H.K. v. D.D. is a private termination of parental rights (TPR) action.That means that the Department of Human Resources was not involved. There are a few key differences and similarities to note about a private TPR. The most salient difference is that the petitioner in a private TPR is not required to show reasonable efforts toward rehabilitating the legal parent. All the language in the juvenile code relating to reasonable efforts points to the Department as initiator (Ala Code Ss 12-15-301(13); 12-15-312; 12-15-315(b); 12-15-317(2)c.; etc.).
The similarity this case emphasize is the need of the petitioner to demonstrate that the termination will be in the child’s best interest. The Court of Civil Appeals (Civs) reversed the trial court on this ground.
The first criticism (or deficiency) mentioned by the Civs is that the dependency order from the inception action was not present in the record. This is an important practitioner point. Any key orders from prior actions need to be entered into into the record of the termination action. Prior orders do not automatically carry over.
Next, as the Civs are prone to do in a reversal opinion, they raise the dissonance by emphasizing how bad things were. In this case, the Civs spend time chronicling how the mother wasn’t present for trial, wasn’t consistently persistent in the child’s life, and “consistently and obsessively” used drugs. The father testified that there were no alternatives to TPR and it would be in the child’s best interest to terminate the mother’s parental rights. The GAL testified to the same.
The mother’s most interesting argument on appeal was that the father presented no evidence that the she was a danger to the child.
The Civs cite a two-prong-plus standard of evaluating a trial court’s grant of TPR: (1) statutory grounds for TPR, (2) no viable alternatives, and (3) best interest of the child. The Civs note that it was reasonable for the trial court to find that the mother abandoned the child – first prong met. The Civs note that because the trial court found abandonment, it was not required to consider whether there were viable alternatives – second prong met. As to the plus-prong, the Civs state:
Our review of the record fails to disclose that the father articulated any purpose that would be served by terminating the mother’s parental rights. For example, the father did not testify that he had married since the child’s birth and that, by terminating the mother’s parental rights, any new spouse he may have would be able to adopt the child. Further, he did not testify or provide any other evidence indicating that continuing the mother’s parental rights would cause the child confusion, endanger the child’s welfare, or in any other way jeopardize the wellbeing of the child.
This is particularly true given that he and the paternal grandmother share legal and physical custody of the child, and it does not appear that any order permits the mother to exercise visitation with the child. In short, the record discloses no benefit to the child by terminating the mother’s parental rights. On the other hand, it is undisputed that terminating the mother’s parental rights will end the child’s right to inherit from her.
One of the main cases cited by the Civs is a 1990 case, Matter of Beasley, 564 So. 2d 959, 960 (Ala. Civ. App. 1990). Beasley held that “termination of father’s parental rights was ‘an unnecessarily drastic action not supported by clear and convincing evidence’ when evidence did not show benefit to child of terminating the father’s parental rights.”
In summary, it’s unusual to have a TPR action that does not involve the Department. There is one key difference with a private TPR. Namely, that a showing of reasonable efforts at rehabilitation is not required. There are some key similarities like (1) statutory grounds for TPR, (2) no viable alternatives, and (3) best interest of the child. This particular case was reversed because there was not a sufficient showing of how the TPR would further the child’s best interest – “the record discloses no benefit to the child by terminating the mother’s parental rights.”
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