P.L.G. v. Mobile Cnty. Dep't of Human Res.

• Decision Date: 31 May 2019
• Docket Number: 2171064,2171063
• Citation: 291 So.3d 509
• Parties: P.L.G. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES
• Court: Alabama Court of Civil Appeals

291 So.3d 509

P.L.G.

v.MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES

2171063

2171064

Court of Civil Appeals of Alabama.

May 31, 2019

Kent Baxley, Mobile, for appellant.

Steve Marshall, atty. gen., and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.

PER CURIAM.

P.L.G. ("the mother) separately appeals from two judgments of the Mobile Juvenile Court ("the juvenile court") terminating her parental rights to S.L.G. and C.I.G. ("the children"), respectively. We reverse the judgments and remand the causes with instructions to the juvenile court.

Facts and Procedural History

The children are twins and were born to the mother in September 2012. On December 5, 2017, the Mobile County Department of Human Resources ("DHR") filed separate petitions in the juvenile court seeking judgments terminating the parental rights of the mother and C.L.O. ("the father") to the children. In the petitions, DHR alleged, among other things, that the father's location was unknown; that the children were dependent and had been in the custody of DHR since October 2016; that the parents had abandoned and neglected the children; that the mother has "untreated mental health issues that prevent [her] from providing adequate care for the child[ren]"; and that efforts by DHR to rehabilitate the mother had been unsuccessful. Separate counsel were appointed to represent the mother and the father. The father was served by publication.

A trial was held in the juvenile court on March 22, 2018, and April 3, 2018. The father was represented by counsel but did not attend the trial. Testimony was presented from a psychologist, a mental-health and substance-abuse therapist, DHR caseworkers, and the mother.

On July 19, 2018, judgments rendered by the juvenile court on July 6, 2018, were entered in each case. The judgments were substantially identical except for specific references to each child, and provided, in part:

"6. The Court finds that the mother has failed to modify her circumstances to meet the needs of the children since the finding of dependency. The Court finds that the mother has recently made improvements in her circumstances, but that by failing to participate in any meaningful manner starting in July of 2017, she has[, as] of this time[,] failed to put herself in a position where she can care for the child[ren]. From the psychological evidence that was presented, the Court finds it unlikely that the mother will be able to follow through, in high stress situations, to deal with the child[ren].

"7. There is no known relative willing or able to take the care, custody, and control of the child[ren].

"8. Termination of parental rights is in the best interest of the child[ren] to promote permanency.

"9. [DHR] made all reasonable efforts to finalize the plan of adoption after the same was accepted by the court.

"10. The Court finds [DHR] made all reasonable efforts to promote reunification but that said efforts failed in large part due to the failure of the mother to consistently follow the recommendations and accept the services offered.

"....

"12. From the foregoing, the [juvenile] Court concludes that termination of parental rights is in the best interest of the child[ren;] however[,] given the mother's recent efforts[,] the Court finds that[,] if [DHR] is unable to find an adoptive resource, ... the issue of the termination of the mother's parental rights should be revisited.

"Wherefore, it is ORDERED, ADJUDGED, and DECREED by the Court that any and all rights in and to [the children] of [the mother and father] be and hereby are ORDERED terminated and the permanent care, custody, and control of [the children] is hereby awarded to [DHR] which agency is authorized to proceed with a permanent plan of adoption.

"....

"It is further ORDERED, ADJUDGED, and DECREED by the Court that this matter is set for a review hearing on 01/08/2019 at 8:30 AM at which time [DHR] shall present to the Court a report detailing [its] efforts to finalize the permanent plan of adoption. On the date of the review hearing, the Court will accept evidence from [DHR] as to the efforts made to find an adoptive resource, and if there has been no resource found, the Court will at that time require [DHR] to renew efforts to seek reunification, or relative placement options.

"....

"The Court does reserve jurisdiction to enter such further and future orders as may be necessary for the best interest of the child[ren]."

On August 1, 2018, the mother filed a postjudgment motion in each case asking the juvenile court to alter, amend, or vacate the judgments. On August 13, 2018, the mother filed a notice of appeal in each case to this court. The notices of appeal were held in abeyance until the mother's postjudgment motions were denied by operation of law on August 15, 2018. See Rule 1(A) and (B), Ala. R. Juv. P.; Rule 4(a)(5), Ala. R. App. P. This court has jurisdiction pursuant to Rule 28(A)(1)(c)(ii), Ala. R. Juv. P. The appeals were consolidated by this court.

Standard of Review

"[W]e will reverse a juvenile court's judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I. [v. State Dep't of Human Res. ], 975 So.2d [969] at 972 [ (Ala. Civ. App. 2007) ]." J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007). 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. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt."

" ‘§ 6–11–20[ (b) ](4), Ala. Code 1975.’

" L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002)."

J.C., 986 So.2d at 1184 (emphasis omitted).

Analysis

The mother argues that the judgments terminating her parental rights must be reversed because, she says, clear and convincing evidence was not presented to support the judgments. We conclude that the juvenile court's judgments are contradictory regarding whether the mother's parental rights were terminated because, as will be discussed below, the judgments contain not only language that would be consistent with a termination of the mother's parental rights but also language that would be inconsistent with a termination. We further conclude that, because the juvenile court's judgments are contradictory, the judgments must be reversed. See State Dep't of Human Res. v. A.J.T., 939 So.2d 46, 47 (Ala. Civ. App. 2006).

In light of the language of the judgments regarding the mother's recent efforts to rehabilitate herself and the juvenile court's intent to revisit the issue whether the mother's parental rights should be terminated if DHR is unable to find an adoptive resource, we asked the parties to provide supplemental briefs to address whether the judgments of the juvenile court were final, appealable judgments. DHR responded that the judgments should be considered final judgments terminating the mother's parental rights and that the provision in paragraph 12 of each judgment expressing the juvenile court's intent to revisit the termination at a later date is "beyond the authority of the juvenile court." DHR further contends that, "[i]f the existence of an adoptive resource were required, a juvenile court could not grant a petition to terminate parental rights, no matter how egregious the circumstances. R.B. v. State Dep[artment] of Human Res[ources], 669 So.2d 187 (Ala. Civ. App. 1995)." DHR also contends that the provisions of each judgment providing for a review of DHR's adoption efforts "exceeds the juvenile court's discretion and authority and is, therefore, a nullity as to those remarks, but does not affect the finality of the judgments otherwise." We agree with DHR's contention that the existence of an adoptive resource is not a condition precedent to the termination of a parent's parental rights; however, we disagree with DHR's interpretation of the import of the juvenile court's judgments.

When a nonparent seeks termination of a parent's parental rights, a juvenile court's determination regarding whether to terminate those rights is governed by a two-prong test: (1) whether clear and convincing evidence establishes that the child is dependent and (2) whether clear and convincing evidence establishes that no viable alternatives to the termination of parental rights exist. See K.N.F.G. v. Lee Cty. Dep't of Human Res., 983 So.2d 1108, 1115 (Ala. Civ. App. 2007). "Concerning the first prong of the test[, i.e., dependency], the petitioner must prove by clear and convincing evidence that grounds for termination exist." J.S. v. Etowah Cty. Dep't of Human Res., 72 So.3d 1212, 1219 (Ala. Civ. App. 2011) (citing § 12-15-319, Ala. Code 1975; and Bowman v. State Dep't of Human Res., 534 So.2d 304, 305 (Ala. Civ. App. 1988) ). Regarding the second prong, we have held that "the court must properly consider and reject all viable alternatives to a termination of parental rights." B.M. v. State, 895 So.2d 319, 331 (Ala. Civ. App. 2004).

Under subsection (a) of § 12-15-319, Ala. Code 1975, grounds for terminating parental rights exist if clear and convincing evidence establishes 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 renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future." (Emphasis added.) Consequently, the language in the juvenile court's judgments purporting to terminate the mother's parental rights necessarily presupposes that the juvenile court found that the conduct or condition that rendered the mother unable or unwilling to discharge her responsibilities to and for the children ...