J.A. v. S.L. (Appeal from Dale Juvenile Court: JU-23-43.01).

Rel: June 28, 2024

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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2023-0576
_________________________

J.A.

v.

S.L.

Appeal from Dale Juvenile Court
(JU-23-43.01)

MOORE, Presiding Judge.

J.A. ("the father") appeals from a judgment entered by the Dale

Juvenile Court ("the juvenile court") terminating his parental rights to

M.J.A. ("the child"), who was born on October 2, 2021. We reverse the

juvenile court's judgment.
CL-2023-0576

Procedural History

On March 28, 2023, S.L. ("the mother") filed a verified petition in

the juvenile court seeking to terminate the parental rights of the father

to the child. The juvenile court conducted a trial of the case on August

10, 2023. On August 15, 2023, the juvenile court entered a final

judgment, in which it found, among other things, that the father had

failed to provide for the material needs of the child; had failed to pay child

support as ordered; had failed to maintain consistent contact or

communication with the child; and had failed to call, visit, or ask to visit

with the child in almost 10 months. The juvenile court concluded that,

based on those findings, the father was "presumed to have abandoned the

child." The juvenile court determined that the father was unable and

unwilling to discharge his responsibilities to the child, that his conduct

and condition was unlikely to change in the foreseeable future, and that

there existed no viable alternative to termination of the father's parental

rights. The father timely appealed.

Issue

On appeal, the father argues that termination of his parental rights

was not necessary in this case because the child is residing with the

2
CL-2023-0576

mother, he poses no threat to the safety of the child, and the termination

of his parental rights will not result in the adoption of the child by

another man. The father maintains that the termination of his parental

rights does not directly benefit the child and that it is, in fact, "cruel and

unjust" to the child. Father's brief, p. 15. Thus, he asserts, termination

of his parental rights is not in the best interests of the child.

Preservation of Issue

In the final judgment, the juvenile court did not expressly conclude

that termination of the father's parental rights would serve the best

interests of the child, but that determination was implicit in its

judgment. See Montgomery Cnty. Dep't of Hum. Res. v. T.S., 218 So. 3d

1252, 1262 (Ala. Civ. App. 2016) (holding that, in reviewing a judgment

in a termination-of-parental-rights case, this court presumes that the

juvenile court implicitly made those findings necessary to sustain its

judgment). The father did not file a postjudgment motion or otherwise

argue before the juvenile court that termination of his parental rights

was not in the best interests of the child. The juvenile court appointed a

guardian ad litem for the child, see Ala. Code 1975, § 12-15-304, who also

3
CL-2023-0576

did not argue before the juvenile court that termination of the parental

rights of the father did not serve the best interests of the child.

Ordinarily, this court may not consider a legal argument for

reversal of a judgment that has been raised for the first time on appeal.

See Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.1992). However,

as an exception to the general rule, in rare circumstances, an Alabama

appellate court may consider an issue that has not been otherwise

preserved for appeal to protect the welfare and best interests of a minor.

See Hall v. Hall, 280 Ala. 275, 192 So. 2d 727 (1966).

In Hall, B.A. Hall was required, pursuant to the terms of a divorce

judgment, to pay $75 per month to Mary Brown Hall for the support of

the parties' minor child. Subsequently, B.A. delivered $10,000 in cash to

Mary and paid 14 months of child support. In a modification action, the

Russell Circuit Court determined that Mary should retain $7,000 of the

$10,000 as a full and final settlement of her child-support claim and that

Mary should repay B.A. the remaining $3,000 of the funds along with the

14 months of child-support payments that B.A. had previously made

while his modification petition was pending, which totaled $1,050. Mary

appealed, asserting that the circuit court had erred in requiring her to

4
CL-2023-0576

repay the $3,000. On appeal, the supreme court unanimously affirmed

the judgment insofar as it required Mary to return the $3,000, but the

court reversed the judgment insofar as it required Mary to return the

$1,050 in past installments of child support. As to the latter ruling, the

supreme court said:

"While we have held that where the support
installments to a minor that mature before a petition to
modify is filed are immune from change (Scott v. Scott, 265
Ala. 208, 90 So. 2d 813 [(1956)]), we are here unwilling to hold
that the petitioner, for modification, is entitled to a refund of
the payments, made after petition was filed, that he elected to
pay. We think this court has a duty ex mero motu to protect
the welfare of its minor ward who is before the court. Pritchett
v. Dixon, 222 Ala. 597, 133 So. 2d 283 [(1931)]; Doss v. Terry,
256 Ala. 218, 54 So. 2d 451 [(1951)].

"It is to be noted that the alleged agreement between
[Mary] and [B.A.], according to the latter's contention, was
that $7,000 of the special deposit was to be applied as a lump
sum settlement in lieu of future installments, but, so far as
the record shows, nothing was said between the parties about
a refund of installments paid during the pendency of the
petition for modification.

"Even if there were such an agreement, we wouldn't
honor it as being in the best interests and welfare of the
minor, whom we are lawfully enjoined to protect after the
court has assumed jurisdiction of such welfare. A refund
would have to come out of the $7,000 for the reason that
[Mary] is not personally bound to make refund from her own
assets."

5
CL-2023-0576

280 Ala. at 280, 192 So. 2d at 731 (emphasis added).

Hall recognizes that appellate courts of this state are "lawfully

enjoined to protect" the welfare and best interests of a child once the court

has assumed jurisdiction over a judgment concerning the welfare and

best interests of a child. This guardianship responsibility allows

Alabama appellate courts to act ex mero motu to raise and address an

issue affecting the welfare and best interests of a minor child in an appeal

filed by the parent of that child even when that parent has not properly

preserved the issue for appellate review. See Black's Law Dictionary 575

(6th ed. 1990) (defining "ex mero motu" as "[o]f his own mere motion; ...

voluntarily and without prompting or request," and stating that a court

acts ex mero motu "[w]hen a court interferes, of its own motion, to object

to an irregularity, or to do something which the parties are not strictly

entitled to, but which will prevent injustice"). Pursuant to Hall, upon

noticing a legal error, apparent on the face of the record, that is

prejudicial to the welfare and best interests of a child, an Alabama

appellate court should correct that error to prevent an injustice to the

child even if, under the ordinary rules of appellate procedure, that error

has not been preserved for appellate review. See, e.g., Citizens Walgreen

6
CL-2023-0576

Drug Agency, Inc. v. Gulf Ins. Co., 282 Ala. 648, 213 So. 2d 814 (1968).

Perhaps because the Alabama Supreme Court no longer has

appellate jurisdiction over child-welfare cases, see Ala. Code 1975, § 12-

3-10 (vesting the Court of Civil Appeals with appellate jurisdiction over

domestic-relations cases beginning in 1969), it has not exercised the

power it recognized in Hall since it issued that opinion. However, this

court, which is governed by the decisions of the supreme court, see Ala.

Code 1975, § 12-3-16, has twice held that it may, in discharging its duty

to treat minor children as wards of the court in appellate proceedings, act

ex mero motu to correct an obvious legal error to ensure that an order or

judgment advances the minor children's welfare and best interests.

In Stevens v. Everett, 784 So. 2d 1054, 1055 (Ala. Civ. App. 2000),

overruled on other grounds by Ex parte Fann, 810 So. 2d 631 (Ala. 2001),

a child-custody-modification case, this court raised and decided an issue

of a trial court's noncompliance with the Alabama Custody and Domestic

or Family Abuse Act, Ala. Code 1975, § 30-3-130 et seq., although that

issue had not been preserved for appellate review. Responding to

Presiding Judge Robertson's dissent arguing that the court could not

7
CL-2023-0576

consider the issue because it was not raised and argued in the underlying

proceedings or in the appellant's brief, the court said:

"Although the mother[, the appellant,] did not
specifically raise the [Alabama Custody and Domestic or
Family Abuse] Act in the trial court or on appeal, and
although Judge Robertson is correct in stating that this court
generally does not review on appeal arguments not raised
either in the trial court or in the appellant's brief, a case
involving child custody is not the 'general' case. Alabama
courts have historically held that when a trial 'court has
acquired jurisdiction of a child as to the child's custody and
control, the child becomes a ward of the court and the parties
to the suit are of secondary importance.' Thorne v. Thorne,
344 So. 2d 165, 168 (Ala. Civ. App. 1977) (citation omitted). In
addition, our supreme court has held that '[t]he question of
the custody of infant children is not an adversary proceeding
between parents in the eyes of the law, but is a matter within
the peculiar discretion of the [trial court] as to the welfare of
wards of the court.' Stephens v. Stephens, 253 Ala. 315, 319-
20, 45 So. 2d 153, 157 (1950)."

784 So. 2d at 1055. This court recognized that, in an appeal from a

judgment entered in a child-custody case, the court is not bound by the

ordinary rules of appellate procedure that would otherwise prevent the

court from exercising its duty to notice and correct legal errors adversely

affecting the welfare and the best interests of the child.

In Ex parte R.H., 311 So. 3d 761, 771 (Ala. Civ. App. 2020), this

court reasoned that, even though the issue had not been properly raised

8
CL-2023-0576

in underlying dependency proceedings, this court could notice and correct

an error that had been committed by the Marshall Juvenile Court in

appointing a guardian ad litem to execute a pediatric, palliative, and end-

of-life care order for a dependent child, which appointment was not

authorized by the Natural Death Act, Ala. Code 1975, § 22-8A-1 et seq.

In reaching that decision, this court relied partially on Stevens and

explained that, although Stevens had been overruled by our supreme

court in Ex parte Fann, supra, our supreme court did not hold that this

court had overreached by independently raising and addressing an issue

not preserved for appeal to protect the welfare and the best interests of

the children before the court. 311 So. 3d 771 n.7.

The foregoing cases indicate that this court has limited discretion

to invoke the exception to the preservation rule for the benefit of the

welfare and best interests of a minor child. That discretion has been

exercised only to correct obvious and indisputable violations of statutory

and decisional law that clearly had prejudiced a child's substantive or

procedural rights. Alabama appellate courts have acted only to correct

misunderstandings or misapplications of Alabama law designed to

protect and benefit the child. That discretion has not been used by

9
CL-2023-0576

Alabama appellate courts to resolve disputed issues of fact or to consider

the sufficiency of the evidence to support a purely factual determination

made by a trial court regarding the welfare and best interests of a child.

This court has heretofore not applied the exception to the

preservation rule when reviewing a judgment terminating parental

rights. When an adult parent appeals a judgment terminating his or her

parental rights, we clearly cannot ex mero motu raise and address issues

such as whether the parent received due process or whether there are

grounds for termination and all viable alternatives have been exhausted,

see Ex parte Bodie, 377 So. 3d 1051, 1064 (Ala. 2022) (Parker, C.J.,

concurring specially), which the parent must properly preserve for

appellate review. See, e.g., J.M.L. v. Tuscaloosa Cnty. Dep't of Hum.

Res., [Ms. CL-2023-0765, Apr. 6, 2024] ___ So. 3d ___ (Ala. Civ. App.

2024). However, the welfare and best interests of a child are a paramount

consideration in termination-of-parental-rights proceedings. See J.C. v.

State Dep't of Hum. Res., 986 So. 2d 1172 (Ala. Civ. App. 2007). On

appeal from a judgment terminating parental rights, this court must

assure that the judgment serves the welfare and best interests of the

child at issue. See T.W. v. Calhoun Cnty. Dep't of Hum. Res., [Ms. CL-

10
CL-2023-0576

2022-0694, June 2, 2023] ___ So. 3d ___ (Ala. Civ. App. 2023). Consistent

with the reasoning in Hall and similar cases, this court should be afforded

the discretion to ex mero motu notice and correct an erroneous judgment

that is not in the best interests of the child. Nevertheless, in J.C.L. v.

J.B.L., 370 So. 3d 254 (Ala. Civ. App. 2022), a termination-of-parental-

rights case, a majority of this court declined to use its limited discretion

to determine whether the judgment was in the best interests of the child.

The record in J.C.L. disclosed that J.C.L. and J.B.L. had entered

into an agreement, pursuant to which J.C.L. would consent to the entry

of a judgment terminating her parental rights to their minor child in

exchange for monetary consideration, including a waiver of her obligation

to pay child support; the Autauga Juvenile Court entered a judgment

terminating J.C.L.'s parental rights based on that agreement, without

inquiring as to whether the agreement would serve the best interests of

the child. On appeal, J.C.L. asserted in one sentence in her appellate

brief that " '[t]here is nothing about the agreement suggesting that such

was done for the best interests of the child but merely a financial

arrangement.' " 370 So. 3d at 264. Over a dissent arguing that Ex parte

R.H. allowed the court to consider that argument although it had not

11
CL-2023-0576

been properly preserved for appellate review, 370 So. 3d at 267-68

(Moore, J., dissenting), a majority of this court refused to consider

whether the waiver of child support would serve the best interests of the

child.

Upon further consideration, it appears that, in J.C.L., this court

overlooked our supreme court's decision in Hall, which was not cited in

either the majority or the dissenting opinion. Hall had already

affirmatively decided that an appellate court should notice and correct

an obvious legal error that deprives a child of financial support. In J.C.L.,

this court should have applied Hall to address the error of the Autauga

Juvenile Court in improperly terminating the parental rights of a

noncustodial parent based on an agreement with the custodial parent to

waive a child's right to child support without inquiring as to whether the

agreement was in the best interests of the child. See Ex parte Brooks,

513 So. 2d 614, 617 (Ala. 1987). Instead, the majority opinion avoided

the issue by attempting to distinguish the case from Ex parte R.H. on two

grounds.

12
CL-2023-0576

First, the majority opinion insisted that Ex parte R.H. allowed the

court to review an issue raised for the first time on appeal only because

the life of a child was at stake, whereas the issue at stake in J.C.L.

concerned only the loss of child support. 311 So. 3d at 266. However, as

Hall illustrates, the life of a child does not have to be in jeopardy for this

court to apply the exception to the preservation rule, and this court may

act ex mero motu to relieve a child of an incorrect judgment adversely

affecting only his or her right to child support. The holding in J.C.L. is

clearly in conflict with the supreme court's decision in Hall. See § 12-3-

16 (providing that decisions of the Court of Civil Appeals are governed by

the opinions of the supreme court).

Second, the majority opinion reasoned that this court should not

raise an issue regarding the welfare and best interests of a minor child

when his or her guardian ad litem has elected not to do so. 370 So. 3d at

266. However, the rule prevailing in Alabama holds that a guardian ad

litem cannot waive an error affecting the welfare and best interests of a

minor child by failing to make a proper and timely objection. See

Johnston v. Shaw, 31 Ala. 592, 594 (1858) (holding that guardian ad litem

could not effectively waive objection to venue on behalf of infants by filing

13
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an answer on their behalf without asserting objection and holding that

chancery court could, acting ex mero motu, dismiss suit on behalf of

infants). As our supreme court recognized as far back as Clark v. Gilmer,

28 Ala. 265 (1856), an appellate court may not disregard an obvious legal

error affecting the welfare and the best interests of a child because the

error was not raised or argued by the legal representative of the child.

As the supreme court said:

"It is proper to say, that the error for which the decree
is reversed, is one which escaped the notice of the solicitors
and the chancellor, and was not even noticed by the counsel
on the argument in this court. But, as it is an error to the
prejudice of infants, and we see it on the record, and the
assignment of errors is broad enough to embrace it, we cannot
pass it over, nor allow the decree to stand."

28 Ala. at 266-67. The failure of a guardian ad litem to raise an objection

in the court below or to otherwise observe procedural rules for preserving

an error for appellate review does not estop an appellate court from

proactively guarding and protecting the welfare and best interests of a

child. See Jones v. Jones, 56 Ala. 612, 613 (1876); see also Haden v.

Eaves, 55 N.M. 40, 43, 226 P.2d 457, 459 (1950) (quoting 3 Am. Jur.

Appeal and Error § 249) (noting that some courts apply rules of appellate

procedure equally to infants but that " 'the better rule' " allows an

14
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appellate court to protect the welfare and best interests of a child even

when no objection or exception has been made in the lower court); 43

C.J.S. Infants § 468 (2014) (accord); 15 S.C. Jur. Appeal and Error § 72

("[T]he procedural delicts of adults will not be allowed to harm the

interest of minors.").

We conclude that J.C.L. does not accurately represent the state of

Alabama law on this point, and we decline to follow it in this case. We

conclude that, upon a parent's appeal of a judgment terminating his or

her parental rights, this court may exercise its limited discretion to

assure that the welfare and best interests of the child at issue have not

been compromised by an obvious legal error committed by a juvenile

court even though that issue has not been properly preserved for

appellate review. See South Carolina Dep't of Soc. Servs. v. Roe, 371 S.C.

450, 463, 639 S.E.2d 165, 172 (Ct. App. 2006) (holding that court would

consider whether judgment terminating parental rights served best

interests of child even though appellant-parent had not preserved issue

for appellate review).

In this case, the father argues only that the judgment should be

reversed because, as a matter of law, it is not in the child's best interests

15
CL-2023-0576

for his parental rights to be terminated. We stress that the father does

not argue that the evidence is insufficient to support the implicit

determination that the termination of his parental rights was in the best

interests of the child. The father instead argues that the juvenile court

misapplied the law to the undisputed facts to reach an erroneous legal

conclusion that the termination of his parental rights would serve the

best interests of the child. We will address that precise legal argument

despite the father's failure to raise that same point to the juvenile court.

Facts

The evidence presented indicates that the mother, who is

Caucasian, and the father, who is African-American, never married, but

had known each other since elementary school and had eventually

engaged in a romantic relationship that had resulted in the conception

and subsequent birth of the child. After his birth, the child, the mother,

and the father resided together in an apartment in Dothan. The mother

stayed at home with the child while the father worked to provide food

and shelter for the family. The father testified that, during that period,

he had worked inconsistent hours, beginning work at either 3:00 a.m. or

5:00 a.m., and that he would be tired when he returned home after work.

16
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He testified, however, that he had been familiar with caring for a

newborn because he has a daughter from a previous relationship ("the

daughter"), that he had assisted the mother in caring for the child, and

that he had helped feed the child. The mother testified that the father

had "[v]ery rarely" cared for or helped with diapering the child, that he

had "[r]arely" interacted with the child, that he had helped feed the child

"[o]n occasion," and that he had interacted with the child when he

returned home from work "[w]hen he was not tired." She stated that they

had supplemented the father's income with assistance through the

federal Special Supplemental Nutrition Program for Women, Infants,

and Children and that her parents had also assisted her and the child

financially.

The mother also testified that, on September 17, 2022, she and the

child had moved out of the apartment they had shared with the father

and had moved to Ozark, where they resided with her parents, who, she

said, had financially supported her and the child since that time. She

stated that she had last been employed when she was pregnant with the

child; that she has a Bachelor of Science degree and a clinical doctorate

in physical therapy; and that she was not licensed as a physical therapist

17
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at the time of the trial, but that she was taking an online course to

prepare for a national board exam, which she had previously taken but

had not passed. The mother testified that she is able to care for the child

on her own and that she has a support system that includes her parents,

her brother and his fiancé, and other friends and family. She stated that

the child has eczema, had undergone allergy testing, and had had surgery

for an umbilical hernia; otherwise, she said, the child does not have any

extraordinary medical issues. The mother testified that she was not in a

relationship at the time of the trial, that she was not seeking to obtain

paternal rights of the child by another, and that her brother had agreed

to act as the child's legal guardian if something happened to the mother.

According to the father, the mother had requested for him not to be

present for the child's first birthday. The mother testified that the

father's mother ("the paternal grandmother") had visited the child on

September 30, 2022; she also testified that the paternal grandmother had

contacted her on October 19, 2022, and again on April 4, 2023, but that

she had failed to respond to the paternal grandmother's last attempt to

contact her in April. The mother stated that she had last communicated

with the father on October 22, 2022, when the father had informed her

18
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that he was going to send some money and some clothes for the child and

had requested to see the child. The mother testified that the father had

sent her $202 at that time, that she had informed the father that he could

visit the child at her parents' home, that he had not responded, and that

he had not requested to see the child since that time. According to the

mother, on September 22, 2022, she filed in the Houston Circuit Court a

petition for custody of the child; on December 12, 2022, the Houston

Circuit Court entered a default judgment against the father that, among

other things, included a graduated visitation schedule, which had been

proposed by the mother and pursuant to which the father would exercise

visitation with the child to be supervised by the child's maternal

grandmother, and directed the father to pay child support to the mother

in the amount of $497 per month. The mother testified that the father

had failed to pay child support or to provide gifts for the child following

the entry of the default judgment.

The mother testified further that her attorney had brought to her

attention the possibility of terminating the father's parental rights. She

stated that she did not have any concerns that the father would act

aggressively toward the child, and she declined to describe her

19
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relationship with the father as having been volatile. The mother

admitted that the father had been excited about the birth of the child and

that the father exercises visitation with the daughter and has a

relationship with her. When asked whether there are "things that maybe

[she] as a mother, and as a white woman, wouldn't know for an African-

American male," the mother replied, "I agree." She testified, however,

that she had not contacted the father following their separation because

she had "wanted him to want to see his child" and had "wanted it to be

his honest and genuine feelings to see his child." When asked why she

believed that termination of the father's parental rights would be in the

child's best interests, the mother stated that, if the father's parental

rights were not terminated, she "believe[d] [the child] would live a life of

inconsistency" and that the child "deserves a parent who is willing and

wants to be in his life for the right reasons, and not just [because] he's

obligated or because he wants to appear as if he is doing the right thing."

The father testified that, since he and the mother had separated,

he had found different employment with more regular hours. He testified

that he had failed to respond to the mother's petition for custody in the

Houston Circuit Court or to request visitation with the child because he

20
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had not wanted to have contact with the mother following their

separation. The father stated that he and the mother had failed to

contact one another "because of pride" and that he regretted his failure

to pursue a relationship with the child. He admitted that he had failed

to pay child support; he stated that he could not afford to pay the amount

that had been awarded to the mother in the default judgment. The father

stated that he loves the child and wants to be in the child's life. He

testified also that the child and the daughter had had a great

relationship, that the child "would light up when [the daughter] came,"

and that the daughter had asked about the child and had noticed his

absence.

Standard of Review

The salient facts being undisputed, we must determine whether the

juvenile court misapplied the applicable law to those facts, which is a

question of law that we consider without a presumption of correctness.

See Brown v. Childress, 898 So. 2d 786, 788 (Ala. Civ. App. 2004).

Analysis

In 2020, our legislature amended § 12-15-319, see Ala. Acts 2020,

Act No. 2020-34, so that it now provides, in pertinent part:

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"If the juvenile court finds from clear and convincing
evidence, competent, material, and relevant in nature, that
the parent[] of a child [is] unable or unwilling to discharge [his
or her] responsibilities to and for the child, or that the conduct
or condition of the parent[] renders [him or her] unable to
properly care for the child and that the conduct or condition
is unlikely to change in the foreseeable future, it may
terminate the parental rights of the parent[]. In a hearing on
a petition for termination of parental rights, the court shall
consider the best interests of the child."

(Emphasis added.)

That amendment incorporates long-standing Alabama law allowing

a juvenile court to exercise its discretion to terminate parental rights only

when it serves the best interests of the child. As explained in Ex parte

Brooks:

"Our courts are entrusted with the responsibility of
determining the best interests of children who come before
them. When a child's welfare is threatened by continuation of
parental rights, the law provides a means for terminating
those rights. When, after consideration of all evidence before
it, a court determines that termination of parental rights
would not serve the best interest of a child, as in the present
case, parental rights should not be terminated."

513 So. 2d at 617.

Although some supreme court cases have held that this court

applies a two-prong test when analyzing the correctness of a judgment

terminating parental rights, see, e.g., Ex parte T.V., 971 So. 2d 1 (Ala.

22
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2007), as recently explained by Chief Justice Parker, "three elements

must be met: a ground for termination, the absence of a viable alternative

to termination, and a showing that termination is in the best interests of

the child." Ex parte Bodie, 377 So. 3d at 1064 (Parker, C.J., concurring

specially). Even in cases in which grounds for termination exist and no

other viable alternative may be implemented, a juvenile court still must

make a separate determination that termination of parental rights

serves the best interests of the child, and, if it does not, it may not

terminate parental rights. See Ex parte Brooks, supra.

"Whereas the first two elements exist to protect the parent's rights,

this third element exists to protect the child's interests." Ex parte Bodie,

377 So. 3d at 1068 (Parker, C.J., concurring specially). The best-

interests-of-the-child inquiry focuses exclusively on the impact of the

termination on the needs and interests of the child. In considering the

best interests of the child, a juvenile court is determining not whether it

can terminate parental rights, but whether it should terminate parental

rights for the benefit of the child for whom the remedy is intended. See

S.D.P. v. U.R.S., 18 So. 3d 936, 942 (Ala. Civ. App. 2009) (Moore, J.,

concurring specially).

23
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In examining whether termination of parental rights promotes the

best interests of the child, a juvenile court should consider all the

traditional best-interests factors, see Ex parte Devine, 398 So. 2d 686,

696 (Ala. 1981) (holding that, in deciding what is in the best interests of

the child, the fact-finder should consider, among other things, the

emotional, social, moral, material, and educational needs of the child),

but the court should primarily focus on the effect of the proposed

termination on the child's needs for security, stability, and permanency.

See S.D.P., 18 So. 3d at 944 (Moore, J., concurring specially). By allowing

a juvenile court to involuntarily sever the rights of a parent so that the

child can be adopted without the consent of that parent, termination of

parental rights is a remedy that is specially designed to meet the

particularized needs of a child for a stable and permanent custodial

arrangement. See T.W. v. Calhoun Cnty. Dep't of Hum. Res., supra.

Thus, at a minimum, when deciding whether termination of parental

rights is in the best interests of a child, a juvenile court should focus on

whether termination of the legal relationship between the child and the

parent will protect the welfare of the child and promote the stability and

permanency of the child. Id.

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In Ex parte Brooks, supra, a juvenile court denied the joint petition

of a custodial parent and a noncustodial parent requesting that the

noncustodial parent's parental rights be terminated because it concluded

that the termination would deprive the child of the future right to child

support, parental affiliation, and inheritance from the noncustodial

parent without meaningfully benefiting the child. 513 So. 2d at 615. Our

supreme court agreed that it would not be in the best interests of the

child to lose those rights, particularly the right to child support, when the

child "would receive nothing in return." 513 So. 2d at 617. The supreme

court determined in Ex parte Brooks that termination of the parental

rights of the father of the child at issue in that case was not necessary to

secure the child from parental harm because the child's father had never

harmed him. The supreme court further concluded that the termination

did not serve the child's custodial needs because the child's father was

not disrupting the stable and permanent familial relationship between

the child and his mother, who had independently raised him as a single

parent since his birth. Id. As the child's guardian ad litem further

pointed out, the termination was not accomplished in contemplation of

the future adoption of the child. 513 So. 2d at 616. Considering those

25
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circumstances, the supreme court ultimately determined that

termination of parental rights was not an appropriate remedy because it

did not serve the best interests of the child as intended by the termination

statute.

The supreme court later overruled Ex parte Brooks in part, on other

grounds, see Ex parte Beasley, 564 So. 2d 950 (Ala. 1990), and the

supreme court also subsequently clarified that a judgment terminating

parental rights does not automatically terminate a parent's obligation to

pay child support. See Ex parte M.D.C., 39 So. 3d 1117 (Ala. 2009).

However, the reasoning in Ex parte Brooks otherwise remains sound and

has been followed by this court in numerous cases in which a custodial

parent was seeking to terminate the parental rights of a noncustodial

parent. See, e.g., In re Beasley, 564 So. 2d 959 (Ala. Civ. App. 1990);

Miller v. Knight, 562 So. 2d 274 (Ala. Civ. App. 1990); Talley v. Oliver,

628 So. 2d 690 (Ala. Civ. App. 1993); and S.M.W. v. J.M.C., 679 So. 2d

256 (Ala. Civ. App. 1996).

Based on that line of cases, this court has recognized that, when a

child is safely residing in a stable and permanent custodial arrangement

with a custodial parent, and no adoption of the child is contemplated, the

26
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best interests of the child are not served by termination of the

noncustodial parent's parental rights. See J.C.D. v. Lauderdale Cnty.

Dep't of Hum. Res., 180 So. 3d 900, 901 (Ala. Civ. App. 2015)

("Termination of the parental rights of a noncustodial parent is not

appropriate in cases in which the children can safely reside with the

custodial parent and the continuation of the noncustodial parent's

relationship does not present any harm to the children."). When a

custodial parent can "adequately provide for the safety, permanency, and

other needs of the child[]," termination of the parental rights of a

noncustodial parent generally is not appropriate because the child does

not benefit from the termination of parental rights in any legally

significant way. Id. at 902.

"In most cases, the termination of parental rights serves to
free up children for adoption so that the children can achieve
permanency and stability. ... However, when [a judgment
awards a natural parent custody of the children], their
interest in permanency and stability has been satisfied and a
termination of the parental rights of the noncustodial parent
will not advance that interest in any respect."

J.G. v. Lauderdale Cnty. Dep't of Hum. Res., 379 So. 3d 444, 450 (Ala.

Civ. App. 2023). "Termination of parental rights is reserved for those

rare cases in which no less drastic measure can achieve the state's

27
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compelling objective of safeguarding children from harm or the children's

interest in achieving permanency and stability." Id. at 451.

In the context of termination of parental rights, "the term

'permanency' refers to a safe, stable, and nurturing custodial

arrangement lasting throughout the child's minority." T.W., ___ So. 3d

at ___. "Stability" refers mainly to "stability in the psychological and

emotional relationship a child has with his or her custodial parent." T.C.

v. Y.R., 162 So. 3d 920, 928 (Ala. Civ. App. 2014) (Moore, J., dissenting).

In this case, the undisputed facts show that the mother is adequately

meeting the child's security, stability, and permanency needs, and those

needs will not be further promoted by termination of the parental rights

of the father. The child is safely residing with the mother. The

continuation of the legal relationship between the father and the child

does not threaten the safety and welfare of the child. Maintaining the

legal father-child relationship does not imperil the child's stable custodial

arrangement with the mother or implicate his prospects for adoption.

See W.W. v. H.W., [Ms. CL-2022-0710, Apr. 14, 2023] ___ So. 3d ___, ___

(Ala. Civ. App. 2023) (holding that, given absence of adoptive resource,

termination did not serve best interests of child). Applying the law to

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these undisputed facts, the only legal conclusion to be drawn is that

termination of the father's parental rights is not appropriate because it

does not advance the best interests of the child, particularly those

interests most relevant in these types of cases. The juvenile court erred

in deciding otherwise.

Conclusion

Termination of parental rights deprives a child of a legal parent,

and the remedy should be invoked only when, in return, it supplies the

child with the necessary security, stability, and permanency the child

would otherwise lack by maintaining the parental relationship. See

T.W., supra. If not, the best interests of the child require that the petition

to terminate parental rights be denied. See Ex parte Brooks, supra. In

this case, the juvenile court misapplied the law to the undisputed facts

when it impliedly determined that termination of the father's parental

rights would serve the best interests of the child and imposed the extreme

remedy of termination of parental rights. We cannot allow that legal

error to go uncorrected based solely on the failure of the father to properly

preserve the best-interests-of-the-child issue for our review. Accordingly,

we reverse the juvenile court's judgment terminating the father's

29
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parental rights and remand the case for the entry of a judgment denying

the mother's petition to terminate the father's parental rights.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Edwards and Lewis, JJ., concur.

Hanson, J., dissents, with opinion, which Fridy, J., joins.

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HANSON, Judge, dissenting.

I respectfully dissent from the main opinion's reversal of the Dale

Juvenile Court's judgment terminating the parental rights of J.A. ("the

father") to M.J.A. ("the child"), which reversal is predicated on the ground

that the termination of his parental rights was not in the child's best

interests. The father (who is the sole appealing party) failed to raise the

best-interests issue in his appellate brief, and, even if he had properly

raised the issue, he waived the issue by failing to challenge the

sufficiency of the evidence supporting the judgment in a postjudgment

motion.

The father, in his appellate brief, did not formulate an argument,

supported by relevant authority, that S.L. ("the mother") had failed to

demonstrate that the best interests of the child would not be served by

terminating his parental rights. See Rule 28(a)(10), Ala. R. App. P. This

court has consistently acknowledged that a parent, in a dependency or a

termination-of-parental-rights case, waives an argument not properly

raised and argued in brief. See, e.g., J.C.L. v. J.B.L., 370 So. 3d 254, 267

(Ala. Civ. App. 2022) (concluding that a mother's appellate brief failed to

cite any authority in support of her cursory assertion that the juvenile

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court's judgment terminating her parental rights was in the child's best

interest); D.M. v. Jefferson Cnty. Dep't of Hum. Res., 232 So. 3d 237, 243

(Ala. Civ. App. 2017) (holding that this court would not consider the issue

of abandonment when a father did not challenge the juvenile court's

finding of abandonment or cite any authority in support of such an

argument); T.T. v. C.E., 204 So. 3d 436, 440 (Ala. Civ. App. 2016) (holding

that a father had waived claim that termination of his parental rights

was not in the best interests of the child by failing to set forth an

argument supported by relevant authority).

In Hudson v. Hudson, 178 So. 3d 861, 865 (Ala. Civ. App. 2014), this

court stated:

" 'Rule 28(a)(10)[, Ala. R. App. P.,] requires that
arguments in briefs contain discussions of facts and relevant
legal authorities that support the party's position. If they do
not, the arguments are waived.' White Sands Grp., L.L.C. v.
PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008); see also
Bishop v. Robinson, 516 So. 2d 723, 724 (Ala. Civ. App. 1987)
(quoting Thoman Eng'g, Inc. v. McDonald, 57 Ala. App. 287,
290, 328 So. 2d 293, 294 (Civ. App. 1976)) (noting that an
appellant should 'present his issues "with clarity and without
ambiguity" ' and 'fully express his position on the enumerated
issues' in the argument section of his brief); accord United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ('It is not
enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work, create the
ossature for the argument, and put flesh on its bones.')."

32
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The main opinion's creation of an argument on behalf of the father,

as the appellant, results in fundamental unfairness to the mother who

has had no opportunity to respond to the main opinion's sua sponte

advancement of an argument on behalf of the father because the father

had failed to raise that argument in his appellate brief. I believe that

this court must refrain from overstepping its bounds and addressing

issues not adequately presented and briefed. This court, unlike the

Alabama Court of Criminal Appeals, is not tasked with complying with

the optional "plain error" rule. See Rule 45A, Ala. R. App. P.

Furthermore, even if the father had properly asserted an argument

that the mother had failed to demonstrate that the best interests of the

child would not be served by termination of his parental rights, he

nevertheless failed to challenge the sufficiency of the evidence of the

child's best interests in a postjudgment motion. Other than

acknowledging that the father had abandoned the child for a period of

more than four months, the juvenile court's judgment did not make

specific findings of fact as to the grounds for its termination of the father's

parental rights. The father failed to file a postjudgment motion

challenging the sufficiency of the evidence supporting the judgment. A

33
CL-2023-0576

judgment terminating parental rights does not equate to a specific

finding of fact that will excuse the filing of a postjudgment motion raising

the issue of the sufficiency of the evidence to support the termination

judgment. See New Props., L.L.C. v. Stewart, 905 So. 2d 797, 801-02

(Ala. 2004) ("[I]n a nonjury case in which the trial court makes no specific

findings of fact, a party must move for a new trial or otherwise properly

raise before the trial court the question relating to the sufficiency or

weight of the evidence in order to preserve that question for appellate

review."). If the father had filed a postjudgment motion attacking the

sufficiency of the evidence, the juvenile court would have been afforded

the opportunity to review the evidence and correct any errors in its

judgment. Id.

Regarding addressing ex mero motu issues not preserved for

appeal, the main opinion relies on Hall v. Hall, 280 Ala. 275, 192 So. 2d

727 (1966), which involved the issue whether a payment by the former

husband to his former wife was a gift or whether the gift was conditioned

on the former wife's promise to hold the payment in trust for their minor

child. In explaining the nature of the payment, the supreme court

explained:

34
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"This money in a sense was the property of the minor, for her
maintenance and support, although paid to the mother for
administration and expenditure. The child is neither a party
to this suit, nor is she represented by guardian ad litem. She
is a ward of the court and entitled to its protection.

"While we have held that where the support
installments to a minor that mature before a petition to
modify is filed are immune from change (Scott v. Scott, 265
Ala. 208, 90 So. 2d 813 [(1956)]), we are here unwilling to hold
that the petitioner, for modification, is entitled to a refund of
the payments, made after petition was filed, that he elected to
pay. We think this court has a duty ex mero motu to protect
the welfare of its minor ward who is before the court. Pritchett
v. Dixon, 222 Ala. 597, 133 So. 2d 283 [(1931)]; Doss v. Terry,
256 Ala. 218, 54 So. 2d 451[(1951)]."

Hall, 280 Ala. at 280, 192 So. 2d at 731. Both Pritchett v. Dixon, 222 Ala.

597, 133 So. 2d 283 (1931), and Doss v. Terry, 256 Ala. 218, 54 So. 2d 451

(1951), which were relied upon in Hall, involved the supreme court's

recognition that the failure to appoint a guardian ad litem for an infant

was an error that had to be noticed ex mero motu despite not having been

raised. Likewise, Citizens Walgreen Drug Agency, Inc. v. Gulf Insurance

Co., 282 Ala. 648, 213 So. 2d 814 (1968), which is cited by the main

opinion, concerned the absence of a guardian ad litem.

The main opinion cites Ex parte R.H., 311 So. 3d 761 (Ala. Civ. App.

2020), to support its contention that this court should disregard the rules
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CL-2023-0576

governing procedure in our courts in order to raise issues and create

arguments on behalf of interested persons. This court explained in J.C.L.

v. J.B.L., 370 So. 3d 254, 265-66 (Ala. Civ. App. 2022), why Ex parte R.H.

does not support disregarding our rules except under extraordinary facts:

"The dissent attempts to broadly expand part of the
holding in Ex parte R.H., 311 So. 3d 761, 771 (Ala. Civ. App.
2020), in which this court, ex mero motu, considered an issue
that had not been properly argued by the petitioner. That case
involved extreme facts -- the guardian ad litem for the child
at issue had filed a motion in the Marshall Juvenile Court
seeking an order that would allow the child's physicians to
place a 'Pediatric Palliative and End of Life' ('PPEL') care
order in the child's medical file; the effect of the PPEL care
order would have been to allow the natural death of the child,
who had a painful and terminal medical condition. In her
petition for a writ of mandamus challenging an order granting
that request, the mother in that case raised several issues[,]
including whether the juvenile court could properly appoint
the child's guardian ad litem to execute the PPEL care order,
an issue the mother had not argued in the juvenile court; this
court disagreed as to whether the mother's argument as to
that issue in her petition for a writ of mandamus was
adequate. This court also noted that, '[o]rdinarily, when a
petitioner has not raised a point in support of the issuance of
a writ of mandamus before the lower court, that point is not
preserved for the appellate court's consideration.' Ex parte
R.H., 311 So. 3d at 771. However, this court did not apply in
that particular case the rules that an issue must be raised in
the lower court to preserve the issue for consideration by an
appellate court and that this court may not raise issues not
identified by the petitioner or appellant; this court explained
that, under the extraordinary circumstances of the case, the
child's right to life overrode the technical rules of our courts:

36
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" 'In this case, the juvenile court committed
an indisputable error of law in appointing [the
guardian ad litem] as the representative of the
child because [the guardian ad litem] is not within
the class of persons eligible to act as a
representative for a qualified minor under § 22-
8A-3(18)[, Ala. Code 1975]. That error has far more
profound implications than a mere irregularity in
the proceedings. The challenged order allows [the
guardian ad litem] to execute a PPEL care order
designed to withhold life-sustaining treatment
from the child although [the guardian ad litem]
does not have any custodial power over the child.
That error directly impacts the fundamental right
of the child to life. See United States Constitution,
amend. V ("No person shall be ... deprived of life ...
without due process of law ...."), and amend. XIV,
§ 1 ("... nor shall any State deprive any person of
life ... without due process of law ...."). The child
lacks any capacity, legal or actual, to raise this
issue on his own. His fundamental rights should
not be disregarded based on the failure of the
mother to comply with technical procedural rules
for preserving issues for mandamus review. To
prevent an injustice of such magnitude, this court
exercises its limited discretion to correct the error
sua sponte.'

"Ex parte R.H., 311 So. 3d at 772 (emphasis added).

"There is nothing in the language of Ex parte R.H.,
supra, indicating that this court or its members should, under
different facts that do not implicate a life-or-death decision
regarding a child, disregard the rules governing our courts
and create, elaborate upon, analyze, and support with
citations to authority an argument not advanced by any of the

37
CL-2023-0576

parties. The dissent has not identified any extraordinary
facts of this case that would warrant doing so.

"Moreover, in Ex parte R.H., supra, this court
considered issues that implicated the authority of the child's
own guardian ad litem to take action on behalf of the child. In
pointing out that the child in Ex parte R.H. had no 'capacity,
legal or actual, to raise this issue on his own,' this court
recognized that it was considering the authority of the child's
own -- and only -- representative to make a life-or-death
decision on behalf of the child. Ex parte R.H., 311 So. 3d at
772. In other words, under the peculiar facts of that case, the
only representative who could validly question the authority
of the person making the life-or-death decision for the child
was the person authorized to make that decision under the
judgment at issue in that case. Although that conflict was
arguably not the fault of the guardian ad litem in that case,
the child had no disinterested advocate in Ex parte R.H.,
supra.

"In this case, however, the child was represented by able
counsel in the juvenile court, and, therefore, the child,
through her guardian ad litem, had the ability to assert the
argument formulated by the dissent. The child has not done
so. The mother is also represented by counsel and appears to
have chosen not to advance the argument made by the
dissent. … Also, the father has not appealed to contend that
he should continue to receive child support on behalf of the
child. Accordingly, we do not reach the issues advanced in the
dissent to this opinion."

(Footnote omitted.)

I also note that, in Ex parte R.H., the court referenced Berry v.

Berry, 2018 Pa. Super. 276, 197 A.3d 788, 797 (2018), South Carolina

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Dep't of Soc. Servs. v. Roe, 371 S.C. 450, 463, 639 S.E.2d 165, 172 (Ct.

App. 2006), and In re J.E.G., 144 Vt. 309, 313, 476 A.2d 130, 133 (1984),

as supporting the proposition that the rule that an unpreserved issue

will not be considered on appeal is subject to a blanket exception when

the interests of minors and incompetents are involved. Berry involved the

divorce of a couple, who both suffered from dementia, and their adult

children purported to act on the couple's behalf. Roe involved a parent

with diagnosed mental deficiencies and that parent's failure to raise a

best-interests argument and South Carolina's clear, established

precedent allowing Courts to address, ex mero motu, issues involving

minors or incompetents. J.E.G. involved a delinquent child. Although

the decisions in those cases may have supported abandoning our rules in

Ex parte R.H., ignoring our rules is not warranted in the present case (or,

indeed, in future cases in which the best-interests issue is neither raised

nor argued by an appellant).

" ' " '[F]airness to all parties requires a
litigant to advance his contentions at a time when
there is an opportunity to respond to them
factually, if his opponent chooses to; ... the rule
promotes efficient trial proceedings; ... reversing
for error not preserved permits the losing side to
second-guess its tactical decisions after they do not

39
CL-2023-0576

produce the desired result; and ... there is
something unseemly about telling a lower court it
was wrong when it never was presented with the
opportunity to be right. The principal rationale,
however, is judicial economy. There are two
components to judicial economy: (1) if the losing
side can obtain an appellate reversal because of
error not objected to, the parties and public are put
to the expense of retrial that could have been
avoided had an objection been made; and (2) if an
issue had been raised in the trial court, it could
have been resolved there, and the parties and
public would be spared the expense of an
appeal.' " '

"Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So. 2d
308, 314 (Ala. 2001) (quoting Cantu v. State, 660 So. 2d 1026,
1032 (Ala. 1995) (Maddox, J., concurring in part and
dissenting in part), quoting in turn State v. Applegate, 39 Or.
App. 17, 21, 591 P. 2d 371, 373 (1979) (emphasis added in Ex
parte Elba))."

State v. Beaird, 981 So. 2d 386, 392 (Ala. 2007).

With today’s decision, I believe this court treads upon the slippery

slope of raising issues ex mero motu in all present and future cases

involving children, regardless of the main opinion's efforts to couch the

principle it is espousing as not representing a departure from basic tenets

of preservation and argument as inherent prerequisites to principled

appellate review. The main opinion's approach places a burden not only

on the court, but also on attorneys practicing in this court: Regardless of

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whether an argument directed to an issue is duly raised by an appellant,

attorneys for appellees must now guess at which nonjurisdictional,

substantive issues this court will raise ex mero motu, and, in order to

protect their clients, they will need to address those issues in their briefs.

I further adhere to the view, previously expressed in my special

writing in Ex parte R.H., 311 So. 3d at 773 (Hanson, J., concurring in

part and concurring in the result), that the majority opinion in Stevens

v. Everett, 784 So. 2d 1054 (Ala. Civ. App. 2000), is not precedential. Our

supreme court in Ex parte Fann, 810 So. 2d 631 (Ala. 2001) -- a case that

also involved the interests of minor children -- quoted from the dissenting

opinion in Stevens, which had correctly indicated that the majority

opinion in Stevens, by raising sua sponte a lack of "magic words" in a

custody judgment as a basis for reversing it, had gone beyond " 'the

fundamental precepts of appellate procedure.' " 810 So. 2d at 635 (quoting

Stevens, 784 So. 2d at 1056 (Robertson, P.J., dissenting)). Although bona

fide jurisdictional defects that are fatal to the very validity of a judgment

may warrant sua sponte notice on the part of a reviewing court, such as

when our supreme court noticed defects in subject-matter and personal

jurisdiction in, respectively, Jones v. Jones, 56 Ala. 612, 612 (1876), and

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Clark v. Gilmer, 28 Ala. 265, 266-67 (1856), that limited exception is not

carte blanche for members of this court to impose blanket correction of

nonjurisdictional errors they may perceive to have occurred in pleading

and practice in lower courts.

Based on the foregoing, I dissent from the main opinion's reversal

of the juvenile court's judgment based on an argument that was not

properly formulated and supported by relevant authority and that the

father waived by failing to assert it in a postjudgment motion.

Fridy, J., concurs.

42