EX PARTE STATE DEPT. OF HUMAN RESOURCES

• Decision Date: 16 April 2004
• Citation: 890 So.2d 114
• Parties: Ex parte STATE DEPARTMENT OF HUMAN RESOURCES. (In re Y.M. v. Jefferson County Department of Human Resources).
• Court: Alabama Supreme Court

890 So.2d 114

Ex parte STATE DEPARTMENT OF HUMAN RESOURCES.

(In re Y.M. v. Jefferson County Department of Human Resources).

1020739.

Supreme Court of Alabama.

April 16, 2004.

William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for petitioner.

Joe W. Morgan III, Birmingham, for respondent.

PER CURIAM.

Three of Y.M.'s children were removed from her custody, were adjudicated dependent, and were placed in the custody of the Jefferson County Department of Human Resources ("DHR"). Subsequently, DHR petitioned to terminate Y.M.'s parental rights. The trial court conducted a hearing on DHR's petition on February 28, 2002. At the hearing the trial court admitted testimony and took judicial notice of the contents of the entire court file relating to each child.¹ The trial court then terminated Y.M.'s parental rights.

Y.M. appealed to the Court of Civil Appeals. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for further proceedings. Y.M. v. Jefferson County Dep't of Human Res., 890 So.2d 103 (Ala.Civ.App.2003). In a plurality opinion, the Court of Civil Appeals held that "when a juvenile court hears evidence on a petition to terminate parental rights, it is conducting an adjudication, not making a disposition, and hearsay is `not competent in a hearing on the [termination-of-parental-rights] petition.' § 12-15-65(h)[, Ala.Code 1975]." 890 So.2d at 112.

DHR filed a petition for a writ of certiorari with this Court. We granted the petition to determine whether the Court of Civil Appeals erred in holding that a termination-of-parental-rights hearing is an "adjudicatory hearing" at which hearsay is inadmissible and in finding that the trial court erred in taking judicial notice of the entire court file.

I.

Whether a termination-of-parental-rights hearing is an adjudicatory proceeding at which hearsay evidence is inadmissible.

In A.W.G. v. Jefferson County Department of Human Resources, 861 So.2d 400 (Ala.Civ.App.2003), a case released after Y.M., the Court of Civil Appeals explained its holding in Y.M. as follows: "The main opinion in Y.M. carefully reviewed the provisions of Ala.Code 1975, § 12-15-65(f) and (h), as well as § 12-15-71(a), and concluded `that a parental-rights-termination hearing is an adjudicatory proceeding at which hearsay evidence, which is permitted by § 12-15-65(h) in a dispositional proceeding, is inadmissible.'" 861 So.2d at 406.

We have reviewed the applicable statutory law and case-law, and we agree with the Court of Civil Appeals that a hearing at which the court considers the termination of parental rights is an adjudicatory proceeding. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); § 12-15-65(f) and (h), Ala.Code 1975; and § 12-15-71(a), Ala.Code 1975. In Santosky, the United States Supreme Court examined the procedure in the State of New York for terminating parental rights. The Court noted that the State of New York bifurcates its proceeding into a fact-finding phase and a dispositional phase. 455 U.S. at 748, 102 S.Ct. 1388. In the fact-finding phase, the trial court must determine that the child has been "permanently neglected." During this phase the State of New York must prove that the natural parents are at fault and that they are clearly unfit to raise their own children. Indeed, the natural parents and the State of New York are adversaries. 455 U.S. at 759-60, 102 S.Ct. 1388. If the trial court finds the parents unfit, then the trial court enters the dispositional phase, at which it decides what placement would be in the best interest of the child. 455 U.S. at 760, 102 S.Ct. 1388.

Similar to the statutory scheme established by the New York Legislature, our Legislature has established a bifurcated process by which parental rights are terminated. During the adjudicatory or fact-finding phase, the trial court determines "from clear and convincing evidence, competent, material, and relevant in nature, that the parents are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct is unlikely to change in the foreseeable future." § 26-18-7(a), Ala.Code 1975. The Alabama Court of Civil Appeals in In re Colbert, 474 So.2d 1143 (Ala.Civ.App.1985), and its progeny set out the following test to be applied when the State petitions for the termination of parental rights:

"[T]he court must apply what is essentially a two-prong test. First, the court must find from clear and convincing evidence that the child is dependent. § 12-15-65(e), Code of Alabama 1975. See § 26-18-7(a), Code of Alabama 1975; Brown v. Alabama Department of Pensions and Security, [473 So.2d 533 (Ala.Civ.App.1985)]. Once dependency is found, our court has stated that the trial court must determine whether less drastic measures than termination of parental rights would best serve the interest of the child. See Glover v. Alabama Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981); Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.1979)."

474 So.2d at 1145. See Ex parte Beasley, 564 So.2d 950 (Ala.1990)(establishing that trial court must find that grounds for termination exist and that all viable alternatives to the termination of parental rights have been considered before it can terminate a parent's rights). See also A.W.G., supra; S.B.L. v. Cleburne County Dep't of Human Res., 881 So.2d 1029 (Ala.Civ.App.2003); and H.M.W. v. Mobile County Dep't of Human Res., 631 So.2d 1049 (Ala.Civ.App.1993). The court in In re Colbert further held that only after the trial court has found that grounds for terminating parental rights exist and that there is no viable alternative to the termination of parental rights can the court terminate the parental rights. After the trial court enters its order terminating the parent's rights, it is authorized pursuant to § 12-15-65(f), Ala.Code 1975, to make proper disposition of the case, pursuant to § 26-18-8, Ala.Code 1975.² The order of the trial court terminating a parent's rights to her child once affirmed on appeal is permanent. State Dep't of Human Res. v. Thomas, 554 So.2d 1063 (Ala.Civ.App.1989)(holding that Child Protection Act provides for permanent placement and permanent custody of child once parental rights have been terminated).

Because of the finality of a trial court's determination to terminate a parent's rights, the proceeding in the trial court is clearly an adjudicatory proceeding. Therefore, we agree with the Court of Civil Appeals that a proceeding to terminate a parent's rights pursuant to § 26-18-7, Ala.Code 1975, is an adjudication.

We further recognize, as did the Court of Civil Appeals, that only competent, material, and relevant evidence may be admitted during an adjudicatory proceeding to terminate a parent's rights. See § 12-15-65(f) and § 26-18-7(a), Ala.Code 1975. Additionally, we acknowledge, as did the Court of Civil Appeals, that hearsay evidence is not considered competent evidence in an adjudicatory proceeding, unless it falls within one of the exceptions provided by the Alabama Rules of Evidence, other rules adopted by this Court, or by statute.³ Rule 802, Ala. R. Evid. Hearsay evidence is admissible at an adjudicatory hearing if it falls within one of the exceptions provided in Rules 803 and 804, Ala. R. Evid. For example, Rule 803(6), Ala. R. Evid., provides that records of regularly conducted activity are not excluded by the hearsay rule. See L.A.C. v. State Dep't of Human Res., [Ms. 2020794, October 24, 2003] ___ So.2d ___ (Ala.Civ.App.2003)(analyzing a report prepared by employee of a hospital intervention program to determine if it was admissible as a business record pursuant to Rule 803(6), Ala. R. Evid.). Thus, hearsay evidence is admissible at a termination-of-parental-rights proceeding only if it falls within one of the exceptions recognized in Rule 802, 803, or 804, Ala. R. Evid.

II.

Whether a trial court can take judicial notice of the entire court file during a termination-of-parental-rights hearing.

A judge may take judicial notice of his own court's records. Lyle v. Eddy, 481 So.2d 395, 397 (Ala.Civ.App.1985). The Court of Civil Appeals held, however, that "`[w]holesale judicial notice of all matters occurring prior to the unfitness hearing is unnecessary and inappropriate, and a trial court should only take notice of those portions of the underlying court files that have been proffered by the State and to which the respondent is given an opportunity to object.'" Y.M., 890 So.2d at 113, quoting In re J.P., 316 Ill.App.3d 652, 663, 737 N.E.2d 364, 372, 249 Ill.Dec. 974, 982 (2000). The Court of Civil Appeals has further recognized that "a trial court may take judicial notice of its own prior orders in a pending case. See 2 Charles W. Gamble, McElroy's Alabama Evidence § 484.02(2) (5th ed.1996); Richardson v. Richardson, 531 So.2d 1241 (Ala.Civ.App.1988)." A.W.G., 861 So.2d at 406.

In this case, the trial court could take judicial notice of the contents of the court files to the extent it considered previous court orders, evidence admissible under an exception to the hearsay rule, and testimony and evidence admitted at any previous adjudicatory proceedings such as when the children were determined to be dependent. See, e.g., Simmons v. Dep't of Human Res., 500 So.2d 1146 (Ala.Civ.App.1986)(adjudicatory proceeding at which child was determined to be dependent); Dale County Dep't of Pensions & Sec. v. Robles, 368 So.2d 39, 42 (1979)(adjudicatory proceeding at which child was determined to be dependent). Cf. In re Adkins, 298 N.W.2d 273, 277 (Iowa 1980)(recognizing that a court at a termination-of-parental-rights hearing may take judicial notice of the underlying...