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J.D. v. E.R.

Alabama Court of Civil Appeals

March 30, 2018

J.D.
v.
E.R.

          Appeals from Autauga Juvenile Court (JU-17-62.01 and JU-17-63.01)

          DONALDSON, JUDGE.

         These are appeals of judgments of the Autauga Juvenile Court ("the juvenile court") terminating the parental rights of J.D. ("the father") to S.D. and D.D. ("the children"). We affirm the judgments.

         Facts and Procedural History

         On March 15, 2017, E.R. ("the mother") filed petitions to terminate the parental rights of the father to the children. In her petitions, the mother alleged that the father had physically abused S.D., had refused to provide any substantial support to the children, had not had any recent physical contact with the children, that the children feared the father, and that terminating the father's parental rights would be in the best interest of each child. On March 31, 2017, the juvenile court appointed a guardian ad litem to represent the children. The father filed answers to the petitions denying each allegation. The father also filed a counterclaim in each case seeking an award of attorney's fees. The mother answered the father's counterclaims asserting several affirmative defenses.

         On July 10, 2017, after a trial, the juvenile court entered a judgment in each case terminating the father's parental rights to each child and making certain findings of fact. The juvenile court's judgments state:

"1. ... Uncontroverted evidence was presented to the [juvenile court] that the [father] committed physical abuse against the minor child, S.D., when she was 6 years old. [The father] voluntarily entered a plea of guilty to battery of a child, a misdemeanor under Indiana law, to the physical abuse of said child during the Divorce proceedings. The [mother] testified that the facts surrounding the battery charge involved an incident wherein the [father] became extremely angry with the child to the point that he 'lost control' after the child asked him if he wanted her to help cook a meal. [The mother] testified that the [father] physically attacked the minor child to include grabbing her and slamming her head on the floor in the home to the point that the child was hospitalized with a concussion, contusions, and lacerations. The [mother] and the minor child testified to the extent of her injuries both physically and emotionally. Evidence was presented to the [juvenile court] that the minor child continues to suffer emotionally to the extent that she does not wish to see her father again or have any contact with him for the rest of her life. Pursuant to the Indiana Court Orders, Judge David C. Bonfiglio ordered that the [father]'s visitation would be limited to Skype or electronic communication subject to the [father]'s completing substantial psychiatric counseling to the extent that it satisfied the [mother] to expand his visitation. The [mother] presented credible testimony to the [juvenile court] that the [father] has failed to complete said counseling accompanied by evidence that the Guardian Ad Litem in the Indiana Case, MARY RAATZ reviewed the [father]'s counseling history over the next few years and determined that he had failed to comply with the [c]ourt's Order to the extent that he should not be allowed any physical visitation with the child.
"2. Through testimony, the [mother] averred that the [father] was currently in arrearage with his Child Support obligation as Ordered in the Divorce Decree in excess of $30, 000.00 exclusive of any applicable interest. The [mother] further testified that the [father] had failed to have any physical contact with the child since 2013 and that there were a number of times when he would go for more than four (4) to six (6) months without communicating with the child via electronic means or by telephone. The [mother] further testified that the [father] was in Contempt of the Indiana Order in that he has failed and/or refused to pay Court Ordered Attorney fees in excess of $3, 900.00 to her Indiana Attorney. A bill from said Attorney was introduced into evidence in this case. The [mother] requested this [juvenile court] to Terminate the Parental Rights of the [father], alleging that the [father] is unfit as a parent to the minor children for a number of reasons, primarily for his failure to substantially contribute financially to the minor children's welfare, the physical abuse admitted by the [father] against the minor child, S.D., and the extensive period of time that the [father] has basically been out of both of the children's lives to include the aforementioned instances where the [father] did not communicate in any manner for a period of over four (4) months at a time.
"3. The [father] testified to the [juvenile court] that he had attempted counseling with a number of different Counselors through his association with the United States Marine Corp. The [father] testified and evidence was admitted where he received counseling from a licensed Counselor in Florida, Mrs. Farnsworth; however, documentation was presented to the [juvenile court] via the Guardian Ad Litem (Raatz's) report that the [father]'s counseling through Mrs. Farnsworth, that he had failed and/or refused to comply with her recommendation that he receive individual psychotherapy as well as group support counseling before any physical visitation with the minor children would occur. The [father] alleged that the [mother] has kept him away from the minor children and evidence of alleged attempted communications by the [father] to the minor children was admitted and has been considered by this [juvenile court]. The [father] admitted that he has accumulated a substantial arrearage in Child Support obligations of several thousand dollars but he is not sure exactly how far behind he is. The [father] admitted to physically abusing S.D. when she was six (6) years old and acknowledged his Plea of Guilty to the charge of Battery of a Minor. The [father] spent approximately eight (8) months in jail as a result of the incident. Evidence [was] presented to the [juvenile court] that the [father] has been diagnosed with Bipolar Disorder, psychosis and a Panic Disorder. Further evidence was presented to the [juvenile court] that the [father] has continued to deal with his condition of significant mental health issues since the date the parties were divorced. The [father] testified that he is currently not on any medications; however, the private Counselor, Mrs. Farnsworth previously reported to the Guardian Ad Litem, (Mary Raatz), that the [father] had been abusing Klonopin and that she had a fear that he would continue to do so without intervention. Throughout the proceeding, the [father] displayed signs of struggling with significant emotional issues beyond what the [juvenile court] routinely sees in these type cases even given the consideration that this [is] an action requesting the termination of parental rights. [The father] asked to stop the proceeding and the [juvenile court] became concerned to the extent that the [juvenile court] summoned assistance from the Autauga County Sheriff's Office to have the presence of a Deputy in the [c]ourt room in the event the [father] 'lost control' in the manner he had described during the occurrence of the 'incident' with his minor daughter when he physically attacked her. [The father] testified that during said incident that he had 'lost time' and could not remember exactly what happened or why it happened. ... [The father] acknowledged that he had been discharged from the United States Marine Corp by Discharge order associated with the incident which occurred between him and his minor daughter. Although having become visibly shaken during his testimony, both the [father] and the [mother] appeared to be lucid, coherent and cooperative in providing their testimony to the [juvenile court] throughout the entire proceedings. [The father] was able to conclude his testimony after a recess.
"4. The [juvenile court] took testimony from both of the parties' minor children in camera, by agreement of both parties, their respective counsel and the Guardian Ad Litem, [Steve Langham]. The testimony taken from the children took place in camera in the Law Library of the Autauga County Courthouse. Said testimony was taken in order agreed upon by the parties, their respective Counsel and the Guardian Ad Litem. The [juvenile court] will not divulge all of the contents of the testimony given by the children in this Order; however, this [juvenile court] has given great weight to each child's testimony given the subject matter of said testimony and the disposition and demeanor of each child.
"5. Thea Langley testified that she had been appointed by Circuit Judge Ben Fuller in a collateral Domestic Relations case pending in Autauga County Circuit Court by Order of Judge Fuller. Mrs. Langley testified that she had met with the minor children and spoke with the [father] and [the mother] on a number of occasions in an effort to find a way to improve the relationship between the [father] and each child. Mrs. Langley admitted in her testimony that she had not been provided with any of the reports associated with the previous Indiana proceedings to include the incident/offense report associated with the battery of S.D., the medical records associated with S.D.'s injuries, the Guardian Ad Litem, Mary Raatz's report to the Indiana Court or the findings of the [father]'s previous counselor in Florida, Mrs. Farnsworth. Mrs. Langley appears to have done a thorough and competent job associated with the duties assigned to her by Judge Fuller; however, she lacks any knowledge of the history of the case which is not before the [juvenile court] in consideration of whether or not to terminate the [f]ather's rights. Mrs. Langley did not deliver an opinion to this [juvenile court] or make a recommendation as to the termination of parental rights for the foregoing reasons.
"6. Based upon all of the testimony and other evidence presented to this [juvenile court], the [juvenile court] finds that the [mother] has met the substantial burden placed upon her applying Alabama's two-pronged test and Alabama Statute [§] 26-18-7 (Code of Alabama, 1975). The [juvenile court] is convinced that the [father] abused the minor child, S.D., in the presence of the youngest child, D.D., to the extent that the child suffered physical injuries and emotional injuries which both children is [sic] still dealing with today and may have to do so for the rest of their lives. The [juvenile court] is further convinced that the [father] has failed to substantially provide financial support and that he is unable to produce any evidence disputing the fact that he is currently in arrears in excess of $30, 000.00 exclusive of any applicable interest. The [juvenile court] is convinced that there has occurred other circumstances to include but not be limited to, the [father]'s being absent from both minor children's lives and that there were periods in excess of four (4) months on more than one occasion where the [father] had no communication with the minor children at all, electronically by Social Media or otherwise. The [juvenile court] further finds that there are no other viable alternatives which have not been considered or attempted and that the [father] has not presented any evidence to the [juvenile court] of any family members of the [father] who are available and willing to assist with any type of reunification. The report submitted by Guardian Ad Litem, [Steve Langham], and Indiana Guardian Ad Litem, Mary Raatz, coupled with the fact that the [father]'s own counselor, (Mrs. Farnsworth) has indicated a lack of cooperation on the part of the [father] in that he had refused the recommended individual psychotherapy and community support involvement. The [juvenile court] is convinced that the evidence shows that the [father] has been unwilling to take the steps as prescribed by Indiana Judge Bonfiglio to try and reenter the children's lives through counseling and rehabilitation. Both children appear very happy and well cared for in the home of the [mother] and their Step-Father....
"Based upon all of the testimony and other evidence admitted and considered by the [juvenile court] it is hereby ORDERED, ADJUDGED and DECREED as follows:
"1. That the Parental Rights of the [father] as to the minor dependent child S.D. and the minor dependent child D.D. are hereby terminated.
"2. That the [juvenile court] further finds in terminating the parental rights of the [father], that substantial credible evidence has been presented to this [juvenile court] to make the determination that [the father] is unfit as a parent to the minor children and that there are no other viable alternatives to terminating his parental rights which have not been considered by the Indiana Court and this [juvenile court]. Each party shall be responsible for his or her own attorney's fee with all fees due to the Guardian Ad Litem, [Steve Langham], shall be satisfied by the State of Alabama pursuant to Juvenile Contract with Mr. Langham.
"3. All other relief requested by either party to this action is hereby denied. The cost of this action having been ...

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