J.W.M. v. Cleburne County Dhr

• Decision Date: 31 August 2007
• Docket Number: 2060505.
• Citation: 980 So.2d 432
• Parties: J.W.M. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

980 So.2d 432

J.W.M. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.

2060505.

Court of Civil Appeals of Alabama.

August 31, 2007.

Ronald E. Scarborough, Jr., Heflin, for appellant.

Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellee.

MOORE, Judge.

J.W.M. appeals from a judgment of the Cleburne Juvenile Court entered on February 22, 2007, terminating his parental rights. We affirm.

Background

J.W.M. ("the father") and K.P. ("the mother") are the biological parents of two children, T.M., born January 25, 2005, and J.J.M., born December 31, 2005. The Cleburne County Department of Human Resources ("DHR") took custody of the children within days of their births and have maintained custody ever since, with the children residing together in a foster home. On August 31, 2006, DHR filed a petition to terminate the father's and the mother's parental rights to the children. On December 15, 2006, the mother consented to the termination of her parental rights. Thereafter, the juvenile court conducted an ore tenus hearing on the petition to terminate the father's parental rights. On February 22, 2007, the juvenile court entered a judgment terminating the father's parental rights.

The father timely appealed to this court. In his brief on appeal, the father argues that the evidence was insufficient to terminate his parental rights.

Standard of Review

In reviewing a judgment based on ore tenus proceedings, a trial court's findings of fact will not be disturbed "`unless those findings are plainly and palpably wrong and not supported by the evidence.'" H.E.B., Jr. v. J.A.D., 909 So.2d 840, 842 (Ala.Civ.App.2005) (quoting Williams v. Lide, 628 So.2d 531, 534 (Ala. 1993)). However, "`the ore tenus rule does not extend to cloak a trial judge's conclusions of law, or incorrect application of law to the facts.'" H.E.B., Jr., 909 So.2d at 842 (quoting Eubanks v. Hale, 752 So.2d 1113, 1144 (Ala.1999) (opinion on return to second remand)). "`"The appellate courts do not sit in judgment of the facts, and [they] review the factfinder's determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law."'" Ex parte T.V., 971 So.2d 1, 9 (Ala.2007) (quoting Hinds v. Hinds, 887 So.2d 267, 272-73 n. 2 (Ala.Civ. App.2003), quoting in turn Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala.1985)). In cases in which a parent challenges the sufficiency of the evidence to support a judgment terminating his or her parental rights, this court is required to conduct a "careful search of the record," Moore v. State Dep't of Pensions & Sec., 470 So.2d 1269, 1270 (Ala.Civ.App.1985), to determine if clear and convincing evidence supports the judgment. Ala.Code 1975, § 26-18-7(a) (requiring clear and convincing evidence to support an order terminating parental rights); and Columbus v. State Dep't of Human Res., 523 So.2d 419, 421 (Ala.Civ.App.1987). See also L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App. 2002) ("Due to the serious nature of the action of terminating a parent's parental rights, this court must carefully review the unique set of facts established in each case in determining whether clear and convincing evidence was presented to support the termination of those rights."); and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that due process allows parental rights to be terminated only upon clear and convincing evidence of unfitness). "`"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."'" Ex parte T.V., 971 So.2d at 9 (quoting L.M. v. D.D.F., 840 So.2d at 179, quoting in turn, Ala.Code 1975, § 6-11-20(b)).

Applicable Law

Alabama Code 1975, § 26-18-7(a), a part of the 1984 Child Protection Act, § 26-18-1 et seq., Ala.Code 1975 ("the CPA"), sets forth the law regarding termination of parental rights. The CPA provides the grounds for termination of parental rights:

"If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child 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 or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents."

§ 26-18-7(a). The CPA further provides a list of various factors a juvenile court must consider in determining whether a parent, who has not abandoned a child, is unable or unwilling to discharge his or her responsibilities to and for the child. Those factors include:

"(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.

". . . .

"(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed."

§ 26-18-7(a)(2) & (a)(6). In addition, in cases in which a child is not in the physical custody of the parent, the CPA also requires the juvenile court to consider, among other things:

"(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review."

§ 26-18-7(b)(4).

The juvenile court is not limited to consideration of the factors set out in § 26-18-7. See Ala.Code 1975, § 26-18-7(a) ("the court shall consider ..., but not be limited to, the following...."); see also § 26-18-7(b). Accordingly, a juvenile court may consider other factors bearing on the question of whether grounds for termination of parental rights exist. See Brown v. Alabama Dep't of Pensions & Sec., 473 So.2d 533 (Ala.Civ.App.1985).

Our supreme court has declared that before a juvenile court may terminate a person's parental rights, it must conclude that there is no other viable alternative. Ex parte T.V., supra. In many cases, DHR has a duty to use reasonable efforts to attempt to rehabilitate the parents so as to remove any obstacles to family reunification. See Ala.Code 1975, § 12-15-65(g)(2) and -65(m); and Miller v. Alabama Dep't of Pensions & Sec., 374 So.2d 1370 (Ala.Civ.App.1979). In addition, Ala. Code 1975, § 12-15-71(a), lists several alternatives to termination of parental rights, including:

"(2) Place the child under protective supervision as herein provided or under the supervision of the Department of Human Resources."

See Hunley v. Houston County Dep't of Pensions & Sec., 365 So.2d 81, 84 n. 1 (Ala.Civ.App.1978); Miller v. Alabama Dep't of Pensions and Sec., supra. A juvenile court may terminate a person's parental rights only when clear and convincing evidence proves that the no other alternative is viable. T.V., supra.

Evidence Presented at the Termination Hearing

DHR called as its first witness Dr. Dana Davis, a psychologist. Dr. Davis performed a psychological evaluation of both the father and the mother on February 25, 2005. Based on that evaluation, Dr. Davis concluded that the mother had a long history of schizophrenia, depression, anxiety, noncompliance with psychotropic medication regimens, and illegal drug abuse and dependency. Dr. Davis found that the father did not have any mental or emotional condition that would affect his ability to parent the children. Dr. Davis indicated that the father had helped raise the children of other women with whom he had had a relationship in the past and that he had experience in parenting. Dr. Davis described the father as "a stable guy emotionally and otherwise." Dr. Davis opined that the only potential parenting problems with the father that she identified were that he worked long hours and that he would have to depend on others, especially the mother, to act as the children's primary caregivers.

Dr. Davis did not consider the mother to be able to properly care for the children. Dr. Davis testified that she would be concerned if the father remained in a relationship with the mother while the mother was still using illegal drugs. Dr. Davis testified that the father could not effectively parent the children so long as he continued his relationship with the mother because of the mother's inability to change. Dr. Davis stated that the father's recent break-up with the mother would not be enough to convince her that the father had ended his relationship with the mother because of the parties' past behavior. Dr. Davis also expressed that she would be concerned if the father had failed to work with DHR to develop a plan for him to slowly reunify with the children with him acting as the sole caregiver.

Dr. Davis was aware that the father had a prior history of alcohol abuse and illegal drug use, but she stated that she had been informed that the father was not actively using either substance. She stated that she would be concerned if the father had, in fact, used illegal drugs in the two years preceding the termination hearing. After discovering that the father had last tested positive for methamphetamine and marijuana in 2005, Dr. Davis testified that it appeared to her that the father had shown promise in discontinuing his use of drugs and that counseling sessions could assist him in handling his parental responsibilities. However, she later testified that she would be concerned if the father's counseling sessions had stopped in the six months before...