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D.M. v. Walker County Department of Human Resources7/8/2005
nt federal expectation of compliance with federal mandates. However, federal resources focus primarily on the last phase of child welfare, permanency, rather than on ameliorating the conditions that lead to child abuse and neglect. Even though the Adoption and Safe Families Act of 1997 has provided the bulk of adoption assistance, the federal government, by contrast, only pays for approximately 15 percent of the state abuse prevention costs. The federal, state, and local out-of-home care costs for the year 2000 were approximately $9.1 billion ...."
William W. Patton & Amy M. Pellman, The Reality of Concurrent Planning: Juggling Multiple Family Plans Expeditiously Without Sufficient Resources, 9 U.C. Davis J. Juv. L. & Pol'y 171, 175-76 (2005)(footnote omitted).
The desirable permanency to be achieved by adoption cannot, constitutionally, be a part of the evidentiary calculus at the adjudicatory stage of a parental-rights-termination proceeding. See Santosky v. Kramer, 455 U.S. 745, 760 (1982).
Because I believe that DHR wholly failed to meet its burden of proving the grounds for termination and the lack of a viable alternative to termination in this case, I would reverse the judgment of the juvenile court. However, even assuming for the sake of argument that DHR proved the grounds for termination, the juvenile court's judgment is due to be reversed and the cause remanded for further proceedings.
Section 26-18-7(a), Ala. Code 1975, provides that when the juvenile court determines that grounds for termination exist, the court "may" terminate parental rights. See also ยง 12-15-71(a), Ala. Code 1975 (providing the court with alternative dispositions for a dependent child and reserving for "appropriate cases" the alternative of termination). In D.M.P. v. State Department of Human Resources, 871 So. 2d 77 (Ala. Civ. App. 2003)(plurality opinion), this court stated that "a case would still not be an 'appropriate case' for termination if, after considering its alternatives, the court determines that termination is not in fact in the best interest of the child." 871 So. 2d at 95 and n.17. The juvenile court's judgment makes no reference to the existing relationship between the children and their parents. From all that appears, the court failed to consider whether, given the existing emotional bond between the parents -- particularly the father -- and the children, termination of parental rights would be in the children's best interest.
Therefore, at the very least, the judgment of the juvenile court should be reversed and the cause remanded with the following instructions: if the juvenile court determines that grounds for termination do exist, then the court is instructed to decide whether termination is in the best interest of the children or whether, nonetheless, it would be in the children's best interest to place them in the custody of the great aunt and great uncle, thereby allowing a partial preservation of the parent-child relationship. See D.M.P. v. State Dep't of Human Res., 871 So. 2d at 95.
Murdock, J., concurs.
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