J.Y. v. Geneva County Department of Human Resources

Page 920

         Appeal from Geneva Juvenile Court JU-17-157.02.

         Letta Dillard Gorman, Geneva, for appellant.

          Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.

         EDWARDS, Judge.

         In November 2018, the Geneva County Department of Human Resources ("DHR") filed a petition in the Geneva Juvenile Court seeking to terminate the parental rights of J.Y. ("the father") and A.A. ("the mother") to R.S. ("the child"). In its petition, DHR alleged that the father and the mother had failed to provide for the material needs of the child, had failed to maintain regular visits with the child, had failed to maintain consistent communication with the child, and had failed to adjust their circumstances to meet the needs of the child. The father was served with the petition and filed an answer; the mother was served by publication and was appointed an attorney. The juvenile court held a trial on DHR's petition on January 31, 2018, at which neither the father nor the mother appeared; both parents were represented by counsel. On February 22, 2018, the juvenile court entered a judgment terminating both the father's and the mother's parental rights to the child. Both the father and the mother timely appealed; the father's appeal was assigned appeal number 2180459, and the mother's appeal was assigned appeal number 2180460. Although we originally consolidated the appeals ex mero motu, we have elected to unconsolidate the appeals for separate disposition.

         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 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[].

"....

"(4) Conviction of and imprisonment for a felony. "....

"(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parent[] have failed. ".... "(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

Page 921

care agency, and agreed to by the parent.

"(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.

"(b) A rebuttable presumption that the parent[] [is] unable or unwilling to act as parent[] exists in any case where the parent[] ha[s] abandoned a child and this abandonment continues for a period of four months next preceding the filing of the petition. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period."

         The test a juvenile court must apply in an termination-of-parental-rights action is well settled.

"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 Cty. Dep't of Human 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 Cty. Dep't of Human 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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 evidence presented at trial was composed solely of the testimony of Shannon Dotson, the DHR caseworker assigned to the child's case. She testified that the child had been removed from the custody of the father and the mother in August 2017 upon the arrest of both parents for possession of a controlled substance and possession of drug paraphernalia. Dotson said that the ...