REL: 10/31/2014




Notice: This opinion is subject to formal revision before publication in the advance
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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.




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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

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    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

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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

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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


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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

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    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


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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
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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.

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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.




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