S.L.J.F. v. Cherokee County Department of Human Resources , 2014 Ala. LEXIS 177 ( 2014 )

REL: 10/31/2014
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-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1131412
____________________
Ex parte S.L.J.F.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: S.L.J.F.
v.
Cherokee County Department of Human Resources)
(Cherokee Juvenile Court, JU-11-131.03;
Court of Civil Appeals, 2130543)
STUART, Justice.
1131412
WRIT DENIED. NO OPINION.
Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Parker, J., dissent.
2
1131412
MOORE, Chief Justice (dissenting).
I respectfully dissent from this Court's denial of the
petition for a writ of certiorari filed by S.L.J.F. ("the
mother"). I believe that the Cherokee Juvenile Court lacked
clear and convincing evidence showing that the mother's
conduct and circumstances warranted the termination of her
fundamental right to the custody and care of her children. I
also believe that the juvenile court may not have considered
all viable alternatives to terminating the mother's parental
rights. I would grant the mother's petition and review the
full record in this case.
The mother has three children: J.R.B. ("the son"), E.R.F.
("the half brother"), and J.L.F. ("the half sister") (the half
brother and the half sister are hereinafter collectively
referred to as "the half siblings"). C.B. ("the father") is
the biological father of the son. The mother was never married
to the father. The mother's husband is E.R.F., Sr. ("the
husband"), who is the biological father of the half siblings.
The Court of Civil Appeals recounted the following relevant
facts:
"In December 2010, before the half sister was
born, [the Cherokee County Department of Human
3
1131412
Resources ('DHR')] became involved with the family
after receiving reports of, among other things,
alcohol abuse and domestic violence in the home.
There is no indication in the record that the mother
abused alcohol; instead, that allegation was against
the husband, with whom the mother had often left the
son and the half brother. At that time, DHR
implemented the first of 'at least' four safety
plans. DHR placed the son with K.M. ('the aunt'),
the father's sister, and it placed the half brother
with B.J.S. ('the maternal stepgrandfather') and
C.S. ('the maternal grandmother') (hereinafter
referred to collectively as 'the maternal
grandparents'). The maternal grandparents lived in
Georgia. Thereafter, the half sister was born and
the mother participated in a number of services
intended to reunify the family. At times the mother
made progress, and the son and the half siblings
were temporarily reunited with the mother; however,
as already mentioned, DHR implemented at least three
other safety plans. In March 2013 the juvenile court
awarded custody of the son and the half siblings to
DHR, and DHR placed them together in a foster home.
On September 23, 2013, DHR filed petitions seeking
to terminate the parental rights of the father
regarding the son and of the mother regarding the
son and the half siblings.
"The termination-of-parental-rights trial was
held on November 20, 2013. On December 10, 2013, the
juvenile court entered an order reserving its
judgment. The juvenile court required DHR to
evaluate the maternal grandparents and to report the
results of a home study of the maternal
grandparents' home pursuant to the Interstate
Compact on the Placement of Children ('ICPC'),
codified at § 44-2-20 et seq., Ala. Code 1975. On
March 6, 2014, DHR notified the juvenile court that
placement of the children with the maternal
grandparents was not approved. That same day, the
juvenile court entered separate judgments
terminating the father's parental rights to the son
4
1131412
and terminating the mother's parental rights to the
son and to the half siblings."
S.L.J.F. v. Cherokee Cnty. Dep't of Human Res., [Ms. 2130543,
August 22, 2014] ___ So. 3d ___, ___ (Ala. Civ. App.
2014)(footnote omitted). On appeal to the Court of Civil
Appeals, the mother challenged the termination of her parental
rights to all three of her children. The Court of Civil
Appeals affirmed the judgment terminating the mother's
parental rights to the son and dismissed the appeal from the
judgment terminating her parental rights to the half siblings.
S.L.J.F., ___ So. 3d at ___. The mother's petition for a writ
of certiorari concerns only the termination of her parental
rights to the son, not to the half siblings.
The facts before us and in the opinion of the Court of
Civil Appeals do not present clear and convincing evidence so
as to require the termination of the mother's parental rights.
See § 12-15-319(a), Ala. Code 1975 (providing factors juvenile
courts are to consider in determining whether parents are
unwilling or unable to discharge their parental duties). See
also M.C. v. L.B., 607 So. 2d 1267, 1268-70 (Ala. Civ. App.
1992)(stating that a natural parent's prima facie right to the
care and custody of his or her children can be overcome only
5
1131412
by clear and convincing evidence). It was the husband, not the
mother, who struggled with substance abuse and who had a
history of domestic violence. The children were not the
objects of the husband's domestic violence. The mother points
out that she worked at fast-food restaurants to support her
family while undergoing psychological treatment to improve her
confidence and self-esteem. The mother later left the husband
because of his substance abuse. Although she began to date
another man who had been charged with domestic violence for an
incident involving his mother, that man did not abuse the
mother or her children, and the Cherokee County Department of
Human Resources ("DHR") did not find it necessary to
investigate the incident between him and his mother. In an
effort to reunite with her children, the mother participated
in several services, including ECA Focus, an in-home service
that assists parents who are in danger of losing their
children. The mother claims to have attended all of her
scheduled meetings with ECA Focus. She acknowledges that she
suffers from financial hardships and that she had been treated
with Prozac for her depression. She points out, however, that
DHR had never accused her of abusing prescription drugs or of
6
1131412
suffering from addiction. The mother states that she has never
refused a drug test and that the results of all of her drug
tests were negative. Moreover, the mother claims that, at the
time of the termination-of-parental-rights hearing, she was
living with her mother and stepfather, who were helping her to
reunite with her children. The mother maintained regular
visitation with the children but was unable to visit the
children for a two-month period because, she says, she had no
transportation; however, she indicates that, since moving in
with her mother and stepfather, she has secured reliable
transportation.
The opinion of the Court of Civil Appeals also does not
recite clear and convincing evidence that supports the
juvenile court's conclusion that no viable alternatives to the
termination of the mother's parental rights exist.
"Parents and their children share a liberty interest
in continued association with one another, i.e., a
fundamental right to family integrity. Santosky v.
Kramer, [455 U.S. 745 (1982)]. A state may only
interfere with that right to achieve a compelling
governmental objective using the most narrowly
tailored means available. Roe v. Conn, 417 F. Supp.
769 (M.D. Ala. 1976). Accordingly, parental rights
may be terminated only when 'less drastic measures
would be unavailing.' 417 F. Supp. at 779. Under
Alabama law, a juvenile court may terminate parental
rights only when no viable alternative exists. [Ex
7
1131412
parte] Beasley, [564 So. 2d 950 (Ala. 1990)]. Stated
conversely, if a viable alternative exists to
achieve the compelling governmental objective at
stake, a juvenile court may not terminate parental
rights."
J.B. v. DeKalb Cnty. Dep't of Human Res., 12 So. 3d 100, 115
(Ala. Civ. App. 2008). The mother claims that placement of the
son with his aunt or with his maternal grandmother was a
viable alternative to terminating the mother's parental
rights. The maternal grandmother, however, does not appear to
have been a viable alternative to the termination of the
mother's parental rights because she resides in Georgia,
which, as the potential receiving state, according to the
Court of Civil Appeals, had not approved the proposed
placement of the son with the maternal grandmother. ___ So. 3d
at ___. See Interstate Compact on the Placement of Children,
§ 44-2-20, Article III, subpart (d), Ala. Code 1975 ("[T]he
child shall not be sent, brought or caused to be sent or
brought into the receiving state until the appropriate public
authorities in the receiving state shall notify the sending
agency, in writing, to the effect that the proposed placement
does not appear to be contrary to the interests of the
child."). The son's aunt, on the other hand, does appear to
8
1131412
have been a viable alternative to the termination of the
mother's parental rights to her son.
The aunt, who was willing to be a placement for the son,
has a house and two children of her own. A DHR worker
testified during trial that the son had already been placed
successfully with the aunt for a time and that the juvenile
court could consider the aunt as a viable placement option.
This same DHR worker, the mother says, testified that she did
not have any safety concerns about placing the son with the
aunt. There was disputed testimony at trial regarding whether
the aunt had allowed the father to visit the son without
supervision while the son was staying with her. The father
denied that such visitation had taken place. Such disputed
testimony hardly rises to the level of clear and convincing
evidence that placement with the aunt was not a viable
alternative to terminating the mother's parental rights.
Sometimes courts need to be reminded of the foundational
principles on which our legal system is based.1 One such
1
"The prima facie right of a natural parent to the custody
of his or her child ... is grounded in the common law concept
that this primary parental right of custody is in the best
interest and welfare of the child as a matter of law." Ex
parte Mathews, 428 So. 2d 58, 59 (Ala. 1983). "Proceedings to
9
1131412
principle involves a natural parent's rights to the custody
and care of his or her children. "The laws of nature teach us
that the relation of parent and child is sacred ...."
Montgomery v. Hughes, 4 Ala. App. 245, 247, 58 So. 113, 113
(1911). "God, not the state, ordained the institution of the
family." Ex parte J.M.P., 144 So. 3d 287, 297 (Ala.
2013)(Moore, C.J., dissenting). "Because God, not the state,
has granted parents the authority and responsibility to govern
their children, parents should be able to do so unfettered by
state interference," Ex parte G.C., 924 So. 2d 651, 677 (Ala.
2005)(Parker, J., dissenting), so long as those same parents
are not "found unfit by clear and convincing evidence" and
have not acted "to voluntarily relinquish this right to
custody." G.C., 924 So. 2d at 679 (Parker, J., dissenting).
"Inasmuch as the termination of parental rights strikes
at the very heart of the family unit, a court should terminate
parental rights only in the most egregious of circumstances."
Ex parte Beasley, 564 So. 2d 950, 952 (Ala. 1990). "The law
terminate parental rights were unknown at common law." In re
Termination of Parental Rights of P.A.M., 505 N.W.2d 395, 397
(S.D. 1993)(citing In re Zink, 264 Minn. 500, 119 N.W.2d 731
(1963)). Such proceedings are creatures of statute and of
recent origin.
10
1131412
recognizes that a higher authority ordains natural parenthood,
and a fallible judge should disturb the relationship thus
established only where circumstances compel human
intervention." Ex parte Sullivan, 407 So. 2d 559, 563-64 (Ala.
1981).
"[E]ach time a court considers a child-custody
dispute it should begin by taking judicial notice of
the fact that parents possess the right and
responsibility to govern and raise their children;
that God, not the state, has given parents these
rights and responsibilities, and, consequently, that
courts should interfere as little as possible with
parental decision-making."
G.C., 924 So. 2d at 677-78 (Parker, J., dissenting). "Parental
rights are indeed cherished and deserve the law's utmost
protection against unwarranted interference." Ex parte
Beasley, 564 So. 2d at 954. As I have stated elsewhere, "the
law favors the natural parents of a child by presuming that a
child's best interests are served by placing the child in the
custody of its natural parents." Ex parte C.V., 810 So. 2d
700, 703 (Ala. 2001) (Moore, C.J., concurring specially).
By denying the mother's petition for a writ of
certiorari, this Court has wrongfully denied this mother, who
has neither abused nor neglected her children, parental
custody of her son, with whom she has labored to reunite.
11
1131412
Furthermore, the fact that the aunt may have allowed the son
unsupervised visitation with the father, who had never abused
the son or the half siblings, is not a sufficient ground for
determining that the aunt is not a viable alternative to the
termination of the mother's parental rights. Finding no clear
and convincing evidence that the mother was unfit for
parenting or that there was no viable alternative to
terminating the mother's parental rights, I dissent. I fear
the Court has disregarded a fundamental and cherished right
that it is bound by law to protect and has presumed what is
best for the son before evaluating the evidence of parental
fitness.
12