Alabama

ABUSE

CHEMICAL ENDANGERMENT

Ankrom v. State, 152 So.3d 373 (Ala. 2013). Trial courts in unrelated but factually similar cases correctly applied criminal statute to mothers who used illegal drugs during their pregnancies, causing their children to be exposed in utero. Plain meaning of ‘child’ in statute providing penalties for exposing a child to controlled substances included unborn children based on common dictionary definitions. FULL SUMMARY

RECORDS

Marshall v. State, 89 So.3d 195 (Ala. Crim. App. 2011). In an attempted murder prosecution, confrontation clause was not violated by limiting disclosure of child welfare agency’s abuse and neglect records involving defendant’s child. Trial court conducted in camera review and only disclosed evidence in file relating to defendant’s case theory that file would establish motive for victim to lie about defendant’s involvement in the case because defendant had allegedly reported the victim had abused the defendant’s child. Defendant had also received evidence that the agency cross-examined the victim about his abuse allegations.

VICTIM AGE

Higdon v. State, 2015 WL 4162930 (Ala.). In prosecution of 17-year-old defendant for first-degree rape or first-degree sodomy, determination whether sufficient evidence was presented to infer forcible compulsion by an implied threat should be viewed from perspective of child victim. Court may consider difference in age or maturity between defendant and child victim and defendant’s position of authority or control over child as summer intern at child care facility from child victim’s perspective. 

ADOPTION

JURISDICTION 

R.L. v. J.E.R., 69 So.3d 898 (Ala. Civ. App. 2011). Where probate court sent a case to juvenile court solely for termination of parental rights, juvenile court lacked jurisdiction to enter an adoption order; transfer mechanism did not apply in case because no party made a motion under provision.

CUSTODY

BEST INTERESTS

R.Z. v. S.W., 141 So. 3d 1099 (Ala. Civ. App. 2013). Trial court acted within its discretion in determining that remaining with mother was in child’s best interests. Despite concerns raised by father, including  the small size of the home and an incident of property destruction by the son while in mother’s care, mother’s church members and adult child testified favorably about her caregiving abilities and the son’s usual good behavior.

GUARDIANS AD LITEM

Dep’t of Human Res. v. Bussman,  69 So.3d 895 (Ala. Civ. App. 2011). In a custody action initiated by the father, department was improperly ordered to pay guardian ad litem’s attorney fees because case was not a dependency case which would allow compensation by the state; though children were for a time placed with the department, the case was never petitioned or transferred to the juvenile court as a dependency action.

VISITATION

S.O. v. K.B., 137 So.3d 348 (Ala. Civ. App. 2013). Juvenile court abused its discretion in ordering unsupervised weekend visitation to father immediately after he was released from prison for methamphetamine manufacturing. Father had not seen the child in three years and child had been previously removed due to domestic violence and placed in the custody of grandparents. Father’s assertions that he had changed and several months of clean drug tests did not provide enough evidence that child would be safe during unsupervised visits.

DELINQUENCY

SEARCHES

In re G.M., 142 So.3d 823 (Ala. 2013). Trial court erred in denying youth’s motion to suppress cocaine evidence. There was not a reasonable suspicion of wrongdoing when school officials initiated search of student, who was close friends with another student found with cocaine, and the principal suspected he was in a gang based on his dress and mannerisms. 

DEPENDENCY

ADJUDICATION

M.G. v. J.T., 90 So. 3d 762 (Ala. Civ. App. 2012). In case where stepmother filed a dependency petition after child’s father died, trial court erred in adjudicating child dependent without an evidentiary hearing. Mother’s right to due process was violated where she was not given a copy of the petition, an opportunity to be heard, and no evidence was affirmatively entered.

S.L.M. v. S.C., 2013 WL 1490606 (Ala. Civ. App.). Trial court improperly found children dependent due to mother’s substance abuse and placed children with grandmother. At the time of adjudication, children had been placed with family friend by mother and agency agreement and no allegations were made by the grandmother against the friends. Correct standard is that children must be dependent as to their custodian at time of adjudication.

BEST INTERESTS

M.H. v. B.F., 78 So.3d 411 (Ala. Civ. App. 2011). Where parents had joint custody and the public agency filed a dependency petition, trial court had sufficient evidence to award primary physical custody to the father despite his criminal record given the preferences of the children to be with him, the fact that the agency expressed no safety concerns, and the favorable adjustment the children made while placed with him.

BURDEN OF PROOF

T.J. v. Dep’t of Human Res., 2013 WL 135562 (Ala. Civ. App.).
Agency’s suspicion that mother had serious mental health needs based on conditions in her home did not support adjudicating children neglected. Judgment that agency could remove children and cease visitation until mother obtained a mental health evaluation was in error because agency had burden of proof and suspicion, without more, did not amount to proof of any condition.

DUE PROCESS

N.J.D. v. Dep’t of Human Res., 110 So.3d 387 (Ala. Civ. App. 2012). Father was denied due process when he was notified that there would be a ‘review’ hearing, but other parties understood the hearing was set to determine whether a permanent placement would be made with relatives. Inaccurate notice harmed father’s position in that he would have been prepared to present other witnesses, requiring remand.

JURISDICTION

J.A.W. v. G.H., 72 So.3d 1254 (Ala. Civ. App. 2011). Foster parents were not parties in dependency proceeding, therefore juvenile court jurisdiction to enter order enjoining foster parents from moving forward with their adoption action in probate court; fact that foster parents were willing participants in reunification process did not make them parties to juvenile court proceeding to support conclusion that they were under juvenile court jurisdiction.

NOTICE

B.B. v. D.H., 93 So.3d 949 (Ala. Civ. App. 2012). Where the paternal grandmother sought and received custody through dependency order based on alleged stipulation to that arrangement, but where mother had not been provided notice, juvenile court’s order was void because it violated mother’s right to due process.

PARENTAL FITNESS

R.F.W. v. Cleburne County Dep’t of Human Res., 70 So.3d 1270 (Ala. Civ. App. 2011). Juvenile court improperly awarded custody of child to maternal great-grandmother since there was no clear and convincing evidence to support finding that child was dependent; father’s reliance on others for help caring for child did not render him unfit to parent since he was capable of caring for child himself in supervised and unsupervised settings, he had a job, and earned enough money to cover child’s day care costs and living expenses.

PLACEMENT

W.P., Sr. v. Baldwin County Dep’t of Human Res., 2016 WL 1719929 (Ala. Civ. App.). Parents’ two children were adjudicated dependent and placed with paternal relatives in Texas. Pro se mother and father appealed. Any error by juvenile court in placing children with Texas relatives was invited by mother and father because both parents indicated during dependency hearing that they thought children would benefit from placement with paternal relatives.

RELATIVE PLACEMENTS

K.D. v. Dep’t of Human Res., 142 So.3d 708 (Ala. Civ. App. 2013). Trial court properly found plan of adoption was more appropriate than granting custody to grandfather. Although child had had positive visits with the grandfather, it was questionable whether he would allow contact with mother or father although court had terminated their rights.

REMOVAL

D.M. v. M.E., 71 So.3d 701 (Ala. Civ. App. 2011).  Where children were removed based on petitions filed by the school system for educational neglect, even assuming that child welfare agency had a duty to provide reasonable efforts, trial court correctly found agency fulfilled its duty because the agency provided homemaking services to assist with recurrent hygiene problems and monitored the efforts the school system made to remove lice.

STIPULATIONS

L.F. v. Cullman Dep’t of Human Res., 2015 WL 992016 (Ala. Civ. App.). Juvenile court adjudicated children dependent after child welfare agency stated mother had stipulated to allegations, although mother’s attorney indicated outstanding issues existed. In absence of stipulation, juvenile court could only find children dependent based on clear and convincing evidence. Record contained no evidence of dependency or any stipulation.

THIRD PARTIES

A.M.W. v. A.G.M, 2015 WL 5192195 (Ala. Civ. App.). Former boyfriend of brain-injured mother sought custody of child through dependency petition. Child was without parent, legal guardian, or legal custodian able to provide for her care or discharge parental responsibilities. Child was therefore dependent, even though child was not at risk if returned to custody of mother while living with and under guardianship of maternal grandmother. 

TRUANCY

K.J.M. v. State, 2015 WL 291854 (Ala. Ct. App.). Student who had less than seven unexcused absences was not habitually truant from school under state board of education’s definition of truancy. Because student’s school district adopted similar definition, adjudication of student as in need of supervision was reversed.

VISITATION

J.K v. State, 103 So.3d 807 (Ala. Civ. App. 2012).
Trial court erred in awarding custody and sole discretion over parental visitation to grandmother. Though placement with the grandmother was supported by the record, prior state case law held that a custodian should not have complete discretion over parental visitation.

K.E. v. Dep’t of Human Res., 125 So.3d 722 (Ala. Civ. App. 2013). In case involving domestic violence and alcohol abuse by the parents, trial court abused discretion in not awarding father visitation. There was nothing unusual or extreme about the facts to warrant leaving visitation solely up to 13-year-old daughter, especially considering father had visited her without incident during the case and she testified she had a good relationship with him. 

K.F.P. v. R.A.P., 2013 WL 563339 (Ala. Civ. App.). In case where great aunt and uncle filed dependency petition against grandmother, case was remanded. While court made aunt and uncle and grandmother joint custodians, order was unclear about whether grandmother would have any visitation apart from father. Grandmother could be deprived of contact with child, if the father stopped exercising his right to visit.

P.S. v. M.S., 101 So.3d 228 (Ala. Civ. App. 2012). Where dependency jurisdiction was exercised initially due to mother’s incarcerations and sustained by her mental health issues despite her release by the time of trial, the trial court erred in failing to allow the mother visitation. There was no indication that visitation would not be in the children’s best interests especially given the relative caregiver’s testimony recommending visits.

PERMANENCY

GOAL CHANGE

S.B. v. Dep’t of Human Res., 142 So.3d 716 (Ala. Civ. App. 2013). Trial court properly concluded that adoption continued to be proper permanency goal. Guardian ad litem had opposed adoption by foster parents due to drug use allegations, but withdrsw objection after issue was resolved to his satisfaction. Mother’s apparent progress in achieving stability did not require contrary result given her lack of visitation or support despite living nearby and being employed. 

RELATIVES

F.W. v. T.M., 140 So.3d 950 (Ala. Civ. App. 2013). Juvenile court properly considered relative preference in decision between placement with great aunt and uncle and foster parents. Placement with foster parents was in child’s best interest given the multiple relatives that frequented the home of the aunt and uncle who had recent involvement with drugs, drug manufacturing, and domestic violence. 

TERMINATION OF PARENTAL RIGHTS

ABANDONMENT

County Dep’t of Human Res. v. T.S., 2016 WL 4585896 (Ala. Civ. App.). Child welfare agency appealed denial of termination of parents’ rights to child based on abandonment. Evidence was insufficient to show abandonment as ground for termination. Father attempted to maintain contact with daughter, wanted to raise her, and could support her. Agency prevented mother from visiting child. Testimony from mother and caseworker showed parents provided care for child during first three years of her life.

J.K. v. Dep’t of Human Res., 114 So.3d 835 (Ala. Civ. App. 2012). Trial court’s finding that father abandoned children when he failed to visit was appropriate even though there was a no-contact order for part of that time where father failed to visit the children for four years before he knew of no-contact provision.

APPEALS

Mobile County Dep’t of Human Res. v. T.W., 2016 WL 4140637 (Ala. Civ. App.). Juvenile court’s orders denying termination of parental rights petition were not final appealable judgments. Orders specified juvenile court was not dismissing petitions or entering permanent ruling on petitions, and instead required child welfare agency and mother to present additional evidence on merits of petitions.

CRIMINAL CONVICTIONS

M.J.C. v. G.R.W., 69 So.3d 197 (Ala. Civ. App. 2011). Juvenile court properly considered father’s prior convictions and imprisonment for five felonies as ground for termination of his parental rights; under Alabama case law, a juvenile court may rely on a felony conviction and resulting imprisonment as basis for termination, regardless of when the conviction and imprisonment occurred.

FAILURE TO IMPROVE

M.B. v. Dep’t of Human Res., 116 So.3d 1158 (Ala. Civ. App. 2012). Termination of teen mother’s parental rights was improper based on history of disrupting her foster care placements. Although she had acted irresponsibly in the past, her recent actions in graduating high school, enrolling in college, and avoiding negative influences supported her argument that state failed to prove she would be unable to safely parent in the reasonable future.

P.S. v. Dep’t of Human Res., 143 So.3d 792 (Ala. Civ. App. 2013). Termination was improper where child had been removed because mother failed to protect older siblings from physical abuse but no evidence regarding  what the mother needed to correct to safely parent and there was no evidence mother was still in a relationship with abusive boyfriend. In fact, an in-home worker testified that mother required little coaching during therapeutic visits.

GROUNDS

L.M.W. v. D.J., 116 So.3d 220 (Ala. Civ. App. 2012). In case where termination was based on mother’s failure to visit and financial stability that adoption would provide, termination grounds were not proven. Grandparent caregivers denied visitation to mother despite child’s and mother’s request for visits and the benefit to the child of being on grandfather’s insurance, if adopted, was not strong enough to warrant termination.

HEARSAY

J.B.B. v. Dep’t of Human Res., 120 So.3d 517 (Ala. Civ. App. 2013).
In termination trial, trial court did not err in admitting hearsay statements about children’s sexual abuse entered through psychologist. Parents effectively waived their right to challenge those statements via expert testimony when they failed to obtain their own independent psychologist for a year after the judge authorized the funds.

T.Y v. Dep’t of Human Res., 129 So.3d 280 (Ala. Civ. App. 2013). Caseworker’s testimony about mother’s mental health diagnoses was improperly admitted in adjudicatory phase of a termination proceeding and was not cured by mother’s testimony.While mother’s testimony confirmed some aspects of her mental health needs, it did not effectively rebut her testimony on why she was not accepted into a treatment program.

INCARCERATION

A.H. v. Dep’t of Human Res., 122 So.3d 846 (Ala. Civ. App. 2013). Trial court erred in terminating mother’s parental rights where she was on house arrest because there were compelling reasons to maintain child in care longer under the circumstances. Though a court need not wait indefinitely for an incarcerated parent to be able to parent a child, where mother had consistent visitation with children and had passed several drug tests, state failed to show she would not be able to parent in the reasonable future when the contraints of her house arrest were lifted.

JURISDICTION

Ex parte B.C., 2015 WL 403085 (Ala.). Unwed mother filed petition for termination of parental rights in juvenile court based on abandonment and failure to maintain contact with child. Father appealed termination judgment, claiming lack of jurisdiction. Court ruled juvenile court had jurisdiction under juvenile justice act even though petition did not allege child was dependent, delinquent, or in need of supervision.

MEDICAL NEGLECT

J.M. v. Dep’t of Human Res., 2013 WL 4488930 (Ala. Civ. App.). Termination was appropriate where child had multiple medical problems, including an unformed digestive system. Father was unable to keep up with child’s appointments, and his plans to enlist aid of his church and mother, who was attempting to immigrate, were not dependable.

S.G. v. Dep’t of Human Res., 2013 WL 5861500 (Ala. Civ. App.). In termination proceeding where mother had been repeatedly committed for her own safety due to mental illness, the Americans with Disabilities Act did not apply to case to bar termination or require agency to provide reunification services. Agency had proven aggravated circumstances because termination was not the type of public service contemplated by the Act.

PATERNITY

J.S.M. v. Dep’t of Human Res., 140 So.3d 484 (Ala. Civ. App. 2013). Trial court should have held hearing on alleged biological father’s motion to intervene where man presumed to be father due to marriage to mother consented to termination of his parental rights. Although husband’s consent suggests he was consenting to the presumption of paternity, alleged father had a right to present evidence in that regard. 

PERMANENCY

J.S. v. Etowah County Dep’t of Human Res., 2011 WL 3406587 (Ala. Civ. App.). Evidence supported juvenile court’s determination that children’s interest in permanency outweighed mother’s interest in rehabilitation in termination of parental rights proceeding; although mother had progressed, she was unable to show compelling reason to extend rehabilitation period beyond 12 months she was given and she refused to attend counseling, take medicine for her bipolar disorder, and follow outpatient guidelines.

PLACEMENT

B.B.T. v. Houston County Dep’t of Human Resources, 89 So.3d 169(Ala. Civ. App. 2011). Placing child with father’s employer was not a reasonable alternative to terminating father’s parental rights. Evidence showed placing child in permanent custody of foster parents outweighed any advantages of placing child with father’s employer. Although employer offered a loving, spacious home, she had only met the child a few times. The child had formed a strong emotional bond with the foster parents and the agency was prepared to pursue adoption upon termination of the father’s rights.

RELATIVES

Marshall County Dep’t of Human Res. v. M.B., 2015 WL 836707 (Ala. Civ. App.). Juvenile court erred when it failed to award permanent custody to child welfare agency as part of judgment terminating parents’ rights to their four children and closing the cases. As a result, court could not properly adjudicate paternal grandfather’s custody request until permanent custody was determined.

SUBSTANCE ABUSE

B.K.H. v. Dep’t of Human Res., 142 So.3d 654 (Ala. Civ. App. 2013). Clear and convincing evidence did not show it was in child’s best interests to have mother’s parental rights terminated. Though mother had not complied with substance abuse treatment or visitation early in the case, the last year demonstrated a diligent effort on her part to remain sober; single DUI incident, while regrettable, did not weigh strongly enough given other efforts she had made which led to a mostly positive trial home visit. 

J.H. v. Cullman County Dep’t of Human Res., 2016 WL 6648655 (Ala. Civ. App.). Termination of father’s parental rights to two daughters was warranted despite father’s recent improvement of conditions leading to termination. Court could consider father’s history, including no recent positive drug tests and history of psychiatric hospitalizations and drug abuse, to determine that barriers had only been temporarily removed or merely hidden.

L.M. v. Shelby County Dep’t of Human Res., 86 So.3d 377 (Ala. Civ. App. 2011). Juvenile court erred in terminating parental rights where the mother had continued to abuse substances but the father had remained drug free and complied with his case plan. Although a parent’s rights may be terminated for failing to end a relationship that poses a risk to their children, that risk must be shown. Nothing in the record showed the father could not protect the children when the mother was under the influence. Further, the father had never been told his involvement with the mother was prohibited.

TIMELINESS

C.P.M. v. Shelby County Dep’t of Human Res., 2015 WL 3821906 (Ala. Civ. App.). Termination of mother’s parental rights was not supported by clear and convincing evidence. Although child had been in child welfare agency custody three times, each removal appeared precautionary and not result of actual threats or allegations of abuse or neglect. Court’s order terminating father’s parental rights, entered 11 months after trial concluded, was not based on his current circumstances. Court’s undue delay in entering judgment past 30-day statutory requirement required reversal.

VISITATION

DUE PROCESS

Y.N. v. Jefferson County Dep’t of Human Res., 67 So.3d 76 (Ala. Civ. App. 2011). Mother’s due process rights were not violated by order terminating visitation rights to children and placing them with a relative because she did not receive notice of a petition to terminate her parental rights; terminating visitation rights is not equal to terminating parental rights because the parent retains residual rights including the ability to later petition for visitation upon changed circumstances.

GRANDPARENTS

Ex parte E.R.G., 73 So.3d 634(Ala. 2011). Alabama’s grandparent visitation statute violated constitutional rights of parents by not including a presumption favoring parents and requiring a compelling state interest when deciding grandparents’ visitation rights.

VISITATION

RELATIVES

D.B. v. K.B., 67 So.3d 114 (Ala. Civ. App. 2011). Juvenile court properly awarded visitation to maternal aunt and uncle with children who were in custody of paternal aunt even though they lacked close relationship with children until after parents’ death; evidence showed continued contact between children and maternal family was in their best interests.