Ex Parte J.E.

• Citation: 1 So.3d 1002
• Decision Date: 09 May 2008
• Docket Number: 1060874.
• Parties: Ex parte J.E. (In re J.E. v. V.C.E.).
• Court: Supreme Court of Alabama

1 So.3d 1002

Ex parte J.E.

(In re J.E. v. V.C.E.).

1060874.

Supreme Court of Alabama.

May 9, 2008.

Rodney L. Ward, Gadsden, for petitioner.

John D. McCord of McCord & Martin, Gadsden, for respondent.

PER CURIAM.

On June 8, 2007, this Court granted the petition for a writ of certiorari filed by J.E. ("the father") to review the no-opinion affirmance by the Court of Civil Appeals of the Etowah District Court's order terminating his parental rights as to the minor child born of his marriage to V.C.E. ("the mother"). For the reasons stated herein, we reverse and remand.

Facts

We note that this case does not involve a stepparent who is seeking to adopt a child and fulfill parental responsibilities to the child in place of the biological parent. This case also does not involve the termination of parental rights in a dependency matter as a step toward providing a child with permanent placement in a safe environment, as is often the case when, for example, the State petitions a court to terminate parental rights. The child here, whose best interests are the ultimate concern in this case, is residing with the custodial parent, the mother.

The father and the mother married, had a child, and, in January 1999, divorced. The child was three years old when the parents divorced. The mother was awarded sole legal and physical custody of the minor child; the father was granted visitation rights and was ordered to pay child support in the amount of $766.96 per month. The mother and father reconciled in June 1999, and the reconciliation lasted until January 2001.

The father irregularly paid child support, and the mother filed a petition in the Etowah Circuit Court seeking to have the father held in contempt. The parties reached an agreement regarding custody and support, and on December 12, 2002, Judge William H. Rhea III entered an order enforcing the parties' agreement. The circuit court's order held the father in contempt for failure to pay child support; awarded the mother a judgment in the amount of $12,169.27 for past-due child support and $55.15 for past-due dental expenses for the child; reduced the father's child-support obligation to $102 per week; and ordered the father to pay $18 per week toward the arrearage. The order further stated that "[t]he failure of the [father] to make one child support payment will result in this Court issuing a Pick Up Order which will incarcerate the [father] in the Etowah Detention Center for a period of 30 days."

The mother later filed a second contempt petition in the Etowah Circuit Court. Judge Rhea granted her petition. By an order entered December 16, 2003, the circuit court ordered the father to be jailed for 30 days or until the father made a $1,000 cash child-support payment;¹ further reduced the father's child-support obligation to $50 per week "due to [the father's] being without a job"; and ordered the father to inform his attorney of record when he obtained employment so that his child-support obligation could be recalculated accordingly. In addition, Judge Rhea's December 16, 2003, order stated:

"Due to the fact that the [father] admitted in open court to his continued use of drugs, and, further, due to the testimony of the [mother] with regard to the [father's] recent actions,² the [father] will not be allowed to have visitation rights until he can prove to this Court that he has rehabilitated himself to the point where he is a worthy candidate for visitation with said child."

On March 30, 2006, the mother filed a petition in the District Court of Etowah County to terminate the father's parental rights.

On May 1, 2006, the district court held a detailed hearing on the mother's petition, during which both the mother and the father testified. The district court heard evidence as to the father's child-support payments and child-support arrearage, his sporadic attempts at contact and visitation with the child, and his criminal record. The district court also heard allegations that the father had used drugs in the past and that he had shown up at the mother's house in an altered mental state demanding to be allowed to visit the child.³

On May 8, 2006, the district court judge, Judge William D. Russell, Jr., entered an order containing the following findings of fact and conclusions of law:

"It should be noted that the father has made no effort to have Judge Rhea modify [the circuit court's December 16, 2003, order suspending visitation]. According to the testimony of the mother in the present hearing, the father attempted to visit the child only twice from June 2003 through the date of the hearing. The last attempted visit by the father was on January 26, 2005. Contrary to Judge Rhea's order, the mother offered to allow supervised visitation in her home, but refused any unsupervised visitation. The father made no attempt to contact the child after 01/26/2005 until a telephone call to the mother's place of employment in February 2006. Paragraph 6 of Judge Rhea's Order of 12/16/2003 further required the father to immediately notify his attorney and the mother's attorney `upon his being re-employed.' The testimony in the present hearing further revealed that the father is currently employed, earning $12 per hour. Obviously, he failed to report that increased income to his attorney, to the mother's attorney, or to Judge Rhea, so as to have his weekly child support obligation increased. The father is very content to continue paying $50.00 per week. The father strongly objects to the termination of his parental rights, and points to the fact that he has paid his $50.00 per week child support on a regular, continuous basis since December 2003.

"The statute [Ala.Code 1975, § 26-18-7,⁴ ] requires in subsection (a) that the Court consider eight factors, which it has done. The primary factors demonstrated by the evidence with respect to the father are subsections (a)(1) and (b)(1). He has in effect voluntarily relinquished his parental rights by failing to re-petition Judge Rhea to reinstate his visitation rights. He tries to blame the mother's refusals as the reason for his lack of contact. His blame is misplaced. Visitation was not at the discretion of the mother. Judge Rhea had indefinitely suspended all visitation. The father should have re-petitioned Judge Rhea first. He has failed to `provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.' As to the father, the Court found no evidence of the factors listed in subsection (a)(2), (3), (4), (5), (7), and (8). Subsection (b) requires several additional judicial considerations. The Court found ample evidence of the factors in subsections (b)(1), (2), (3), and (4). As to subsection (4), the father has clearly demonstrated his inability and unwillingness to adjust his circumstances to meet the needs of the child.

"IT IS THEREFORE ORDERED ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:

"(1) All parental rights of the father ... with and to [the child] are hereby permanently terminated."

(Capitalization in original; second emphasis added.)

On May 16, 2006, the father appealed the district court's judgment to the Alabama Court of Civil Appeals. That court affirmed the district court's judgment without an opinion. Presiding Judge Crawley filed an opinion, dissenting from the no-opinion affirmance. J.E. v. V.C.E, 1 So.3d 1001 (Ala. Civ App.2006) (Crawley, P.J., dissenting).

The father then filed a petition for the writ of certiorari to this Court. This Court granted the petition. The father argues that the Court of Civil Appeals erred in affirming the district court's judgment because, he argues, that court improperly considered the factors outlined in Ala.Code 1975, § 26-18-7(b), which applies when a child is "not in the physical custody of its parent"; concluded without sufficient evidence that the father had abandoned the child; and failed to consider viable alternatives to the termination of the father's parental rights.

Standard of Review

"[T]he primary focus of a court in cases involving the termination of parental rights is to protect the welfare of the children and at the same time to protect the rights of their parents." Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990); see also Ala.Code 1975, § 26-18-2, a part of Alabama's Child Protection Act, § 26-18-1 et seq. "The right to parent one's child is a fundamental right," K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003), and because "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.

Where, as here, the custodial parent petitions to terminate the parental rights of the noncustodial parent, the trial court's analysis consists of two parts. 564 So.2d at 954. First, the trial court must determine whether grounds exist for terminating parental rights. 564 So.2d at 954. Grounds exist for terminating parental rights if the parent in question is "unable or unwilling to discharge [his] responsibilities to and for the child, or ... the conduct or condition of the parent[] is such as to render [him] unable to properly care for the child and ... such conduct or condition is unlikely to change in the foreseeable future." Ala.Code 1975, § 26-18-7(a) (stating that, under such conditions, a court "may terminate the parental rights of the parent[]"). A trial court's order terminating parental rights must be based on "clear and convincing evidence, competent, material, and relevant in nature." Ala.Code 1975, § 26-18-7(a).

In determining whether such grounds exist, factors for the trial court's consideration include, but are not limited to, those grounds set forth in Ala.Code 1975, § 26-18-7. Beasley, 564 So.2d at 954. The factors set forth in Ala.Code 1975, § 26-18-7, are as follows:

"(a) ... In determining whether or not the parents are unable or unwilling to...