(In re: T.W. v. Calhoun County Department of Human Resources) (2023)

The petitions for the writ of certiorari are denied.

In denying the petitions for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).

SC-2023-0428 — WRIT DENIED.

SC-2023-0429 — WRIT DENIED.

I concur with the Court's denial of the petitions for the writ of certiorari filed by the Calhoun County Department of Human Resources (“DHR”) in these termination-of-parental-rights cases. I write separately to reiterate what I have consistently urged in cases before this Court: that parental rights are fundamental rights created by God; that the State's jurisdiction to interfere with parental rights obtains only in the most egregious circumstances; and, therefore, that termination of parental rights should be subjected to strict scrutiny. See Ex parte E.R.G., 73 So. 3d 634, 643-45 (Ala. 2011) (Parker, J., writing for the Court); see also Ex parte Bodie, 377 So. 3d 1051, 1064 (Ala. 2022) (Parker, C.J., concurring in part and concurring in the result); Ex parte J.M.P., 144 So. 3d 287, 297-300 (Ala. 2013) (Moore, C.J., dissenting, joined in relevant part by Parker, J.); Ex parte G.C., 924 So. 2d 651, 677-78 (Ala. 2005) (Parker, J., dissenting) (“[P]arents possess the right and responsibility to govern and raise their children; ․God, not the state, has given parents these rights and responsibilities, and, consequently, ․ courts should interfere as little as possible with parental decision-making, instead deferring to parental authority whenever it has not been fundamentally compromised by substantial neglect, wrongdoing, or criminal act.”). DHR has not proven that the conduct of T.W., the mother in these cases rises to the level of abuse or neglect that would trigger the State's compelling interest in protecting children; nor has DHR presented sufficient evidence for a juvenile court to reasonably conclude that no viable alternative to termination of the mother's parental rights exists.

These cases present an unfortunate picture of a government agency interfering with a mother's relationship with her two children based on considerations largely related to the mother's poverty. The mother is obviously and undisputedly poor. She lives in a trailer park, a living situation generally known less for its ideal living conditions than for its inexpensiveness. She is unemployed and disabled. Her disability benefits and food-stamp benefits, which are her sole sources of income, amount to $800 per month. She lives on a total income of $9,600 per year, less than 40% of the federal poverty level of $24,860 for a family of three.¹ Under such circumstances, she must necessarily be content with the best living conditions she can afford. And the housing conditions for which a monthly income of $800 will pay are not wholly within her control. The facts presented to this Court show that, on one occasion, the mother moved her residence to a larger, newer trailer within the same park to address DHR's concerns about her living situation, but to no avail.

In response to the mother's attempts to cooperate, DHR has moved the goalposts several times over the course of its dealings with this mother. It originally removed her children from her home as a result of her first (and, according to the facts before this Court, her only) positive drug test out of “numerous” tests. T.W. v. Calhoun Cnty. Dep't of Hum. Res., [Ms. CL-2022-0694, June 2, 2023] ––– So. 3d ––––, –––– (Ala. Civ. App. 2023). When DHR's fears regarding the mother's drug use were assuaged, DHR fixated on the mother's living conditions and her dietary choices for her children. When the mother undisputedly made progress in those areas, DHR apparently seized on a domestic dispute with a relative's neighbor (in which the mother was not the aggressor, but the victim) to cease reunification services and to petition the juvenile court for termination of her parental rights. Viewed as a whole, this course of dealing appears less like DHR's using the “least restrictive means” available to serve the State's compelling interest in protecting children from abuse and neglect, see Ex parte E.R.G., 73 So. 3d at 645, and more like DHR's becoming a micro-managing busybody in a poor mother's affairs because she cannot afford to provide a suitably socially acceptable lifestyle for her children.

It bears repeating that parental rights are fundamental rights granted by God, not the State. Ex parte G.C., 924 So. 2d at 677 (Parker, J., dissenting). The State should interfere with those rights only when there is no other possible way to protect the children from “substantial neglect, wrongdoing, or criminal act.” Id. But in these cases it appears that DHR did not find in the mother such overt neglect or wrongdoing toward her children but, instead, substituted its own judgment of acceptable living conditions for that of the mother, regardless of the mother's financial situation. Not every mother can afford to live in the home she might like to give her children. And poverty should not be a justification for the State to break families apart. For some parents, family is all they have left.

For these reasons, and because of the strong presumption in our law favoring fundamental rights, including and especially parental rights, I concur in denying DHR's petitions for the writ of certiorari in these cases.

FOOTNOTES

1.   See Office of the Assistant Sec'y for Plan. and Evaluation, U.S. Dep't of Health and Hum. Servs., HHS Poverty Guidelines for 2023. On the date this Court issued its decisions in these cases, these guidelines could be found at: https://aspe.hhs.gov/topics/poverty-economicmobility/poverty-guidelines.

MENDHEIM, Justice.

Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur. Parker, C.J., concurs specially, with opinion. Cook, J., dissents.