Ex Parte T.V.

• Decision Date: 12 January 2007
• Docket Number: 1050365.
• Citation: 971 So.2d 1
• Parties: Ex parte T.V. (In re T.V. v. B.S.).
• Court: Alabama Supreme Court

971 So.2d 1

Ex parte T.V. (In re T.V. v. B.S.).

1050365.

Supreme Court of Alabama.

January 12, 2007.

Rehearing Denied February 9, 2007.

Thomas H. Guthrie, Athens, for petitioner.

Brian C.T. Jones of Jones & Ayers, L.L.C., Athens, for respondent.

On Application for Rehearing

SEE, Justice.

This Court's opinion of December 15, 2006, is withdrawn, and the following is substituted therefor.

T.V., the mother of N.V., appeals the trial court's termination of her parental rights. Because the trial court failed to find by clear and convincing evidence that there was no viable alternative to terminating T.V.'s parental rights, we reverse its judgment and remand the case.

Facts and Procedural History

T.V. began using drugs in the 1980s and became addicted to crack cocaine in the 1990s. She continued to use crack cocaine while she was pregnant with N.V., her second child, who was born on June 2, 1999. While she was pregnant with N.V., T.V. sought assistance from the Department of Human Resources ("DHR") because, as a result of her drug addiction, she was homeless, was without employment or transportation, and was unable to perform her parental duties. She was also facing criminal misdemeanor charges.

Shortly after N.V.'s birth, DHR filed a dependency petition with regard to N.V. because of concerns about T.V.'s homelessness, drug use, and incarceration pending the criminal charges. N.V. was adjudicated dependent, and an agreement was reached among T.V., DHR, and B.S., an acquaintance of T.V.'s,¹ that B.S. would have physical custody of N.V. and that T.V. would be allowed visitation as agreed between B.S. and T.V. There was a one-year period following the adjudication of dependency during which DHR attempted to reunite T.V. and N.V. DHR prepared an individual service plan ("ISP") addressing T.V.'s housing and drug problems, but it could not prepare a home study because T.V. was homeless. T.V. failed to comply with drug treatment recommended by the ISP; instead, she agreed to the permanent placement of N.V. with B.S. The next year, the trial court with jurisdiction over the dependency petition vested permanent legal and physical custody of N.V. in B.S., with T.V.'s consent, although the trial court retained jurisdiction to reopen the custody award. The award of permanent custody marked the end of DHR's involvement in the case; at that time T.V. was still addicted to crack cocaine.

Both the court's order and the record in the termination-of-parental-rights case establish that T.V. has now met the goals DHR originally set for her. She is no longer homeless, and she has dealt with her drug problem. She reconciled with and married D.R.V., the father of her first child. Through involvement with their church, T.V. and D.R.V. have quit using illegal drugs. T.V. testified that she has been drug-free since July 20, 2002. T.V. ministers to people with substance-abuse problems. She has maintained employment since July 20, 2002, with short interruptions. She has voluntarily contributed small amounts to N.V.'s support; these amounts total $270 since 2004.

T.V. testified that she first attempted to reestablish visitation with N.V. in 2002. She asserts that she understood that "B.S. was willing to help her in raising her son during the period of her drug addiction but would be willing to help facilitate the reunification of mother and child should T.V. overcome her drug addiction." T.V.'s brief at 8-9. However, according to T.V., B.S. and her husband, C.S., discouraged the reunification, not returning T.V.'s telephone calls or responding to notes T.V. left at B.S.'s house. On "numerous occasions," T.V. claims, she went to B.S.'s residence to see N.V., but B.S. would leave the residence with him and not allow T.V. to visit him. C.S. testified, to the contrary, that T.V. visited N.V. only four to six times from 1999 to 2000, and that, from 2000 until the petition was filed in March 2004, she did not visit at all.

Believing that B.S. was resisting her efforts to reunite with N.V., T.V. moved the trial court for visitation rights; the trial court awarded her one hour of supervised visitation each week. In March 2004, B.S. filed in the trial court the current petition to terminate T.V.'s parental rights. T.V. moved the court for additional visitation, but it terminated her parental rights before ruling on her motion.

The Court of Civil Appeals affirmed the trial court's judgment, without an opinion. T.V. v. B.S. (No. 2040406, Oct. 7, 2005), ___ So.2d ___ (Ala.Civ.App.2005) (table). T.V. petitioned for, and this Court granted, certiorari review.

Issue

The issue before this Court is whether the trial court exceeded its discretion when it found that B.S. had presented clear and convincing evidence indicating that terminating T.V.'s parental rights was in N.V.'s best interest. T.V. argues that the trial court failed to consider her improved conduct and circumstances in making its decision to terminate her parental rights, that DHR failed in its duty to make efforts toward reuniting N.V. and T.V., and that B.S. had prevented contact between T.V. and N.V. in order to perpetuate the child's dependency as adjudicated.

Standard of Review

In order to terminate parental rights, the trial court must find by clear and convincing evidence that the child is dependent and that an alternative less drastic than termination of parental rights is not available. Ala.Code 1975, §§ 12-15-65(e), 26-18-1 to 26-18-10; Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). "The trial court's decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong." Ex parte State Dep't of Human Res., 624 So.2d 589, 593 (Ala.1993). "This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility." Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001). However, the party seeking to terminate parental rights has the burden to present clear and convincing evidence showing that the parent is not capable or is unwilling to discharge his or her parental responsibilities and that there are no viable alternatives to terminating parental rights. Ex parte Ogle, 516 So.2d 243, 247 (Ala.1987); see also K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (holding that the party seeking to terminate the parental rights of another bears the burden of proving that termination of those rights is the appropriate remedy).

Analysis

When deciding whether to terminate parental rights, "the primary focus of a court ... is to protect the welfare of children and at the same time to protect the rights of their parents." Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). Thus, "a court should terminate parental rights only in the most egregious of circumstances." Id. Beasley set forth a two-pronged test that must be applied in terminating an individual's parental rights. First, unless the petitioner is a parent of the child, the court must make a "finding of dependency." 564 So.2d at 954. 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 § 26-18-7.² 564 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.

"Once the court has complied with this two-prong test — that is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child — it can order the termination of parental rights."

564 So.2d at 954-55.

The Court of Civil Appeals has "consistently held that the existence of evidence of current conditions or conduct relating to a parent's inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence." D.O. v. Calhoun County Dep't of Human Res., 859 So.2d 439, 444 (Ala. Civ.App.2003); see also P.H. v. Madison County Dep't of Human Res., 937 So.2d 525, 531 (Ala.Civ.App.2006) (quoting D.O.).

T.V. argues on appeal that the trial court failed to give proper consideration to T.V.'s current conditions and conduct when it applied the two-pronged test and thus that the court's decision was plainly and palpably wrong. According to T.V., the factors that contributed to N.V.'s dependency no longer exist: T.V. provides some monetary support for N.V.; she exercises visitation; she married the father of her first child; she has proper housing, employment, and transportation; she is sober and drug-free; she regularly attends church; and she counsels others combating drug addiction.

A. Dependency

The trial court made a finding of dependency as to N.V., stating that there was

"clear and convincing evidence, competent, material and relevant in nature that [T.V.] is unable to discharge her responsibilities to and for [N.V.] and [her conduct and condition is] such as to render her unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future."

The court recognized that many of the concerns that had led to the finding of dependency immediately after N.V.'s birth in 1999 no longer exist; however, the court concluded that T.V. had periodically abandoned N.V. and that "very little effort had been made by the mother to visit her child.... [T.V.] proffered the excuse that [B.S. and her family] did not make her feel welcome but the Court does not find that to be a reasonable excuse" because T.V. had other means, including the courts, to enforce visitation. Ultimately, the trial court again found that N.V....