LM v. DDF

• Decision Date: 12 July 2002
• Citation: 840 So.2d 171
• Parties: L.M. v. D.D.F.
• Court: Alabama Court of Civil Appeals

840 So.2d 171

L.M. v. D.D.F.

2010595.

Court of Civil Appeals of Alabama.

July 12, 2002.

Robert F. Richardson, Jasper, for appellant.

Submitted on appellant's brief only.

THOMPSON, Judge.

On August 17, 2000, D.D.F. ("the mother") filed a petition in the Walker Circuit Court for an ex parte temporary restraining order against L.M. ("the father"), a petition seeking to terminate the father's parental rights to B.N.M. and A.M.M. (hereinafter "the children"), asserting that the father had abandoned the children, and a petition for a rule nisi. On August 17, 2000, the circuit court granted the mother's petition for a temporary restraining order.

On December 6, 2000, the mother filed a motion seeking to sever her petition to terminate the father's parental rights and seeking permission to refile that petition in the Walker County Juvenile Court. The circuit court granted that motion, and on December 7, 2000, the mother filed her motion seeking to terminate the father's parental rights in the Walker County Juvenile Court (hereinafter "the trial court"). On March 16, 2001, the father filed a motion to dismiss; the trial court denied that motion. The father filed an answer, a petition seeking to have the court hold the mother in contempt, a motion to dissolve the circuit court's August 17, 2000, temporary restraining order, and a counterpetition seeking to modify custody. On February 8, 2002, the trial court entered an order in which it terminated the father's parental rights to the children. The father filed a postjudgment motion; the trial court denied that motion. The father appealed.

A trial court's judgment entered following an ore tenus proceeding is presumed correct, and its decision will not be disturbed on appeal absent a showing of plain or palpable error. S.B. v. State Dep't of Human Res., 743 So.2d 470 (Ala.Civ. App.1999). In reviewing a case that involves the termination of a parent's parental rights, we note that

"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. Inasmuch as 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."

Ex parte Beasley, 564 So.2d 950, 952 (Ala. 1990). Therefore, this court has consistently held that "[e]very parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent's custody would be in the best interests of the child." A.R.E. v. E.S.W., 702 So.2d 138, 139 (Ala.Civ.App.1997).

When a custodial parent brings an action to terminate the other parent's parental rights, the court must apply a two-prong test in determining whether to terminate those rights.

"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. 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 at 954. A finding of dependency is not required when one parent seeks to terminate the other parent's parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).

Section 26-18-7, Ala.Code 1975, which sets forth the statutory authority for terminating parental rights, provides, in part:

"(a) 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. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

"(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.

"(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.

"(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.

"(4) Conviction of and imprisonment for a felony.

"(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.

"(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.

"(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:

"....

"(8) That parental rights to a sibling of the child have been involuntarily terminated.

"(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:

"(1) Failure by the parents 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.

"(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.

"(3) Failure by the parents to maintain consistent contact or communication with the child.

"(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."

The mother and father separated in September 1992; at that time, the parties were living in Coconut Creek, Florida. The parties were never married. After the parties' 1992 separation, the father moved to Hot Springs, Arkansas. Three weeks after the parties separated, the mother relocated to Ozona, Florida. The father testified that the mother did not notify him of her move or provide him with her new address and telephone number. According to the father, he located the mother by calling directory assistance "all over the state of Florida" and asking for the mother's telephone number. The mother admitted that she did not give the father her address and phone number in Ozona. The father testified that in February 1993, after he located the mother and the children in Ozona, he drove to Ozona and visited with the children for five days. The father stated that during that period, he stayed in the mother's house with the mother and the children.

The mother testified that after living in Ozona for one year, she and the children moved to Jasper, Alabama¹ and that she again did not notify the father of her move, her new address, or her new telephone number. The mother married J.F. (hereinafter "the stepfather") in July 1994. The mother testified that after she and the stepfather married, the parties moved to Florida while the stepfather sought a construction job. According to the mother the stepfather was unable to find a job, and after six months the mother, the stepfather, and the children returned to Jasper. The mother testified that she did not give the father her address or telephone number during the six months the parties lived in Florida. The father testified that he was unable to locate the children during that time. At the time of the hearing in this matter, the mother, the stepfather, and the children lived in Jasper, and the father lived in Hot Springs, Arkansas.

The father filed a petition in 1994 seeking visitation with the children; the record does not indicate the date on which the father filed that petition. The mother testified that neither she nor the children had had any contact with the father from the time she and the children initially moved to Jasper in late 1993 until the father filed his 1994 petition seeking visitation with the children. In October 1996, the trial court entered an order awarding the father one day of visitation with the children per month and four days of visitation during the Christmas holiday and ordering the father to pay child support of $248 per month. The mother testified that the father exercised his visitation rights during 1995 and 1996; that the father occasionally sent the children birthday gifts; and that the father had made some of the court-ordered child-support payments. The stepfather testified that the father "very rarely" telephoned the children between 1994 and the hearing in this matter.

The mother testified that the father exercised only the Christmas visitation with the children in 1996. According to the mother, when the father picked up the children for that visitation, the father told her that he was taking the children to Anniston to see his family. The mother testified that the father did not take the children to Anniston, but that the father took the children to Arkansas. The father admitted that he took the children to Arkansas during his 1996 Christmas visitation, but ...