M.B. v. J.S. (Ex parte M.B.)
| Citation | 327 So.3d 1163 (Mem) |
| Decision Date | 04 December 2020 |
| Docket Number | 1190720 |
| Parties | EX PARTE M.B. (In re: M.B. v. J.S. and Ja.S.) |
| Court | Supreme Court of Alabama |
Petition for Writ of Certiorari to the Court of Civil Appeals (Houston Juvenile Court, JU-15-504.02, Lori C. Ingram, Judge; Court of Civil Appeals, 2181008)
Amy M. Shumate, Dothan, for petitioner.
Laura Peterman Wells, Dothan, for respondents.
WRIT QUASHED. NO OPINION.
The Houston Juvenile Court entered a judgment terminating the parental rights of M.B. ("the father") to his son B.B. ("the child"), who has been in the custody of J.S. ("the maternal grandfather") and Ja.S. ("the maternal grandmother") (hereinafter referred to collectively as "the maternal grandparents"), who want to adopt the child. In a plurality opinion, the Court of Civil Appeals affirmed that judgment of the juvenile court. M.B. v. J.S., 327 So. 3d 1147 (Ala. Civ. App. 2020). The father petitioned for, and this Court granted, certiorari review. The majority now quashes the writ without an opinion; I dissent as to that decision.
The father and B.C. ("the mother") were unmarried when the child was born in April 2015; their relationship ended in January 2016. The child has been in the custody of the maternal grandparents since November 2015, at which time the juvenile court awarded them pendente lite custody and awarded the mother and the father visitation.
On July 14, 2016, the juvenile court, following a hearing, entered an order finding the child dependent and awarding legal custody of the child to the maternal grandparents. It is undisputed that neither the mother nor the father received notice of the dependency hearing; thus, neither was present. In June 2018, the maternal grandparents obtained a judgment requiring the father to pay child support.
In January 2019, the maternal grandparents filed a petition seeking to terminate the parental rights of the father to the child.2 The maternal grandparents alleged in their petition that the father had abandoned the child, had failed to provide for the material needs of the child, had failed to maintain consistent contact with the child, and had failed to adjust his circumstances to meet the needs of the child. The maternal grandparents further indicated that they desired to adopt the child.
On June 14, 2019, the juvenile court held a hearing at which only the father and the maternal grandmother testified. The father testified that, since the maternal grandparents were awarded pendente lite custody of the child in November 2015, they had thwarted his efforts to visit the child. The father further testified that it was his understanding from the pendente lite order that he would be allowed to visit the child a minimum of four hours a week but that he had been limited to only one hour a week on Tuesdays. The father admitted that there were times when he had not shown up for scheduled visits and that there were other times when he had shown up late. The father stated that three months was the longest he had gone without seeing the child and that he did not see the child during that time because he did not have a job, a vehicle, or a cellular telephone to contact the maternal grandparents to arrange visitation. The father explained that the child, who was four years old at the time of the hearing, was "pretty excited" to see him during visits, that their visits "usually go pretty good," and that they have a good time during those visits.
The father indicated that he had been employed as a "concrete finisher" for approximately four months and that he sometimes worked until 6:30 p.m. or 7:00 p.m. He stated that, because of his work schedule, he had occasionally sent the maternal grandmother text messages requesting to see the child on weekends but that she never responded to those messages. The father stated that, in April 2018, the maternal grandparents told him that he did not deserve the child, that he would never get the child back, and that he needed to leave them alone. He further stated that the maternal grandparents had denied his request to allow the child to visit with him and his family during the Christmas holidays in 2018. The father testified that the child had recently started referring to the maternal grandmother and the maternal grandfather as "mom" and "dad" and calling the father by his first name; he stated that this made him "feel terrible." The father stated that he sent the maternal grandmother a text message regarding his concerns over those things and that she told him to stop sending her text messages or she would "call the police."
The father stated that, since August 2017, he had been living with his girlfriend and her seven-year-old child in a rented house that, he said, was clean, well stocked with necessities, and an appropriate place for the child to visit. He further indicated that he had a vehicle but not a valid driver's license; he explained that he usually gets others, including his girlfriend, to drive his vehicle and to transport him to scheduled visitations. The father testified that, although he had not paid any child support in the past, he was now willing and able to do so. He further stated that he had sent the maternal grandmother a text message inquiring how to pay child support but that she did not respond. The father testified that he had no pending criminal charges against him but that he had been arrested once for possession of illegal drugs in 2015, which was before the maternal grandparents were involved with the custody of the child. He stated that he no longer used drugs. Finally, the father indicated that he loved his child, that he wanted to continue having a relationship with the child, that he wanted to see the child more often, and that he would visit with the child every day if permitted.
The maternal grandmother testified about the father's inconsistent visits with the child, stating that, since the maternal grandparents were awarded custody of the child in 2015, the father had missed approximately 20 scheduled visits and that, of those he had not missed, he had often shown up late. She testified that transportation had always been an issue for the father and that he had occasionally either walked or rode a bicycle to visits. The maternal grandmother further testified that, once the father learned of the petition to terminate his parental rights, he "ramped" up his efforts to see the child. According to the maternal grandmother, the father had at times requested to see the child on weekends; she said that he never followed up with those requests. The maternal grandmother admitted that the father had telephoned in attempts to talk to the child but that he always called after the child had gone to bed. She stated that she had recently allowed the child to talk to the father over the telephone, but, because of his age, the child simply did not have much to say.
The maternal grandmother stated that the father constantly sends her text messages about the child and other random things, and she admitted that she had told him that she would call the police if he did not stop sending her so many messages. The maternal grandmother also admitted that the father had sent her a text message inquiring how to pay child support, but she did not state whether she responded to him. The maternal grandmother stated that the only time the father had given the child a gift was when the child turned two years old.
The maternal grandmother denied that she had instructed the child to call her and the maternal grandfather "mom" and "dad," explaining that the child probably learned that in preschool. She further denied that she had instructed the child to call the father by his first name. The maternal grandmother testified that the child is on Medicaid, that he has some speech and behavioral issues requiring therapy twice a week, and that he was attending preschool. According to the maternal grandmother, there had been a history of domestic violence between the father and the mother, but she did not go into any detail. Finally, the maternal grandmother testified that she and the maternal grandfather intended to adopt the child, and she felt it would be in the child's best interests if the father's parental rights were terminated.
After hearing the testimony, the juvenile court entered a judgment terminating the father's parental rights to the child, stating in its order that "it would be in the child's best interest ... for the [maternal grandparents] to provide a stable permanent home for [the] child through adoption." The juvenile court specifically determined that the father had failed to adjust his circumstances to meet the needs of the child, that he had failed to pay child support although he was able to do so, and that he had failed to maintain consistent contact or communication with the child.
In reviewing the Court of Civil Appeals’ decision on a petition for a writ of certiorari, this Court applies de novo the standard of review applicable in the Court of Civil Appeals. Ex parte Wade, 957 So. 2d 477 (Ala. 2006). In this case, the Court of Civil Appeals applied the ore tenus standard in reviewing the juvenile court's judgment.
To terminate parental rights, a juvenile court not only must find by clear and convincing evidence that a child is dependent, but also must determine that an alternative less drastic than termination of parental rights is not available. Ex parte A.S., 73 So. 3d 1223 (Ala. 2011). When the juvenile court has not made specific factual findings in support of its judgment terminating parental rights, an appellate court must presume that the court made those findings necessary to support its judgment, provided those findings are supported by the evidence. Id. The party seeking to terminate a parent's parental rights has the burden of producing clear and...
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