
    J.P. v. STATE DEPARTMENT OF HUMAN RESOURCES. N.F. v. State Department of Human Resources.
    2000232 and 2000233.
    Court of Civil Appeals of Alabama.
    June 22, 2001.
    
      James C. Alison, Huntsville, for appellant J.P.
    Reta A. McKannan, Huntsville, for appellant N.F.
    J. Coleman Campbell and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   CRAWLEY, Judge.

In May 2000, the Madison County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of N.F. (the “mother”) and W.R.F. Ill (the “father”) as to their children W.R.F. IV and S.F. (the “children”). J.P., the maternal grandmother, filed a motion to intervene, alleging that placing the children in her custody is a viable alternative to termination of the mother’s parental rights. Following an ore tenus trial, the juvenile court ordered the termination of both parents’ parental rights and found that placing the children in the custody of the maternal grandmother is not a viable alternative to terminating the parents’ paternal rights. The mother and the maternal grandmother each appeal. The father does not appeal.

The termination of parental rights is a drastic measure, and the courts gravely consider such action. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). A natural parent’s prima facie right to the custody of his or her child is outweighed only by clear and convincing evidence that termination of parental rights is in the best interests of the child. L.N. v. State Dep’t of Human Res., 619 So.2d 928, 929 (Ala.Civ.App.1993). The juvenile court considers the parent’s physical, financial, and mental abilities to care for the child in order to determine the child’s best interests. J.L.B. v. State Dep’t of Human Res., 608 So.2d 1367, 1368 (Ala.Civ.App.1992). The juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Beasley, at 954.

We address the mother’s appeal first. The mother argues that the juvenile court erred by not finding the maternal grandmother to be a viable alternative to the termination of her parental rights. She does not appeal the juvenile court’s finding that the children are dependent. DHR contends that custody with the maternal grandmother is not a viable alternative, for two reasons: (1) the maternal grandmother had refused to take custody of the children in the past; and (2) the maternal grandmother was not a good mother to her own children.

DHR presented evidence indicating that the maternal grandmother had had custody of the children after they were removed from the mother’s home a few years ago. The maternal grandmother then became engaged and her fiancé did not want the responsibility of rearing the children. The maternal grandmother asked friends — a married couple — if they would keep the children. The couple agreed, the maternal grandmother transferred the children to them, and then the maternal grandmother informed DHR of the change in the children’s custody. DHR licensed that couple as foster parents. The couple divorced and relinquished custody of the children. DHR again asked the maternal grandmother if she would take the children, and she declined. The maternal grandmother testified that at that time her husband was terminally ill and that she was not able to care for him and the children at the same time. Shortly before her husband’s death, she filed the petition to intervene in the termination-of-parental-rights action instituted against the mother, requesting custody of the children. The maternal grandmother’s husband died about one week before the trial.

The maternal grandmother testified that she could now devote sufficient time to the children because she no longer had to care for her husband. She testified that she lives in a four-bedroom house where each child would have a bedroom. She testified that the school the children would attend is a good school and provides after-school care. The maternal grandmother has a successful hair-styling job at a local department store and makes about $35,000 a year. She testified that she can adjust her hours around the children’s school schedule and does not anticipate that they would have to stay in after-school care for more than about one hour each day. She testified that she is currently deciding which health-insurance arrangement would give the children the most coverage at the best cost. She testified that her husband had mortgage insurance that is paying the balance owed on the house. She affirmatively responded to questions about whether she could comply with orders of the court that might restrict the mother’s access to the children. DHR presented evidence indicating that the maternal grandmother had not had custody of her two children, including the mother, for much of their minority, that both of her children have substance-abuse problems, and that neither of her children has adjusted to the responsibilities of being an adult.

DHR presented evidence indicating that when the mother was a teenager (more than 10 years ago), she ran away from her father’s home. The mother’s father and the maternal grandmother were divorced, and the father had custody. Kansas authorities eventually placed the mother in a foster home. While the mother was in this foster home, the maternal grandmother decided to move from Kansas. The Kansas authorities informed the maternal grandmother that if she left Kansas she would have difficulties in being considered as custodian of the mother once the mother left her foster home. The record indicates that the maternal grandmother moved from Kansas anyway. The juvenile court, in its judgment, and DHR, in its brief, place much emphasis on these events in determining that custody with the maternal grandmother is not a viable alternative to terminating the mother’s parental rights.

Both of DHR’s concerns regarding the maternal grandmother’s ability to be a custodian and an alternative to termination of the mother’s parental rights address the past conditions and past ability of the maternal grandmother to be a custodian. As stated above, the evidence regarding the maternal grandmother’s parenting involves events that occurred more than 10 years in the past. Moreover, the evidence, as shown above, demonstrates the maternal grandmother’s present ability to be a custodian of the children. This court reversed a judgment terminating parental rights where a grandmother requested custody of the children as an alternative to termination of parental rights. V.M. v. State Dep’t of Human Res., 710 So.2d 915 (Ala.Civ.App.1998). In that case, DHR opposed the grandmother’s custody because the grandmother had refused custody of the children a few years earlier and because the grandmother had not taken the initiative to complete the requisite paperwork to become a custodian. This court stated:

“All of DHR’s objections to the grandmother as a relative resource were based on past history, however, and there was no evidence that she had been considered in light of her present circumstances, her present willingness to be a resource for the children, and the present improvement in the mother’s condition. DHR must present ‘evidence of recent attempts to locate viable alternatives in order to establish that termination of parental rights is the least drastic alternative.’ Bowman [v. State Dep’t of Human Resources, 534 So.2d 304, 306 (Ala.Civ.App.1988) ].”

710 So.2d at 921.

We conclude that the juvenile court erred by not considering custody with the maternal grandmother as a viable alternative. As stated above, the maternal grandmother testified that she is presently able to care for the children in her home, and she presented evidence indicating that she has sufficient resources to care for the children. Therefore, we reverse the juvenile court’s judgment terminating the mother’s parental rights. We instruct the juvenile court on remand to consider the maternal grandmother’s present ability to care for the children in evaluating whether her having custody is a viable alternative to terminating the mother’s parental rights.

The maternal grandmother argues two issues on appeal. First, she argues that the juvenile court erred by not awarding her custody of the children. This issue has been disposed of in our resolution of the mother’s appeal. The maternal grandmother also argues that an award of custody to the maternal great-grandparents is a viable alternative to termination of the mother’s parental rights. We conclude that this is an argument the mother should have made and that the maternal grandmother is not the proper party to make this argument.

The judgment terminating the mother’s parental rights is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., concurs.

MURDOCK, J., concurs in the result.

THOMPSON and PITTMAN, JJ., dissent.

THOMPSON, Judge,

dissenting.

I conclude that the evidence clearly supports the trial court’s determination that there were no viable alternatives to terminating the parents’ parental rights and that such a termination would be in the best interests of the children. Therefore, I must dissent.

The children involved in this case were ages 8 and 5 at the time of the termination hearing; at that time, they had been out of their mother’s custody and in foster care for 33 months. The trial court found that the maternal grandmother had kept the children for only the first two months after they were removed from the mother’s custody; that when the maternal grandmother’s then fiancé objected to her having the children, she, without DHR’s permission, gave the children to another couple; and that when that couple divorced the maternal grandmother refused to take the children.

DHR presented evidence indicating that, more than one and a half years after she had given up custody of the children, one of the DHR social workers had attempted to perform a home evaluation on the maternal grandmother’s home. However, before that evaluation could be conducted, the maternal grandmother withdrew her request for custody of the children, stating that her husband was opposed to her obtaining custody of them.

The record also indicates that the mother was out of the maternal grandmother’s custody and in foster care from the time she was 12 years old until she was 18 years old. The maternal grandmother testified that she moved to this state while the mother remained in foster care in Kansas because the mother was almost 18 and could join her in Alabama in less than one year. The maternal grandmother also admitted that she did not have custody of her son during much of his life; she disavowed any responsibility for her son’s drug addiction and other problems because she had not reared him.

The maternal grandmother filed her petition to intervene only after her husband died and only days before the termination hearing. She refused to answer the question whether she would have filed the petition to intervene if her husband had not died.

In V.M. v. State Department of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998), the grandmother had refused to take her grandchildren when they were first placed in foster care in 1993. In 1995, the grandmother expressed an interest in obtaining custody of the children; the grandmother again contacted the social worker about obtaining custody of the children after DHR had filed a petition to terminate the mother’s parental rights. DHR did not investigate the grandmother’s home because the grandmother had previously refused to take the children. This court reversed, stating that the grandmother had not been “considered in light of her present circumstances [or her] present willingness to be a resource for the children.” V.M. v. State Dep’t of Human Res., 710 So.2d at 921.

In this case, the maternal grandmother had given up the children after caring for them for only two months; had later refused to take them; and had scheduled a home evaluation but then informed the social worker she could not take the children. In the interim, the children remained in foster care for almost three years. During DHR’s investigation and its attempts to reunite the children with a parent, the maternal grandmother refused to take custody of the children. I interpret the “present circumstances” and “present willingness” factors stated in V.M. to refer to the “circumstances” and “willingness” present, existing, and exhibited at the time the DHR social workers are conducting their investigation, offering services, and seeking placement of the children as an alternative to terminating a parent’s parental rights. I cannot conclude that the holding of V.M. v. State Department of Human Resources refers to “circumstances” and “willingness” of the maternal grandmother that arose only at, or mere days before, the termination hearing, especially considering that she had, until the date she filed her petition, refused to take the children.

“In V.M. v. State Dep’t of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998), this court reversed a judgment terminating a mother’s parental rights because, it held, the trial court’s conclusion that there was no viable alternative to the termination was plainly and palpably wrong. In V.M., DHR had rejected a grandmother as a relative resource because it had negative, four-year-old information about the grandmother and because ‘the grandmother had shown a lack of initiative in contacting DHR regarding the necessary paperwork.’ 710 So.2d at 921. This court stated:
“ ‘All of DHR’s objections to the grandmother as a relative resource were based on past history ... and there was no evidence that she had been considered in light of her present circumstances [and] her present willingness to be a resource for the children.... DHR must present “evidence of recent attempts to locate viable alternatives in order to establish that termination of parental rights is the least drastic alternative.” In light of the evidence that the grandmother’s present circumstances had not been investigated, the trial court’s decision to terminate the mother’s parental rights based upon the lack of viable alternatives was plainly and palpably wrong.’
“V.M., 710 So.2d at 921 (emphasis added) (citation omitted). The statements we made in V.M. apply with even greater force in this case. DHR made virtually no effort to investigate the father’s current living conditions, had virtually no information about the father’s current employment circumstances, and made the determination that the father was unreliable because he had neglected to telephone DHR about a home study. As we implied in V.M., and as we now explicitly hold, DHR — not the prospective custodian — has the burden of initiating investigations, and it is DHR’s burden to prove the unsuitability of one who seeks to be considered as the custodian of a dependent child.”

D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584, 590-91 (Ala.Civ.App.1999) (emphasis added).

In this case, DHR attempted to investigate the maternal grandmother’s home, but she informed the social worker that she would not take the children. She expressed no interest in obtaining custody of the children until the eleventh hour before the termination hearing. The main, opinion concludes that because the maternal grandmother, at the hearing, professed an interest in the children, she should be considered a viable alternative to the termination of the parents’ parental rights. The trial court did not believe the grandmother was sincere in explaining her refusal to take the children, or, apparently, in testifying that she was, as of that date, in a position to, and was willing to, take care of the children.

Further, as the trial court noted in its judgment, at no time has this maternal grandmother chosen the best interests of the children over her own needs or desires. The trial court also found:

“[The maternal grandmother] is seemingly unaware of the need that children have for the security found in the same house setting with the same parental figure with consistent routines established. She has failed to provide that security for her own children, and she has exhibited a history of failing to provide that security for her grandchildren.”

(Emphasis added.) The maternal grandmother filed a motion to intervene only days before the termination hearing. Other than her testimony at that hearing, there is no evidence in the record to indicate that the maternal grandmother’s conduct up until a few days before the termination hearing was not a reliable indicator of her present willingness to take the children, or her probable future actions with regard to the children. DHR presented ample evidence to establish the grandmother’s consistent unwillingness, and, therefore, her unsuitability, to be considered a custodian of the children. See D.S.S. v. Clay County Dep’t of Human Res., supra. I conclude that that evidence supports the trial court’s judgment. This court reviews a trial court’s judgment terminating parental rights under an abuse-of-discretion standard. A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997). I cannot agree that the trial court’s findings and judgment constituted an abuse of discretion. I would affirm the judgment of the trial court.

PITTMAN, J., concurs.  