June 19, 2015
Shelby County Department of Human Resources; P.D.M.
Shelby County Department of Human Resources
Appeals from Shelby Juvenile Court. (JU-10-596.08).
Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ.,
THOMPSON, Presiding Judge.
(" the mother" ) and P.D.M. (" the
father" ) each appeal from the judgment of the Shelby
Juvenile Court (" the juvenile court" ) terminating
their parental rights to their child (" the child"
record indicates the following. The mother and the father
were not married when the child was born in the fall of 2010;
however, there is no dispute regarding the father's
paternity of the child. The Shelby County Department of Human
Resources (" DHR" ), which had been involved with
the mother and the father earlier, removed the child from
the mother's custody at birth, but the child was returned
to the mother within a month. A court order in place at that
time stipulated that the mother was not to have contact with
the father. Nonetheless, the mother and the father married
about six months after the child was born and began living
together without notifying DHR. In September 2011, after the
mother and the child were found living with the father in
violation of the previous court order, the juvenile court
entered an order removing the child from the parents'
home until the parents could complete certain services. When
those services were completed, the child was returned to the
parents in October 2012.
February 6, 2013, DHR and the parents agreed that the case
should be closed. However, soon after in February 2013, the
mother and the father separated, accusing each other of being
unfaithful. At the end of January 2013, before the parties
separated, the mother had begun dating another man, J.K.,
whom she met through a mutual friend. The father and J.K. had
known one another in their youth. The father testified that
J.K. was a " drug head," and, after he learned that
J.K. and the mother were dating, the father threatened to
fight J.K. The father also threatened that the mother would
never see the child again if she did not return to him after
they had separated. The mother accused the father of pushing
her down during one argument.
February 15, 2013, the mother and the father each sought an
order of protection from abuse (" PFA" ) against
each other, because, each said, the other had been making
threats to hurt or kill the other. The parties were to take
drug screens the day they sought their respective PFA orders.
The father returned to the courthouse after submitting to the
drug screen, which indicated that the father had used
the mother did not return to the courthouse after her drug
screen (she testified
that she was not aware that she had to return), the court
that issued the PFA order requested by the father included a
provision in its PFA order directing that the mother was not
to have contact with the child. The father testified that it
was never his intention to keep the mother from seeing the
child, and, despite the court order, he agreed that the
mother could visit with the child at the father's
February 18, 2013, the father went to a house where the
mother and J.K. were staying with a friend. The mother and
the father spoke outside at length. The father offered to
attend anger-management counseling, but the mother told the
father it was " too late." When the mother went
back inside the house to use the restroom, the father went
into the house and began opening the doors to each of the
rooms. The father found J.K. in one of the rooms and began
yelling and cursing at him and threatening to beat him up.
The mother testified that she could hear the two fighting.
Ultimately, J.K. shot the father three times, in the leg, the
hand, and the abdomen. The father was hospitalized. J.K.
claimed he shot the father in self-defense. The gun used in
the shooting belonged to the mother. The child was at the
house at the time of the shooting. Neither J.K. nor the
mother was charged in connection with the shooting.
Morris, who works in the foster-care unit of DHR, testified
that DHR was not notified of the shooting until two days
later, on February 20, 2013. At that time, Morris said, the
child was taken into protective custody by DHR. The mother
testified that she had left the child with the father's
cousin until the details of the shooting could be worked out
and because of the PFA order denying her contact with the
child. Morris testified that the mother remained in contact
with DHR after the shooting and attended her scheduled
visitations with the child.
meantime, DHR conducted an investigation into the
father's shooting. Morris testified that DHR determined
that J.K. had shot the father while defending himself and
that the child had not been in danger. The report of child
abuse and neglect arising from the shooting incident was
found to be " not indicated," Morris said, and the
child did not qualify as " being vulnerable."
the child has been back in DHR's custody, the mother has
had another child (" the younger child" ). The
mother went to Tennessee to give birth to the younger child
and was apparently gone from Alabama for three weeks.
Although the mother originally told the father that the child
was not his, by the time of the termination trial, it had
been established that the father was the father of the
younger child. The parties' parental rights to the
younger child were not terminated. In fact, Morris testified,
DHR's permanency plan for the younger child is
reunification with the parents. Morris testified that the
permanency plans for the child and the younger child are
different because, Morris said, the child was in DHR's
care for the third time.
testified that the mother had completed all of the services
that DHR recommended for her. A psychological examination of
the mother indicated that she had no mental issues that would
prevent her from being able to parent the child. Other than
the three weeks the mother was in Tennessee, Morris said, the
mother has consistently exercised her visitations with the
child. At the time of the trial, Morris said, the mother had
unsupervised visitation periods with the child five days a
week. Morris said that the mother had no substance-abuse
issues and that there was
no indication that the mother had ever abused the child. In
fact, Morris said, she did not have a concern with the mother
as a parent, and she believed that the mother was a good
mother. However, Morris said, the mother made " bad
choices with men," specifically, with the father. Morris
explained that the mother knew the father had anger issues,
knew the father did not want the child around J.K., and knew
how he was likely to react around J.K., yet she still chose
to expose the child to J.K. Therefore, Morris said, she had
concerns about the child's safety if the child were to be
returned to the mother and the father.
testified that, at the time of the trial, the father had not
regularly visited with the child because of his work
schedule. Morris agreed that some parents were able to have
visitations in the evenings or on weekends, but, she stated,
that arrangement would not be made for the father. Morris
said that the father has anger issues and that DHR had "
an issue" with the father's attitude and temper. In
reviewing the father's testimony, it becomes apparent
that he has a quick temper. During the proceedings, the
father was belligerent and disrespectful. For example, while
the father was testifying, the mother's attorney objected
on the ground that the testimony the father was giving was
speculation. Before the trial court could rule on the
objection, the father said: " Object. That's what
your mouth is for." The juvenile court admonished the
father to " be calm about this." However, the
father had similar reactions throughout the trial.
Additionally, no reunification services had been offered to
the father in 2013, Morris said. As is the case with the
mother, DHR has no indication that the father has ever been
abusive toward the child.
trial was held over four days in August, November, and
December 2013. The juvenile court entered its judgment
terminating the parental rights of the mother and the father
on November 9, 2014, nearly 11 months after the last day of
testimony was taken. The mother and the father timely filed a
joint motion to alter, amend, or vacate the judgment. The
juvenile court denied the motion, and the mother and the
father filed separate notices of appeal and submitted
separate briefs to this court. The father's and the
mother's appeals were consolidated ex mero motu by this
court on January 2, 2015.
brief to this court, the mother contends that the juvenile
court's judgment was not supported by clear and
" This court's standard of appellate review of
judgments terminating parental rights is well settled. A
juvenile court's factual findings, based on ore tenus
evidence, in a judgment terminating parental rights are
presumed to be correct and will not be disturbed unless they
are plainly and palpably wrong. See, e.g., F.I. v. State
Dep't of Human Res., 975 So.2d 969, 972
(Ala.Civ.App. 2007). Under express direction from our supreme
court, in termination-of-parental-rights cases this court is
'required to apply a presumption of correctness to the
trial court's finding[s]' when the trial court bases
its decision on conflicting ore tenus evidence. Ex parte
State Dep't of Human Res., 834 So.2d 117, 122 (Ala.
2002) (emphasis added). Additionally, we 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., 975 So.2d at
J.C. v. State Dep't of Human Res., 986 So.2d
1172, 1183 (Ala.Civ.App. 2007) (footnote omitted).
Clear and convincing evidence is defined as
" [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
6-11-20(b)(4), Ala. Code 1975.
judgment, the juvenile court found that the mother and the
father were not willing or able to exercise parental
responsibility for the child " due to the faults and
habits of the parents." The juvenile court continued:
" The Court specifically finds that neither party has
made any substantial changes in their lifestyle as evidenced
by the fact that neither party has a fit and suitable home at
the time of the final hearing in this matter, to wit: The
father testified that he currently resides with an individual
whose children have been removed from her as a result of a
case involving [DHR] and the mother is currently residing
with [J.K.], the person whom the Court believes the mother
set up to shoot the father of her two children, [the father].
It is evident to this Court that [the child] has been in and
out of the care of her parents her entire life due to the
faults and habits of her parents. The Court further believes
that the parents' lack of substantial change in the
lifestyle, even in the face of a Petition to Terminate their
parental rights, only indicates that this child will remain
subject to the turmoil inflicted by her parents and remain on
the roller coaster of being in and out of care, without any
permanent place to consider home, so long as she remains
subject to the parental rights of her parents."
terminate a parent's parental rights, the juvenile court
must determine whether clear and convincing evidence supports
a finding that the child is dependent, and 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). Moreover, § 12-15-319(a), Ala.
Code 1975, sets forth the grounds for termination of parental
rights and the factors to be considered when determining
whether a person's parental rights are to be terminated.
That statute provides, in pertinent part:
" (a) If the juvenile court finds from clear and
convincing evidence, competent, material, and relevant in
nature, that the parents of a child 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, it
may terminate the parental rights of the parents. In
determining whether or not the parents are unable or
unwilling to discharge their 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:
" (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
testified that the reason DHR filed its petition to terminate
parents' parental rights to the child was because the
child had been in the custody of DHR three times. However, in
each instance, DHR's decision to remove the child from
the mother's custody appears to have been taken as a
precautionary measure and not as a result of actual threats
or allegations of abuse or neglect of the child. The evidence
indicates that the first time the child was placed in
DHR's custody was at her birth, because DHR had been
involved in a matter involving the father's inappropriate
discipline of the mother's two older children. The child
was returned to the mother in a matter of weeks, but the
child was removed from the mother a second time when the
mother and the father married despite a court order directing
that the mother not have contact with the father. However,
when the mother and the father completed the services that
DHR had recommend for them, the child was returned to the
home. DHR and the parties agreed that the case could be
closed at that time. Within two weeks, however, the mother
and the father had separated and the father and J.K., the
mother's boyfriend, engaged in a fight, resulting in the
father's being shot. Because the child was in the house
when and where the shooting occurred, DHR again removed her
from the home. From its investigation of the shooting
incident, DHR determined that abuse or neglect of the child
was " not indicated."
as the juvenile court found, the testimony of the mother and
the father appeared to be driven by their dislike for one
another, and the veracity of their testimony is questionable.
Nonetheless, the evidence in this case is remarkable for what
is lacking. Morris's testimony indicates that DHR had no
evidence--or even reason to speculate--that the child had
been abused or neglected. There is no evidence indicating
that the mother is a substance abuser or suffers from a
mental impairment that would prevent her from being able to
care for the child. The mother visits with the child five
days a week, and those visits are unsupervised. Morris
testified that she has no concerns with the mother's
ability to parent and, in fact, said she was a good mother.
According to Morris, her primary concern with the mother is
her " bad choices with men," specifically, the
father. At the time of the termination trial, the mother no
longer lived with the father. Furthermore, DHR's goal for
the younger child, the child's sibling, is reunification
with the mother and the father. The child and the younger
child currently live together in foster care.
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 at 952). We conclude that, based on what
is contained in the record before us, the circumstances in
this case do not reach that high bar. In other words, the
record does not contain clear and convincing evidence to
warrant the termination of the mother's parental rights.
Accordingly, that portion of the juvenile court's
judgment terminating the mother's parental rights is due
to be reversed. Because we reverse the judgment as to the
mother, we pretermit discussion of the other issues she
raises on appeal.
father argues in his brief on appeal that the juvenile
court's delay of approximately 11 months between the end
of testimony and the entry of the judgment demonstrated that
the judgment was not supported by clear and convincing
evidence of the father's current conditions or conduct
relating to his willingness or ability
to care for the child. The mother and the father attached
affidavits and other documentary evidence to their joint
postjudgment motion indicating that their circumstances had
" changed dramatically" since the end of the trial
11 months earlier. For example, according to their
affidavits, the father and the mother have repaired their
relationship and are no longer involved with the people with
whom they had relationships at the time of trial, both
parents were continuing to make use of services provided by
DHR, and both were employed. In the motion, the parents asked
the juvenile court to " set this matter for a
dispositional trial to determine the custody" of the
child. The juvenile court denied the postjudgment motion,
noting that the mother and the father had not requested oral
argument on the motion.
appeal, the father correctly points out that the juvenile
court failed to enter its judgment in compliance with Rule
25(D), Ala. R. Juv. P., which states that, " [i]n
termination-of-parental-rights cases, the juvenile court
shall make its finding[s] by written order within 30 days of
completion of the trial." In addition, §
12-15-320(a), Ala. Code 1975, requires a juvenile court to
enter a final judgment within 30 days of the completion of a
trial in a case involving the termination of parental rights.
reveals no Alabama caselaw directly addressing the issue
raised by the father. In the context of addressing whether a
juvenile court's failure to enter a judgment within the
time directed by Rule 25(D), Ala. R. Juv. P., rendered the
judgment void, this court wrote: " Clearly, the juvenile
court committed a procedural error; however, a violation of a
mandatory provision contained in a statute requires reversal
only if the failure to comply impairs a substantial right of
the appealing party." M.H. v. Cleburne Cnty.
Dep't of Human Res., 158 So.3d 471, 475-76
This court has consistently held that the existence of
evidence of current conditions or conduct relating to a
parent's inability or unwillingness to care for his or
her children is implicit in the requirement that termination
of parental rights be based on clear and convincing
evidence." D.O. v. Calhoun Cnty. Dep't of Human
Res., 859 So.2d 439, 444 (Ala.Civ.App. 2003); see also
Ex parte T.V., 971 So.2d 1, 6 (Ala. 2007).
construing a similar requirement that, in
termination-of-parental-rights cases, judgments be entered
within 30 days of the trial, North Carolina courts have noted
that the time requirement was implemented to protect the
rights of all parties involved, including the parents, the
children, the foster parents, and the potential adoptive
parents. See In re T.L.T., 170 N.C.App. 430, 432,
612 S.E.2d 436, 438 (2005); In re L.E.B., 169
N.C.App. 375, 610 S.E.2d 424 (2005). The North Carolina Court
of Appeals has opined that a delay in the entry of a judgment
terminating parental rights also results in the delay of the
parents' abilities to appeal from the judgment, resulting
in prejudice to the parents, and has reversed judgments
entered six months after the conclusion of
the trial, In Re L.E.B., supra, and seven months after the
conclusion of the trial, In re T.L.T., supra.
agree with the father that the juvenile court's judgment
terminating his parental rights, entered approximately 11
months after the trial concluded, could not have been based
on his current circumstances. In this case, the father
submitted evidence in support of his postjudgment motion
indicating that his circumstances had changed in the 11
months since the termination trial concluded. We conclude
that the delay in this case substantially impaired the rights
of the father, as well as those of the child. Because of the
juvenile court's undue delay in entering the judgment, in
violation of § 12-15-320(a) and Rule 25(D), Ala. R. Juv.
P., and the prejudice to the parties caused by that delay,
the judgment, insofar as it terminates the father's
parental rights to the child, must also be reversed.
reasons set forth above, the judgment of the trial court is
reversed and the case is remanded for further proceedings
consistent with this opinion.
-- REVERSED AND REMANDED.
-- REVERSED AND REMANDED.
Thomas, Moore, and Donaldson, JJ., concur.
The mother has two children from a previous
relationship. Those children were found dependent because,
DHR said, the father in this case had "
inappropriate[ly]" disciplined one of them. At the time
of the termination trial in this case, the older children
were in the custody of their maternal grandmother. They are
not involved in this termination action.
The mother made a similar argument on
appeal. Because we have reversed the judgment terminating her
parental rights on a separate ground, we need not address
this argument as it pertains to the mother.
None of the parties asked this court to
direct the juvenile court to enter an order within 30 days of
completion of the trial as required by Rule 25(D), Ala. R.
Juv. P., and § 12-15-320(a), Ala. Code 1975.