T.M. v. K.M.G.

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REL: 02/18/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2091135 T.M. v. K.M.G. Appeal from Etowah J u v e n i l e Court (JU-10-78.01) PITTMAN, Judge. T.M. his on ("the f a t h e r " ) parental October appeals r i g h t s a s t o T.L.M. 23, 1997. from a judgment ("the c h i l d " ) , terminating who was b o r n 2091135 This K.M.G. appeal ("the rights. father had In has i t s genesis mother") that to complaint, completed conviction, and the by terminating father and the mother were and an on A u g u s t 8, the father agreement physical were divorced and pay monthly c h i l d In November nonsupport action of the against the child-abuse 3, that child would of $1,900. The 1997; felony child i n 2003. abuse In of they awarded primary to mother, the father who time, was a subsequently the father subsequently criminal spent owed an time in f o r a t h e f t c o n v i c t i o n and then began v i s i t a t i o n w i t h again be incorporated prosecuted father, arrearage child he 19, 1999, t h e m o t h e r judgment mother i n February 2001; at that jail that i n t h e amount o f $ 1 5 8 . convicted The the rights. October the that interests by a judgment That a parental on parental support, for by v i s i t a t i o n , and o r d e r e d t h e f a t h e r support 1999, best On O c t o b e r control awarded the f a t h e r standard to sentence married of the p a r t i e s . custody asserted father's 1998. filed father's to pay c h i l d a the separated the child's served complaint mother the serving that a terminate had c o n s i s t e n t l y f a i l e d just in 2004, the the father child 2 of was charged h i s paramour; he the with was 2091135 convicted and 2006 u n t i l release served prison, visitation with child did not father to father refused, the this 2010; wrote but mother in the Ex also appoint parte conducted court mother him; his seeking responded parental the asked she that the rights. brought the The action Beasley, ad ore tenus proceeding father, and testified. August 16, On the father's detailed the 564 the parental findings of e i t h e r p r o n g of the So. 2d 950 juvenile court l i t e m to on the mother, the fact; In a d d i t i o n to a s s e r t i n g that comply with contends that an terminated containing a guardian his November arises. grandmother judgment with from months b e f o r e the thereafter at that p r o c e e d i n g , paternal a mother court juvenile in father the the term several father timely appeal follows. forth 2009, relationship appeal judgment does not to a and juvenile the rights the child, want this child's 2010, the In voluntarily relinquish from which J u l y 10, additional prison J a n u a r y 2010. from The an represent the test set (Ala. 1990), the erred in the failing interests of child. Our rights s t a n d a r d of is well r e v i e w of judgments t e r m i n a t i n g settled. 3 parental 2091135 "A j u v e n i l e c o u r t ' s f a c t u a l f i n d i n g s , b a s e d on o r e tenus evidence, i n a judgment t e r m i n a t i n g p a r e n t a l r i g h t s a r e p r e s u m e d t o be c o r r e c t a n d w i l l n o t be disturbed unless they are p l a i n l y and p a l p a b l y w r o n g . S e e , e . g . , F . I . v . S t a t e D e p ' t o f Human R e s . , 975 S o . 2 d 9 6 9 , 972 ( A l a . C i v . A p p . 2 0 0 7 ) . U n d e r express direction from o u r supreme court, in t e r m i n a t i o n - o f - p a r e n t a l - r i g h t s cases t h i s court i s 'required to apply a presumption of correctness to t h e t r i a l c o u r t ' s f i n d i n g [ s ] ' when t h e t r i a l court bases i t s decision on conflicting ore tenus evidence. E x p a r t e S t a t e D e p ' t o f Human R e s . , 834 So. 2 d 1 1 7 , 122 ( A l a . 2002) (emphasis added). A d d i t i o n a l l y , we w i l l reverse a juvenile court's judgment t e r m i n a t i n g p a r e n t a l r i g h t s o n l y i f t h e r e c o r d shows t h a t t h e j u d g m e n t i s n o t s u p p o r t e d b y c l e a r a n d c o n v i n c i n g e v i d e n c e . F . I . , 975 S o . 2 d a t 9 7 2." J.C. v . S t a t e D e p ' t o f Human R e s . , 986 S o . 2 d 1 1 7 2 , 1 1 8 3 ( A l a . Civ. A p p . 2007) So. 2 d 8 9 3 , 900 court's ruling correctness (footnote omitted); s e e a l s o R.S. v . R.G., 995 ( A l a . C i v . App. 2008). on a q u e s t i o n on a p p e a l . " Of c o u r s e , of law carries Ex p a r t e "a trial no p r e s u m p t i o n o f J . E . , 1 So. 3 d 1 0 0 2 , 1008 (Ala. 2008); s e e a l s o Waltman v. R o w e l l , (Ala. 2005). The f a t h e r f i r s t failing to interests appoint 913 So. 2 d 1 0 8 3 , 1086 asserts that the j u v e n i l e court erred i n a of the child. guardian ad litem to The f a t h e r cites § 12-15-304, A l a . Code 1 9 7 5 , as a u t h o r i t y f o r h i s c o n t e n t i o n . Alabama Legislature recently totally 4 represent the We n o t e t h a t t h e r e v i s e d and reorganized 2091135 the statutory provisions pertinent to juvenile proceedings w i t h the passage of the Alabama J u v e n i l e J u s t i c e A c t , § 101 et seq., January the 1, A l a . C o d e 1975 2009. ("the Article 3 of provisions relating to parental-rights actions. See The pertinent father states: rights ad litem and protect best § 12-15-304(a) former a the parent their 1975, or a primary (emphasis who interests language of termination-of§ 12-15-324. referenced that is a or the added). party § the who "The to by the the previously a discretionary in appoint party shall Ala. at proceeding appearing of the effect on to 1975, replaced any stage ad i f he his the of a litem has no behalf or child." added). a the be Code Ala. The mandates appointment of a g u a r d i a n 5 to appoint a guardian (emphasis now a language court, w i t h those statute is child." That custodian 12-15-8(a) shall responsibility of read: conflict court child interests guardian former and provision juvenile for whose provision child on extensively modified § 12-15-301 t h r o u g h p r o c e e d i n g u n d e r t h i s c h a p t e r , may for Act took e f f e c t " I n a l l dependency and t e r m i n a t i o n of p a r e n t a l proceedings the the which dependency statutory proceedings, guardian Act"), 12-15¬ what ad Code plain was litem 2091135 whenever a c h i l d i s a p a r t y to a dependency or termination-of- parental-rights action, regardless that a "parent We guardian or to object l i t e m at to trial the and postjudgment court reverse cannot was not Blasdel, (Ala. first [Ms. So. 2d 40 9, L.L.C. v. It a PRS 280, ( A l a . 2005)) 285 trial court first the evidence Andrews, The parte v. time 612 and So. father Beasley, on 998 State an 2d settled that the basis trial 2010] at also supra, see argument not in a appellate argument Blasdel 3d White Sands 1057 Cas. So. 2d the made b e l o w a n d "[O]ur review considered by 2008 ) judgment of the 928 612 Group, (Ala. Co., v. , M e r r i t t O i l Co., 1042 , & guardian an So. also 2d of father issue an has behalf." a court. cannot reverse arguments of raise that Farm F i r e appeal'"). his to the So. child t h a t the appointment on 10, 1 992)); ("'we b a s e d on the to on reveals ( c i t i n g Andrews v. I I , LLC, Singleton an is well Dec. (Ala. (quoting appearing failed presented 2010) 410 of he whether record judgment 20 90 697, C i v . App. lack that motion. that custodian note, however, t h a t the failed ad or of urged is restricted the trial for to court." 410. contends was not that the test established in satisfied 6 at trial. Ex 2091135 " W h e r e , as h e r e , t h e c u s t o d i a l p a r e n t p e t i t i o n s to t e r m i n a t e the p a r e n t a l r i g h t s of the n o n c u s t o d i a l p a r e n t , the t r i a l c o u r t ' s a n a l y s i s c o n s i s t s of two parts. [Ex p a r t e B e a s l e y , ] 564 So. 2d [950 ,] 954 [ ( A l a . 1 9 9 0 ) ] . F i r s t , the t r i a l c o u r t must d e t e r m i n e whether grounds exist for terminating parental rights. 564 So. 2d at 954. Grounds exist for terminating parental rights i f the parent in q u e s t i o n i s 'unable or u n w i l l i n g to d i s c h a r g e [his] r e s p o n s i b i l i t i e s t o a n d f o r t h e c h i l d , o r ... the c o n d u c t o r c o n d i t i o n o f t h e p a r e n t [ ] i s s u c h as t o r e n d e r [him] u n a b l e t o p r o p e r l y c a r e f o r t h e child and ... such conduct or c o n d i t i o n i s u n l i k e l y to c h a n g e i n t h e f o r e s e e a b l e f u t u r e . ' A l a . Code 1975, [former] § 26-18-7(a) [ ( a m e n d e d a n d r e n u m b e r e d as § 12-15-319(a))] " Ex parte J.E., terminating convincing nature." At 1 So. 3d parental evidence, Ala. Code trial, living but he of locating to § the the child. "contact" he the excuses f o r f a i l i n g be was and to pay based the on judgment "clear and relevant and paternal interfered with At the in the employment soon. 7 familial the father grandmother, little The prospect father's attempts over the effectuate child their paternal unemployed, w i t h to grandmother time of t r i a l , around h i s v a r i o u s mother addition, a material, owned w i t h nonseasonal In 12-5-319(a). mother had that centered must father i n a h o u s e he admitted testimony rights 1975, r e l a t i o n s h i p w i t h the was 1006-07. competent, both complained that at visitation years and support for nearly s i x his years. 2091135 For her part, the mother s t a t e d t h a t had been h e l p f u l and in 1998 supportive but that the disappeared from the divorce and the father always The contact mother The supra, years, mother family had admitted that, the provision believed that responsibilities father had relies of the to the and almost reliance on noncustodial children's his t h a t he that decision parent rights father t r y i n g to j u v e n i l e court erred to the child; his In J.E., the from the did find the children rights be for that 8 his J.E., absent abandoned judgment parte as Ex largely voluntarily enforce fulfill been court was child. misplaced. the terminated grandmother. would never t h a t the but could lives, had up" f o r the is could the e x c l u s i v e l y on parental known p a r t i e s ' divorce father to support h i s contention terminating "given She always maternal before parties' abuse. f a t h e r had the sometime family essentially following the through o f c h i l d a b u s e , she she monetary in the child-support because his life his the p a r t i e s ' s e p a r a t i o n c h i l d ' s m a t e r n a l g r a n d m o t h e r l i v e d and convicted the and f a t h e r and incarceration for child s t a t e d t h a t , throughout the where the before child's father's the not such reason. that Ex that his parte he had parental J.E., 1 2091135 So. 3d at ground 1011. for (Ala. parental that App. had father's 2007), not p a r t i e s ' divorce visitation with support, in any which at much of parental the termination p a r e n t was as rights; K.O.H., 983 four reveals that years the a i t So. 2d of the held proper for the and the child he In had when with the child, the he mother had effect not in hidden its the his had not that that court or intermittently exercised spring 2004; the he the 9 was paramour's seen the rarely child, paid child had since father deliberately determined child juvenile from court he the his relationship with the by with and A l t h o u g h the mother specifically withheld judgment, father charge. interfered with juvenile the charged the had Following 2004, regarding that life. been arrearage testified d i s a p p e a r e d and father f a t h e r had a $1,900 c h i l d - s u p p o r t h i s a r r e s t on to child's until June abuse trial the spring before Moreover, abandonment contact record i n 1999, 2001. child admitted had case, the throughout February concern children. In t h i s felony the r i g h t s of a n o n c u s t o d i a l pertinent child does not more a n a l o g o u s t o A.J.H.T. v. Civ. parent absent case terminating a p p e a r s t o be 394 This that the noted the the father. that, 2091135 notwithstanding the father the father's had not maintained a familial the that years juvenile court significant paid child support relationship with the father had specifically incarceration consistently the c h i l d not been determined only s p o r a d i c a l l y paid c h i l d or time, even during incarcerated. that The the father had s u p p o r t f r o m M a r c h 2004 u n t i l h i s t e r m o f i m p r i s o n m e n t b e g a n on N o v e m b e r 3 0 , 2 0 0 6 ; m o r e o v e r , t h e juvenile support court noted the c h i l d that since the father h i s release had from not offered prison to i n January 2010. In A.J.H.T., we properly have prolonged absence were the that that had been interests. case, the A.J.H.T., the c h i l d mother's strong contact testimony parental with bond w i t h absence rights and would who that be i n 983 S o . 2 d a t 4 0 2 . that f a t h e r a n d t h a t he h a d h a d f o r over the c h i l d his stepfather 10 parent's i s o f an a g e t o k n o w the father indicated that could to the c h i l d r e n parent's absent parent i s h i s b i o l o g i c a l no p e r s o n a l noncustodial the parent's of the noncustodial i n this the j u v e n i l e court detrimental to recognize c h i l d r e n ' s best Likewise, the determined o l d enough termination concluded s i x years. The had developed and t h a t the a child 2091135 had no that desire not contact only support visit had with 319(a)(10), see to the the but that both before that parental The necessarily rights were child, without the § love, display felony support that he the had that have good cause or protection, filial § 12-15- terms of imprisonment, Moreover, the father child had juvenile been most conviction, and a terminating his judgment Ala. Code j u v e n i l e court 1975. in this case voluntarily relinquished juvenile the court drew, or a conclusion. From the the that upon maintenance, a f f e c t i o n , or the "a excuse, 11 1975, r e a c h e d by apparent based consistent child-abuse such conclusions i t is noted c o n s i s t e n t l y pay the the drawn, terminated of to two that maintain Code 12-15-319(a)(4), disagree i t s judgment, care, a asserts f i n d i n g s o f f a c t and in fact for See must failed j u v e n i l e court to Ala. after his concluded that We failed see had would rights. improperly child. the alone father he and in prison fact father The § 12-15-319(a)(9). referenced recently father. child, A l a . Code 1975, court the juvenile father's withholding ... or the of h i s the ... parental from to the presence, opportunity failure court claim for the 2091135 rights of parent." a parent, or failure § 1 2 - 1 5 - 3 0 1 ( 1 ) , A l a . Code The f a t h e r a l s o a s s e r t s exhaust and the v i a b l e awarding terminating the that had with him visitation no conclusion personal that not a v i a b l e parental The had rights. f o r over A.J.H.T., 983 So. child child was support, and to develop emotionally pertinent father had that s i x years statutory had from provisions, 12 whom he supports with the child i n t e r e s t s and, thus, of the father's 402. not f u l f i l l e d the bond, such the his h i s duty to the f a t h e r . father before failed a parent-child detached to the 2d a t he supra, wish with of the c h i l d ' s l i f e he of i s o l d e n o u g h t o know e x p l i c i t l y determined that that quo instead d i d not a l t e r n a t i v e to termination i n 2006, opportunities the the c h i l d been o n l y s p o r a d i c a l l y p a r t pay child to the c h i l d ' s best j u v e n i l e court imprisonment the child as i n A.J.H.T., is his biological contact a f a i l e d to the status awarding the father v i s i t a t i o n w o u l d be d e t r i m e n t a l was the Just that of 1975. with t h e f a t h e r and t h a t duties the j u v e n i l e court rights. demonstrating the absent parent had that the a l t e r n a t i v e of m a i n t a i n i n g his parental evidence visit to perform exercise that Based testimony to of the upon the 2091135 mother and juvenile the court, father, the conclude we and that determine t h a t the t e r m i n a t i o n was i n the Elrod, court the be 724 will best So. i n t e r e s t s of 2d 551, that of the the findings court could of the properly father's parental rights child. (Ala. Civ. a f f i r m judgment t e r m i n a t i n g f a c t u a l f i n d i n g s are plainly 553 detailed See, e.g., App. 1998) parental u n s u p p o r t e d by the Sutton v. (appellate rights unless evidence so as to wrong). AFFIRMED. Thompson, P . J . , Bryan and and Moore, Thomas, J . , JJ., concur writings. 13 concur. in the result, without

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