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An orphan is a vulnerable child left without adequate familial provision and protection from evil. There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children. Orphan Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.
This week, Alabama’s appellate courts released one new opinion that affects orphans and their families.
In L.M. v. Talladega County Department of Human Resources 2130782, 2130783, 2130784, and 2130785 (May 15, 2015), the Alabama Court of Civil Appeals (Civs), Judge Donaldson writing, considered an consolidated appeal of two judgments—a termination of parental rights and a dependency judgment—entered by the Talladega Juvenile Court. These judgments involved four young children of the appealing biological mother.
The trial court ruled to terminate the mother’s parental rights to three of the children following a judgment placing the youngest child in the custody of the child’s paternal aunt. These judgments were made after the four children had been taken into DHR custody in 2012. The four children had been left, following both biological parents’ imprisonment, with the mother’s sister who already had six children.
DHR discovered that the youngest child was suffering from malnourishment and the other three children from a “severe case of head lice”. Furthermore, the mother had moved without notifying DHR and had had already had her parental rights terminated as to a child of a different father in Ohio. Based on these facts, DHR filed to terminate the parental rights of the three older children and the paternal grandparents and paternal foster parents both filed dependency petitions.
The mother challenged the termination judgment, raising the issue that the trial court had failed to require proof that there was no viable alternatives to termination as required “by the second prong of the two-prong test announced in Ex Parte Beasley 564 So. 2d 950, 954 (Ala. 1990)”; namely that “the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered.’”
The mother alleged that the trial court failed to do so by not considering the potential placement of the children with the child’s biological father’s foster parents or the children’s paternal grandparents. The Civs pointed out that there was evidence that father’s foster parents had had no contact with the children since 2010 and were unwilling to remove the children from the foster home to which the children had become accustomed. Furthermore, the paternal grandparents had been convicted of failing to support their adoptive child and charged with felony child abuse in 2014.
The Civs stated that this evidence was sufficient for the trial court to rule that neither set of potential foster parents were a sufficient placement resource to constitute a viable alternative to termination of parental rights. The Civs further noted that “the Juvenile Court is not required to accept any suggested alternative as ‘viable’ just because it exists. The determination of whether a viable alternative to termination exists in a given case is a question of fact.”
The mother also argued that the trial court failed the second TPR prong by excluding the father’s foster parents and the paternal grandparents as potential placement prior to home studies conducted by DHR. The Civs found that the testimonial evidence offered was sufficient even without home studies to conclude that none of the offered potential resources were viable. Thus, rejecting both arguments, the Civs affirmed the judgment terminating L.M.’s parental rights.
The mother also challenged the dependency judgment regarding the youngest child’s placement with a paternal aunt. The mother’s most salient argument was that the paternal aunt’s testimony was taken over the telephone without stipulation of all the parties. The Civs ultimately agreed and reversed the trial court on this issue.
In coming to this conclusion the Civs cited both Ala. R. Civ. P. 43(a) (that testimony must be made “orally in open court”) and Greener v. Killough, 1 So. 3d 93 (holding that the court was not within discretion to allow a party to testify over telephone based on the plain language of Rule 43(a)).
This case gives further clarity to the “no viable alternatives” prong of the TPR analysis and illustrates the principle that, just because an “alternative” to TPR is put forward by an objecting parent, doesn’t mean that “alternative” must necessarily be considered. It’s an all-facts consideration which will be afforded the ore tenuspresumption of correctness on appeal.
Furthermore, this case is a reminder to be fastidious in procedure. Rule 43(a) requires testimony to be taken “in open court,” unless all the parties stipulate otherwise. Shortcuts are not welcome.
Photo by libertygrace0.
