T.D.K. v. L.A.W. and T.M.

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REL: 08/19/2011 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 SPECIAL TERM, 2011 2100551 T.D.K. v. L.A.W. and T.M. Appeal from Etowah J u v e n i l e Court (JU-10-227.01 and JU-10-228.01) PER CURIAM. T.D.K. ("the mother") appeals from the judgment t e r m i n a t i n g h e r p a r e n t a l r i g h t s t o t w o o f h e r c h i l d r e n , A.B.M. 2100551 and T.O.M. custody and ("the c h i l d r e n " ) . The j u d g m e n t 1 of thechildren to their L.A.W., t h e f o r m e r w i f e The of thechildren's paternal indicates the following. years o l d a t t h e time never been The married at issue of thet r i a l . subject i n this case, i nhigh w i t h A.B.M.; h o w e v e r , A.B.M., was 28 school have when the older of the i n September was b o r n she s a i d t h a t because of d i f f i c u l t i e s The m o t h e r She and t h e f a t h e r t o each other. m o t h e r was s t i l l was b o r n of the children, uncle. by the father. record children legal f a t h e r , T.M. ( " t h e f a t h e r " ) , L.A.W. was a w a r d e d p h y s i c a l c u s t o d y to v i s i t a t i o n awarded 2002. s h e became p r e g n a n t she dropped out of school she had d u r i n g herpregnancy. T.O.M. i n May 2 0 0 4 . The C a l h o u n C o u n t y D e p a r t m e n t o f Human R e s o u r c e s ("DHR") first became involved with T.O.M. r e c e i v e d water heating living burns t h e m o t h e r when, over on a s t o v e . h i s body when i n O c t o b e r 2006, h e was s c a l d e d The m o t h e r t e s t i f i e d a t a f r i e n d ' s house when the accident s a i d t h a t she and t h e f r i e n d were c o o k i n g that they by were occurred. She and had turned their The m o t h e r h a s one o t h e r c h i l d , t h e c h i l d r e n ' s o l d e r h a l f s i b l i n g , who l i v e s w i t h h i s f a t h e r . That c h i l d i s n o t i n v o l v e d i n t h i s case. 1 2 2100551 backs "for just While their in backs were t h e house record that a moment" when pulled turned, someone k n o c k e d a t t h e door. s h e s a i d , one o f t h e c h i l d r e n a p o t of hot water o f f the stove. i n d i c a t e s t h a t DHR t o o k no a c t i o n a g a i n s t The t h e mother a t time. In April 2007, DHR investigated a report that the m o t h e r ' s b o y f r i e n d , G.H., w a s p h y s i c a l l y a b u s i n g t h e c h i l d r e n . Charles Parker, learned their that t h e DHR G.H. w o u l d clothes before beating would children G.H. h i s chest said were bruising. on When would also to punish them. On a t l e a s t o n e the clothes examined abused t h e mother abuse on around with was e v i d e n c e dryer placing the children, he saw T.O.M. h a d b r u i s i n g that Parker marks. i n d i c a t i n g that G.H. h a d p h y s i c a l l y The c h i l d r e n h a d w i t n e s s e d The m o t h e r a b o u t G.H.'s c o n d u c t place the after one o f h i s n i p p l e s bite as w e l l . occasion. he a b e l t so h a r d t h a t t h e o n A.B.M.'s i n n e r t h i g h . and marks that G.H. Parker consistent There anything them w i t h turned inside. multiple bruises on beating cause testified s o m e t i m e s make t h e c h i l d r e n t a k e o f f i nthe clothes dryer occasion, T.O.M. investigator, initially toward 3 denied thechildren. that knowing However, 2100551 she eventually beating told Parker that s h e was a w a r e t h e c h i l d r e n and p u t t i n g them i n t h e c l o t h e s that she c o u l d that G.H. told h e r she d i d n o t h i t them h a r d n o t do a n y t h i n g would beat Parker him. that, as t h e mother entered children Gadsden. were Although help her find with him. G.H. before a result into Parker of a safety services assigned a social said County. plan father, that to appears have with told that t h e Etowah allowed been taken t h e mother ended 4 DHR the mother's would in could leave with her case f o r have been h e r ; however, t o Gadsden, i n f o r the mother's by lives to live t h e mother County 2007, she had t o h i m s h e was m o v i n g intended initial t h e mother chose t o s t a y opened that he h a d t o remove who advised he said In April worker to f o l l o w through with Parker transferred involvement that his t h e mother w o u l d be and s a i d t h e mother to the advised the children ongoing Etowah with The m o t h e r was a l s o Parker dryer but enough. s h e l t e r away f r o m G.H., again. said, placed was The m o t h e r c h i l d r e n f r o m t h e m o t h e r a n d G.H.'s home. the he to stop G.H. t h e c h i l d r e n b e c a u s e , she s a i d , testified interviews, the that case t o be DHR; however, no action that agency, and DHR's i n 2007. 2100551 G.H. was c o n v i c t e d treatment The d i d move never l i v e d they t o Gadsden, i n one p l a c e v e r y made f e w a t t e m p t s went to live f a m i l y members. t o G.H.'s Several occurred jail. with witnesses or c a l l in jail. that the children from j a i l , she that the and subsequently, and l i v e d testified after was v i s i t i n g also there. once other t h e mother i n an a p a r t m e n t regarding next her sister's The m o t h e r released house, was s p e a k i n g A.B.M. r e f u s e d , "whip" h e r w i t h a b e l t . an i n c i d e n t G.H. h a d b e e n and handed t h e telephone s p e a k w i t h h i m as w e l l . the t o one y e a r mother. on t h e t e l e p h o n e to with h i s L.A.W. t e s t i f i e d the father, i n November 2009, were long. When G.H. was r e l e a s e d The m o t h e r children i n connection b u t she a d m i t t e d to v i s i t moved b a c k t o C a l h o u n C o u n t y door abuse o f t h e c h i l d r e n and sentenced mother mother of child that from and t h e with G.H. t o A.B.M. f o r h e r t o and t h e mother began When A.B.M. w o u l d n o t s t o p c r y i n g , mother p u t h e r i n a c l o s e t . Africa Bell, a t h e r a p i s t a t t h e CED M e n t a l H e a l t h Center, t e s t i f i e d that both c h i l d r e n had t o l d her during t h e i r therapy sessions that they d i d n o t want even t o see t h e mother. to live A.B.M. t o l d B e l l 5 with t h e mother or that the incident i n 2100551 w h i c h T.O.M. was s c a l d e d that t h e mother had p u r p o s e f u l l y During had i n 2006 h a d n o t b e e n an a c c i d e n t a n d been her testimony, i njail a job, that driver's place to live. and that to the that, at that Other children, removed she d i d n o t have she d i d n o t have the mother p r o v i d e d a f t e r t h e y were that s h e h a d no v e h i c l e for the children. gave acknowledged t h a t she occasions, She a d m i t t e d i n d i c a t i n g that children on s e v e r a l license, t o care sometimes t h e mother s h e h a d no i n c o m e , t h a t valid unable scalded him. than there a time, stable s h e was t h e g i f t s she i s no financial a n d no evidence support for the from h e r custody. The c h i l d r e n b e g a n l i v i n g w i t h t h e i r p a t e r n a l g r a n d m o t h e r in t h e summer October mother o f 2007. 2008, said, they began with living than L.A.W. "temporary while were children the m o t h e r was a r r e s t e d to serve they time living for failing i njail I n M a r c h 2 0 1 0 , s h e was r e l e a s e d arrange more she signed the sentenced A little a visit with with 6 papers" for L.A.W. t o pay t r a f f i c from j a i l later, i n I n 2009, t h e guardianship beginning thechildren. a year Afterward, f i n e s and i n November 2009. a n d c a l l e d L.A.W. t o The m o t h e r t e s t i f i e d that 2100551 L.A.W. r e f u s e d believed that her request s h e was s e e i n g L.A.W. t h e n second other contacted s e t was no l o n g e r thechildren about t h a t time, c l o s e d h e r case the children. custody between 2010, and also day, the it they guardianship because t h e and f o r other purposes. and that she s t i l l testified t o t h emother's filed parental custody a "motion At custody o f she learned from that the h e r home sister. 2 and to The d i s p u t e until, on J u n e 1 1 , petitions seeking the rights to the children of thechildren. That for ex parte The j u v e n i l e had legal escalated a n d L.A.W. joint that thechildren and t h emother seeking children. papers" i n school o f t h e mother's filed her to sign a the papers t o o f them the father termination G.H. a g a i n . and she needed t o remove L.A.W. L.A.W. valid L.A.W. planned said, t h e m o t h e r t e s t i f i e d , s h e d i s c o v e r e d t h a t DHR had mother t h e mother t h e mother andasked s e t of "temporary enroll give because, court temporary granted same custody" of the motion the day was f i l e d . A f t e r t h e f a t h e r a n d L.A.W. f i l e d t h e i r p e t i t i o n s f o r custody, t h e mother's s i s t e r and h e r husband a l s o f i l e d a p e t i t i o n seeking custody of the c h i l d r e n . Before the hearing i n t h i s case, however, t h e mother's s i s t e r , t h e f a t h e r , and L.A.W. r e a c h e d an a g r e e m e n t , p u r s u a n t t o w h i c h t h e m o t h e r ' s s i s t e r and h e r husband withdrew t h e i r p e t i t i o n . 2 7 2100551 On February 17, 2011, the j u v e n i l e court on t h e p e t i t i o n s t o t e r m i n a t e for joint entered custody. live with four years had 1, 2 0 1 1 , t h e j u v e n i l e found t h a t , thefather to adjust children. lived i nA p r i l with L.A.W. terminated awarded l e g a l subject mother's visitation t h e needs o f also noted that thec h i l d r e n t o have half years a permanent t h emother's p a r e n t a l physical custody to the father's and were home. rights to the r i g h t s were explicitly of review rights. of her parental o f an a p p e a l evidence 2d A trial court's from a The rights. judgment i s well f a c t u a l f i n d i n g s b a s e d on o r e t e n u s a r epresumed c o r r e c t . 4 6 , 47 ( A l a . 1 9 9 4 ) . The terminated. 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 f t e r an o r e t e n u s h e a r i n g settled. The of the children to visitation mother t i m e l y appealed the t e r m i n a t i o n standard t o meet custody of thec h i l d r e n t o the father L.A.W., a n d a w a r d e d L.A.W., rights. t h e c h i l d r e n h a d gone t o f o r two a n d a court court 2007, t h e mother h a d h a d n e a r l y The j u v e n i l e c o u r t juvenile children, since her circumstances to the opportunity Our hearing the mother's p a r e n t a l r i g h t s and March entitled and a i t s judgment t e r m i n a t i n g the mother's p a r e n t a l The j u v e n i l e c o u r t the On held See Ex p a r t e "'This 8 presumption Perkins, 646 S o . i s b a s e d on t h e 2100551 trial court's witnesses parte 810 position and t o assess their to directly entered 6 3 1 , 633 on f a c t u a l be r e v e r s e d (Ala. 2001 ) ) . f i n d i n g s based "'unless observe the demeanor and c r e d i b i l i t y . ' " T.V., 971 S o . 2 d 1, 4 ( A l a . 2 0 0 7 ) ( q u o t i n g So. 2d not unique On Ex p a r t e appeal, on o r e t e n u s the evidence so f a i l s a Ex Fann, judgment evidence will t o support the determination t h a t i t i s p l a i n l y and p a l p a b l y wrong, o r u n l e s s an the t r i a l court's discretion substitute our judgment f o rthat of the t r i a l to the evidence. This abuse of reweigh Perkins, So. 646 S o . 2 d a t 47 2 d 4 1 0 , 412 rights evidence. 304, 305 evidence" in a a and a be v. State i s "'[e]vidence Phillips v. P h i l l i p s , 1988). judgment by clear o f Human "Clear i n t h e mind and convincing R e s . , 534 S o . 2 d and convincing of the t r i e r e s s e n t i a l element as to 9 622 terminating t h a t , when w e i g h e d a g a i n s t produce probability w o u l d be l a w does n o t a l l o w . ' " court's Dep't c o n v i c t i o n as t o each high court To 1993)). supported C i v . App. opposition, w i l l firm juvenile must Bowman (Ala. (quoting ( A l a . C i v . App. Furthermore, parental Alabama i s shown. the evidence of fact of the claim correctness of the 2100551 conclusion.'" App. 2002) L.M. v . D.D.F., (quoting 840 S o . 2 d 1 7 1 , 179 ( A l a . § 6-11-20(b)(4), A l a . Code Civ. 1975). "Where ... 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 t o terminate the parental rights of the noncustodial p a r e n t , t h e 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 o f two parts. [ E x p a r t e B e a s l e y , ] 564 S o . 2 d [ 9 5 0 , ] 954 [(Ala. 1990)]. First, the t r i a l court must determine whether grounds exist f o r terminating parental rights. 564 S o . 2 d a t 9 5 4 . G r o u n d s e x i s t for terminating parental r i g h t s i f the parent i n q u e s t i o n i s 'unable o r u n w i l l i n g t o discharge [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 ... t h e 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 such 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 care f o r t h e c h i l d and ... s u c h c o n d u c t o r c o n d i t i o n i s u n l i k e l y t o 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 1 9 7 5 , [former] § 26-18-7(a) [(amended and renumbered as § 12-15-319(a))]...." Ex parte The J.E., 1 So. 3d 1 0 0 2 , 1006-07 mother contends rights, the juvenile present circumstances. that "the existence conduct relating that, court (Ala. i n terminating erred of evidence to a parent's that inability f o rh i s or her c h i l d r e n i s i m p l i c i t that termination evidence." D.O. this court of current care convincing her parental i n not considering I t i s true of parental 2008). rights be v. Calhoun i n the requirement based Cnty that 10 properly on c l e a r a n d Dep't held may or or unwillingness to 859 S o . 2 d 4 3 9 , 444 ( A l a . C i v . A p p . 2 0 0 3 ) . court has h e l d conditions Res., the juvenile her o f Human We h a v e consider also past 2100551 h i s t o r y and p r e s e n t c i r c u m s t a n c e s i n a t e r m i n a t i o n p r o c e e d i n g . W.P. v. 1023 ( A l a . C i v . App. In her Madison this Cnty case, present Dep't of Human R e s . , no the mother's circumstances income, no acknowledged that the c h i l d r e n and was a not in Furthermore, own were in fact, jail i n March forth we and 2010. i s no the effort that 1016, The that she no could t h a t she had stable housing. no She for she have mother's means not to provide to the that custody of no presented indicating that she after that children. was mother's assertion the s h e was present she r e l e a s e d from circumstances are history. evidence to indicated testified have e v i d e n c e was w i t h her conclude such c o n t i n u e d t o see him There 2d as o f t h e t i m e o f t h e h e a r i n g , said that, position testimony She d i d not d e s p i t e the had, consistent vehicle, she l o n g e r s e e i n g G.H., So. 2007). p r o p e r l y care f o r the c h i l d r e n . job, 980 indicating improve the her t h a t the mother circumstances. record contains has put Accordingly, sufficient evidence to support the j u v e n i l e c o u r t ' s f i n d i n g t h a t the mother i s unable or u n w i l l i n g children, to d i s c h a r g e her or t h a t her conduct responsibilities or c o n d i t i o n 11 t o and renders her f o r the unable 2100551 to p r o p e r l y of care f o r the c h i l d r e n , warranting the mother's p a r e n t a l The failed that mother also to present no viable parental the one's contends that the and c o n v i n c i n g alternatives i s required parental father and evidence existed She c o r r e c t l y n o t e s j u v e n i l e court terminate rights. clear rights. the termination to indicating terminating the second to f i n d before rights: L.A.W. prong " I f the trial court f a c t o r s , that grounds for then to the second parental part of rights, the court i t sanalysis, that i t can p r o p e r l y d e t e r m i n e s , b a s e d on a l l r e l e v a n t terminating her which must exist proceed i s to consider whether a l l v i a b l e a l t e r n a t i v e s t o 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 have been e x h a u s t e d . [Ex p a r t e ] 954 Ex p a r t e [(Ala. 1990)]." Parents family parents integrity use state's v. that c h i l d r e n share does (1982). t h e most goal 564 S o . 2 d [ 9 5 0 , ] a t J . E . , 1 So. 3d a t 1008. a fundamental not dissolve have n o t been model p a r e n t s . U.S. 7 4 5 , 754 to and t h e i r Beasley, simply tailored because means requires of the C o n n , 417 F . S u p p . 7 6 9 , 77 9 (M.D. A l a . 1 9 7 6 ) . states achieving of p r o t e c t i n g c h i l d r e n from p a r e n t a l 12 to S a n t o s k y v . K r a m e r , 455 That due-process r i g h t narrowly right harm. the Roe T h u s , i f some 2100551 less drastic alternative to termination be used that parental family harm and preserve However, efforts a juvenile Code 1 9 7 5 . to rights. a j u v e n i l e court a child required the children the b e n e f i c i a l then parental to reunite subjected protect a family to chronic of the must explore court rehabilitating h a s no d u t y i n cases t o use i n which p h y s i c a l abuse. counseling t h e mother instead Id. Thus, t h e j u v e n i l e c o u r t consider from aspects a l t e r n a t i v e c a n be s u c c e s s f u l l y e m p l o y e d terminating Ala. simultaneously relationship, whether that of will of p a r e n t a l r i g h t s can or to prevent a parent has § 12-15-312(c), i n this some reasonable c a s e was n o t other further method abuse of of the children. Our the caselaw abusive restricted termination parent See, 95 parent's custody visitation be removing but allowing r e h a b i l i t a t e d but s t i l l emotional the c h i l d that relationship with from parent alternative to r i g h t s when i t a p p e a r s t h a t e . g . , D.M.P. v . S t a t e n.17 that r i g h t s c a n be a v i a b l e of parental cannot beneficial has r e c o g n i z e d shares a wayward a deep and h i s or her c h i l d r e n . D e p ' t o f Human R e s . , 871 S o . 2 d 7 7 , ( A l a . C i v . App. 2003) 13 (plurality opinion). In such 2100551 cases, permanently depriving p a r e n t by t e r m i n a t i n g good to children see the the mother properly children so, their again. that was the rights Id. Thus, could that alternative this they between with do m o r e h a r m in the j u v e n i l e visitation than both d i d n o t want court the case, a to determined, mother and to termination the of the rights. facts of substantial evidence terminating the Accordingly, the judgment this supports mother's the judges case, we the j u v e n i l e parental rights i s affirmed. AFFIRMED. All of a s s o c i a t i o n However, therapist not a v i a b l e mother's p a r e n t a l Under parental children. informed children concur. 14 conclude court's to the that judgment children.

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