May 22, 2015
Talladega County Department of Human Resources
J.J. and N.J
for Publication April 28, 2016.
from Talladega Juvenile Court. (JU-10-100302.03). Marcus R.
Rumsey, Trial Judge.
Talladega County Department of Human Resources, Appellant:
Sharon E. Ficquette, Chief Legal Counsel, Karen P. Phillips,
Asst. Atty. Gen., Department of Human Resources.
J.J., Appellee: Trina Hammonds, Talladega.
N.J., Appellee: Nicholas J. Beckham, Childersburg.
Milam, Guardian Ad Litem, Gulf Coast Attorneys LLC, Grand
Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ.,
Talladega County Department of Human Resources ("
DHR" ) appeals from a judgment of the Talladega Juvenile
Court (" the juvenile court" ) denying its petition
to terminate the parental rights of J.J. (" the
father" ) and N.J. (" the mother" ) to their
child, S.J. (" the child" ). We affirm the juvenile
and Procedural History
November 1, 2013, DHR filed a petition in the juvenile court
to terminate the parental rights of the father and the mother
to the child. On the same day, the juvenile court appointed a
guardian ad litem to represent the interests of the child.
The mother and the father were represented by separate
counsel. The juvenile court held a trial on April 2, 2014.
The record contains the following facts relevant to the
issues presented for review.
child, born in May 2001, has been diagnosed with autism and
requires constant supervision. At some point not specifically
indicated in the record but likely around 2009, the mother
was convicted in Tennessee on charges related to sexual abuse
of the child. The record does not establish whether the
offense was a felony. At the time of trial, the mother
remained incarcerated in Tennessee. Jennifer Ponder, a DHR
caseworker, testified that the mother was expected to be
released from prison in November 2016, although other
witnesses testified that the mother would be released in 2020
or at some later point in time.
father is unemployed and disabled. He suffers from multiple
debilitating illnesses and infirmities, including type II
diabetes, arthritis, high blood pressure, high cholesterol,
and back pain due to 18 ruptured disks. He has suffered eight
heart attacks and three strokes. He has had three back
surgeries and two hydrocele-cyst operations. He testified
that he was undergoing tests to see if he would require
cardiac surgery. He testified that he was under the care of 6
different physicians and that he takes 30 prescription
medications per day. He is confined to a wheelchair.
December 2010, DHR received a report from the child's
school that the child had bruises on her back. Lewis Prince,
a DHR caseworker, testified that DHR concluded that the
bruises were not caused by an accident but that " they
had to have been inflicted [by someone] other than
herself." Prince testified, however, that DHR could not
determine if the bruises were caused by the father. The
father denied that he had abused the child. Prince testified
that he went to the father's home and found it to be
unclean. Prince found that the father was unable to meet the
special needs of the child and that the child was having
trouble in school. DHR petitioned for and received custody of
the child in December 2010 and placed the child in foster
care in a therapeutic foster home. The father continued to
have unsupervised overnight visitation with the child after
December 2010, although the father had a caregiver, his
paramour, in the home at the time to assist with caring for
testified that DHR provided services to the father. He stated
father had completed parenting classes and that DHR had
provided him with counseling, including providing him with
two in-home case aides who instructed him about caring for
the child, how to discipline the child appropriately, and how
to provide a clean home. Prince testified that the father
yelled and screamed and cursed at the child " quite
often" when DHR first became involved with the family,
including in front of Prince. He testified that dealing with
the child requires patience, consistency, care, and firm
direction without agitation. He testified that DHR worked
with the father on issues relating to anger management and
proper discipline of the child. He testified that the
father's physical disabilities prevented him from
providing adequate care and supervision for the child.
testified that the father maintained regular visits with the
child up until the time he stopped working on the case in
March 2013. Prince testified that the child enjoyed the
visits with the father and that the child appeared to have an
emotional attachment to the father. Under cross-examination
from the guardian ad litem, Prince stated:
" Q. Did it appear to you that [the child] had an
emotional attachment to her father?
" A. Yes, sir.
" Q. What made you feel that way?
" A. Her reaction to her dad. If you said I'm going
to get to see dad, she was very excited. Always wanted to see
him up until the last time I participated in the visit, she
wanted to see her dad. It got to the point where she wanted
to see her dad, loved her dad, as far as I know still does,
was attached to him, but it got to the point where the
attachment was not so much. She was ready to go home, she was
ready to go home, and to her home had become somewhere else.
She loved seeing her dad, wanted to visit with him, but after
just a time, she was ready to go."
testified that the child's condition had improved since
being placed in foster care. He testified that he never
believed that it was in the child's best interest not to
have visitation with her father.
testified that she began working on the case in March 2013.
She testified that the child was enrolled in school, that she
was in the 7th grade, that she had an IQ between 40 and 55,
that she was being provided special-education services, and
that she functioned at the level of a three to five year old.
Ponder testified that DHR had not identified an adoptive
resource for the child in the event the juvenile court
granted its petition to terminate the parents' parental
rights. Ponder testified that DHR's primary concerns
regarding the father's ability to parent were that he was
unable to maintain a stable home, that he had health issues
that prevented him from properly caring for and supervising
the child, that his home environment had been unclean, and
that he allowed paramours to live in his home. Nicole Parker,
a DHR supervisor, testified that DHR had attempted to locate
relative resources but that none were determined to be
father testified that his health had deteriorated since the
child had been placed in foster care. He testified that he
had lived in six different residences since 2010. He
testified that, in June 2013, he moved into his mother's
residence in Daleville to care for her and to spend time with
her because she had become gravely ill. The father testified
that his mother passed away a few days before trial. He
testified that, after his mother's death, he relocated to
a relative's home in Five Points, where he was living
temporarily. He said that he had located a trailer in Five
Points that he
planned on renting and moving into at some point after the
trial. He testified that he had a nurse and/or a caretaker
that came to his house three days a week to clean, cook, and
perform other household chores. He denied that he yelled and
screamed at the child, and he denied being physically abusive
toward her. The father testified that he last visited the
child in May 2013 because he had moved to Daleville to be
with his sick mother. Additionally, he testified that he had
had his third stroke in late June 2013. The father testified
that he had been unable to travel to visit with the child
because the stroke had rendered him bedridden and his
medications had made him weak. The father testified that he
had spoken with the child by telephone at least once a month
when he was living in Daleville. He testified that he was
unable to call more frequently because he had a limited
number of minutes on his phone and because the foster mother
told him that the child would get overly excited when he
would call. He also stated that he was unable to write
letters to the child because he could not hold his hands
steady enough due to his illnesses. He said that he last
spoke to the child by telephone on Christmas Day 2013. He
said that he had recently recovered enough to return to
Sylacauga. He testified that he owned a car but that he did
not have a valid driver's license and that he did not
have liability insurance on the vehicle.
conclusion of the trial, the guardian ad litem recommended
that the juvenile court grant DHR's petition as to the
mother but deny the petition as to the father because of the
evidence indicating the existence of an emotional bond
between the father and the child. On May 28, 2014, the
juvenile court entered a judgment denying DHR's petition
as to both parents, stating in part:
" After consideration of the testimony regarding the
termination of the parental rights of the above named minor
child and the report of the Guardian Ad Litem to this
Court[,] the Court feels that it is taking a big gamble that
this child will be adopted and cannot make a finding that the
Termination of Parental Rights is in the best interest of
said minor child at this time without an identified person
wanting to adopt. The Child has a strong possibility of being
a legal orphan for her life, the Court is of the opinion that
this possible consequence would be severely detrimental to
the minor child and that the Court cannot conclude it is in
the child[']s best interest to Terminate the Parental
Rights of the parents.
" Further the Court understands that the father's
past sporadic visitation were due to caring for his now
deceased mother. The Court expects the father to be
consistent with his visitation but if his visitation becomes
sporadic again the Court is of the opinion that another
Petition to Terminate Parental Rights is to be filed."
filed a motion to alter, amend, or vacate the judgment on
June 11, 2014. The juvenile court held a hearing on that
motion on June 18, 2014. At that hearing, the juvenile court
explained that its reasoning for denying DHR's petition
was not solely because an adoptive resource for the child had
not been identified. The juvenile court stated in open court
that it " had a difficult time believing that it would
harm the child" by allowing the father and the child to
continue their relationship through visitation, which had
been interrupted when the father left to care for his dying
mother, and that it would be in the child's best interest
to maintain that relationship. DHR's postjudgment motion
was denied by operation of law on June 25, 2014.
filed a timely notice of appeal to this court on July 2,
2014. The father and the mother have each
filed a brief in opposition to DHR's appellate brief. The
child, through her guardian ad litem, has also filed a brief
as an " appellee," and her arguments aligned with
those of the father.
contends that it presented clear and convincing evidence
establishing that the father's and the mother's
parental rights were due to be terminated. DHR argues that
the juvenile court erred by denying DHR's petition on the
basis that DHR had not identified an adoptive resource for
" The juvenile court's judgment based on ... ore
tenus evidence is presumed to be correct and will not be
overturned absent a showing that the judgment is plainly and
palpably wrong. S.B.L. v. Cleburne County Dep't of
Human Res., 881 So.2d 1029, 1031-32 (Ala.Civ.App. 2003).
" '" A parent has a prima facie right to
custody of his or her child and this right can be overcome
only by clear and convincing evidence that the child's
best interests would be served by permanently terminating the
parent's custody." Ex parte State Dep't of
Human Res., 624 So.2d 589, 591 (Ala. 1993) (citing
R.C.M. v. State Dep't of Human Res., 601 So.2d
100 (Ala.Civ.App. 1991)). When the State is petitioning to
terminate a parent's parental rights, the trial court
must first determine if the child is dependent and then must
examine whether all viable alternatives to termination have
been explored. Ex parte Beasley, 564 So.2d 950 (Ala.
1990). On appeal, the trial court's determination is
presumed to be correct, and it will not be reversed absent a
showing that the decision is so unsupported by the evidence
as to be plainly and palpably wrong. Ex parte State Dep't
of Human Res., supra.'
" W.C. v. State Dep't of Human Res., 887
So.2d 251, 256 (Ala.Civ.App. 2003). The paramount
consideration in a case involving the termination of parental
rights is the best interests of the children. Q.F. v.
Madison County Dep't of Human Res., 891 So.2d 330,
335 (Ala.Civ.App. 2004); S.B.L. v. Cleburne County
Dep't of Human Res., 881 So.2d at 1032; and J.L.
v. State Dep't of Human Res., 688 So.2d 868, 869
C.T. v. Calhoun Cnty. Dep't of Human Res., 8
So.3d 984, 987 (Ala.Civ.App. 2008).
judgment, the juvenile court did not make an explicit finding
of dependency. Pursuant to the first prong of the test
announced by our supreme court in Ex parte Beasley, 564 So.2d
950 (Ala. 1990), the juvenile court must determine from clear
and convincing evidence that the child is dependent. Only
after making that determination can the juvenile court
proceed to the second prong of the Beasley test, e.g.,
determining whether viable alternatives to termination of
parental rights exist. In its judgment, the juvenile court
focused primarily on the second prong of the test in
concluding that viable alternatives to terminating the
parental rights existed. We conclude that, in order to have
reached the second prong of the Beasley test, the juvenile
court impliedly found that clear and convincing evidence
established that the child was dependent. In J.P. v.
S.S., 989 So.2d 591 (Ala.Civ.App. 2008), this court held
" that when the evidence in the record supports a
finding of dependency and when the trial court has made a
disposition consistent with a finding of dependency, in the
interest of judicial economy this court may hold that a
finding of dependency is implicit in the trial court's
989 So.2d at 598 (citing L.L.M. v. S.F., 919 So.2d
307, 311 (Ala.Civ.App. 2005), O.L.D. v. J.C., 769
So.2d 299, 302 (Ala.Civ.App. 1999), and A.J.J. v.
J.L., 752 So.2d 499, 503 (Ala.Civ.App. 1999)).
order for the juvenile court to make a finding that a child
is dependent in a case involving termination of parental
rights, the juvenile court must first determine by clear and
convincing evidence that grounds for termination of parental
rights exist. Beasley, 564 So.2d at 954. Pursuant to
§ 12-15-319(a), Ala. Code 1975, grounds exist for a
juvenile court to terminate the parents' parental rights
when the parents are " unable or unwilling to discharge
their responsibilities to and for the child, or [when] 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 ...."
The factors for the juvenile court to consider when
determining whether to terminate parental rights are set out
in § 12-15-319(a), including the following:
" (3) That the parent has tortured, abused, cruelly
beaten, or otherwise maltreated the child ....
" (4) Conviction of and imprisonment for a felony.
" (6) Unexplained serious physical injury to the child
under those circumstances as would indicate that the injuries
resulted from the intentional conduct or willful neglect of
" (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.
" (10) Failure by the parents 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.
" (11) Failure by the parents 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
determination that the father lacks the ability to meet the
special needs of the child is supported by clear and
convincing evidence in the record. The father admitted that
he had lived at multiple residences since 2010. The evidence
indicates that he struggled to maintain a clean household
without the assistance of caregivers. Substantial evidence
established that the father has multiple health issues that
render him disabled and that prevent him from being able to
provide the proper care for the special needs of the child.
Ample testimony was presented to show that the child has been
diagnosed with autism and that her behavior requires a
constant need for supervision. Because she has an IQ between
40 and 55, the child attends special-education classes. Thus,
the implicit findings by the juvenile court that the child is
dependent and that grounds exist to terminate the
father's parental rights are supported by clear and
argues that it presented clear and convincing evidence that
there were no viable alternatives to termination of the
father's parental rights and that the juvenile court
improperly denied the petition on the basis that DHR had not
identified an adoptive resource. " Pursuant to Ex parte
Beasley, 564 So.2d 950, 952 (Ala. 1990), after it has been
determined that the child is dependent, a juvenile court is
then required to determine whether there exists a viable
alternative to the termination of parental rights."
Montgomery Cnty. Dep't of Human Res. v. W.J., 34
So.3d 686, 691 (Ala.Civ.App. 2009).
" [P]arental rights may not be terminated, even if
sufficient statutory grounds exist, when some less drastic
measure might be employed to preserve the parental
relationship without harming the interests of the child. See
Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990).
" 'Parents and their children share a fundamental
right to family integrity that does not dissolve simply
because the parents have not been model parents. Santosky
v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d
599 (1982). That due-process right requires states to use the
most narrowly tailored means of achieving the state's
goal of protecting children from parental harm. Roe v.
Conn, 417 F.Supp. 769, 779 (M.D. Ala. 1976). Thus, if
some less drastic alternative to termination of parental
rights can be used that will simultaneously protect the
children from parental harm and preserve the beneficial
aspects of the family relationship, then a juvenile court
must explore whether that alternative can be successfully
employed instead of terminating parental rights.
" T.D.K. v. L.A.W., 78 So.3d 1006, 1011
B.A.M. v. Cullman Cnty. Dep't of Human Res., 150
So.3d 782, 785 (Ala.Civ.App. 2014).
court has held that, although the lack of an adoptive
resource may serve as a factor that a juvenile court may
consider when determining whether termination of parental
rights would not be in the best interests of a child, there
is no requirement that DHR identify an adoptive resource
before parental rights can be terminated. R.B. v. State
Dep't of Human Res., 669 So.2d 187, 191
(Ala.Civ.App. 1995). See also T.L.S. v.
Lauderdale Cnty. Dep't of Human Res., 119 So.3d 431,
439 (Ala.Civ.App. 2013). Stated otherwise, a juvenile
court's refusal to terminate parental rights based solely
upon the lack of an identifiable adoptive resource could
constitute reversible error. However, this court has also
recognized that consideration of the status quo is
appropriate when uncertainty exists regarding permanency for
a special-needs child and when termination of parental rights
could result in emotional turmoil for that child. See
B.A.M., supra, and C.M. v. Tuscaloosa Cnty. Dep't of
Human Res., 81 So.3d 391, 398 (Ala.Civ.App.
2011)(reversing a judgment terminating parental rights
because evidence indicated that maintaining visitation was in
the best interests of the child).
present case, substantial evidence presented at trial
indicates that there exists a strong emotional bond between
the father and the child. Although Prince testified that the
child had unexplained injuries in December 2010, he further
testified that DHR could not establish that the father caused
the injuries. The juvenile court could have been unconvinced
that the father was responsible for the injuries and,
instead, could have believed the father's assertion that
he did not physically abuse the child. The undisputed
evidence shows that the child loves the father and that she
enjoys visiting with the father. Although the father had not
visited with the child in over a year, the juvenile court
could have determined that his health issues precluded him
from traveling from Daleville to visit her. The transcript of
the proceedings conducted on DHR's postjudgment motion
shows that the juvenile court " had a difficult time
believing that it would harm the child" by allowing the
father and the child to continue with visitation that had
been interrupted when the father left to take care of his
dying mother. The juvenile court's determination that
maintaining visitation with the father is in the child's
best interest is supported by the evidence.
the evidence indicates that DHR had not identified an
adoptive resource for the child at the time of the
termination hearing and that the child would be added to the
State's adoption registry. The child has special needs.
She has been subjected to abuse in the past. DHR placed the
child in a therapeutic foster home. Ponder, the DHR
caseworker, testified that DHR would need to locate an
adoptive resource that could cater to the special needs of
the child. Ponder testified that " [i]f there is no
[adoptive] home available, [the child] will remain where she
is [in foster care], and [DHR] will continue to search for an
adoptive home." As we noted in C.M.,
" [b]ecause of the uncertainty regarding the
[child's] prospects for adoption, we conclude that the
record does not contain clear and convincing evidence
indicating that the [child] would achieve permanency if the
[father's] parental rights were terminated. Accordingly,
the desire for permanency in this case cannot override the
clear and convincing evidence indicating that maintaining
with the [father] is in the [child's] best
81 So.3d at 398.
Section 12-15-319 provides that if the required findings are
made, the juvenile court " may" terminate parental
rights. The term " may" leaves the decision to the
discretion of the juvenile court. See Ex parte Mobile
Cnty. Bd. of Sch. Comm'rs, 61 So.3d 292, 294
(Ala.Civ.App. 2010)(" Ordinarily, the use of the word
'may' indicates a discretionary or permissive act,
rather than a mandatory act." ). Furthermore, "
[w]hen evidence is presented ore tenus, it is the duty of the
trial court, which had the opportunity to observe the
witnesses and their demeanors, and not the appellate court,
to make credibility determinations and to weigh the evidence
presented." Ex parte Hayes, 70 So.3d 1211, 1215
(Ala. 2011)(citing Blackman v. Gray Rider Truck Lines,
Inc., 716 So.2d 698, 700 (Ala.Civ.App. 1998)). For the
foregoing reasons, we conclude that the juvenile court could
have determined from the evidence that termination of the
father's parental rights is not in the best interests of
further note that DHR's petition as it related to the
mother was only minimally addressed in the evidence presented
by DHR at trial, and the judgment of the juvenile court does
not specifically address any issue regarding the mother. A
vast majority of the testimony and evidence presented to the
juvenile court was directed toward DHR's petition to
terminate the father's parental rights. In its brief, DHR
contends that grounds existed to terminate the mother's
parental rights only because she has been convicted of and
imprisoned for a felony. See § 12-15-319(a)(4). Although
the testimony indicated that the mother was incarcerated in
Tennessee for sexually abusing the child, there is nothing in
the record from which the trial court could have been clearly
convinced that the mother has been convicted of a felony. No
records from the criminal proceedings in Tennessee were
introduced into evidence. As the petitioner, DHR had the
burden of proving by clear and convincing evidence that
grounds for terminating the mother's parental rights
existed. DHR only produced evidence showing that the mother
has been convicted and imprisoned, but it did not show that
the offense was a felony. Therefore, we are compelled to hold
that the juvenile court did not err in declining to terminate
the mother's parental rights.
foregoing reasons, we affirm the juvenile court's
judgment denying DHR's petition to terminate the
father's and the mother's parental rights to the
P.J., and Pittman, Thomas, and Moore, JJ., concur.
DHR initially failed to serve its brief on
appeal and its reply brief on appeal on the mother. On
March 23, 2015, this court sent an order to the parties
notifying them of the deficiency, see Rule 2(a), Ala. R. App.
P., and requesting letter briefs regarding the status of
DHR's appeal of the portion of the judgment refusing to
terminate the mother's parental rights. In its letter
brief, DHR informed this court that the mother's trial
counsel, who was listed in the certificate of service on
DHR's notice of appeal to this court, became employed by
DHR in January 2015. DHR stated that the mother's trial
attorney filed a motion to withdraw in the juvenile court on
March 28, 2015, which the juvenile court purportedly granted
on March 30, 2015. DHR, the father, and the guardian ad litem
submitted a joint motion requesting that this court reinvest
the juvenile court with jurisdiction to appoint a new
attorney for the mother and that this court then grant the
mother's new counsel 28 days to respond to DHR's
brief. This court granted that motion on April 3,
We note that the Alabama Rules of Appellate
Procedure provide certain procedural safeguards on appeal
to assure that parties are served with certain papers filed
with appellate courts, including briefs. Specifically Rule
25(b), Ala. R. App. P., provides that
" [c]opies of all documents filed by any
party and not required by these rules to be served by the
clerk shall, at or before the time of filing, be served by
a party or person acting for him on all other parties to
the appeal or review. Service on a party represented by
counsel shall be made on counsel."
Rule 25(c), Ala. R. App. P., provides for the manner
in which a document must be served. Rule 25(d), Ala. R. App.
P., requires the filing party to acknowledge service "
in the form of a statement of the date and manner of service
and of the names of the persons served, certified by the
person who made service." Additionally, " Rule 31,
Ala. R. App. P., requires that a copy of an appellant's
brief be served upon opposing counsel within 28 days of the
completion of the record, which is the date upon which,
excluding any extensions, an appellant's brief is
due." M.B. v. R.P., 3 So.3d 237, 243
(Ala.Civ.App. 2008). We also note that Rule 1.7 and Rule
1.16, Alabama Rules of Professional Conduct, require an
attorney to withdraw from representation if a conflict of
interest arises after the attorney undertakes