K.K. v. Escambia County Department of Human Resources (Appeal from Escambia Juvenile Court: JU-21-139.03). ( 2024 )

Rel: August 23, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2024
_________________________
CL-2023-0624, CL-2023-0625, CL-2023-0626, and CL-2023-0627
_________________________
K.K.
v.
Escambia County Department of Human Resources
Appeals from Escambia Juvenile Court
(JU-21-139.03, JU-21-140.03, JU-21-141.03, and JU-21-142.03)
_________________________
CL-2023-0632, CL-2023-0633, and CL-2023-0634
_________________________
J.G.
v.
Escambia County Department of Human Resources
Appeals from Escambia Juvenile Court
CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023-
0632, CL-2023-0633, and CL-2023-0634
(JU-21-139.03, JU-21-140.03, and JU-21-141.03)
HANSON, Judge.
CL-2023-0624 -- AFFIRMED BY UNPUBLISHED
MEMORANDUM.
CL-2023-0625 -- AFFIRMED BY UNPUBLISHED
MEMORANDUM.
CL-2023-0626 -- AFFIRMED BY UNPUBLISHED
MEMORANDUM.
CL-2023-0627 -- AFFIRMED BY UNPUBLISHED
MEMORANDUM.
CL-2023-0632 -- AFFIRMED BY UNPUBLISHED
MEMORANDUM.
CL-2023-0633 -- AFFIRMED BY UNPUBLISHED
MEMORANDUM.
CL-2023-0634 -- AFFIRMED BY UNPUBLISHED
MEMORANDUM.
Fridy, J., concurs.
Lewis, J., concurs in the result, without opinion.
Edwards, J., dissents, with opinion, which Moore, P.J., joins.
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EDWARDS, Judge, dissenting.
I respectfully dissent from the affirmance of the judgments entered
by the Escambia Juvenile Court ("the juvenile court") terminating the
parental rights of K.K. ("the mother") and J.G. ("the father") to their
children, L.D.G., J.A.G., and A.L.G., and terminating the parental rights
of the mother to her child, E.L.K. Although the mother argues that
maintaining the status quo is a viable alternative to the termination of
her parental rights, and although the father only briefly refers to the
maintenance of the status quo in the conclusion section of his brief on
appeal, I believe that the parents' arguments, however sparse, can also
be construed as a challenge to the termination of their parental rights as
not being in the best interests of the children because the record lacks
evidence that the children would achieve permanency through adoption
if parental rights were terminated. See T.W. v. Calhoun Cnty. Dep't of
Hum. Res., [Ms. CL-2022-0694, June 2, 2023] ___ So. 3d ___ (Ala. Civ.
App. 2023).
In T.W., this court explained that, "before proceeding to terminate
the parental rights of the parents of special-needs children, a juvenile
court must consider whether the children will likely achieve permanency
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0632, CL-2023-0633, and CL-2023-0634
through adoption." ___ So. 3d at ___; see also T.D.H. v. Mobile Cnty. Dep't
of Hum. Res., [Ms. CL-2023-0033, Dec. 1, 2023] ___ So. 3d ___, ___ (Ala.
Civ. App. 2023). Moreover, we cautioned in T.W. that, "[i]n order for the
juvenile court to consider [whether a special-needs child will likely
achieve permanency through adoption], it [is] incumbent upon [the
Department of Human Resources] to present clear and convincing
evidence of the viability of adoption so that the juvenile court [can] make
an informed evaluation and decision." Id. at ___. Even in cases not
involving children classified as "special needs," this court has stated that,
"[i]f some less drastic alternative to termination of parental rights can be
used that will simultaneously protect the children from parental harm
and preserve the beneficial aspects of the family relationship, then a
juvenile court must explore whether that alternative can be successfully
employed instead of terminating parental rights." T.D.K. v. L.A.W., 78
So. 3d 1006, 1011 (Ala. Civ. App. 2011).
The record reflects that L.D.G., J.A.G., A.L.G., and E.L.K. ("the
children") range in age from 15 to 9 years. Thus, the children qualify as
"special-needs children," as that term is defined in Ala. Admin. Code
(Dep't of Hum. Res.), r. 660-5-22-.06, which addresses adoption subsidies
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0632, CL-2023-0633, and CL-2023-0634
offered to adoptive parents of children who are determined to have
special needs. All four of the children are age five years or older, see Ala.
Admin. Code (Dep't of Hum. Res.), r. 660-5-22-.06(2)(a)2.(iv), and, if the
Escambia County Department of Human Resources ("DHR") is able to
place the children "in the same [adoptive] home at the same time," r. 660-
5-22-.06(2)(a)2.(v), as it is required to attempt, see 42 U.S.C. §
671(a)(31)(A), the children will also be "member[s] of a sibling group of
two (2) or more being placed for adoption .…" r. 660-5-22-.06(2)(a)2.(v).
In addition, the record reveals that, in an August 2022 individualized
service plan ("ISP"), DHR indicated that the foster-care placement for
A.L.G. and J.A.G. was designated as a "therapeutic foster home," as
opposed to a traditional foster home, indicating that those two children
suffered from "a DSM-IV psychiatric, emotional or behavioral diagnosis."
See Ala. Admin. Code (Dep't of Hum. Res.), r. 660-5-28-.07(16)(e)(2).
(describing "therapeutic foster care"). 1 A.L.G. and J.A.G., therefore, each
1Rule 660-5-28-.07(16)(e)(2) provides:
"Therapeutic foster care is provided in a foster home that is
equipped and trained to provide care for the emotionally
and/or behaviorally disturbed children. It is the least
restrictive community based care provided for
emotionally/behaviorally disturbed children. Children
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CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023-
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also qualify as a "special needs child" under Ala. Admin. Code (Dep't of
Hum. Res.), r. 660-5-22-.06(2)(a)2.(ii), which provides that a child is
considered a special-needs child for purposes of an adoption subsidy when
"[t]he child has a known emotional disturbance/behavioral issue that
requires on-going treatment and that has been documented by a mental
health professional."
My review of the record reveals that DHR presented no evidence
indicating that the children were adoptable. Jessica Jackson, the social-
service supervisor over foster care and ongoing services for DHR, testified
that the permanency plans for the children were "adoption with no
identified resource" and that DHR would, once the termination of
parental rights was accomplished, "fill[] out all required paperwork for
the state office to begin identifying a forever home." Other than that
meager testimony, the record does not mention the future adoptive
prospects of the children.
receiving therapeutic foster care must have a DSM-IV
psychiatric, emotional or behavioral diagnosis and an
identifiable special need related to that diagnosis that
requires care beyond 'ordinary parental duties.' "
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CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023-
0632, CL-2023-0633, and CL-2023-0634
A review of the ISPs contained in the record indicates that, in July
2021, the children were placed together under a safety-plan agreement
with safety-plan providers, T.B. and A.B.; that, in October 2021, L.D.G.
and A.L.G. were placed in the home of foster parents, C.C. and E.C., and
J.A.G. and E.L.K. were placed in the home of foster parents, S.B. and
B.J.B.; and that, in March 2022, the children were placed together in the
home of foster parent, D.S. Although the mother indicated in her
testimony that, in February or March 2023, the children had been moved
from the home of D.S. to a new foster home in which they were living at
the time of the August 2023 trial, the record does not contain an ISP
reflecting that change in placement. Nothing in the record reveals the
reason that the children were moved from one foster home to another. At
least three of the ISPs indicate that one or more of the children received
counseling at various times; the most recent ISP in the record, dated
August 28, 2022, indicates that the children were all receiving "school-
based therapy" through a mental-health-care provider. Furthermore,
some testimony in the record indicates that, at least at some point, J.A.G.
was in a "facility" where he was attended by both a nurse and a therapist,
indicating that he may have been either hospitalized or institutionalized.
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CL-2023-0624, CL-2023-0625, Cl-2023-0626, CL-2023-627, Cl-2023-
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The children are unquestionably considered to be special-needs
children under DHR's own regulations, yet DHR failed to present any
evidence, much less clear and convincing evidence, indicating that
adoption would be a likely outcome for any of them or that adoption would
serve their best interests. We cannot affirm the termination-of-parental-
rights judgments in the absence of such evidence. Accordingly, I must
dissent.
Moore, P.J., concurs.
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