Relationship of Biological Relatives After Termination of Parental Rights
| Publication year | 2011 |
| Pages | 0033 |
| Citation | Vol. 72 No. 1 Pg. 0033 |
Presentation of the Issue
The development of the law and the increased concentration in the area of permanency for dependent children has brought to light issues that are both interesting and important to the welfare of children and the integrity of families. One such issue is the question of what rights are retained by the biological relatives of a child after the rights of the child's parents have been terminated. Do biological relatives enjoy any residual rights such as grandparent visitation or a priority for consideration as adoptive resources? The requirement of ruling out viable alternatives, including relative resources, minimizes the incidence of this problem, but it will not entirely eliminate it. Relatives might be located or rehabilitated after parental rights have been terminated but before the child has been adopted.
History of "No Viable Alternatives"
Prior to January 1977, Alabama statutory law gave broad discretion to a trial court in providing for a child who was placed under the guardianship of the State.1 Additional guidance and restrictions were presented in Roe v. Conn, 417 F.Supp. 769 (M.D. Ala.1976). In this case the U. S. District Court for the Middle District of Alabama adopted the test from an Iowa District Court opinion [Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10, 24 (S.D.Iowa 1975)] which required that "termination must only occur when more harm is likely to befall the child by staying with his parents than by being permanently separated from them." Roe v. Conn, supra, at 779. This opinion introduced the beginnings of the "no viable alternatives" requirement which applies today in termination of parental rights cases in that it reaffirmed the fundamental right to integrity of the family in its decision. The District Court stated that, "As discussed supra, the Constitution includes the right to family integrity among the fundamental rights secured to all persons. This right is applied to the States through the Fourteenth Amendment and is accorded strong protection from state interference. States, in the exercise of their inherent police powers, may abrogate such rights only to advance a compelling state interest and pursuant to a narrowly-drawn statute restricted to achieve only the legitimate objective." Id. at 779. The District Court suggests appropriate measures short of termination of parental rights such as participation in parenting seminars and counseling.
The Alabama Court of Civil Appeals in McCulloch v. State Department of Human Resources, 536 So.2d 68 (Ala.Civ.App.1988), continued the trend toward "no viable alternatives" citing Fitzgerald v. Fitzgerald, 490 So.2d 4 (Ala.Civ.App.1986). In McCulloch, the court of civil appeals stated that termination of parental rights required a finding not only that the child was dependent but also "that there are no less drastic alternatives to termination of parental rights." McCulloch, supra, p. 69.
While stating that it was not bound by the decision in Roe v. Conn, supra, the court of civil appeals acknowledged that a determination of the best interests of a child necessarily involved a consideration of alternatives which are less drastic than termination of parental rights in Lovell v. Department of Pensions and Security, 356 So.2d 188 (Ala.1978). The notion that a trial court must consider alternatives which are less drastic than permanent placement with a non-relative was advanced by the court of civil appeals in Miller v. Ala. Dept. of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.1979), wherein the court of civil appeals acknowledged that the presence in the statute of dispositional alternatives in a dependency case which are less drastic than termination of parental rights "serves to limit and define those instances where the severance of the parent-child relationship may be deemed 'appropriate.'" Id. at 1376. In Glover v. Ala. Dept. of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981), the court of civil appeals introduced the term "viable alternative" when it stated that "we consider important that the State,...present a viable...
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