C.C. v. L.J.

Citation176 So.3d 208
Decision Date06 March 2015
Docket Number2120534.
PartiesC.C. v. L.J.
CourtAlabama Court of Civil Appeals

Anne G. Burrowsof Hand Arendall LLC, Athens, for appellant.

Brief on application for rehearing filed by Michael C. Sizemore of Sizemore Law Group, Athens.

On Application for Rehearing and After Remand from the Alabama Supreme Court

PER CURIAM.

This court's opinion of January 16, 2015, is withdrawn, and the following is substituted therefor.

C.C. (“the father) appeals from a judgment of the Limestone Juvenile Court (“the juvenile court) to the extent that it terminated his parental rights to J.C. (“the child”) upon the petition of L.J. (“the mother). We affirm.

Procedural History
“The record reflects that the mother initiated a civil action against the father in the juvenile court in July 2012, requesting that the juvenile court establish the father's paternity of the child and that that court also terminate the father's parental rights on the basis that the father had purportedly abandoned the child and had failed to visit with or provide for the material needs of the child. The father, initially acting pro se, filed an answer generally denying the allegations of the mother's complaint pertinent to her termination request, but he did not deny paternity, and the juvenile court entered on order in September 2012 determining that the father was indeed the biological father of the child. The father, acting through counsel, then amended his answer and asserted a counterclaim seeking joint legal custody, visitation rights, and a child-support award for the benefit of the mother.
“After an ore tenus hearing, at which the mother, the father, and the mother's mother testified, the juvenile court entered a judgment in March 2013 terminating the father's parental rights, thereby implicitly denying the relief requested by the father in his counterclaim. The father timely appealed from the judgment of the juvenile court, and the judge of that court certified the record as adequate for review by this court pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P.

C.C. v. L.J.,176 So.3d 183, 184 (Ala.Civ.App.2013).

On appeal, the father first argued that the juvenile court lacked jurisdiction over the termination-of-parental-rights case. This court, on original submission, agreed and dismissed the appeal with instructions to the juvenile court to vacate its judgment. 176 So.3d at 185. On the mother's petition for a writ of certiorari, however, the supreme court reversed this court's decision, holding that the juvenile court did have jurisdiction over the case.Ex parte L.J.,176 So.3d 186, 207 (Ala.2014). The supreme court remanded the cause to this court for us to consider the father's remaining arguments, which had been pretermitted by this court on original submission because of our dismissal of the appeal. 176 So.3d at 194.

Discussion

The father argues that the juvenile court erred in terminating his parental rights because, he says, the judgment is not supported by clear and convincing evidence indicating that he was unable or unwilling to care for the child and because the juvenile court should have found that there existed a viable alternative to terminating his parental rights.

Grounds for Termination

Section 12–15–319, Ala.Code 1975, provides, 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 its judgment, the juvenile court concluded that the mother had presented clear and convincing evidence of grounds for termination; specifically, the juvenile court found that the mother had satisfactorily proven, among other things, that the father had abandoned the child, see12–15–319(a)(1), Ala.Code 1975, that the father had failed to provide for the material needs of the child, see§ 12–15–319(a)(9), Ala.Code 1975, that the father had not maintained consistent contact or communication with the child, see§ 12–15–319(a)(11), Ala.Code 1975, and that the father had not made sufficient effort to adjust his circumstances to meet the needs of the child, see§ 12–15–319(a)(12), Ala.Code 1975.

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). In Ex parte F.P.,857 So.2d 125, 138 (Ala.2003), our supreme court stated that [t]he definition of abandonment in [former] § 26–18–3(1)[, Ala.Code 1975,] ... recognizes excuse as a basis on which to avoid abandonment.”1Thus, 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. H.H. v. Baldwin Cnty. Dep't of Human Res.,989 So.2d 1094, 1103 (Ala.Civ.App.2007)(opinion on return to remand) (Per Moore, J., with two Judges concurring in the result); but see K.W.J. v. J.W.B.,933 So.2d 1075, 1080 (Ala.Civ.App.2005)(Murdock, J., dissenting) (arguing that the last two types of abandonment may be found without proof of purpose or intent).

Pursuant to § 12–15–319, a finding that a parent has abandoned a child must be based on clear and convincing evidence. “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(quoting Ala.Code 1975, § 6–11–20(b)(4)). On appeal from ore tenus proceedings, this court presumes the correctness of the juvenile court's factual findings. See J.C. v. State Dep't of Human Res.,986 So.2d 1172 (Ala.Civ.App.2007). This court is bound by those findings if the record contains substantial evidence from which the juvenile court reasonably could have been clearly convinced of the fact sought to be proved. See Ex parte McInish,47 So.3d 767 (Ala.2008)(explaining standard of review of factual determinations required to be based on clear and convincing evidence).

The relevant evidence submitted at the March 3, 2013, trial shows as follows. The mother testified that the child was born on November 13, 2008. She testified that the father did not contribute to any of the medical or hospital bills associated with the child's birth, but, she said, he was present at the hospital for the birth of the child and was listed on the child's birth certificate. The mother testified that, thereafter, the father had stayed with her and the child “for a few weeks ... at times convenient for [the father] and that, during that time, the father would “show up in the evenings.... He'd be there when supper was on the table but there was no true interaction between [the father] and [the child].” The mother testified that she had once asked the father to change the child's diaper, but, she said, he had refused, so she had never asked him again. The father did not see the child at all during the 2008 Christmas holidays. According to the mother, by January 2009, the father had stopped staying with the mother and the child. She testified that the father saw the child only sporadically in the months afterwards and that, even then, his interaction with the child “was very, very limited.”

According to the mother, in 2010, the father remained in contact with her, but he seldom asked about the child. The mother asserted that, during 2010, the father had stolen items from her garage, had forged checks in her name, had broken into her house and damaged her property, and had threatened her safety. She testified that, in April 2010, she obtained an ex parte protection-from-abuse order against the father and that, two days after that, he filed a paternity action seeking to establish the paternity of the child, custody, and visitation, although, the mother testified, he had not attempted to visit with the child at all in 2010. The mother testified that, on one occasion, she had arrived home to find the father riding “four-wheelers” nearby. She testified that, at that point, she had informed the father that they needed to formulate a visitation schedule pursuant to which she would have 24 hours' notice of any visits the father was contemplating. The father followed that plan on only one occasion. The mother testified that she and the child had visited the father's parents on Christmas Day in 2010. According to the mother, the father was present on that occasion, but, she said, he did not interact with the child or give the child any presents.

The mother testified that she did not see the father after Christmas 2010. She testified that the father had telephoned her in June 2011, leaving a message on her answering machine, but that she had not spoken with him. According to the mother, the paternity action was dismissed in October 2011,2and, she said, since that time, she had not had any contact with the father and the father had not made any attempts to telephone or to visit with the child. The mother testified that she had never refused any request by the father to visit with the child. She testified that the father had never been alone with the child and that the child did not know the...

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