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B.L., Jr. v. ELMORE COUNTY DEPARTMENT OF HUMAN RESOURCES
B.L., Jr. (“the father”), appeals from a judgment of the Elmore Juvenile Court (“the juvenile court”) terminating his parental rights to S.T. (“the child”). We reverse the juvenile court's judgment.
The father married T.L. (“the mother”) at some point. Although at the time of the trial they remained legally married, the father and the mother were separated and had been living apart since at least August 2016. The mother gave birth to the child on July 11, 2018. At the time of the child's birth, the mother tested positive for cocaine and opioids and was behaving inappropriately because of her bipolar disorder and schizophrenia. Later test results revealed that the child had a cocaine metabolite in her system. The Elmore County Department of Human Resources (“DHR”) intervened, found the mother “indicated” for child abuse, removed the child from the hospital, placed the child in foster care, and initiated dependency proceedings regarding the child. When DHR first intervened, the father, who was present at the hospital on the birth date of the child, informed DHR that he was capable of caring for the child and offered to take custody of the child. After DHR placed the child in foster care, DHR notified the father of the dependency proceedings.
On July 31, 2018, the mother informed DHR that she believed that C.T., and not the father, was the biological father of the child. The father requested paternity testing in August 2018, the results of which revealed that the father is not the child's biological father. The father nevertheless continued to assert himself as a potential custodian for the child as the presumed father of the child.1 The father began attending Individualized Service Plan (“ISP”) meetings on August 6, 2018, and, on August 15, 2018, he completed an affidavit of substantial hardship and requested that the juvenile court appoint an attorney to represent him because of his indigent status, which the juvenile court did. The father began visiting with the child under DHR's supervision not long afterward. On November 7, 2018, the juvenile court conducted an adjudicatory hearing, which the father did not attend, and adjudicated the child dependent based partially on a determination that the father had rejected DHR's services designed to unite him with the child.2
The father subsequently submitted to a drug assessment, participated in random drug screens, which produced no indication of current drug use, and completed parenting classes. Although the father was continuing to visit with the child and those visits, according to the witnesses, generally were going well, DHR determined at an ISP meeting held on April 17, 2019, that neither the father nor the mother was making significant progress toward gaining custody of the child and changed the permanency plan for the child from return to a parent to adoption by the child's foster-care providers or some other unidentified resource.
On May 30, 2019, DHR filed in the juvenile court a complaint petitioning the court to terminate the parental rights of the father and the mother to the child. DHR alleged, among other things, that the father had demonstrated an inability or unwillingness to parent the child through his excessive use of controlled substances, his failure to provide for the material needs of the child, his failure to pay a reasonable portion of support for the child, his failure to regularly visit with the child, his failure to maintain consistent contact and communication with the child, and his failure to rehabilitate and to adjust his circumstances to meet the needs of the child in accordance with DHR's ISP. On June 19, 2019, the father filed an answer to DHR's petition, denying its material allegations. The juvenile court conducted a trial on August 26, 2019, and, on September 20, 2019, the juvenile court entered a judgment terminating the parental rights of the father and the mother to the child.
In the judgment terminating the father's parental rights, the juvenile court found, in pertinent part:
“The father is 56 years of age. ․
“[The] father] has seven children, four of which are the result of the union between [the] father and [the] mother. The ․ child is the youngest of [those] four. ․ The older three children of these two parents (ages 13, 11, and 9) are all in the custody of parties other than [the] father and [the] mother. The father testified that these parents’ three older children were all removed from the parents’ custody due to drugs. Neither [the] father nor [the] mother regularly pays child support or otherwise regularly contributes monetarily to the care of their three older children. Up to the date of trial, the father had paid the sum total of $100.00 for th[e] child's support. ․
“On August 15, 2018, the father filed his Affidavit of Substantial Hardship [a]nd Order in [the dependency proceedings]. Based upon the father's sworn material representations contained within that affidavit, on August 16, 2018[,] [the juvenile court] adjudicated the father indigent and appointed the father legal counsel. At trial, the father testified to earning $300.00 [to] $400.00 per month in exchange for performing vehicle repairs. Although such monthly income is regular, the subject $300.00 [to] $400.00 per month was not disclosed as income in the father's indigency affidavit. Trial evidence established that the father has been and was earning the additional $300.00 [to] $400.00 per month both at the time he executed his affidavit and during the pendency of this termination case.
“[The juvenile court] finds that the father did not testify truthfully to the material facts surrounding his income in his affidavit filed August 15, 2018. Hence, [the juvenile court] now disregards the father's testimony as contained within that affidavit. ․ The father's heretofore cited prevarication under oath was taken into consideration when weighing his testimony, particularly relative to the element of his willingness to provide for the child's needs. ․ After observing the demeanor of [the father] during trial, and considering his prior false testimony, [the juvenile court] concludes that both the affidavit and trial testimony of this father lack credibility. ․
“At trial the father additionally disclosed, during cross-examination, that as part of a confidential civil lawsuit settlement he received over $118,000.00. He claimed to have received a draft for the funds on or about August 2, 2019. Prior to trial, the father had purchased a vehicle, in cash, using settlement funds, and he plans to purchase a home.
“As of the date of final hearing, the father had contributed a total of $100.00 and miscellaneous clothing items towards the care and maintenance of th[e] child. ․
“The father has a notable criminal record, consisting of convictions for Driving Under the Influence, Child Endangerment and Harassment. The father's most recent arrest for DUI in 2018 was ultimately dismissed.
“The father did not comply with [DHR]'s request that he submit to a drug assessment or with [DHR]'s request to conduct a home evaluation. The father did not make a good faith effort to take advantage of [DHR]'s services. The father's failure to take reasonable advantage of [DHR]'s services is further clear and convincing evidence of [the] father's unwillingness to discharge his responsibilities to and for the child.
“Reasonable efforts by [DHR] leading toward[ ] the rehabilitation of [the father and the mother] have failed, and [the father and the mother] have failed to provide for [the] child's material needs or to pay a reasonable portion of support where and when [the father and the mother] were able to do so.
“․ [DHR]'s witness, Tiffany Dillard, testified compellingly that there was no service that could have been offered to [the] mother and [the] father that was not offered by [DHR]. While the father did exercise some visitation with the child during the pendency of this action, the father far too often missed scheduled visits with the child. That the father voluntarily missed as many scheduled visitations as he did in this case, all while knowing of the pendency of this action for termination of his parental rights, establishes compellingly by clear and convincing evidence that this particular father is ultimately unwilling or perhaps simply unable to discharge his parental responsibilities to and for [the] child.”
The juvenile court determined that it was in the best interest of the child to terminate the parental rights of the father and the mother and that no viable alternative existed that would serve the best interests of the child. The juvenile court awarded permanent legal custody of the child to DHR.
The father timely filed a motion to alter, amend, or vacate the juvenile court's judgment, which the juvenile court denied on that same date. The father filed his notice of appeal to this court on October 17, 2019.3
The father argues that the juvenile court erred in terminating his parental rights to the child without receiving clear and convincing evidence of grounds for termination.
Standard of Review
A judgment terminating parental rights must be supported by clear and convincing evidence, which is “ ‘ “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” ’ ” C.O. v. Jefferson Cty. Dep't of Human Res., 206 So. 3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6–11–20(b)(4)).
“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ․ establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish], 47 So. 3d  at 761 [(Ala. Civ. App. 2006)].
“․ [F]or trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ ”
Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So. 2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So. 3d 878, 879 (Ala. Civ. App. 2011).
The father maintains that the juvenile court terminated his parental rights on the “narrow” grounds that he missed visits “far too often,” did not provide material support for the child, and failed to comply with DHR's offered services.
Section 12-15-319(a), Ala. Code 1975, sets forth the grounds for termination, providing, in pertinent part:
“(a) 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 this case, the juvenile court expressly found that the father was unable or unwilling to discharge his parental responsibilities to and for the child.
Under § 12-15-319(a)(1) through (12), the legislature requires juvenile courts to consider certain factors when determining whether a parent is unable or unwilling to discharge his or her parental responsibilities and, thus, whether his or her parental rights should be terminated, including:
“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parent[ ] have failed.
“(9) Failure by the parent[ ] to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(10) Failure by the parent[ ] to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources, or any public or licensed private child care agency, and agreed to by the parent.
“(11) Failure by the parent[ ] to maintain consistent contact or communication with the child.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”
Those factors are not independent grounds for termination of parental rights themselves but are essential considerations that inform the juvenile court in reaching its determination as to whether the parent lacks the ability or willingness to parent the child and whether the juvenile court should terminate parental rights. See J.C. v. State Dep't of Human Res., 986 So. 2d 1172, 1206-07 (Ala. Civ. App. 2007) (Moore, J., concurring in the result). In its judgment, the juvenile court properly followed the legislative directive set forth in § 12-15-319(a) by explaining the impact of the above factors on its ultimate determination that the father was unable or unwilling to discharge his parental responsibilities to and for the child.
The father complains that DHR did not prove by clear and convincing evidence its “primary basis” for petitioning to terminate his parental rights –- his alleged substance-abuse problem. Subsection 12-15-319(a)(2) requires a juvenile court to consider “excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for the needs of the child.” In this case, the juvenile court received evidence indicating that the father had a prior substance-abuse problem that had led to the loss of the custody of his and the mother's three older children. However, DHR did not present any evidence indicating that the father had an ongoing substance-abuse problem. DHR did submit into evidence a 2017 drug-abuse assessment that recommended an inpatient-rehabilitation program for the father, which the father did not attend, but DHR did not submit into evidence the results of a more recent drug-abuse assessment. The results of the only drug test required to be taken by the father pursuant to random drug screening showed no indication of current drug use. The DHR caseworker who oversaw the child's case testified that she did not think that the father is a drug addict and that she had no proof that he is an alcoholic.
In its judgment, the juvenile court referred to the father's past substance-abuse problems, but the juvenile court did not expressly find that the father had a current substance-abuse problem preventing him from caring for the child. This court has “consistently held that the existence of evidence of current conditions or conduct relating to a parent's inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” D.O. v. Calhoun Cty. Dep't of Human Res., 859 So. 2d 439, 444 (Ala. Civ. App. 2003). The juvenile court evidently determined, and the record supports the determination, that DHR did not carry its burden of proving by clear and convincing evidence that the father was currently abusing drugs or alcohol or that his relapse was so imminent and likely that he should be considered to have a current substance-abuse problem preventing him from caring for the child. See A.A. v. Jefferson Cty. Dep't of Human Res., 278 So. 3d 1247, 1253 (Ala. Civ. App. 2018).
The failure of DHR to prove by clear and convincing evidence one of the factors listed in § 12-15-319(a) does not, however, require reversal of the judgment if sufficient evidence otherwise supports the determination that the father is unable or unwilling to discharge his parental responsibilities to and for the child. See, e.g., J.K. v. Jefferson Cty. Dep't of Human Res., 114 So. 3d 835, 842 (Ala. Civ. App. 2012). The father argues that the evidence DHR presented in support of the other allegations in its complaint does not support the termination of his parental rights.
Our caselaw provides that DHR must identify the conduct that led to the removal of the child, explain the barriers it perceives as preventing a parent from obtaining custody of a child, communicate its concerns to the parent, formulate a plan reasonably designed to remove those obstacles so as to allow for family reunification, and assess whether those barriers remain after reasonable rehabilitation efforts have been exhausted. D.M. v. Limestone Cty. Dep't of Human Res., 164 So. 3d 1164, 1170 (Ala. Civ. App. 2014). In this case, the child was removed from the hospital because of the mother's abuse by exposing the child in utero to cocaine during her pregnancy. When a DHR representative appeared at the hospital, the father was present. When informed of the abuse committed by the mother, the father became upset with the mother and left the hospital. Before leaving, however, he informed the DHR representative that he was willing and able to assume custody of the child. The record contains no evidence indicating that the father, who was separated from the mother at that time, was aware of or participated in the conduct that led to the removal of the child.
The father did not attend the shelter-care hearing on July 13, 2018, or the first two ISP meetings conducted by DHR. However, on August 6, 2018, the father appeared at the third ISP meeting and presented himself as a potential custodian for the child, although his paternity of the child by that time had been questioned. An exhibit submitted by DHR indicates that the purpose of the August 6, 2018, meeting was to assess the father as a placement for the child. At that meeting, the father informed DHR of his past substance-abuse problems that had led to the loss of custody of his and the mother's three older children. DHR and the father agreed that he would obtain a substance-abuse assessment and submit to random drug screening. The father did not agree with the provider selected by DHR to perform the substance-abuse assessment, and DHR agreed that the father could obtain the substance-abuse assessment through an alternative provider. The father testified that he underwent the assessment. The DHR representative testified that DHR had been unable to obtain the results of that assessment and had requested the father undergo a second assessment, which he did not undergo. As explained above, the DHR caseworker who oversaw the child's case testified that she had no evidence indicating that the father had an ongoing substance-abuse problem.
During the course of the visits between the child and the father, the father was observed offering the child a bottle of water, which was inappropriate for the child's age. DHR informed the father of that problem and requested that he complete parenting classes, to which he agreed. The father completed the parenting classes, although not on the scheduled DHR proposed. The father submitted the certification of his completion of those classes into evidence. DHR did not identify any further problems with the interactions between the father and the child during visits.
DHR requested a home evaluation in order to ascertain whether the father had adequate shelter for the child. The father was living with a friend during 2018 and most of 2019. The father informed DHR that he was expecting a large settlement from a lawsuit and that he planned to purchase a mobile home and move to Elmore County as soon as he obtained the funds from the settlement. The father maintained that the home evaluation should be scheduled once he obtained new housing suitable for the child. The father did, in fact, receive a payment of $118,000 from the settlement on August 2, 2019, which he could access only after 14 business days, or just 1 week before the August 26, 2019, trial. The father purchased a truck for $12,000 and testified that he would use the remainder of the settlement funds to pay for a mobile home and to support the child.
As the juvenile court found, the father had provided only miscellaneous clothing for the child before receiving his settlement. The father testified that he was disabled, that he received Social Security disability benefits in the amount of approximately $800 per month, and that he sporadically earned $300 to $400 per month performing side work as a certified mechanic. Although § 12-15-314(e), Ala. Code 1975, requires a juvenile court to order child support for a child when it awards DHR legal custody of the child, the record does not contain an order of child support. An exhibit submitted into evidence indicates that the father filled out child-support “paperwork” in April 2019, but that exhibit but does not further explain the obligation, if any, of the father to pay child support. The father gave DHR $100 after receiving his settlement. The evidence is not clear that the father had failed to comply with an order of child support or that he was able to provide support for the material needs of the child during the relevant period and failed to do so.
In assessing whether parental rights should be terminated, the key inquiry is not whether the parent has cooperated with and complied faithfully with DHR's rehabilitation plan; instead, it is whether the obstacles to family reunification still remain as a result of the failure of the parent to follow DHR's plan or whether those obstacles have been removed regardless of the lack of total compliance with the plan. See H.B. v. Mobile Cty. Dep't of Human Res., 236 So. 3d 875, 883 (Ala. Civ. App. 2017); R.T.B. v. Calhoun Cty. Dep't of Human Res., 19 So. 3d 198, 205 (Ala. Civ. App. 2009). A juvenile court can find that reasonable efforts at rehabilitation have failed only if DHR has proven by clear and convincing evidence that the parent has not made substantial progress toward becoming able to adequately care for the child after reasonable efforts have been expended to rehabilitate the parent. See H.B. v. Mobile Cty. Dep't of Human Res., supra.
In this case, the evidence in the record does not show any lingering barrier to the father's assuming custody of the child. Besides the absence of clear and convincing evidence of a current substance-abuse problem, the record contains no evidence indicating that the father currently lacks the physical or mental ability to adequately care for the child. DHR further presented no evidence explaining how the failure to submit to a home evaluation rendered the father unable or unwilling to parent the child, especially in light of his testimony that he was in the process of obtaining a suitable mobile home in which to live with the child, which, presumably, would be subject to DHR's inspection. The record also contains no evidence indicating that the father's past lack of support for the child currently impedes his ability to care for the child, given his receipt of the settlement funds, which DHR's witnesses admitted would make him more financially able to provide for the child going forward. The scant evidence regarding the father's criminal history does not reveal any ongoing conduct that would render him an unfit or improper person to parent the child under his current circumstances.
The evidence in the case shows that the father missed 14 of 41 visits with the child scattered over approximately 1 year's time.4 The juvenile court concluded that those 14 missed visits were “too many” and were evidence indicating that the father was unable or unwilling to parent the child. As noted, § 12-15-319(a)(10) requires a juvenile court to consider “[f]ailure by the parent[ ] to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources ․ and agreed to by the parent.” Section 12-15-319(a)(11) also requires a juvenile court to consider “[f]ailure by the parent[ ] to maintain consistent contact or communication with the child.” The father points out that the juvenile court did not specifically find that he had failed to regularly visit with the child or to maintain consistent contact or communication with the child, as alleged by DHR in the complaint. A DHR caseworker testified that, in fact, the father had “routinely” visited with the child and that, with the exception of the water-bottle incident, the father and the child had interacted appropriately and the visits had gone well. Ideally, a parent will never miss a visit, but even when a parent misses a series of visits, that fact alone will not support a judgment terminating parental rights. See, e.g., D.W. v. Jefferson Cty. Dep't of Human Res., 295 So. 3d 1107, 1113 (Ala. Civ. App. 2019) (“We cannot conclude that the missed visitations alone constitute evidence sufficient to clearly convince a reasonable fact-finder that termination of the father's parental rights was warranted.”).
“Because [§ 12-15-319] is phrased in present and future terms, a juvenile court may terminate a parent's parental rights only if clear and convincing evidence shows that the parent is currently unable to discharge his or her parental duties properly ․ and that the conduct or condition that prevents the parent from assuming or exercising proper care will likely persist in the foreseeable future.”
S.U. v. Madison Cty. Dep't of Human Res., 91 So. 3d 716, 720 (Ala. Civ. App. 2012).
“Although ‘[a] court may consider the past history of the family, as well as evidence of its present conditions,’ Ex parte State Dep't of Human Res., 624 So. 2d 589, 593 (Ala. 1993), based on the plain language of the statute, and as clarified by our caselaw, the mere fact that, at one time, the parent may have committed conduct or suffered from a condition that rendered the parent unable to properly care for the child does not authorize a juvenile court to terminate parental rights. See V.M. v. State Dep't of Human Res., 710 So. 2d 915, 921 (Ala. Civ. App. 1998). Rather, the test is whether [the Department of Human Resources] has presented clear and convincing evidence demonstrating that the parental conduct or condition currently persists to such a degree as to continue to prevent the parent from properly caring for the child.”
M.G. v. Etowah Cty. Dep't of Human Res., 26 So. 3d 436, 442 (Ala. Civ. App. 2009). The record in this case does not show that the current and likely future circumstances of the father prevent him from caring for the child.
In reaching our opinion that the judgment of the juvenile court is due to be reversed, we find striking the similarities between this case and A.M. v. St. Clair County Department of Human Resources, 146 So. 3d 425 (Ala. Civ. App. 2013), cited by the father in his brief to this court. In A.M., this court reversed the judgment terminating A.M.’s parental rights because she had located new housing that was suitable for the children and was well maintained and because she had met or was making progress toward meeting the goals that had been established for her by the St. Clair County Department of Human Resources, although she had failed to do all that she should have done to regain custody of the children. 146 So. 3d at 433-35. In the present case, the father completed his substance-abuse assessment and parenting classes and had obtained adequate income to care for the child. Although DHR faulted the father for not complying with its plan for family reunification, the father was in the process of obtaining suitable housing for the child. In A.M., we concluded that the judgment terminating A.M.’s parental rights was premature, just as the court did in D.O., supra, when the court held that the decision to terminate D.O.’s parental rights was “premature, considering the evidence indicating that [D.O.] has made a continuing effort to change her circumstances and that she was making significant progress at the time of the termination hearings.” 859 So. 2d at 444. We agree with the guardian ad litem of the child in this case, who argued in closing that it would be premature to terminate the parental rights of the father given the substantial progress he was making and the likelihood that he would be able to assume custody of the child in the foreseeable future.
“The termination of parental rights is an extreme matter and is not to be considered lightly. Ex parte Beasley, 564 So. 2d 950 (Ala. 1990). ‘Inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances.’ Beasley, 564 So. 2d at 952.”
S.M.W. v. J.M.C., 679 So. 2d 256, 258 (Ala. Civ. App. 1996). We cannot conclude that, given the evidence in the record, the juvenile court could reasonably have inferred that the father had committed such egregious conduct or that his circumstances were of such an egregious nature that his parental rights to the child should have been terminated. Accordingly, we reverse the judgment terminating the father's parental rights to the child, and we remand the case to the juvenile court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
I respectfully dissent. Conflicting evidence was presented in this case regarding the willingness and ability of B.L., Jr. (“the father”), to parent S.T. (“the child”). It was the duty of the Elmore Juvenile Court (“the juvenile court”) to resolve the conflicts in that evidence and to make factual findings. Hillegass v. State, 795 So. 2d 749, 753 (Ala. Civ. App. 2001). In reviewing the factual findings contained in a judgment terminating parental rights, this court has a narrow standard of review.
“This court's standard of appellate review of judgments terminating parental rights is well settled. A juvenile court's factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep't of Human Res., 975 So. 2d 969, 972 (Ala. Civ. App. 2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is ‘required to apply a presumption of correctness to the trial court's finding[s]’ when the trial court bases its decision on conflicting ore tenus evidence. Ex parte State Dep't of Human Res., 834 So. 2d 117, 122 (Ala. 2002) (emphasis added). Additionally, we will reverse a juvenile court's judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So. 2d at 972.”
J.C. v. State Dep't of Human Res., 986 So. 2d 1172, 1183 (Ala. Civ. App. 2007)(footnote omitted).
“ ‘ “Clear and convincing evidence” is “ ‘[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So. 2d  at 179 [(Ala. Civ. App. 2002)], citing in turn Ala. Code 1975, § 6–11–20(b)(4).’
“J.B. v. Cleburne County Dep't of Human Res., 991 So. 2d 273, 282 (Ala. Civ. App. 2008).”
T.V. v. B.S., 7 So. 3d 346, 352 (Ala. Civ. App. 2008).
“Because appellate courts do not weigh evidence, particularly when ‘the assessment of the credibility of witnesses is involved, Knight[ v. Beverly Health Care Bay Manor Health Care Center], 820 So. 2d  at 102 [(Ala. 2001)], we defer to the trial court's factual findings. ‘The ore tenus rule reflects this deference; it accords a presumption of correctness to the trial court's findings because of that court's unique ability to observe the demeanor of witnesses.’ Id.; see also Fitzgerald v. Jeter, 428 So. 2d 84, 85 (Ala. Civ. App. 1983), and Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001).”
J.C., 986 So. 2d at 1185.
If a fact-finder reasonably could have been clearly convinced from the evidence in the record that a parent is unwilling or unable to discharge his or her parental responsibilities to and for the child, this court may not reverse a judgment terminating parental rights arising from the ore tenus proceedings in a termination-of-parental-rights case. See J.B. v. DeKalb Cty. Dep't of Human Res., 12 So. 3d 100, 111 (Ala. Civ. App. 2008).
In this case, the father testified that he had seven children. T.L. (“the mother”) was the mother of the father's four youngest children, all of whom were minors. The father acknowledged that neither he nor the mother had custody of the oldest three of those children. The father's abuse of alcohol played a role in the removal of those children from his custody. The father conceded that he did not pay child support for those children, nor did he have any involvement with them. He blamed his lack of involvement on the children's maternal grandmother, who had custody of them.
As to the child, the evidence indicated that the father had missed more than a third of the visitations scheduled with the child. A foster-care worker with the Elmore County Department of Human Resources (“DHR”) testified that, on at least one occasion, the father had told DHR that the reason he could not attend the scheduled visitation was because he had to appear in court on another matter. However, evidence indicated that matter had already been resolved and that the father was not expected in court.
The father testified, just before the trial, that he had provided $100 in child support for the child. He explained that he had just received a settlement of approximately $118,000 and made the support payment out of the settlement proceeds. Other evidence indicated that he also purchased a truck for himself out of the settlement proceeds. During the course of the litigation, the father had also bought the child some clothes, but the clothes had to be returned because they did not fit.
A DHR social worker testified regarding the father's failure to allow a home evaluation to be conducted at the residence where the father was living with a friend. The father told the social worker he was not available on the days and times that she attempted to schedule the evaluation. The father, however, did plan to purchase a mobile home with the settlement proceeds and said that he intended to live with the child in the mobile home. The father also failed to cooperate with DHR regarding submitting to a drug assessment.
A review of the record indicates that the father's testimony was often evasive. For example, he testified that he “had no idea” how many times he had been arrested. He acknowledged that he had more than five arrests for driving under the influence of alcohol and that it could have been more than ten such arrests. He claimed that he did not know whether he had been convicted as a result of those arrests. In addition, the father had been arrested for harassment, and he had been arrested and convicted of child endangerment. The father gave an unclear explanation of the child-endangerment offense and added that he was not guilty of that crime.
The father also invoked his Fifth Amendment right against self-incrimination when asked why he was seeking a divorce from the mother. No criminal charges were pending against the father at the time he testified. Evidence indicated that, in seeking indigent status in the juvenile court, the father had failed to report income he received each month from working as a mechanic.
The record demonstrates that the juvenile court was attentive and took an active role in asking questions of the witnesses and seeking clarification of earlier testimony during the presentation of the evidence. In entering its findings, the juvenile court specifically stated that, after observing the demeanor of the father during the trial and taking note of the father's “false testimony,” it found that the father lacked credibility.
In reviewing the record, I conclude that the juvenile court's decision to terminate the father's parental rights was supported by clear and convincing evidence. The main opinion interprets the evidence one way; the juvenile court interpreted the evidence differently. However, based on the record, I believe the juvenile court reasonably could have determined that the father had failed to support the child, that he had missed numerous visitations without justification, that he had a substantial criminal history and a history of alcohol and/or other substance abuse, and that he not only had lost custody of the three older children he had with the mother, but had failed to provide any support for those children or to be involved with those children.
Based on our narrow standard of review giving deference to the factual findings of the juvenile court, I believe that there was clear and convincing evidence in the record to support the juvenile court's decision to terminate the father's parental rights even if this court might have reached a different conclusion. Accordingly, I believe the judgment is due to be affirmed.
1. The father is the presumed father of the child because the child was born during the marriage between the father and the mother. See Ala. Code 1975, § 26-17-204(a)(1).
2. The record from the dependency proceedings is not in the record on appeal. The juvenile court took judicial notice of the dependency proceedings and summarized those proceedings in its final judgment terminating the father's parental rights.
3. The mother has not appealed the judgment terminating her parental rights; therefore, we have included only those facts relating to the mother that are necessary to our resolution of the father's appeal.
4. On multiple occasions, DHR canceled visits, but those canceled visits were not included in these numbers. DHR submitted into evidence several exhibits setting forth the exact dates and reasons for the father's missed visits.
Edwards and Hanson, JJ., concur. Thompson, P.J., dissents, with writing, which Donaldson, J., joins.
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Docket No: 2190066
Decided: June 12, 2020
Court: Court of Civil Appeals of Alabama.
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