A.E.T., Jr. v. Limestone County Dept. of Human Res.

• Decision Date: 30 April 2010
• Docket Number: 2080853.
• Parties: A.E.T., JR. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

49 So.3d 1212

A.E.T., JR.

v.LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.

2080853.

Court of Civil Appeals of Alabama.

April 30, 2010.

Douglas L. Patterson, Athens, for appellant.

Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. gen. counsel, Department of Human Resources, for appellee.

THOMAS, Judge.

A.E.T., Jr. ("the father"), is incarcerated in Donaldson Correctional Facility, serving a 99-year sentence for felony murder. He is the father of A.E.T. III ("the child"), who was removed from the custody of M.M.W. ("the mother") by the Limestone County Department of Human Resources ("DHR") in 2006. In April 2008, DHR moved to terminate both parents' parental rights. The mother's parental rights were terminated in October 2008; she did not appeal. The father's parental rights were terminated by an order dated May 27, 2009. He filed a timely appeal to this court.

The father does not challenge on appeal the establishment of grounds to terminate his parental rights. Instead, he argues first that the juvenile court abused its discretion by failing to continue the hearing on the termination-of-parental-rights petition until he could be transported to the hearing. He further argues that the evidence did not support a conclusion that no viable alternatives to termination of his parental rights existed. The father sought leave to file and is pursuing a Rule 60(b), Ala. R. Civ. P., motion based on the ineffectiveness of his trial counsel in the juvenile court.

As noted above, the father is incarcerated for a felony and is serving a 99-year prison sentence, which alone provided a ground for termination of his parental rights. See Ala.Code 1975, former § 26-18-7(a)(4).¹ The record reflects that the juvenile court had ordered that the father be transported from prison to attend the hearing. However, according to a statement on the record by the juvenile court judge and a similar explanation containedin the judgment terminating the father's parental rights, prison officials refused to transport the father pursuant to the juvenile court's order, citing as a reason his murder conviction and lengthy sentence. The father's trial counsel did request a continuance; however, the trial court denied it. The reason stated for denying the requested continuance was that the father's testimony was not necessary because he had given a deposition in September 2008 in which he testified regarding the main issue before the court: potential viable alternatives for the child's custody.

The father does not argue that due process required his presence at the hearing. He admits that the fact that he was represented by counsel and had the opportunity to present testimony through deposition satisfied the requirements of due process. See Pignolet v. State Dep't of Pensions & Sec., 489 So.2d 588, 591 (Ala.Civ.App.1986) (holding that due-process concerns are satisfied when an incarcerated parent facing a termination of parental rights is represented by counsel and has the opportunity to present testimony through a deposition). However, the father does argue that the juvenile court abused its discretion in denying the continuance. "Whether to grant or to deny a motion to continue in a termination-of-parental-rights case is within the discretion of the court and its decision will not be reversed absent a showing that the court has abused its discretion." S.C.D. v. Etowah County Dep't of Human Res., 841 So.2d 277, 278 (Ala.Civ.App.2002).

We cannot agree with the father that the trial court abused its discretion in denying the requested continuance. The father asserts that his live testimony would have contained more recent information relevant to the proceedings and, thus, he says, would have been superior to the deposition testimony presented as a result of his absence. However, the testimony of the father in his deposition was confined mostly to explaining that many of his relatives were not suitable resources for the child because of their criminal histories or their absence from both the father's and the child's lives. The only relative that the father suggested in his deposition as an alternative custodian was D.M., who DHR investigated. The father has not specifically demonstrated how his live testimony would have been any different than the testimony he gave at the deposition, and, even if the father had provided additional information about potential alternative resources at the final hearing, the last-minute nature of any such suggestions would likely have precluded those potential resources from being considered viable alternatives. See C.T. v. Calhoun County Dep't of Human Res., 8 So.3d 984, 989 (Ala.Civ.App.2008); B.S. v. Cullman County Dep't of Human Res., 865 So.2d 1188, 1196-97 (Ala.Civ.App.2003) (affirming the trial court's determination that a family member suggested as an alternative placement for the first time on the date of trial was not a viable alternative to termination of a parent's parental rights). Thus, we find no abuse of the trial court's discretion in its denial of the requested continuance.

The father next argues that the trial court erred when it concluded that clear and convincing evidence established the lack of a viable alternative to the termination of his parental rights. According to the father, DHR's failure to investigate any relatives other than D.M. was a violation of its duty to initiate investigations into potentially viable alternatives. He also argues that the juvenile court lacked sufficient evidence to reject D.M. as an alternative placement for the child.

We first note that DHR does have the burden to initiate investigations of potentially viable alternative placementsfor children in its custody. Ex parte J.R., 896 So.2d 416, 428 (Ala.2004) (quoting D.S.S. v. Clay County Dep't of Human Res., 755 So.2d 584, 591 (Ala.Civ.App.1999)) (" 'DHR-not the prospective custodian-has the burden of initiating investigations....' "). However, the father also had a role to play in the location of viable alternative placements. " 'Although DHR has a responsibility to investigate alternate relative placements for a child, that obligation does not entirely alleviate the responsibility of the parent who purports to oppose the termination of his or her parental rights of making DHR social workers aware of alternative placement possibilities.' " J.F.S. v. Mobile County Dep't of Human Res., 38 So.3d 75, 78 (Ala.Civ.App.2009) (quoting B.S., 865 So.2d at 1197). The father testified in his deposition about his family members. He specifically mentioned D.M. as the only relative he wanted to take custody of the child. He indicated that he had not seen several of his siblings for more than 10 years, mentioned that at least 2 of his siblings had a criminal history or were incarcerated, and also stated that 1 relative was too old and could not handle taking care of the child. Thus, DHR properly investigated the only relative that the father himself suggested out of all the relatives the father listed in his deposition. We conclude, therefore, that the DHR met its burden of investigating potential alternative placements for the child.

We now turn to the father's argument that the juvenile court's conclusion that no viable alternatives to termination of his parental rights existed was not supported by the evidence at trial.

"A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)."

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court's judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep't of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). " '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.' " L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20(b)(4)). The juvenile court's factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. R.B. v. State Dep't of Human Res., 669 So.2d 187 (Ala.Civ.App.1995). Furthermore, when the juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence. D.M. v. Walker County Dep't of Human Res., 919 So.2d 1197, 1210 (Ala.Civ.App.2005).

As noted above, DHR investigated D.M. as a potential placement for the child. Her home study was favorable. According to the only witness to testify at the trial, the most recent DHR caseworker, Kimberly Holder, the child had stated a preference to remain in the custody of the foster parents. Holder said that she had relayed the child's preference to D.M., who had responded by saying that she wanted whatever was best for the child, even if that meant that he remained with the fosterparents. Holder further explained that the foster parents did not intend to adopt the child but had agreed to continue to serve as a long-term foster-care placement for the child.

Based on the above-stated evidence, the juvenile court rejected D.M. as a placement alternative, thus concluding that no viable alternatives to termination of the father's parental rights existed. In support of the conclusion that no viable alternatives existed, the judgment recites the fact that the child prefers to remain in long-term foster care with the foster parents. The juvenile court's judgment also states that the child had never met D.M....