A Note for Foster Parents on Termination of Parental Rights in Alabama: Z.P. v. Mobile County DHR.

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A Note for Foster Parents on Termination of Parental Rights in Alabama: Z.P. v. Mobile County DHR.

 

In September 2024, this Court of Civil Appeals released an opinion that reads like a textbook on the issue of no-viable alternatives. Z.P. v. Mobile County DHR was written by Presiding Judge Moore and bears all the marks of a tutorial for practitioners.

 

Two things about this opinion should give us pause for deeper consideration. The opinion was authored by the Presiding Judge (who gets to handpick the cases he writes) and the decision could have easily been released as an unpublished memorandum (it affirms the trial court, below). These two factors lend to the conclusion that the Court of Civil Appeals has especially taken up the role of instructor in this opinion.

 

And we should pay attention.

 

With that preface in mind, it is first prudent to explain the “no viable alternative” prong to termination of parental rights. In order for the court to grant a petition for termination of parental rights, the court must find four things:

 

  1. Dependency: that the parents are unable or unwilling to be a parent.
  2. One or more grounds for termination: these are found in the statute, Code § 12-15-319. The grounds include common sense things such as abandonment and abuse of the child.
  3. Best interest: this includes things like evidence that the child is thriving in the foster home and that the foster family wants to adopt the child.
  4. No viable alternative: this prong represents the notion that if the child’s best interest can be served by placing the child with a fit and able relative, then that is a viable alternative to terminating the parental. Keeping the status quo of the child in foster care has also been found where the foster parent testifies that maintaining a relationship between the child and the parent poses harm to the child and can be maintained.

 

In Z.P. v. Mobile County DHR, the father appealed, but the mother did not. The father raised two issues on appeal: his current conditions did not prevent him from properly parenting and the Department did not do enough to locate relatives to assume custody – as a viable alternative to termination.

 

The father was a steroid user. He “aggressively” shook the child. The child was seriously injured. The father took the child to the hospital. The father admitted abusing the child, but

 

According to the father, on the day he injured the child, he “was on steroids,” “was alone,” had “had little sleep,” and was “a new parent.” He admitted that he had failed to “control his actions,” but he blamed his lack of self-control on the “mind- altering” effects of the steroids he had injected.

 

—

 

According to the mother, the father admitted to her that he had “body slammed [the child] in the bassinet of the pack and play.”

 

 

After the father was released on bond, the mother let him back into the home with the child. His sobriety was short lived. He assaulted the mother by strangling her. The father testified that he had “consumed way to much alcohol way to quickly.”

 

None of the child’s paternal relatives had maintained contact with the child.

 

The foster mother testified that the child had continuously resided in their home and was thriving.

 

The mother consented to the termination of her parental rights.

 

Because the statutory grounds for termination of parental rights are phrased in present and future terms, the juvenile court was required to base its decision to terminate his parental rights on the father’s current circumstances. See T.W. v. Shelby Cnty. Dep’t of Hum. Res., 293 So. 3d 386 (Ala. Civ. App. 2019). That does not mean, however, that past circumstances have no bearing on the determination whether a parent can currently provide care for a child. Id.

 

On a side note, it’s always a joy to see the ore tenus presumption of correctness supported and affirmed. Here we see that it’s still alive-and-well.

 

Furthermore, this court has often stated that “the question whether a parent has truly and completely rehabilitated so as to resume the custody of a child is a question of fact to be determined by the juvenile court.” R.L.M.S. v. Etowah Cnty. Dep’t of Hum. Res., 37 So. 3d 805, 811 (Ala. Civ. App. 2009).

 

Next and most importantly, the father argued that “the juvenile court failed to exhaust viable alternatives” to termination. The Court of Civil Appeals disagreed with the father. Presiding Judge Moore’s writing is most instructive.

 

First, the court points our attention to what went wrong in an analogous case, A.R.H.B. v. Madison County DHR, 378 So.3d 543 (Ala. Civ. App. 2022). In this case, the Civs reversed the juvenile court’s termination order based on seven failures:

 

  1. Failure to present evidence concerning the mother’s reason for the mother’s refusal for the child to be placed with the maternal grandmother,
  2. Failure to present evidence regarding any further contacts that the Department might have had with those maternal relatives,
  3. Failure to present any evidence regarding whether the Department had asked the mother and the father to provide a list of names of possible relatives with whom the child might be placed,
  4. Failure to present evidence indicating that the Department had investigated any relatives that the mother and the father might have identified,
  5. Failure to present evidence that the Department had sought to, or were able to, identify other relative placements for the child,
  6. Failure to present evidence indicating whether, or when, any relative of the parents had become aware of the child’s having been placed in foster care such that § 12-15-319(c) might be implicated, and
  7. Failure to present sufficient evidence indicating that it had properly investigated viable alternatives to the termination of the mother’s parental rights.

 

In contrast to those seven failures, here the Civs upheld the juvenile court’s determination that, given the Department’s method at searching for relatives, there were no viable alternatives to termination. We will be referring to this method as the “Letter Method.”

 

“Undisputed evidence established that DHR had

  1. searched for,
  2. had identified, and
  3. had contacted

all known paternal relatives by letter.

Those letters informed the relatives that

  1. “a possible relative” of the recipient was, at that time, in foster care, and
  2. the letters further provided contact information and instructions “in the event the recipient was interested in obtaining more information regarding [the child].”

The Civs affirmed the juvenile court’s determination that “The paternal relatives implicitly declined to care for the child by failing to respond to the letters.” (emphasis added).

Furthermore, “the father testified that the paternal relatives were aware that the child had been removed from his custody and had been placed in foster care, yet they had not sought custody of the child.” (emphasis added).

This triggered the juvenile court’s authority to “disregard a relative as a potential custodian of the child” under Ala. Code § 12-15-319.

In review, proving that there are no viable alternatives to termination is essential to having a termination judgment upheld on appeal. The 7 Failures of A.R.H.B. provide a good guidepost for what to avoid. The Letter Method outlined in the present case is the safe-harbor for ensuring that the juvenile court’s order of termination is supported by the minimum standard.