave birth to the child out
of wedlock on September 20, 2014. In early 2019, with the agreement of
the mother, the mother's "partner" F.M. ("the father") illegally migrated
to the United States with the child. In March 2019, the father and the
child settled in Marshall County, while the mother remained in
Guatemala. On July 18, 2019, the father was arrested and charged with
a sexual offense against the child, and the Marshall County Department
of Human Resources ("DHR") took the child into protective custody. The
juvenile court subsequently adjudicated the child to be a dependent child
and placed the child into foster care. DHR did not contact the mother to
inform her of those developments.
On June 22, 2020, still without having contacted the mother, DHR
filed a petition to terminate the parental rights of the mother and of the
father to the child.1 The juvenile court ordered that the petition be served
on the mother by publication in a Guatemalan newspaper. On July 7,
1The juvenile court had subject-matter jurisdiction over the case
pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Ala. Code 1975, § 30-3B-101 et seq., particularly Ala. Code 1975, § 30-3B-201(a)(2). 2 CL-2023-0899
2021, the juvenile court conducted a trial on the termination-of-parental-
rights petition in the absence of the mother, and, on July 12, 2021, the
juvenile court entered a judgment purporting to terminate the parental
rights of the mother and the father. On November 11, 2021, the mother
filed a motion for relief from the judgment insofar as it terminated her
parental rights, which the juvenile court granted on January 19, 2022.
On March 4, 2022, the mother filed an answer to the petition to terminate
her parental rights. 2 Following an amendment to the petition, and the
filing of an amended answer, the case proceeded to trial on May 17 and
18, 2023, and August 31, 2023.
2This court has determined that the juvenile court acquired personal jurisdiction over the mother. Although the mother was not served in accordance with the Inter-American Convention on Letters Rogatory and Additional Protocol, Jan. 30, 1975, 28 U.S.C. § 1781, service under the terms of that treaty is not mandatory nor exclusive. See Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 14 (Fla. Dist. Ct. App. 2014). DHR attempted service by publication pursuant to Ala. Code 1975, § 12- 15-318; even if the service did not strictly comply with § 12-15-318, after the mother obtained relief from the original judgment terminating her parental rights, she filed an answer without raising any defense as to insufficient service of process, and the mother generally appeared in the case, thereby waiving any objection to personal jurisdiction. See R.M. v. Elmore Cnty. Dep't of Hum. Res., 75 So. 3d 1195, 1200 (Ala. Civ. App. 2011). 3 CL-2023-0899
On December 4, 2023, the juvenile court entered a judgment
terminating the parental rights of the mother, finding, among other
things, that the mother had abandoned the child by allowing the child to
illegally immigrate to the United States and that "the distance between
... DHR and the mother as well as the language barrier make any efforts
or services, much less reasonable efforts, leading toward the
rehabilitation of the mother impossible and therefore failed." On
December 16, 2023, the mother filed a postjudgment motion to alter,
amend, or vacate the judgment, or, in the alternative, for a new trial. On
December 18, 2023, the mother filed a notice of appeal. On December 31,
2023, the juvenile court denied the mother's postjudgment ,motion and
the appeal ripened.
Issues
The mother raises multiple issues on appeal, but we find the
dispositive issue to be whether sufficient evidence sustains the findings
regarding abandonment and reasonable efforts.
Standard of Review
A judgment terminating parental rights must be supported by clear
and convincing evidence, which is " ' " [e]vidence that, when weighed 4 CL-2023-0899
against evidence in opposition, will produce in the mind of the trier of fact
a firm conviction as to each essential element of the claim and a high
probability as to the correctness of the conclusion . " ' " C.O. v. Jefferson
Cnty. Dep't of Hum. Res., 206 So. 3d 621, 627 (Ala. Civ. App. 2016)
(quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002), quoting
in turn Ala. Code 1975, § 6-11-20(b)(4)).
" '[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'
"KGS Steel[, Inc. v. McInish,] 47 So. 3d [749] at 761 [(Ala. Civ. App. 2006)].
"... [F]or trial courts ruling ... in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden[,]' [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)]; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion .' § 25-5-81(c)[, Ala. Code 1975]."
5 CL-2023-0899
Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008). This court does not
reweigh the evidence but, rather, determines whether the findings of fact
made by the juvenile court are supported by evidence that the juvenile
court could have found to be clear and convincing. See Ex parte T.V., 971
So. 2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence,
this court presumes their correctness. Id. We review the legal
conclusions drawn from the evidence without a presumption of
correctness. J.W. v. C.B., 68 So. 3d 878, 879 (Ala. Civ. App. 2011).
Analysis
The Alabama Juvenile Justice Act ("the AJJA"), Ala. Code 1975, §
12-15-101 et seq., establishes the following goal for juvenile courts:
"To reunite a child with his or her parent or parents as quickly and as safely as possible when the child has been removed from the custody of his or her parent or parents unless reunification is judicially determined not to be in the best interests of the child."
§ 12-15-101(3). Pursuant to that goal, once a child has been removed
from the family home, a juvenile court should immediately ascertain
whether the child can be safely reunited with his or her parent or parents.
If the juvenile court determines that it is not in the best interests of the
child to reunite the parent or parents at that time and places the child 6 CL-2023-0899
into the legal custody of the Alabama Department of Human Resources
and into foster care, the juvenile court must, within 60 days, find that
"reasonable efforts" have been made to "make it possible for a child to
return safely to the home of the child," Ala. Code 1975, § 12-15-312(b), or
that such reasonable efforts are not required to be made. § 12-15-
312(a)(2). 3
In this case, on July 18, 2019, DHR, on an emergency basis,
summarily removed the child from the home he was sharing with his
father to protect the child from sexual abuse. On July 19, 2019, the
juvenile court entered a shelter-care order awarding DHR, who had
already placed the child into foster care, legal custody of the child.
Because the father had been credibly accused of molesting the child and
was in jail, the child could not be quickly and safely returned to his
custody. However, as Christy Smith, a DHR social worker, testified, even
in cases of parental abuse, a child can be reunited with the other,
nonoffending parent. See generally L.M. v. Shelby Cnty. Dep't of Hum.
Res., 86 So. 3d 377 (Ala. Civ. App. 2011). Accordingly, the mother
3The record contains no order finding that reasonable efforts were
not required to be made. 7 CL-2023-0899
contends that DHR had a duty to use reasonable efforts to reunite her
with the child.
DHR counters that, because the mother abandoned the child,
reasonable family-reunification efforts were not required. See Ala. Code
1975, § 12-15-312(c)(1) (providing that reasonable efforts are not required
when a parent has subjected a child to abandonment); Ala. Code 1975, §
12-15-319(a)(1) (providing that, when a parent has abandoned a child,
"proof shall not be required of reasonable efforts to prevent removal or
reunite the child with the parents"). The AJJA defines "abandonment"
as:
"A voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent."
Ala. Code 1975, § 12-15-301(1). In the judgment, the juvenile court
specifically found that the mother had abandoned the child by allowing
the child to illegally immigrate to the United States without any
reasonable expectation that the family would be reunited, thereby
voluntarily and intentionally relinquishing custody of the child to the
8 CL-2023-0899
father and, without good cause or excuse, depriving the child of her
parental care and affection.
The undisputed evidence in the case shows that the mother
voluntarily agreed to allow the child to immigrate to the United States
without her. The mother testified that she and the father had mutually
decided that the father should take the child with him so that the child
could be educated in an American school while the father worked to earn
enough money to build a house. The mother testified that, if the plan
succeeded, she would join the father and the child, leaving the mother
and the father's two younger children to be raised by relatives in
Guatemala, and that, if not, the father and the child would return to the
village where the mother and the two younger children resided. The
mother understood that the father and the child could be gone for an
indefinite period, even as long as four years. The child's paternal
grandfather purchased a cellular telephone for the mother so that she
could maintain communication with the father and the child in the
meantime. For several months, the mother used the cell phone to talk
with the father and the child, until the cell phone was confiscated by DHR
9 CL-2023-0899
on July 18, 2019, at which point she lost her sole means of communicating
This court has recognized that an illegal immigrant does not
necessarily abandon a child by returning to his or her home country for
a prolonged period to obtain a visa, see J.B. v. DeKalb Cnty. Dep't Hum.
Res., 12 So. 3d 100 (Ala. Civ. App. 2008) (plurality opinion), or by being
deported and becoming unable to personally care for a child. See V.G.J.
v. Tuscaloosa Cnty. Dep't of Hum. Res., 368 So. 3d 886 (Ala. Civ. App.
2022). This court has not, however, specifically addressed whether a
parent from another country abandons a child by allowing the child to
illegally immigrate with another parent to this country. Like in all cases
of abandonment, that depends on the intention of the parent, see
Jefferson Cnty. Dep't of Hum. Res. v. S.W., 324 So. 3d 1240, 1257 (Ala.
Civ. App. 2020) (holding, in pertinent part, that a "finding of
abandonment requires evidence of intention"), and the justification for
the parent's actions. See C.C. v. L.J., 176 So. 3d 208, 211 (Ala. Civ. App.
2015) ("[A] juvenile court may premise a finding of abandonment only
upon evidence indicating that a parent voluntarily, intentionally, and
10 CL-2023-0899
unjustifiably committed the actions or omissions set out in § 12-15-301,
Ala. Code 1975.").
In this case, the mother concedes that she freely chose to allow the
child to migrate to the United States in the company of the father;
undisputedly, however, the mother made that decision to afford the child
a better standard of living. See D.C. v. A.B.C., 417 N.J. Super. 41, 48, 8
A.3d 260, 264 (Ch. Div. 2010) (holding that Guatemalan mother, who
paid "coyotes" to smuggle minor across border so that he could thrive
while residing with his father who was already in the United States,
could not be said to have abandoned minor). No evidence shows that the
mother intended to voluntarily relinquish her custodial rights to the
child. See Ex parte D.J., 645 So. 2d 303, 306 (Ala. 1994) (defining
"voluntary relinquishment" to include a surrender of custodial rights).
The mother and the father contemplated that the mother would remain
in communication with the child -- which she did -- and that they would
all be reunited at some point, depending on the father's economic
fortunes. Contrary to the juvenile court's findings, when the mother
decided to allow the child to migrate to the United States, the mother did
have a reasonable expectation that she and the child would be reunited. 11 CL-2023-0899
Although the mother indicated that she had known that it may take four
years or more before she was reunited with the child, this court has
explicitly rejected a "rule that would equate any indefinite prolonged
absence with abandonment." J.B., 12 So. 3d at 111 n.16 (plurality
opinion). We, thus, reject the juvenile court's finding that the mother
abandoned the child by letting the child relocate to the United States
with the father.4
In the absence of the mother's abandonment of the child, DHR had
a duty to use reasonable efforts to reunite the child with the mother. The
AJJA contains no provision exempting DHR from discharging that duty
when the parent does not speak English. The reasonableness of the
efforts used by DHR to reunite a family depends on the unique needs of
4In arguing in support of the abandonment finding, DHR notes that,
after DHR assumed custody of the child on July 18, 2019, the mother lost contact with the child; however, the juvenile court premised its abandonment finding solely on the mother's allowing the child to migrate to the United States. When setting aside the original judgment terminating the mother's parental rights, the juvenile court, referring to the period after DHR took custody of the child, found that the mother "appears to have taken reasonable steps, under the circumstances, to determine what circumstances her child was in and who was caring for her child." Thus, we do not address any alleged implied finding that the mother abandoned the child after July 18, 2019. 12 CL-2023-0899
each family, including any special accommodations the family may
require due to language barriers. See In re J.P., 14 Cal. App. 5th 616,
625, 221 Cal. Rptr. 3d 748, 755 (2017); Pravat P. v. Department of Health
& Soc. Servs., 249 P.3d 264, 268-271 (Alaska 2011); In re Sorin P., 58
A.D.3d 743, 873 N.Y.S.2d 89 (N.Y. App. Div. 2009); In re Abraham C., 55
A.D.3d 1442, 865 N.Y.S.2d 820 (N.Y. App. Div. 2008); State of New
Mexico ex rel. Children, Youth & Families Dep't v. William M., 161 P.3d
262 (N.M. Ct. App. 2007); In re Lopez, 166 Ohio App.3d 688, 703, 852
N.E.2d 1266 (2006). Likewise, the obligation to exert reasonable efforts
toward reunification equally applies with respect to parents who reside
in foreign countries. See Matter of A.M.C.-R., 306 Or. App. 360, 367, 473
P.3d 1167, 1170 (2020). A child-welfare agency making a fair and serious
attempt to reunify a family should use all feasible means available to
provide appropriate services to a foreign parent to achieve its goal. See
In re Oreoluwa O., 321 Conn. 523, 542, 139 A.3d 674, 685 (2016).
In this case, the record does not support a finding that language
barriers and distance made it impossible to reunite the mother with the
child. The mother spoke only Aketeko, a Mayan dialect. Lindsey McKee,
13 CL-2023-0899
a child-abuse and neglect investigator, testified that DHR had access to
a "state language line," which McKee described as
"the [Alabama Department of Human Resources]'s contracted line for language services and they offer language services of all kinds. They have dialects; they have Spanish and English; and such and so forth, and then you call it, and you have to give them your State i.d. number and then they assist you with an interpreter 24/7."
On July 18, 2019, McKee used that service to communicate with the
father, who spoke Q'anjob'al, another Mayan dialect. Teresa Wilson,
another DHR social worker, testified that she had also used that service
to communicate with the father when he was in jail. No one testified that
DHR did not have access to Aketeko interpreters who could adequately
assist the mother with family-reunification services; in fact, DHR
arranged for an Aketeko interpreter to facilitate virtual visitations
between the mother and the child in 2022 and 2023.
Reasonable efforts at family reunification also were not impeded
because the mother resided in a small village in Guatemala. DHR
arranged visitations between the mother and the child, who was residing
in Morgan County, and individual therapy by a counselor, who was also
located in Alabama, through videoconferencing; the mother testified that
14 CL-2023-0899
she had traveled two hours from her home to access a computer to attend
the visits and the counseling sessions. According to a DHR witness, the
mother had missed only two visits due to religious considerations and,
she said, the mother had faithfully attended her therapy sessions until
the therapist retired. DHR arranged a home study through International
Social Services ("ISS") that was completed in October 2022.5 The record
contains no evidence indicating that DHR was unable to implement a
vital service to achieve family reunification because of the mother's
remoteness.
On the other hand, the record does support the mother's contention
that DHR failed to promptly undertake reasonable efforts to reunite her
"Once [the Department of Human Resources] places a child in foster care, it has an immediate duty to use reasonable efforts to reunite the family, absent aggravating circumstances. See Ala. Code 1975, § 12-15-312. That duty requires [the Department of Human Resources] to identify the circumstances that led to removal of the child, to develop a plan to ameliorate those circumstances, and to use reasonable efforts to achieve that plan. See Montgomery Cty. Dep't of
5ISS offers assistance with locating and providing services to parents abroad. As of the date of this decision, the relevant Web page could be found at: https://www.iss-usa.org/our-services/services-for- children/. 15 CL-2023-0899
Human Res. v. A.S.N., 206 So. 3d 661, 672 (Ala. Civ. App. 2016) (citing H.H. v. Baldwin Cty. Dep't of Human Res., 989 So. 2d 1094, 1105 (Ala. Civ. App. 2007) (opinion on return to remand) (authored by Moore, J., with two judges concurring in the result))."
H.B. v. Mobile Cnty. Dep't of Hum. Res., 236 So. 3d 875, 882 (Ala. Civ.
App. 2017). In this case, DHR did not commence any efforts to reunite
the mother with the child until July 6, 2022, almost three years after the
child entered foster care.
The evidence in the record shows that, when the child was
summarily removed from the father's custody on July 18, 2019, DHR did
not know where the mother was. DHR interviewed the father, but he did
not provide DHR the mother's exact address. McKee talked with two
relatives of the child, who also failed to give her the mother's contact
information. DHR understood that the mother was residing somewhere
in Guatemala. DHR was obligated to use due diligence to locate the
mother. Due diligence
" ' " 'denotes a thorough, systematic investigation and an inquiry conducted in good faith.' It includes searching not only 'standard avenues available to help locate a missing parent,' but ' "specific ones most likely under the unique facts known to the [agency], to yield [a parent's] address." ' " ' "
16 CL-2023-0899
In re J.R., 82 Cal. App. 5th 569, 588, 298 Cal. Rptr. 3d 500, 517 (2022)
(citations omitted). DHR did not use reasonably diligent efforts to locate
the mother.
When DHR summarily removed the child on July 18, 2019, the child
had a cell phone that he used to communicate with the mother. DHR
confiscated the cell phone, but it did not use the cell phone to obtain the
mother's cellular telephone number or to try to call her. DHR allowed
the cell phone to power down and to lock without obtaining the cell
phone's passcode. Although policy required DHR to contact the
Guatemalan Consulate to notify Guatemalan authorities that the child
had been taken into protective custody, DHR did not send the consulate
a letter until September 23, 2019, and, even then, DHR did not request
the mother's contact information. DHR also did not ask the consulate to
provide the mother's cellphone number to it, even after one of its
employees indicated that she had talked to the mother over the
telephone. 6 DHR also did not contact ISS between 2019 and 2022, despite
its policy to do so when a child can be placed in a foreign country. When
6DHR sent a request for the mother's contact information to the
consulate on May 26, 2020, but the consulate did not respond. 17 CL-2023-0899
United States Immigration and Customs Enforcement informed DHR in
January 2021 that it was deporting the father, DHR did not follow up to
request assistance with locating the mother.
After failing to obtain the mother's contact information, and, thus,
failing to use any efforts to reunite her with the child, DHR filed the
petition to terminate the mother's parental rights; however, DHR did not
serve the mother with the petition. On March 5, 2021, almost nine
months after the petition was filed, the juvenile court instructed DHR to
"make all active efforts to locate" the mother and to report on those
efforts. DHR never filed a report; instead, DHR moved to serve the
mother by publication, which the juvenile court allowed. In April 2021,
DHR published a notice of the termination proceedings, written entirely
in English, in a Guatemala City newspaper. The mother, who is
illiterate, did not receive actual notice of the termination proceedings
through the publication.
Meanwhile, the father, who had pleaded guilty to assault in the
third degree regarding the July 18, 2019, incident, and who had been
deported back to Guatemala in early 2021, returned to the mother's
village. Distraught that the child was not with him, the mother enlisted 18 CL-2023-0899
his assistance in locating the child. They forwarded legal documents in
the father's possession to a Guatemala City attorney, who, in turn,
contacted Dr. Glykeria Teji, an attorney in the United States. Dr. Teji
tried to locate the child through the Office of Refugee Resettlement, a
part of the United States Department of Health and Human Services,
without success. Dr. Teji also contacted the office of the child's guardian
ad litem and the attorney for DHR to obtain information as to the
whereabouts of the child. Dr. Teji testified that she was unable to gather
any information about the child through those channels, although it
appears that she learned of the ongoing termination-of-parental-rights
proceedings.
Eventually, the mother secured legal representation through the
Southern Poverty Law Center, who first appeared for the mother in the
underlying proceedings in November 2021. After successfully moving the
juvenile court to set aside the original judgment terminating the mother's
parental rights, the mother's counsel, over DHR's objection, obtained an
order on April 1, 2022, allowing the mother to visit with the child and
arranged an individualized-service-plan ("ISP") meeting for July 6, 2022
-- the first step that DHR took to comply with its reasonable-efforts 19 CL-2023-0899
mandate. See E.W. v. Jefferson Cnty. Dep't of Hum. Res., 872 So. 2d 167,
172 (Ala. Civ. App. 2003) (describing an ISP as the starting point in the
family-reunification process). By that point, DHR had instituted a
permanency plan calling for termination of parental rights with adoption
by the child's foster parent, who had assumed care of the child on July 2,
2021.7
After meeting with the mother, DHR changed the permanency plan
to include a "concurrent goal" of reuniting the child with her. Although
the ISP is intended to inform a parent of the conduct, conditions, or
circumstances that need to be corrected for a family to be reunited, see
E.W., supra, DHR did not present any evidence as to the barriers to
reunification that it identified in the ISP.8 A DHR social worker testified
7Due to being raised by foster parents in Alabama for close to three
years, the child no longer spoke Aketeko, and he referred to himself by an American name. The mother called an expert witness, who testified that DHR had not used best practices to promptly notify the mother of the juvenile proceedings, to initiate family reunification efforts, and to preserve the cultural identity of the child.
8DHR did not request that the mother pay child support or fault her
for failing to obtain employment to financially support the child. The juvenile court nevertheless noted that the mother had not paid child support for the benefit of the child after he and the father migrated to Alabama. Section 12-15-319(a)(9) provides that, in termination-of- 20 CL-2023-0899
that she wanted the mother and the child to attend individual therapy
and family therapy, but it appears that the therapy was designed solely
to ease the process of renewing the mother-child relationship. The
mother accomplished all the goals established by DHR.
At trial, however, DHR social workers criticized the mother for
failing to separate from the father. After the father returned to
Guatemala, the mother rekindled her relationship with him, and they
conceived a fourth child. The mother testified that, within two weeks,
she separated from the father and that she had maintained that
separation to assure that she could regain custody of the child. However,
DHR social workers testified that, during virtual visits, the mother had
told the child that the father had been falsely accused of harming him
and that she had indicated that one of the child's sisters had been staying
with the father. The mother continued to reside on land owned by the
father's family, and she remained partially dependent on financial
parental-rights proceedings, a juvenile court shall consider the "[f]ailure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child where the parent is able to do so." DHR presented no evidence indicating that the mother was able to provide material support for the child and that she had failed to do so. 21 CL-2023-0899
support from the father. Some questioning suggested that the father may
be staying in the mother's home because male clothes were kept there.
The mother did not have a sufficient explanation of what she would do if
the father came to the family home to interact with the child. Based on
that evidence, 9 the juvenile court determined that the mother lacked
appropriate protective capacity.10
As part of the reasonable-efforts mandate, before a juvenile court
can terminate parental rights on the ground that the parent has not
successfully rehabilitated, the juvenile court must first give the parent a
fair opportunity to rectify the barrier to family reunification.
"Our caselaw provides that DHR must identify the conduct that led to the removal of the child, explain the barriers it perceives as preventing a parent from obtaining custody of a child, communicate its concerns to the parent, formulate a plan reasonably designed to remove those
9The juvenile court also indicated that the mother lacked protective
capacity because she allowed the child to travel through unsafe conditions to immigrate to the United States, but the record contains no evidence regarding how the father and the child traveled or any of the conditions they encountered.
10The juvenile court also criticized the living conditions in Guatemala as compared to those in Alabama. "[T]erminating the mother's parental rights requires more than proving that the custodians can provide a better home for the child than the mother ...." D.H.E. v. W.D., 330 So. 3d 506, 517 (Ala. Civ. App. 2020). 22 CL-2023-0899
obstacles so as to allow for family reunification, and assess whether those barriers remain after reasonable rehabilitation efforts have been exhausted."
B.L., 324 So. 3d at 836. Before trial, DHR never identified the mother's
alleged continuing relationship with the father as an impediment to her
reunification with the child, nor did it establish any means by which the
mother could strengthen her protective capacity, assure that the father
would be restrained from the child, or verify his absence from the family
home.
In H.H. v. Baldwin County Department of Human Resources, 989
So. 2d 1094 (Ala. Civ. App. 2007) (plurality opinion), this court held that,
in the absence of aggravating circumstances, DHR must make " 'a fair
and serious attempt to reunify a parent with a child prior to seeking to
terminate parental rights.' " 989 So. 2d at 1104 (quoting State ex rel.
A.C., 97 P.3d 706, 712 (Utah Ct. App. 2006)). The court held:
"The natural starting point in any fair and serious attempt to rehabilitate the parent and to reunite the parent with the child is identification of that characteristic, conduct, or circumstance that renders the parent unfit or unable to discharge his or her parental responsibilities to the child. Once DHR identifies the source of parental unfitness, the overarching goal of family reunification requires DHR to communicate its concerns to the parent and to develop a reasonable plan with the parent that is tailored toward the 23 CL-2023-0899
particular problem(s) preventing the parent from assuming a proper parental role. DHR should use reasonable methods to achieve its plan of removing or reducing the identified obstacle(s) to family reunification 'as quickly and as safely as possible.' Ala. Code 1975, § 12-15-[312(b)]. Finally, at the termination of any rehabilitation process, DHR should determine the success of its efforts, using reasonable evaluation tools."
989 So. 2d at 1105 (plurality opinion) (footnote omitted). This framework
has been cited in over a dozen cases and clearly and concisely apprises
DHR of the nature of its duties to act promptly and reasonably to reunite
families. See, e.g., K.H. v. Madison Cnty. Dep't of Hum. Res., 384 So. 3d
641, 657 (Ala. Civ. App. 2023); M.H. v. Madison Cnty. Dep't of Hum. Res.,
375 So. 3d 1270, 1278 (Ala. Civ. App. 2022); J.C. v. Madison Cnty. Dep't
of Hum. Res., 293 So. 3d 901, 910 (Ala. Civ. App. 2019); P.S. v. Jefferson
Cnty. Dep't of Hum. Res., 143 So. 3d 792, 798 (Ala. Civ. App. 2013). DHR
did not act timely or reasonably to complete any of the necessary steps to
assure reasonable efforts were expended before petitioning to terminate
the mother's parental rights.
Conclusion
Although the language and geographical factors did not make using
reasonable efforts impossible, the record is replete with evidence
24 CL-2023-0899
indicating that DHR failed to use reasonable efforts to reunite the mother
with the child. When DHR fails to use reasonable efforts, a judgment
terminating parental rights must be reversed. See T.B. v. Jefferson Cnty.
Dep't of Hum. Res., 369 So. 3d 158, 164 (Ala. Civ. App. 2022). Therefore,
we reverse the judgment terminating the mother's parental rights, and
we remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Edwards, Hanson, Fridy, and Lewis, JJ., concur.