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A.D. v. R.P.
A.D. (“the father”) and R.P. (“the mother”) are the divorced parents of J.L.D. (“the child”). The parties’ 2017 divorce judgment awarded the parties joint legal custody of the child and awarded the mother sole physical custody, subject to the father's liberal visitation. The divorce judgment did not require the father to pay child support but required him to pay the costs of the child's day care or after-school care.
In June 2019, the mother filed in the Lauderdale Juvenile Court (“the juvenile court”), through the juvenile intake-officer, a pro se petition seeking to have the parental rights of the father terminated. The father filed a combined motion to dismiss, motion for a summary judgment, motion to strike, and an answer on September 11, 2019. After several continuances, the juvenile court held a trial on June 26, 2020, and August 4, 2020, after which it entered a judgment terminating the parental rights of the father. The father timely appealed.
The termination of parental rights is governed by Ala. Code 1975, § 12-15-319.1 Subsection (a) of that Code section provides, in 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 a hearing on a petition for termination of parental rights, the court shall consider the best interests of the child. In determining whether or not the parent[ ] [is] unable or unwilling to discharge [his or her] responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(1) That the parent[ ] ha[s] abandoned the child, provided that in these cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parent[ ].
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or 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.
“(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.”
“[a] rebuttable presumption that the parent[ ] [is] unable or unwilling to act as [a] parent[ ] exists in any case where the parent[ ] ha[s] abandoned a child and this abandonment continues for a period of four months next preceding the filing of the petition. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.”
§ 12-15-319(d). “Abandonment” is defined in Ala. Code 1975, § 12–15–301(1), as
“[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.”
The test a juvenile court must apply in an termination-of-parental-rights action brought by a custodial parent is well settled:
“First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7[, Ala. Code 1975, now codified at § 12-15-319]. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered.”
Ex parte Beasley, 564 So. 2d 950, 954 (Ala. 1990). A juvenile court's judgment terminating parental rights must be supported by clear and convincing evidence. P.S. v. Jefferson Cnty. Dep't of Hum. Res., 143 So. 3d 792, 795 (Ala. Civ. App. 2013). “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 171, 179 (Ala. Civ. App. 2002) (quoting Ala. Code 1975, § 6-11-20(b)(4)). Although a juvenile court's factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct, K.P. v. Etowah Cnty. Dep't of Hum. Res., 43 So. 3d 602, 605 (Ala. Civ. App. 2010), “[t]his 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.” K.S.B. v. M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App. 2016). That is, this court
“ ‘must ․ look through [“the prism of the substantive evidentiary burden,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 [106 S.Ct. 2505, 91 L.Ed.2d 202] (1986),] 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.” ’ ”
K.S.B., 219 So. 3d at 653 (quoting Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008), quoting in turn Ala. Code 1975, § 25-5-81(c)).
The mother testified at trial that the father had not consistently exercised his visitation after the divorce. She said that the father's visits had stopped completely in February 2018 after an altercation that occurred when she took the child to the father's home for visitation. She explained that the father had failed to pick up the child from school and that she had been contacted. She said that, once she picked up the child, she took him to the father's house. According to the mother, the father exited his house, began yelling at her, became violent, and pushed her off the front porch and kicked her in the ribs. She said that the child witnessed the incident. The mother said that, based on that incident, she sought and received a protection-from-abuse (“PFA”) order (“the 2018 PFA order”) against the father. She said that the 2018 PFA order awarded the father four hours of visitation each week to be supervised at the North Alabama Visitation Center but that the father had never once exercised that visitation. As a result, the mother explained, the father had not visited the child in over two years at the time of the trial.
According to the mother, the father had violated the 2018 PFA order by contacting her through social media or by text message or telephone. In some of the communications that were admitted into evidence, the father stated that he did not want a man named P.2 or another man named R. around the child and threatened R. by stating: “[B]ring him around [the child] again and he dies.” Regarding P., the father stated that, “[a]s soon as I find out who [P.] is ․ it will be the same story.” He concluded that text message with the comment: “I don't lay down.” The father later remarked in a different message: “You didn't go to jail because I didn't allow it. Understand it.” The mother said that she had pursued criminal charges based upon the father's violation of the 2018 PFA order and that the father had pleaded guilty to those charges. She admitted that the 2018 PFA order had expired in April 2019, a year after its issuance, and she said that she had sought and received a new PFA order in 2019 that would be effective until 2021.
The mother explained that the father had a history of drug abuse and that he had been using heroin at the time of the parties’ divorce. Although she admitted to having smoked marijuana with the father at one point in their relationship, the mother said that she had not used any other drug and that she had not smoked marijuana since the birth of the child in 2010. The mother testified that she did not believe that the father could rehabilitate successfully enough to have a relationship with the child and that she believed that the child would not be safe in the father's care. She testified that the father had a history of drug addiction, commented that he had spent time in jail and in halfway houses as a result of his addiction, and said that she believed that the father would continue to repeat that history.
The mother presented a group of letters that the father had sent to the child from the Lauderdale Detention Center in June 2019. The mother complained that the letters contained information and language not appropriate for the child. The letters included the use of profanity (e.g., “man, its been fucked up out here”), references to the father's use of drugs (methamphetamine and heroin), references to death (“I've died 3 times and I've had people try to take my life”), and a request that the child “help” him by asking the mother to allow the child to contact the father.
The mother described the child as a straight-A student and testified that he was involved in Boy Scouts and soccer. She explained that the child had received counseling through his school after the February 2018 altercation between the mother and the father, which the child had witnessed, but that he had not needed additional counseling after the completion of the 2017-18 school year. The mother said that the child lived with her, her husband, P.P. (“the stepfather”), the stepfather's son, K.P., and the child's half brother (i.e., the child of the mother and the stepfather), D.P. According to the mother, the child desired to be adopted by the stepfather and to take his last name.
The father testified at the June 26, 2020, trial proceedings. He said that, after the divorce, he had regularly exercised some, but not all, of his visitation and that he had spoken to the child on the telephone every night after the parties’ divorce and up until the 2018 PFA order was entered. Although the father denied having harmed the mother during the February 2018 incident giving rise to the 2018 PFA order and blamed her for yelling at him and trespassing on his property, the 2018 PFA order, which is in the record, contains a finding that the father was a credible threat to the mother and to the child. The father initially testified that he would pass a drug test and that he had last used marijuana in January 2019 when he was attempting to detox from heroin. However, the father refused to take the drug test ordered by the juvenile court. He then admitted that he had last used heroin only four days before the June 26, 2020, trial date.
The juvenile court ended the proceedings on June 26, 2020, after the father's admission. The trial reconvened for the conclusion of testimony on August 4, 2020. The father did not appear at trial on August 4, 2020, and the father's counsel said that he had not been able to reach the father despite attempts to contact him by telephone and text message.
The child's guardian ad litem stated his recommendation to the juvenile court on the record. He explained that, in his opinion, the juvenile court should terminate the parental rights of the father. He supported his recommendation with the following statement:
“I believe that there are things out there, there are demons that he has that have definitely taken ahold of him[,] and that [are] preventing him from being able to be a responsible parent and to do things the way [they] need[ ] to be done. ․ [I]n this case I do believe that it would be appropriate to grant the [termination of parental rights] purely for the sake of [the child]. He needs to go on about his life without the fear of someone that cannot take care of themselves ruling over what he does on a day-to-day or any kind of basis whatsoever. ․ I truly feel that [the father] loves his child, but there is I don't believe any way that he can help [or that] he should have any kind of decision-making ability for [the child]. I truly believe he loves [the child], but he -- but it hasn't got to the point of recognizing his own inabilities to be able to foster a caring, loving, providing relationship for [the child] in any way. And that's saying, ․ if you just take that one part away and focus purely on a father-son relationship, I don't believe that exists in any way.
“․ I believe that [the child] emotionally and truly wants [an adoptive] relationship [with the stepfather]. It seems to me that the stepfather wants that as well, and I truly believe that is there.”
On appeal, the father argues that the juvenile court erred by failing to dismiss, or to enter a judgment on the pleadings in his favor on, the mother's pro se petition to terminate his parental rights because, he contends, the mother failed to allege that no viable alternatives to the termination of his parental rights existed. He also contends that the juvenile court should have dismissed the mother's petition pursuant to Rule 11(a), Ala. R. Civ. P., because it was not signed by the mother. The father also challenges the sufficiency of the evidence supporting the judgment terminating his parental rights because, he contends, the evidence did not clearly and convincingly establish grounds for termination, termination should not be granted merely for the convenience of one of the parties, and a viable alternative to the termination of his parental rights existed.
The father concedes in his appellate brief that his “motion for a summary judgment” was more properly considered a Rule 12(c), Ala. R. Civ. P., motion for a judgment on the pleadings because he presented no materials outside the pleadings in making his argument. The argument in support of his Rule 12(b)(6), Ala. R. Civ. P., and Rule 12(c) motions was that the mother had failed to expressly allege or to present facts in her pro se petition indicating that no alternative to the termination of the father's parental rights existed. “[B]ecause judgment has been entered upon a trial on the merits, the pretrial interlocutory ruling itself on [the father's] motion to dismiss -- that is, the denial of the motion -- is moot.” Simon v. Jackson, 855 So. 2d 1026, 1030 (Ala. 2003). Thus, we will not entertain the father's argument relating to the denial of his motion to dismiss pursuant to Rule 12(b)(6).
We have been unable to locate any Alabama authority relating to appellate review of the denial of a motion for a judgment on the pleadings pursuant to Rule 12(c) after the entry of a judgment following a trial on the merits. However, at least two of our sister states have explained that an order denying a motion for a judgment on the pleadings is not reviewable on appeal from a judgment entered on the merits after a full trial. See Denali Real Estate, LLC v. Denali Custom Builders, Inc., 302 Neb. 984, 997-98, 926 N.W.2d 610, 622-23 (2019); Duke Univ. v. Stainback, 84 N.C. App. 75, 77, 351 S.E.2d 806, 807-08 (1987). The North Carolina Court of Appeals explained that
“[t]he purpose of judgment on the pleadings is to avoid an unnecessary trial when an affirmative defense bars suit. Thus, permitting review of a denial after a judgment on the merits would allow a preliminary assertion of an affirmative defense to overcome a judgment reached after a full examination of the equities involved at trial. We hold that denial of a motion for judgment on the pleadings is not reviewable on appeal from a final judgment in a trial on the merits.”
Stainback, 84 N.C. App. at 77, 351 S.E.2d at 807-08.
The Nebraska Supreme Court relied on guidance from a learned treatise to conclude that the denial of a Rule 12(c) motion should not be reviewed on appeal from a final judgment entered after trial. Denali Real Estate, 302 Neb. at 997-98, 926 N.W.2d at 622-23. The court quoted from 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1372 (3d ed. 2004 & Supp. 2018):
“ ‘In most situations the evidence at trial will depart from the pleadings and, in view of Rule 15(b), the pleadings will be deemed amended to conform to the evidence, absent a showing of prejudice to the other party, and the original judgment on the pleadings motion probably rendered moot. When the evidence is consistent with the pleadings, the appellate court should order a judgment entered for the defendant on the ground that the facts elicited at trial demonstrated a good defense to the action rather than because of the defect in the pleadings.’ ”
302 Neb. at 997, 926 N.W.2d at 622-23. The court explained that, because Nebraska's pertinent rule governing pleading, Neb. Ct. R. Pldg. § 6-1115(b), is like Rule 15(b), Fed. R. Evid., which allows for the amendment of the pleadings to conform to the evidence “even when a party does not move to amend the pleadings,” the issue of the denial of a Rule 12(c) motion once the pleadings have been actually or constructively amended is effectively mooted. Id.
Rule 15(b), Ala. R. Civ. P., like its federal counterpart, also permits amendment of pleadings to conform to the evidence presented at trial, stating that “[s]uch amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” (Emphasis added.) Thus, even if the mother's pro se petition did not allege sufficient, specific facts relating to the lack of any viable alternative to the termination of the father's parental rights, the fact that, at trial, the parties presented evidence relating to whether, as the father contends, a continuation of sole custody in the mother and an award of supervised visitation to the father would be a viable alternative and serve the best interest of the child would support the judgment on that issue. To allow this court to revisit on appeal whether the mother's pro se petition made sufficient, specific factual averments to withstand a Rule 12(c) motion after the juvenile court has heard evidence on all factors relevant to the termination of parental rights would be wasteful of judicial resources and would undermine the language and spirit of Rule 15(b) by allowing deficiencies in the pleadings to affect the result of the trial before the juvenile court.
Furthermore, we note that a motion for a judgment on the pleadings is akin to a motion for a summary judgment, although a Rule 12(c) motion requires no evidentiary showing by the movant. The denial of a motion for a summary judgment is generally not reviewable on appeal from a judgment on the merits. B.M. v. State, 895 So. 2d 319, 333 (Ala. Civ. App. 2004). Thus, we hold that the denial of a motion for a judgment on the pleadings is not reviewable on appeal after the entry of a judgment on the merits following a trial because it is mooted by the trial and the entry of the judgment on the merits.
However, even assuming that this court should review the denial of a Rule 12(c) motion upon appeal of a judgment on the merits entered after a trial, we cannot agree that the father has presented a meritorious argument that he was entitled to a judgment on the pleadings.
“When a motion for judgment on the pleadings is made by a party, ‘the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.’ ”
Universal Underwriters Ins. Co. v. Thompson, 776 So. 2d 81, 82 (Ala. 2000) (quoting B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So. 2d 989, 991 (Ala. 1992)). “A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party.” Universal Underwriters, 776 So. 2d at 82 (citing Harden v. Ritter, 710 So. 2d 1254, 1255-56 (Ala. Civ. App. 1997)).
The father contends that the mother's failure to allege in her pro se petition that no viable alternative to the termination of the father's rights existed required the entry of a judgment on the pleadings in his favor. Certainly, we do not dispute the fact that, in order to terminate a parent's parental rights, a juvenile court must have before it clear and convincing evidence that no viable alternative to the termination of that parent's parental rights exists. See Ex parte Beasley, 564 So. 2d at 954. However, the fact that such proof is required to terminate parental rights does not necessarily equate to a requirement that a petition contain specific allegations of that element.3 See Traywick v. Kidd, 142 So. 3d 1189, 1194-95 (Ala. Civ. App. 2013). As we explained in Traywick, “[a] complaint requires only ‘ “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.” ’ ” 142 So. 3d at 1194-95 (quoting Ex parte Free, 910 So. 2d 753, 756 (Ala. 2005), quoting in turn Rule 8(a), Ala. R. Civ. P.). The father has presented no authority indicating that a petition for the termination of parental rights must contain any specific allegations, see Rule 28(a)(10), Ala. R. App. P. (requiring that an appellant support his or her argument with appropriate, relevant legal authorities), and we know of none.
Furthermore, because the mother's several allegations included that the father was a drug addict who had exposed the child to domestic violence, that the child had attended counseling to address his exposure to domestic violence, and that the child had indicated a desire not to have contact with the father, we cannot conclude that the juvenile court was required to have determined that the father was entitled to a judgment as a matter of law merely because he asserted that a viable alternative to the termination of his parental rights existed. Whether a particular alternative is a viable one is a question of fact for the juvenile court to resolve. J.A. v. Etowah Cnty. Dep't of Hum. Res., 12 So. 3d 1245, 1254 (Ala. Civ. App. 2009) (explaining that “[t]he determination of whether a viable alternative to termination exists in a given case is a question of fact” and that “the juvenile court is not required to accept any suggested alternative as ‘viable’ simply because it exists”). The mother's allegations, although not specifically directed to whether maintaining sole custody with her subject to supervised visitation by the father would not be a viable alternative, created a fact question regarding whether maintaining a relationship with the father was in the best interest of the child. Thus, even if we were to entertain the father's argument that the juvenile court erred by denying his motion for a judgment on the pleadings, we would reject that argument.
We turn next to the father's argument that the juvenile court should have stricken the mother's pro se petition based on her failure to sign it and her failure to include her address.4 Both the inclusion of a signature and an address are required by Rule 11(a), Ala. R. Civ. P., which reads, in pertinent part: “A party who is not represented by an attorney shall sign the pleading, motion, or other paper, and state the party's address.” The father is correct that a trial court may strike a pleading that does not meet the requirements of Rule 11(a). However, the key word is may.
“Rule 11(a) provides that, if a pleading is not signed or is signed with intent to defeat the purpose of the rule, it ‘may’ be stricken. A trial court, under the rule, is not required to strike an unsigned pleading. Thus, Rule 11(a) itself contemplates that even a pleading that violates Rule 11(a) can stand.”
State v. $93,917.50, 171 So. 3d 10, 16 (Ala. 2014). Although the father contends that the mother's failure to sign her petition should not be overlooked because of his right to due process, especially because this case involves termination of his fundamental right to parent, he does not explain how the mother's failure to sign the pro se petition impacted his due-process rights in any way. The father clearly received notice of the petition, was appointed counsel who ably represented him at trial, appeared on the first day of the two-day trial, and was permitted to testify on his own behalf. Based on our review of the record, it appears that the father received all process that he was due. Even had the failure of the mother to sign her pro se pleading violated the father's due-process rights, a proposition with which we do not agree, any possible error the juvenile court might have committed in failing to strike the mother's petition was harmless. See Rule 45, Ala. R. App. P. (“No judgment may be reversed or set aside ․ for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”). Accordingly, we cannot conclude that the juvenile court erred in failing to strike the mother's petition.
In his brief on appeal, the father points out that the record does not definitively demonstrate that the father was served with the mother's petition. However, his counsel entered a notice of appearance on August 27, 2019, filed a combined answer and motion to dismiss on September 11, 2019, filed various other motions on the father's behalf, and appeared and represented the father at the trial without ever asserting a lack of proper service before the juvenile court. Therefore, if service was not properly made, any error was waived. See C.M. v. Madison Cnty. Dep't of Hum. Res., 133 So. 3d 890, 893 (Ala. Civ. App. 2013) (explaining that the filing of a notice of appearance by counsel waives service of process); R.M. v. Elmore Cnty. Dep't of Hum. Res., 75 So. 3d 1195, 1200 (Ala. Civ. App. 2011) (explaining that a lack of proper service may be waived by the failure to raise the lack of proper service before the juvenile court or by a general appearance).
Finally, we turn to a consideration of the evidence underlying the juvenile court's judgment terminating the father's parental rights. The father contends that the evidence did not rise to clear and convincing evidence that warranted termination of his parental rights. He specifically argues that the evidence did not establish grounds for termination, the current conditions of the father, or that no viable alternatives to termination of his parental rights existed. He also contends that the juvenile court erred by terminating his parental rights for the convenience of the mother.
The evidence presented to the juvenile court indicated that the father had not visited the child since at least February 2018, after the altercation between the mother and the father. Although the father's more liberal visitation under the divorce judgment was significantly curtailed by the 2018 PFA order, he was not prohibited from visiting the child. The 2018 PFA order permitted the father one four-hour visit each week at the North Alabama Visitation Center, but the father never arranged for or attended those visits. The father sent the child a set of letters in June 2019, but, as explained above, those letters contained vulgar language and references to death and drug use that were considered by the mother to be inappropriate for the child.
“For the purposes of terminating parental rights, ‘abandonment’ consists of
“ ‘[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.'
“§ 12-15-301(1), Ala. Code 1975. ‘Abandonment implies an intentional act on the part of the parent.’ L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002).”
C.C. v. L.J., 176 So. 3d 208, 211 (Ala. Civ. App. 2015).
As the juvenile court found, the father had not maintained consistent contact or communication with the child and had withheld his presence, care, love, and protection, from the child.5 Those findings support the conclusion of the juvenile court that the father had abandoned the child. Thus, we conclude that the record contains ample evidence establishing as a ground for the termination of the father's parental rights his abandonment of the child.
The father also argues that the record lacks evidence of his current circumstances because he failed to appear at the August 4, 2020, trial proceedings. Indeed,
“ ‘[t]his 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 County Dep't of Human Res., 859 So. 2d 439, 444 (Ala. Civ. App. 2003).”
A.R. v. State Dep't of Hum. Res., 992 So. 2d 748, 760 (Ala. Civ. App. 2008). However, the requirement that a party seeking to terminate the parental rights of a parent present evidence regarding the current circumstances of a parent is related to the requirement that the juvenile court find by clear and convincing evidence that the parent is unable and unwilling to care for the child. See D.O. v. Calhoun Cnty. Dep't of Hum. Res., 859 So. 2d 439, 444 (Ala. Civ. App. 2003) (“[E]xistence 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.”). When a parent has abandoned his or her child and that abandonment has continued for the four months preceding the filing of a petition to terminate parental rights, our statutory law provides “[a] rebuttable presumption that the parent[ ] [is] unable or unwilling to act as [a] parent[ ].” § 12-15-319(d).
The juvenile court's finding that the father had abandoned the child absolved the mother of the requirement of presenting separate evidence regarding the father's current circumstances that would prove that he was currently unable or unwilling to act as a parent to the child. Instead, the father had the opportunity to present evidence rebutting the presumption of his unwillingness or inability to act as a parent. See C.F. v. State Dep't of Hum. Res., 218 So. 3d 1246, 1251 (Ala. Civ. App. 2016) (“[O]nce DHR proved that the mother had abandoned the child in the four months before it filed its petition, the juvenile court could presume that the mother was unable or unwilling to act as a parent, and the burden shifted to the mother to rebut that presumption.”). The father admitted on the first day of the trial that he had used heroin four days earlier, did not appear on the second day of the trial, and presented no convincing evidence indicating that he was currently able and willing to parent the child that would rebut the presumption created by his abandonment of the child. Thus, we reject the father's argument that the juvenile court erred by finding that he was unable and unwilling to parent the child despite a lack of evidence concerning his current conditions on August 4, 2020.
The father's argument that the juvenile court's conclusion that no viable alternative to the termination of his parental rights existed also lacks merit. As we explained in C.C., 176 So. 3d at 216, “a noncustodial parent who has abandoned his or her child does not have a sufficient familial relationship that merits due-process protection and ․ a juvenile court may terminate the parental rights of that parent without exhausting other viable alternatives if to do so would be in the best interest of the child.” The mother testified, and the guardian ad litem stated in his recommendation, that the child desired to be adopted by the stepfather, who had provided for him both financially and emotionally since the mother's marriage to him in 2018, and that the child's best interest would be served by terminating the father's parental rights so that the adoption could proceed.
Finally, we reject the father's argument that the juvenile court erred by terminating his parental rights merely for the convenience of the mother. To be sure, our appellate courts have in the past reversed judgments terminating the parental rights of one parent when the evidence of record indicated that the reason for the termination of those rights was not rooted in the harm that parent posed to the child but instead in the convenience to one or both of the child's parents. See Ex parte Brooks, 513 So. 2d 614, 617 (Ala. 1987); S.D.P. v. U.R.S., 18 So. 3d 936, 939 (Ala. Civ. App. 2009). As our supreme court explained in Ex parte Brooks, “[o]ur courts are entrusted with the responsibility of determining the best interest 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.” 513 So. 2d at 617. However, we have cautioned that, when the parent poses no danger to the child's welfare, the termination of parental rights is often too drastic an action for the law to permit. In its opinion reversing the termination of a father's parental rights based on his failure to maintain contact with and to support his child, the Brooks court explained:
“No evidence was produced at trial, and no argument has been made, that [the father] has harmed or has in any way interfered with [the mother's] custody of the child. Termination of the father's parental rights in this case would seem to us to be an unnecessarily drastic action not supported by clear and convincing evidence. Although we agree that [the father's] conduct toward his son may satisfy the criteria set forth in Ala. Code (1975), §§ 26-18-3 [now codified at § 12-15-301] and 26-18-7(c) [now codified at § 12-15-319(d)], as constituting ‘abandonment,’ termination of his parental rights appears to be overwhelmingly for the convenience of the parents.”
Id. at 617.
The evidence in the present case, however, is more substantial than mere proof of abandonment of the child by the father. The mother sought and received PFA orders based on the father's assault on her, which, according to the mother's testimony, occurred in the presence of the child. The 2018 PFA order specifically found that the father posed a credible risk to the safety of the child. In addition, the mother testified that the father had violated the 2018 PFA order by contacting the mother; some of his communications appeared to threaten the mother, the stepfather, or others close to her. According to the father's letters to the child, he had “died 3 times” and had others try to kill him, indicating that the father's lifestyle posed danger to himself and, therefore, potentially to the child. The father was admittedly addicted to heroin, which he had last used on approximately June 22, 2020, only four days before the first day of the termination-of-parental-rights trial and less than two months before the entry of the judgment terminating his parental rights. Although the child did not testify, the guardian ad litem and the mother indicated that the child did not desire a relationship with the father and wanted to be adopted by the stepfather. See A.J.H.T. v. K.O.H., 983 So. 2d 394, 401 (Ala. Civ. App. 2007) (considering evidence indicating that the children did not desire to visit with their mother, who the juvenile court determined had abandoned them, in affirming judgment terminating her parental rights). We cannot agree, therefore, that the juvenile court terminated the father's parental rights based solely on the convenience to the mother.
Having considered and rejected the father's several arguments in favor of reversal, we affirm the judgment of the juvenile court terminating the father's parental rights.
1. Section 12-15-319 was amended effective September 1, 2019, to redesignate former § 12-15-319(b) as § 12-15-319(c) and to add a new § 12-15-319(b), which provides that a parent convicted of rape in the first degree, sodomy in the first degree, or incest shall be deemed “unable to properly care for a child and to discharge his or her responsibilities to and for a child”; § 12-15-319 was again amended, effective March 11, 2020, to add § 12-15-319(a)(13), listing an additional factor for consideration by the juvenile court, to redesignate former § 12-15-319(c) as § 12-15-319(d), and to add a new § 12-15-319(c), which addresses when “[t]he juvenile court is not required to consider a relative to be a candidate for legal guardian of the child.” None of the additions to the statute are relevant in this particular case, so we need not address whether those additions apply despite the fact that the petition to terminate the father's rights was filed before the effective dates of the amendments. Nevertheless, in this opinion, we cite to the current provisions of § 12-15-319.
2. We presume that P. is P.P., the mother's current husband.
3. Former § 26-18-4, Ala. Code 1975, which governed petitions to terminate parental rights before the enactment of the current Alabama Juvenile Justice Act of 2008 (“the AJJA”), required that a petition seeking termination of parental rights contain solely an allegation that the petitioner was able and willing to assume custody of the child. The AJJA does not appear to have any section outlining required allegations for petitions to terminate parental rights.
4. The mother's address is included on the juvenile-court intake form attached to her petition.
5. The juvenile court also found that the father had withheld from the child his maintenance because he had not provided monetary support for the child. As noted above, the father was not required to pay child support by the divorce judgment, but he had been ordered to pay the costs associated with the child's after-school care and/or day care. The father had ceased paying those costs only a few months after the entry of the parties’ divorce judgment, resulting in the mother's having to withdraw the child from his day-care provider. However, the mother admitted that she had not communicated the costs of the child's after-school care to the father after that time, making the father's failure to pay those costs at least partly excusable. In light of the evidence supporting the conclusion that the father had withheld his presence, care, love, and protection from the [child], we need not determine whether the father's failure to provide monetary support for the child was “without good cause or excuse.” § 12–15–301(1).
All the judges concur.
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Docket No: 2190881
Decided: March 05, 2021
Court: Court of Civil Appeals of Alabama.
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