Mobile County Department of Human Resources v. T.W. and L.M.
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Rel: 06/17/2016 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2015-2016 _________________________ 2150069 _________________________ Mobile County Department of Human Resources v. T.W. and L.M. Appeal from Mobile Juvenile Court (JU-09-1368.04, JU-09-1369.03, and JU-09-1370.03) PER CURIAM. The Mobile County Department of Human Resources ("DHR") appeals three orders of the Mobile Juvenile Court ("the juvenile court") denying its petitions seeking to terminate the parental rights of T.W. ("the mother") and L.M. ("the father") to their three children. 2150069 The record indicates the following facts. DHR first became involved with this family in January 2009 when the youngest child tested positive for drugs at his birth. On October 16, 2009, the children were placed in foster care because the incarcerated. mother was using drugs and the father was The children were returned to the father's custody upon his release from incarceration in April 2011. DHR again became involved with the family in July 2012 after DHR received a report that the two older children were missing. At that time, the father was again incarcerated for violating his probation, and he had left the children in the care of To.W., the children's maternal aunt. To.W. had allowed the mother to care for the children, and the two older children were missing for two hours while in the mother's care. The children were found unharmed at a friend's home, and the children were ultimately placed in foster care. Natasha Cromwell, a senior social-work supervisor for DHR, testified that the children were not placed with the mother after the July 2012 incident because, earlier, the mother had not been awarded custody of the children. Cromwell stated that the mother was abusing drugs and did not have 2 2150069 stable housing at that time. Cromwell testified that the children were placed with To.W. pursuant to a safety plan but that, after only two weeks, To.W. informed DHR social workers that she was no longer able to care for the children. On July 30, 2012, DHR received custody of the children, and they were placed in a foster home that same day. The youngest child suffers from attention-deficit hyperactivity disorder ("ADHD") but was receiving counseling and taking medication for the ADHD at the time of the termination hearing. The two younger children have remained in the foster home, but the oldest child was sent to a group home in February 2015 because of behavioral issues and because of his involvement in fights at school. The oldest child will not be allowed to leave the group home until he can demonstrate that he is able to coexist with other children in a classroom setting as well as in his living quarters. The mother has visitation once every two weeks with the two younger children and has monthly visitation with the oldest child at the group home. Cromwell testified that the mother has never been granted unsupervised visitation because, 3 2150069 Cromwell said, the mother has been unable to maintain sobriety. DHR established the following four goals for the mother before reunification would be possible: that she complete drug treatment and maintain sobriety, that she locate and maintain stable housing, that she complete a parenting course and demonstrate parenting skills, and that she have a source of income sufficient to support the children. DHR provided several psychological services evaluations, younger to the supervision children, implementation of mother, of her referrals in-home including visitation to services, with parenting referrals the two classes, to drug counseling, drug screens and tests, and a referral to a substance-abuse program for drug treatment. The in-home- services program offered the mother transportation to drug treatment, assistance with visitation, and parenting classes. The record indicates that the mother has had difficulty maintaining housing. Cromwell testified that the mother has lived in more than ten different places between July 2012 and May 2014 and that no home studies have been completed on any of those residences because of the frequency of the mother's 4 2150069 moves. The record also indicates that the mother has had issues with substance abuse throughout the pendency of these cases. The mother reported that she smoked marijuana "about twice a month" for 1 year at the age of 18 and then used marijuana again in 2007 and throughout her pregnancy with the youngest child. She also admitted that she used cocaine once in December 2008 while she was pregnant. The mother tested positive for cocaine in July 2014 and also testified positive for methamphetamine in April 2015. The mother also refused to submit to drug screening several times after the children were placed in foster care. The mother did not complete a substance-abuse program. Jeremy Mosley, a DHR social worker assigned to these cases, testified that the mother had enrolled in a substance-abuse program and that, although sessions were held three times a week, the mother had attended only seven sessions since July 2014. The mother had also enrolled in two parenting courses but had failed to complete either of them. Cromwell testified that the mother had at least four jobs between November 2012 and May 2014. The mother reported that she had previously worked as a waitress, a cook, a cashier, 5 2150069 and a dancer and that she had also worked in construction and had towed vehicles. On January 8, 2015, the mother began working at a fast-food restaurant, and she was shot at work during a restaurant robbery on January 17, 2015. As a result of the shooting, the mother lost her right lung and pieces of her ribs were shattered. She stated that she has not yet been released by her doctor to return to work but that she plans to work at the same fast-food restaurant. At the time of the termination hearing in June 2015, the mother's income included $200 in food stamps each month and $141.48 in workers' compensation benefits each week. However, the mother testified that she gave the food-stamp income to her cousin, D.B., who has custody of the mother's youngest child; the mother's youngest child is not at issue in these actions. Mosley testified that the mother has only brought food for the children to the visits and that he was unaware of her ever bringing anything else, such as gifts or clothes, to visitations. The mother has had at least four boyfriends, while still being married to the father, since the children were placed in foster care in 2012. Background checks performed by DHR on 6 2150069 those men showed that each had a criminal history involving drug-related charges and domestic-violence charges, and one boyfriend, A.T., had a criminal history involving a sexualassault charge. The mother testified that A.T. was the biological father of the youngest child at issue in these cases. The father reported to Dr. Jennifer Jackson, a licensed psychologist, that he had previously worked as a brick mason and at a fast-food restaurant and that he had worked as a machine operator for approximately three years, except for those periods during which he was incarcerated. There was no testimony regarding the father's employment status at the time of the termination hearing. The father has a history of substance abuse. He tested positive for cocaine and methamphetamine in June 2014. Mosley stated that the father had been incarcerated five times since May 2014 and that four out of the five arrests were for drugrelated offenses. Testimony at trial indicated that the father had failed to attend recent visits with the children. Cromwell testified that the father often changed residences and that DHR did not 7 2150069 have the father's current address or telephone number, and Mosley testified that the father had once told him that he was homeless. Mosley testified that his last contact with the father was in April 2015, when Mosley invited the father to a meeting, and before that, Mosley stated, he had last seen the father in December 2014. The mother testified that, at the time of the termination hearing, she did not know where the father lived and that the father no longer had an interest in the children. The father did not appear at the termination hearing. Each of the juvenile court's September 15, 2015, orders states: ".... "3. The child is a dependent child as that term is defined in the Code of Alabama and is in the legal custody of the Alabama Department of Human Resources which agency is charged with providing services for dependent children. "4. The mother and the father were both duly served with notice of the petition on December 19, 2014. "5. The testimony presented to the Court as summarized, in part by the attached report which was admitted into evidence, establishes that the father has abandoned the child and the child's 8 2150069 siblings as that term is defined in the Code of Alabama. "6. Said evidence also establishes that the mother has made little progress towards completing the plan of reunification, and that [DHR] made all reasonable efforts to promote reunification by offering numerous services to the mother over a period of several years, although the mother continues to make efforts. "7. The Court finds that at the present time the mother is unable to discharge her responsibilities to and for the child, as she, at the time of the hearing, was still in drug treatment having had a positive drug screen as late as April 2015. "8. However, the Court further finds that the child has no adoptive resource available at this time. Consequently, the Court concludes that the Court cannot make a finding that it is in the best interest of the child to terminate the parental rights of the parents to allow a plan of adoption to be finalized because at the present time there is no available resource and given the age of the child and the nature of the relationship between the siblings, the Court cannot find that [DHR] will be able, in the foreseeable future, to finalize their plan of adoption. "9. The Court concludes therefore that [DHR] should continue to attempt reunification efforts with the mother, while at the same time [DHR] can seek an adoptive resource. 9 2150069 "10. However, it is due to the policies of [DHR] of not seeking adoptive resources prior to the granting of a termination of parental rights petition that prevents a true effort to achieve concurrent plans. Thus, the Court cannot find from clear and convincing evidence that adoption is an achievable plan. "It is therefore ORDERED, ADJUDGED, and DECREED by the Court that the petition to terminate parental rights is hereby DENIED. The Court does ORDER [DHR] to exercise additional efforts to reunify the child with the mother and does set the matter for a permanency hearing on [December 18, 2015,] at 8:30 a.m. "It is further ORDERED that [DHR] shall be prepared on that date, as shall the mother, to present evidence of the progress being made towards reunification. It is further ORDERED that the petition to terminate parental rights is not dismissed, but merely denied at this time. Should [DHR] present evidence that the mother has made little or no progress towards reunification, and that there is no reasonable expectation that progress can be made, and present to the Court evidence that [DHR] can reasonably expect to successfully place the child for adoption, the Court will reconsider the granting of the petition. ".... "The Court does reserve jurisdiction to enter such further and future orders as may be necessary for the best interests of the child." On appeal, DHR argues that the juvenile court improperly denied the petitions for termination of parental rights. We note that, "[w]hen the State is the petitioner in termination 10 2150069 proceedings, the juvenile court must apply a two-pronged test in deciding whether to terminate parental rights." D.M. v. Walker Cty. Dep't of Human Res., 919 So. 2d 1197, 1209 (Ala. Civ. App. 2005). The juvenile court must first find from clear and convincing evidence that the child is dependent. Id.; see also § 12-15-319, Ala. Code 1975. Second, the court must determine that no viable alternatives to the termination of parental rights exist. D.M., 919 So. 2d at 1207. The Alabama Juvenile Justice Act ("the AJJA"), § 12-15-101 et seq., Ala. Code 1975, sets forth the grounds for termination of parental rights and the factors to be considered when determining whether a parent's parental rights should be terminated. The AJJA provides, in 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. ..." § 12-15-319(a). Further, the abandonment of a child will support the termination of a parent's parental rights. § 1215-319(a)(1). 11 2150069 The juvenile court determined that the father had abandoned the children and that the mother was unable to discharge her responsibilities to the children because of her continued failure to complete a substance-abuse program. Neither parent has challenged the juvenile court's factual findings on appeal or filed a cross-appeal. DHR argues on appeal that the juvenile court erred by basing its denial of its termination petitions solely on the fact that DHR had not identified an adoptive resource for the children. DHR maintains in its brief submitted to this court that only foster children who have been placed in DHR's permanent custody may be considered available for adoption. We agree. In considering permanency plans for children who have been in foster care at least 12 months, the juvenile court and DHR may consider, among other options, "[p]lac[ing the child] for adoption with no identified resource or with the current foster parent wherein [DHR] shall file a petition for termination of parental rights." § 12-15-315(a)(2), Ala. Code 1975. Thus, the fact that a foster parent does not desire to adopt a child, and, therefore, that an adoptive resource is 12 2150069 not yet identified, will not forestall or prevent the filing of a petition to terminate parental rights. The parental AJJA provides rights by that, the "[u]pon juvenile the court termination and placement of of permanent custody of a child with any agency or department, the agency or department may place the child for adoption or consent to the adoption of the child." § 12-15-322, Ala. Code 1975. Thus, a child cannot be considered available for adoption until the parental rights of his or her parents have been terminated. In R.B. v. State Department of Human Resources, 669 So. 2d 187 (Ala. Civ. App. 1995), this court held that a juvenile court erred in denying a petition to terminate parental rights on the sole basis that there was no adoptive resource immediately available for the children. This court explained: "The lack of an adoptive resource, in and of itself, may well be a factor indicating that termination of parental rights would not be in the best interests of these children, but it is clearly not the only factor that should have been considered by the trial court. After reviewing [the predecessor to the AJJA] and the cases decided by this court and our supreme court, we find no requirement that there must be an adoptive resource before parental rights can be terminated. If that were true, courts would be unable to terminate parental rights, no matter how egregious the circumstances, until an adoptive 13 2150069 resource could be located, and an adoptive resource cannot always be found quickly. Therefore, we hold that the trial court's refusal to terminate parental rights in this case, based solely upon the lack of an adoptive resource, was plainly and palpably wrong." R.B. v. State Dep't of Human Res., 669 So. 2d at 191. We note that a juvenile court retains jurisdiction to review, at least annually, DHR's efforts to achieve permanency for the child after the juvenile court has terminated parental rights. § 12-15-321, Ala. Code 1975. The juvenile court's September 15, 2015, orders indicate that the juvenile court determined that grounds existed to support the termination of the parents' parental rights. The juvenile court denied DHR's termination petitions because DHR had not identified adoptive resources for the children. We agree with DHR that the juvenile court erred in denying the termination petitions adoptive resources. solely on the basis of a lack of Accordingly, we reverse the orders and remand the cause for further proceedings. 14 2150069 REVERSED AND REMANDED. Pittman and Thomas, JJ., concur. Moore, J., concurs in the result in part and dissents in part, with writing. Thompson, P.J., dissents, with writing, which Donaldson, J. joins. 15 2150069 MOORE, Judge, concurring in the result in part and dissenting in part. The Mobile County Department of Human Resources ("DHR") appeals from final judgments of the Mobile Juvenile Court ("the juvenile court") denying DHR's petitions to terminate the parental rights of T.W. ("the mother") and L.M. ("the father") to J.M., I.M., and E.M., three children born of the mother and the father's marriage. The juvenile court determined that DHR had proven grounds for termination, but the juvenile court did not terminate the parental rights of either the mother or the father, relying on the same reasoning with regard to each parent: "8. However, the Court further finds that the child[ren have] no adoptive resource available at this time. Consequently, the Court concludes that the Court cannot make a finding that it is in the best interest of the child[ren] to terminate the parental rights of the parents to allow a plan of adoption to be finalized because at the present time there is no available resource and given the age of the child[ren] and the nature of the relationship between the siblings, the Court cannot find that [DHR] will be able, in the foreseeable future, to finalize their plan of adoption." DHR appeals, arguing that the juvenile court erred in denying its petitions solely on the ground that no adoptive resource had been identified. 16 2150069 In its judgments, the juvenile court criticized DHR for its policy "of not seeking adoptive resources prior to the granting of a termination of parental rights petition." DHR maintains that it cannot arrange the adoption of a child until after termination of parental rights. Although DHR is correct, see Ala. Code 1975, § 12-15-322, the law not only allows, but requires, DHR to make reasonable efforts to recruit adoptive resources when required by a permanency plan approved by the juvenile court. See Ala. Code 1975, § 12-15- 312(b) ("If continuation of reasonable efforts is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan including, if appropriate, through an interstate placement, and to complete whatever steps are necessary to finalize a permanent plan for the child."). The record shows that the juvenile court approved adoption as the permanency plan for the children on December 16, 2014, triggering DHR's duty to locate potential adoptive resources for the children. Any policy DHR has adopted to the contrary would be inconsistent with § 12-15-312(b). 17 2150069 According to the juvenile court, because of DHR'S policy, DHR did not identify any adoptive resource for the children by the time of the trial on its petitions to terminate the parental rights of the mother and the father. The juvenile court concluded that it "cannot make a finding that it is in the best interest of the child[ren] to terminate the parental rights of the parents to allow a plan of adoption to be finalized because at the present time there is no available resource." To the extent that the juvenile court meant that it could not, as a matter of law, terminate the mother's and the father's parental rights without identification resource, that statement would be in error. of an adoptive Section 12-15- 315(a)(2) specifically allows for the approval of a permanency plan calling for the termination of parental rights with no identified adoptive resource. In R.B. v. State Department of Human Resources, 669 So. 2d 187 (Ala. Civ. App. 1995), this court concluded that, under Ala. Code 1975, former § 26-18-7, a juvenile court could terminate parental rights even when no adoptive resource had been identified. Although former § 26- 18-7 has been repealed, its replacement statute, Ala. Code 18 2150069 1975, § 12-15-319, contains similar wording that does not alter the conclusion reached by this court in R.B. However, the juvenile court's judgments should not be construed so narrowly. In its judgments, the juvenile court also stated that it had concerns that, because of the ages of the children and their relationship with the mother, adoption did not seem likely. At the close of the trial, the juvenile court expounded on those concerns: "[W]hat disturbs me is I have adoption with no identified resource. The termination of parental rights seems pointless at this point because we've got three children that have some kind of relationship with their mother. They see her. They've seen it. There's no evidence from anybody that says that they don't have some sort of bond –parental bond there. And one child's in treatment. You got -- you know, are we going to split them up? Are we going to adopt the youngest? ... I'm just not sure that the plan is appropriate from the standpoint of the children. And I don't have much evidence here to show me what -- you know, other than by God, it's this many months and, you know, we want termination." The judgments reflect the juvenile court's reasoning that, in light of the children's bond with the mother and the absence of an available adoptive resource, termination of parental rights would not be in the best interests of the children. So construed, the judgments should be affirmed, at least insofar 19 2150069 as the juvenile court denied the petitions to terminate the parental rights of the mother. See Ex parte Snider, 929 So. 2d 447, 456-57 (Ala. 2005) (judgments should be construed to be lawful if reasonably possible). Section 12-15-319(a) provides that, upon proof of grounds for termination, a juvenile court "may" terminate parental rights, indicating that other considerations should factor into the decision whether to terminate parental rights. See Montgomery Cty. Dep't of Human Res. v. N.B., [Ms. 2140109, June 12, 2015] ___ So. 3d ___, ___ (Ala. Civ. App. 2015) ("The term 'may' leaves the decision to the discretion of the juvenile court."), cert. denied, Ex parte Montgomery Cty. Dep't of Human Res., [Ms. 1141295, Nov. 25, 2015] ___ So. 3d ___ (Ala. 2015). In order to terminate parental rights, a juvenile court must also consider whether termination serves the best interests of the child. See J.C. v. State Dep't of Human Res., 986 So. 2d 1172 (Ala. Civ. App. 2007). As this court made clear in R.B., "[t]he lack of an adoptive resource, in and of itself, may well be a factor indicating that termination of parental rights would not be in the best 20 2150069 interests of the[] children." 669 So. 2d at 191; see also Montgomery Cty. Dep't of Human Res. v. N.B., supra. Like in New Jersey, it is within the discretion of the juvenile courts of this state to consider whether it is in the best interests of a child to terminate parental rights: "[C]ourts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child. [New Jersey Div. of Youth & Family Servs. v.] A.W., ... 103 N.J. [591,] 610–11, 512 A.2d [438,] 448 [(1986)]. Such harm may occur when a child is cycled through multiple foster homes after a parent's rights are severed. Id. at 611, 512 A.2d 438. '"Indeed, the detriment may be greater than keeping the parentchild relationship intact since the child's psychological and emotional bond to the parent may have been broken with nothing substituted in its place."' Ibid. (quoting In re Angelia P., 28 Cal. 3d 908, 171 Cal. Rptr. 637, 623 P.2d 198, 210 (1981) (Bird, C.J., concurring and dissenting)). We know that '[t]ermination of parental rights does not always result in permanent placement of the child' and 'that too many children "freed up" for adoption do not in the end find permanent homes.' [In re Guardianship of ]J.C., ... 129 N.J. [1,] 21, 608 A.2d [1312,] 1321 [(1992)]." New Jersey Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 109, 952 A.2d 436, 448 (2008). In R.B., this court held that the lack of an identified adoptive resource should not be an impediment in every termination-of-parental-rights case because, "[i]f that were 21 2150069 true, the courts would be unable to terminate parental rights, no matter how egregious the circumstances, until an adoptive resource could be located, and an adoptive resource cannot always be found quickly." 669 So. 2d at 191 (emphasis added). Obviously, some cases present such egregious circumstances that parental rights should be terminated for the protection of the child resource. regardless of the absence of an adoptive See T.L.S. v. Lauderdale Cty. Dep't of Human Res., 119 So. 3d 431, 439 (Ala. Civ. App. 2013). is also true. But the converse In some cases, the circumstances may show that termination of parental rights without a parental replacement would achieve no benefit for the child, see A.M. v. Colbert Cty. Dep't of Human Res., [Ms. 2140519, Dec. 4, 2015] ___ So. 3d ___, ___ (Ala. Civ. App. 2015) (Moore, J., dissenting), or, worse, may even harm the child. See, e.g., B.A.M. v. Cullman Cty. Dep't of Human Res., 150 So. 3d 782 (Ala. Civ. App. 2014); C.M. v. Tuscaloosa Cty. Dep't of Human Res., 81 So. 3d 391 (Ala. Civ. App. 2011). In those cases, the juvenile court can rely on the lack of an identified adoptive resource as a valid and lawful reason for denying a petition to terminate parental rights. 22 2150069 In its brief to this court, DHR states that no federal or state statute presenting an expressly identified places upon adoptive DHR the burden resource. of Although technically accurate, DHR fails to recognize that, in all termination-of-parental-rights cases, the burden rests on DHR to prove that the termination will serve the best interests of the child. See Ex parte Beasley, 564 So. 2d 950, 954 (Ala. 1990) (holding that party seeking to terminate parental rights must show "that termination is in the child's best interest, in light of the surrounding circumstances"). carries with it the responsibility of That burden proving that the termination will benefit the child and not "do more harm than good." T.D.K. v. L.A.W., 78 So. 3d 1006, 1011 (Ala. Civ. App. 2011). Thus, although DHR does not necessarily have to present an adoptive resource, when it does not identify a permanent familial substitute for the child DHR must show the circumstances indicating that termination would serve, not defeat, the best interests of the child. Youth & Family Servs. v. E.P., supra. New Jersey Div. of This court requires juvenile courts, when considering the best interests of the child, to weigh the advantages and disadvantages to the child 23 2150069 of terminating parental rights, see C.M., 81 So. 3d at 397, and D.M.P. v. State Dep't of Human Res., 871 So. 2d 77, 95 n.17 (Ala. Civ. App. 2003) (plurality opinion), which depends on the evidence, not on any abstract principles. In its brief to this court, DHR asserts one unassailable point: "The children deserve a safe, permanent home which [the father] is unable or unwilling to provide." The record shows, as the juvenile court found, that the father had abandoned the children and that the children did not have any relationship choice. with him because of the father's voluntary At the close of the trial, the juvenile court referred to the children's bond with the mother, of which plentiful evidence attested. However, the juvenile court did not mention the father for the reason that the evidence demonstrated no similar bond that deserved protection. The juvenile court's reasoning did not apply to the father, so DHR is correct that the juvenile court erred in denying the petitions insofar as they sought to terminate the parental rights of the father. On the other hand, DHR does not provide any valid reason for reversing the judgments as to the mother. 24 DHR repeatedly 2150069 argues that the children need permanency and that their permanency will be delayed if the parental rights of the mother remain intact, but, as the juvenile court noted, DHR presented no evidence indicating that the children will achieve permanency by the termination of the mother's parental rights. To the contrary, the juvenile court determined that it is unlikely that the children, now ages 12, 9, and 7 years, one of whom has severe behavioral problems and all of whom share a sibling bond, will be adopted. More alarmingly, DHR, the state agency charged with protecting the well-being of dependent children, did not present any evidence indicating how the termination of the mother's parental rights would affect the children, a point of concern to the juvenile court, as it should be to every juvenile-court judge in every case. On appeal, DHR does not even acknowledge the testimony favorable to the mother from its own social workers, all of whom indicated that the children had bonded with the mother and that they enjoyed their visits with her. DHR does not argue at any point that the emotional well-being of the children will be served by terminating the mother's parental 25 rights, a factor as 2150069 compelling as any material benefit they may gain by termination of her parental rights. In its brief to this court, DHR argues that it was required to file the petitions to terminate parental rights after the children had been in foster care for 15 of the last 22 months. See Ala. Code 1975, § 12-15-317. DHR then asserts that "termination of parental rights is presumed to be in the child's best interest after such a period of time has elapsed with no progress by the parents." Needless to say, that proposition is unsupported by any authority because it is manifestly incorrect. The law does not presume termination of parental rights serves a child's best interests when the child has been in foster care for any particular length of time. Regardless of the length of time a child has been in foster care, DHR must still prove all the elements necessary for terminating parental rights, including that termination would be in the best interests of the child. In the end, the juvenile court weighed the evidence indicating only a remote possibility that the children would be adopted, along with the evidence of their emotional bond with the mother, and decided that that relationship should be 26 2150069 preserved for the present time. The juvenile court did not commit any legal error in reaching that determination, see C.M., supra, and its judgments denying the petitions to terminate the parental rights of the mother is due to be affirmed. Because the main opinion concludes otherwise, I respectfully dissent from that aspect of the main opinion. 27 2150069 THOMPSON, Presiding Judge, dissenting. This court may consider an appeal only from a juvenile court's final judgment. Rule 4(a)(1)(E), Ala. R. App. P. "Subject to certain exceptions not relevant in this case, an appeal lies only from a final judgment. § 12–22–2, Ala. Code 1975; Bean v. Craig, 557 So. 2d 1249, 1253 (Ala. 1990). '"[A] final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court."' Dabbs v. Four Tees, Inc., 984 So. 2d 454, 456 (Ala. Civ. App. 2007) (quoting Jewell v. Jackson & Whitsitt Cotton Co., 331 So. 2d 623, 625 (Ala. 1976)). '"[T]he test of a judgment's finality is whether it sufficiently ascertains and declares the rights of the parties."' Coosa Valley Health Care v. Johnson, 961 So. 2d 903, 905 (Ala. Civ. App. 2007) (quoting Ex parte DCH Reg'l Med. Ctr., 571 So. 2d 1162, 1164 (Ala. Civ. App. 1990))." Ex parte K.S., 71 So. 3d 712, 714 (Ala. Civ. App. 2011). In these cases, the September 15, 2015, orders denied the petitions to terminate the parents' parental rights at that time, i.e., at the time the juvenile court entered its orders. However, those orders specify that the juvenile court had not dismissed the termination petitions or entered a permanent ruling on those termination-of-parental-rights petitions. Instead, the juvenile court ordered that the Mobile County Department of Human Resources ("DHR") and T.W. ("the mother") 28 2150069 present additional evidence at a hearing scheduled three months later to consider the merits of those parts of DHR's termination petitions that pertained to the mother.1 "Judgments are to be construed like other written instruments. The rules applicable to the construction and interpretation of judgments are those applicable to the construction and interpretation of contracts. Hanson v. Hearn, 521 So. 2d 953 (Ala. 1988). Separate provisions of judgments, like provisions of contracts, should be construed in pari materia, and the entire judgment-all provisions considered--should be read as a whole in the light of all the circumstances, as well as of the conduct of the parties. Id." Moore v. Graham, 590 So. 2d 293, 295 (Ala. Civ. App. 1991). In these cases, the juvenile court's orders contain provisions stating that the termination petitions were denied, at that time, and that the juvenile court planned to receive additional evidence on the same termination-of-parental rights petitions. The juvenile court's findings indicate that the 1 Also, although the juvenile court found in its September 15, 2015, orders that L.M. ("the father") had abandoned the children, it did not make any further mention of the father other than the general denial, at that time, of the termination-of-parental rights petitions. See P.D.S. v. Marshall Cty. Dep't of Human Res., 32 So. 3d 1288, 1290–91 (Ala. Civ. App. 2009) (holding that a juvenile court's failure to rule on that part of a petition that sought the termination of the father's parental rights rendered its order terminating the mother's parental rights nonfinal). 29 2150069 mother had made little progress toward reunification and that she was unable or responsibilities. unwilling fulfill her parental It also determined that L.M., the father, had abandoned the children. Ala. Code 1975. to See § 12-15-319(a)(1) and (b), Such findings would tend to support the termination of the parents' parental rights under § 12-15-319. However, the juvenile court declined–-at that time–-to terminate the parents' parental rights because DHR had not identified potential adoptive resources for the children, and, therefore, the juvenile court concluded that it did not have evidence that the adoption of the children was "an achievable plan." The juvenile court expressly stated that it was not "dismissing" the termination petitions, and it scheduled a hearing evidence. for three months later to consider additional Thus, construing all of the provisions of the September 15, 2015, orders together, I conclude that the orders do not dispose of DHR's claims seeking the termination of the parents' parental rights. The September 15, 2015, orders did not ascertain or declare the rights of the parties to the termination actions, but, rather, those orders anticipate a future ruling on the merits of DHR's termination 30 2150069 petitions after the consideration of additional evidence at a hearing scheduled three months later. Also, once DHR appealed, the juvenile court lost jurisdiction to act except in matters entirely collateral to the issues on appeal. Horton v. Horton, 822 So. 2d 431, 434 (Ala. Civ. App. 2001). In this case, the juvenile court stated that it would consider additional evidence on DHR's termination petitions at a December 2015 hearing together with the evidence it had already received. Had the juvenile court conducted that hearing, under the circumstances of these cases, any ruling based in part on that additional evidence would have been a nullity. Id.; M.G. v. J.T., 105 So. 3d 1232, 1233-34 (Ala. Civ. App. 2012). "Generally, 'only a final judgment appeal. § 12–22–2, Ala. Code 1975. will support an An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is generally not final.' Stone v. Haley, 812 So. 2d 1245, 1246 (Ala. Civ. App. 2001)." T.H. v. Jefferson Cty. Dep't of Human Res., 100 So. 3d 583, 585 (Ala. Civ. App. 2012). Accordingly, because I conclude 31 2150069 that the orders appealed from are not final and that this appeal is due to be dismissed, see T.H., supra, I dissent. Donaldson, J., concurs. 32
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