J.M.S. v. B.M.H. ( 2023 )

REL: January 6, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-0846
_________________________
J.M.S.
v.
B.M.H.
Appeal from Autauga Juvenile Court
(JU-22-36.01)
EDWARDS, Judge.
In February 2022, B.M.H. ("the custodian") filed in the Autauga
Juvenile Court ("the juvenile court") a petition seeking to terminate the
parental rights of J.M.S. ("the mother") to her child, A.H.G. ("the child").
On April 21, 2022, the custodian filed a motion seeking to have the
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mother served by publication. The juvenile court granted that motion
the same day it was filed. After a trial held on June 16, 2022, the juvenile
court entered a judgment terminating the mother's parental rights.1 The
mother, on July 13, 2022, filed an affidavit of substantial hardship; the
juvenile court appointed counsel for her on that same date. On July 15,
2022, the mother, through her newly appointed counsel, filed a timely
notice of appeal from the judgment.
On appeal, the mother first argues that the juvenile court's
authorization of service by publication was not proper pursuant to Ala.
Code 1975, § 12-15-318. Although the mother's argument appears to
have merit, we are precluded from considering that argument because
the mother never made that argument to the juvenile court. "This court
cannot consider arguments raised for the first time on appeal. Our review
is restricted to the evidence and the arguments considered by the trial
court." S.K. v. Madison Cnty. Dep't of Hum. Res., 990 So. 2d 887, 895
(Ala. Civ. App. 2008) (citing Andrews v. Merritt Oil Co., 612 So. 2d 409,
1The judgment also terminated the parental rights of the child's
biological father, whose identity was unknown and who was also served
by publication.
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410 (Ala. 1992), and Abbott v. Hurst, 643 So. 2d 589 (Ala. 1994)).
The mother's brief combines her second and third arguments, which
are that the juvenile court lacked evidence of the statutory grounds to
terminate the mother's parental rights and evidence supporting the
conclusion that no viable alternative to the termination of the mother's
parental rights existed. The only evidence in this case was provided by
the testimony of the custodian, which spans three pages in the six-page
transcript. No documentary evidence was admitted.
The custodian testified that the child was her cousin and that the
child had been in her custody since June 10, 2021, after "she was removed
from the [mother]." According to the custodian, the child was born with
drugs in her system, and, to her knowledge, the mother continued to
engage in drug use. The custodian said that the mother had nine other
children, all but one of whom had been in the custody of the Department
of Human Resources; the custodian testified that she had adopted the
ninth child in a contested proceeding. In fact, the custodian testified that
the mother was "not allowed to have any kids in this state."
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When asked if the mother had developed a meaningful relationship
with the child, the custodian said "no." When asked if the mother had
provided support for the child, the custodian answered "no." The
custodian testified that the last contact she had had with the mother was
on April 30, 2022. She then said that the last time she had seen the
mother was April 23, 2022.
The termination of parental rights is governed by Ala. Code 1975,
§ 12-15-319. That statute reads, in part:
"(a) If the juvenile court finds from clear and convincing
evidence, competent, material, and relevant in nature, that
the parent[] of a child [is] unable or unwilling to discharge [his
or her] responsibilities to and for the child, or that the conduct
or condition of the parent[] renders [him or her] unable to
properly care for the child and that the conduct or condition
is unlikely to change in the foreseeable future, it may
terminate the parental rights of the parent[]. In a hearing on
a petition for termination of parental rights, the court shall
consider the best interests of the child. In determining
whether or not the parent[] [is] unable or unwilling to
discharge [his or her] responsibilities to and for the child and
to terminate the parental rights, the juvenile court shall
consider the following factors including, but not limited to, the
following:
"(1) That the parent[] ha[s] abandoned the
child, provided that in these cases, proof shall not
be required of reasonable efforts to prevent
removal or reunite the child with the parent[].
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"(2) Emotional illness, mental illness, or
mental deficiency of the parent, or excessive use of
alcohol or controlled substances, of a duration or
nature as to render the parent unable to care for
the 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 tortured, abused,
cruelly beaten, or otherwise maltreated as
evidenced by the treatment of a sibling.
"….
"(7) 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.
"(8) That parental rights to a sibling of the
child have been involuntarily terminated.
"(9) Failure by the parent[] to provide for the
material needs of the child or to pay a reasonable
portion of support of the child where the parent is
able to do so.
"(10) Failure by the parent[] to maintain
regular visits with the child in accordance with a
plan devised by the Department of Human
Resources, or any public or licensed private child
care agency, and agreed to by the parent.
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"(11) Failure by the parent[] to maintain
consistent contact or communication with the
child.
"(12) 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.
"(13) The existence of any significant
emotional ties that have developed between the
child and his or her current foster parent or
parents, with additional consideration given to the
following factors:
"a. The length of time that the
child has lived in a stable and
satisfactory environment.
"b. Whether severing the ties
between the child and his or her
current foster parent or parents is
contrary to the best interest of the
child.
"c. Whether the juvenile court has
found at least one other ground for
termination of parental rights."
The test a juvenile court must apply in a termination-of-parental-
rights action is well settled:
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"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. P.S. v. Jefferson Cnty. Dep't of Hum. Res., 143 So.
3d 792, 795 (Ala. Civ. App. 2013). "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)). Although a juvenile
court's factual findings in a judgment terminating parental rights based
on evidence presented ore tenus are presumed correct, K.P. v. Etowah
Cnty. Dep't of Hum. Res., 43 So. 3d 602, 605 (Ala. Civ. App. 2010), "[t]his
court does not reweigh the evidence but, rather, determines whether the
findings of fact made by the juvenile court are supported by evidence that
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the juvenile court could have found to be clear and convincing." K.S.B. v.
M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App. 2016). That is, this court
" 'must ... look through ["the prism of the substantive
evidentiary burden," Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 254 (1986),] to determine whether there was
substantial evidence before the trial court to support a factual
finding, based upon the trial court's weighing of the evidence,
that would "produce in the mind [of the trial court] a firm
conviction as to each element of the claim and a high
probability as to the correctness of the conclusion." ' "
K.S.B., 219 So. 3d at 653 (quoting Ex parte McInish, 47 So. 3d 767, 778
(Ala. 2008), quoting in turn Ala. Code 1975, § 25-5-81(c)).
The juvenile court made the following specific findings in its
judgment terminating the mother's parental rights: that the mother had
failed to maintain consistent contact or communication with the child;
that the mother has made no effort to establish a meaningful relationship
with the child; that the mother had failed to visit the child, despite the
fact that she was permitted to have supervised visitation with the child
under a previous court order; and that the mother had not provided for
the material needs of the child or paid a reasonable portion of support of
the child. Those findings are not clearly and convincingly supported by
the meager testimony provided by the custodian.
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The record contains no evidence indicating that the mother had
missed visitation with the child to which she was entitled, that the
mother had failed to contact or communicate with the child (outside of
the inference that might have been raised by the testimony that she had
last seen the custodian, and presumably the child, in April 2022, only two
months before the trial), or that the mother was able to pay any amount
for the support of the child. Although the custodian testified that the
child was born with drugs in her system and indicated that the mother
continued to use drugs, the evidence does not indicate the extent of the
mother's drug use, what drug the mother used, or how the mother's drug
use impacted her ability or willingness to properly care for the child. See
A.M. v. R.S., [Ms. 2210428, Sept. 23, 2022] ___So.3d ___ ,___ (Ala. Civ.
App. 2022) (explaining that "a party seeking to terminate the parental
rights of a parent based on that parent's drug use must establish that the
parent's use of drugs impacts the parent's ability to perform the duties of
a parent"); J.C. v. Madison Cnty. Dep't of Hum. Res., 293 So. 3d 901, 909
(Ala. Civ. App. 2019) (reversing a judgment terminating parental rights
because the Department of Human Resources "failed to present evidence
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indicating that the mother's drug use had resulted in her inability or
unwillingness to properly parent the child, and, thus, the record
contain[ed] no proof that, in fact, her drug use render[ed] her incapable
of caring for the child and therefore that her condition should serve as a
ground for termination of her parental rights").
We find the following statements from L.M.W. v. D.J., 116 So. 3d
220, 225-26 (Ala. Civ. App. 2012), particularly apt:
" 'The right to parent one's child is a fundamental right,
and the termination of that right should occur " 'only in the
most egregious of circumstances.' " ' K.W. v. J.G., 856 So. 2d
859, 874 (Ala. Civ. App. 2003) (quoting L.M. v. D.D.F., 840 So.
2d 171, 172 (Ala. Civ. App. 2002), quoting in turn Ex parte
Beasley, 564 So. 2d [950,] 952 [(Ala. 1990)]). Based on our
review of the record, we cannot say that the [custodian has]
established by clear and convincing evidence that the
evidence in support of [her] petition in this case rises ' "to the
level of being so clear and convincing as to support
termination of the parental rights of the mother, such action
being the last and most extreme disposition permitted by
statute." ' V.M. v. State Dep't of Human Res., 710 So. 2d 915,
921 (Ala. Civ. App. 1998) (quoting East v. Meadows, 529 So.
2d 1010, 1012 (Ala. Civ. App. 1988))."
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We therefore reverse the judgment of the juvenile court terminating
the parental rights of the mother, and we remand the cause for further
proceedings consistent with this opinion. 2
REVERSED AND REMANDED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
2Because we have concluded that the evidence does not support the
juvenile court's factual findings regarding the factors set out in § 12-15-
319, we decline to address the mother's separate argument relating to
the existence of a viable alternative to termination of her parental rights.
See L.M.W. v. D.J., 116 So. 3d 220, 223 (Ala. Civ. App. 2012) (indicating
that this court may pretermit consideration of other issues raised on
appeal when our resolution of one issue is dispositive of the appeal). We
note, however, that the juvenile court did not address viable alternatives
in its judgment.
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