Opinion
CL-2022-1244 CL-2022-1245
08-11-2023
B.B.v. J.P.
Angela Cochran Morgan, Fort Payne, for appellant.
Angela Cochran Morgan, Fort Payne, for appellant.
Submitted on appellant’s brief only.
EDWARDS, Judge.
In August 2022, J.P. ("the custodian") filed in the DeKalb Juvenile Court ("the juvenile court") petitions seeking to terminate the parental rights of B.B. ("the mother") to M.G. and M.B. ("the children"); those petitions were assigned case numbers JU-20-255.02 and JU-20-256.02, respectively. After a trial held in November 2022, the juvenile court entered a separate judgment in each action on December 9, 2022, terminating the mother’s parental rights to the children. In those judgments, the juvenile court found that the mother’s "absence from [the children] constitutes an abandonment from [them]." The mother filed notices of appeal to this court on December 14, 2022.
At trial, the custodian presented his own testimony and the testimony of Tina Rucks, the court-appointed special advocate ("CASA"). The custodian testified that he was the legal father of M.B. and that he had been awarded custody of the children by previous orders entered by the juvenile court. The custodian admitted that the mother had been awarded visitation with the children by an order entered by the juvenile court in each action in May 2022. He explained that the mother had exercised visitation with children "for a little while" and also that she had "visited occasionally, but she didn’t very often." He said that, when the mother had not visited, she had provided "the same reason she’s not [present at the trial], her car is messed up or she had something else coming up or …." According to the custodian, he had permitted the mother to exercise the visitation provided for in the May 2022 orders "until she failed a drug test and I was advised not to." Although the custodian later stated that he had denied the mother visitation because she had failed multiple drug tests, he then clarified that he had denied the mother visitation under the May 2022 orders after the mother had failed a hair-follicle drug test. He then explained that the decision to deny the mother visitation was made by a "general consensus of everybody involved" in the lives of the children, which, he said, included his wife and his parents.
The record does not contain a copy of the May 2022 orders, and neither the custodian nor Rucks testified about the specific provisions relating to the mother's visitation, i.e., its frequency, its duration, or whether it was supervised or unsupervised.
The custodian did not indicate that he had been given legal advice. His later testimony regarding the consensus reached with his parents and his wife, which is mentioned infra, would support the conclusion that the advice he received was not from legal counsel.
The custodian further stated that the mother had attempted to contact the children "[a] time or two, not very often." He admitted that, when the mother had contacted him to inquire about seeing or speaking with the children, he had told her "no." When asked specifically about how often the mother had been refused contact when she telephoned to speak with the children, the custodian’s answer was a "couple [of times] or three, probably. I don’t know." When pressed further regarding whether the mother had made attempts to be involved in the children’s lives, the custodian had answered "yes."
The custodian also testified that, after he had denied her visitation with the children because of the positive hair-follicle drug test, the mother had not "done anything because I have not allowed her to see … or talk to [the children]." When questioned by the guardian ad litem regarding an apparent attempt to set up the mother’s visitation at a visitation center, the custodian indicated that he believed that such an attempt may have been made and that the mother may not have followed through with that attempt. He stated, however, that he was not "100 percent" certain about any such attempt. When asked, the custodian indicated that the mother had not provided financial support for the children, that she had not consistently maintained employment, and that she had lived in multiple residences. When asked whether the mother had remained drug free, he indicated that she had not.
Rucks testified that she had been involved with the mother for nearly two years and that she had attempted to find the mother the help that she needed. According to Rucks, the mother had lived in six different residences and had been involved with at least six or seven different men during the two years that Rucks had served as the CASA appointed to this matter. Rucks testified that the mother had secured two jobs during the previous two years but that she had lost both of those jobs less than two weeks after she had secured them.
Rucks testified that she had concerns about the mother’s continued involvement with the children based on screenshots the mother had sent to her; Rucks commented that "there is a lot of drama." Rucks indicated that M.G., the older of the children, who was approximately five years old at the time of the trial, was traumatized over the mother’s absence from her life. Rucks said that M.G. had asked what the mother had done and why she could not see her. Rucks testified that the mother had made "multiple" attempts to see and to contact the children but that she had not been permitted to do so by the custodian.
The termination of parental rights is governed by Ala. Code 1975, § 12-15-319. That statute reads, 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 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[ ] [has] 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[ ].
"….
"….
"(d) 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."
"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."
[1, 2] As previously noted, the custodian is the father of only one of the children. Thus, the juvenile court was required to apply two different standards to his petitions to terminate the mother’s parental rights. When considering a petition to terminate parental rights,
"unless the petitioner is a parent of the child, the court must make a ‘finding of dependency.’ [Ex parte Beasley,] 564 So. 2d [950,] 954 [(Ala. 1990)]. For a finding of dependency, the court must consider whether there are grounds for terminating the parental rights, including but not limited to the grounds specified in [Ala. Code 1975,] § 26-18-7. 564 So. 2d at 954. After making a finding of dependency, the court must ensure that ‘all viable alternatives to a termination of parental rights have been considered.’ 564 So. 2d at 954."
Section 26-18-7, Ala. Code 1975, was amended and renumbered as Ala. Code 1975, § 12-15-319, in January 2009.
Ex parte T.V., 971 So. 2d 1, 4-5 (Ala. 2007) (footnote omitted). In those cases in which one parent seeks to terminate the parental rights of the other parent, a juvenile court "must [first] determine whether grounds exist for terminating parental rights" by considering the evidence relating to the factors set out in § 12-15-819(a) and then must "consider whether all viable alternatives to terminating parental rights have been exhausted," Ex parte J.E., 1 So. 3d 1002, 1006-08 (Ala. 2008).
[3, 4] 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., 148 So. 8d 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)).
[5] The mother contends, and we agree, that the record lacks clear and convincing evidence indicating that the mother’s parental rights should be terminated. She specifically contends that the evidence presented at trial was insufficient to establish that she had abandoned the children. In fact, the testimony unequivocally established that the custodian had exercised complete control over the mother’s ability to visit with and to contact the children. Although the custodian may have been granted the ability to curtail or cancel visitation when the mother tested positive for illegal substances or appeared to be intoxicated, a fact we are unable to determine because we do not have a copy of the judgment awarding the custodian custody of the children or the May 2022 orders relating to the mother’s visitation rights with the children, the custodian Indicated that he had denied the mother visitation beginning at some unspecified point when she tested positive on a hair-follicle drug test and on all occasions after that occurrence. Both the custodian and Rucks indicated that the mother had attempted or requested visitation or contact with the children, with Rucks testifying that the mother had requested visitation on multiple occasions.
The custodian indicated that he had denied the mother the opportunity to speak with the children when she telephoned after 8:00 p.m., but he later indicated that he had simply not allowed the mother any contact after the positive hair-follicle drug test and the consensus reached by him and his family regarding the mother's right to visit.
[6] "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) (construing Ala. Code 1975, former § 26-18-3(1), the predecessor statute to § 12-15-301(1)). This court has explained that abandonment must typically result from the voluntary act of a parent. V.G.J. v. Tuscaloosa Cnty. Dep’t of Hum. Res., 368 So. 3d 886, — (Ala. Civ. App. 2022) (concluding that a mother’s deportation could not serve as the basis of a finding that she had abandoned her children); see also J.B. v. DeKalb Cnty. Dep’t of Hum. Res., 12 So. 3d 100, 111 (Ala. Civ. App. 2008) (plurality opinion) (stating that, "if the [parent] was, in fact, unintentionally, involuntarily, or justifiably prevented from interacting with the children as a parent, then his [or her] conduct cannot be considered abandonment"). That is, "a juvenile court may premise a finding of abandonment only upon evidence indicating that a parent voluntarily, intentionally, and unjustifiably committed the actions or omissions set out in § 12-15-301, Ala. Code 1975." C.C. v. L.J., 176 So. 3d 208, 211 (Ala. Civ. App. 2015).
The evidence in the present case does not clearly and convincingly demonstrate that the mother abandoned the children. Instead, it supports the conclusion that the mother had made attempts to visit and to maintain contact with the children but that her attempts had been rebuffed and refused by the custodian. The juvenile court’s conclusion that the mother had abandoned the children, therefore, is not properly supported by the evidence and cannot serve as the basis for terminating the mother’s parental rights.
The custodian bore the burden of establishing, by clear and convincing evidence, the grounds for the termination of the mother’s parental rights to the children. See S.D.P. v. U.R.S., 18 So. 3d 936, 940 (Ala. Civ. App. 2009) (reversing the judgment terminating a father’s parental rights when the mother in that case had failed to prove grounds for termination by clear and convincing evidence). He failed to do so. Accordingly, the judgments terminating the mother’s parental rights to the children are reversed, and the cases are remanded for the entry of a judgment consistent with this opinion.
CL-2022-1244 — REVERSED AND REMANDED.
CL-2022-1245 — REVERSED AND REMANDED.
Hanson and Fridy, JJ., concur.
Thompson, P.J., and Moore, J., concur in the result, without opinions.