A.D. v. R.P.

• Citation: 345 So.3d 657
• Decision Date: 05 March 2021
• Docket Number: 2190881
• Parties: A.D. v. R.P.
• Court: Alabama Court of Civil Appeals

345 So.3d 657

A.D.

v.R.P.

2190881

Court of Civil Appeals of Alabama.

March 5, 2021

Rehearing Denied April 30, 2021

Certiorari Denied July 9, 2021

Alabama Supreme Court 1200568.

Charlie Andrew Bottoms, Jr., Florence, for appellant.

Carla Putman Maples, Florence, for appellee.

PER CURIAM.

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."

Furthermore,

"[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...