219 So. 3d 650
Ala. Civ. App.2016Background
- Mother filed petition to terminate Father’s parental rights on Nov. 13, 2015; trial held May 4, 2016 and juvenile court terminated Father’s rights on May 11, 2016; Father appealed.
- Divorce (Sept. 2014) awarded mother full custody and father visitation as agreed; by trial father had not seen the child for ~2 years.
- Mother testified father last saw child in Apr. 2014; father claimed last visit Aug. 2014 and said mother blocked visitation.
- Father had intermittent incarceration and criminal history related to drug possession and failure to comply with drug-court orders; at trial he was incarcerated and had limited employment and no child support payments.
- Mother testified Father used synthetic marijuana and appeared impaired during last visit; Father claimed sobriety since Aug. 2015 but had only brief periods out of jail.
Issues
| Issue | Mother's Argument | Father's Argument | Held |
|---|---|---|---|
| Whether clear-and-convincing evidence supports termination based on abandonment and unwillingness/unability to parent | Father abandoned child by failing to visit for ~2 years and thus rebuttable presumption of inability/unwillingness exists | Father said he repeatedly requested visits but was denied and feared enforcing rights because of outstanding charges | Affirmed: court could find abandonment and failure to rebut presumption; evidence supported termination under §12-15-319(b) and (a)(11) |
| Whether failure to pay/support warranted termination under §12-15-319(a)(9) | Father had ability but paid no support | Father testified intermittent employment and incarceration limited support | Affirmed: juvenile court could find failure to provide support where able; supported termination alongside abandonment findings |
| Whether Father’s alleged mental illness or substance use required explicit findings or precluded termination | Petition alleged emotional/mental illness or excessive substance use rendering Father unable to parent | Father argued insufficient proof of mental illness or active substance use at trial | Court noted it did not expressly find mental illness or active use; any error was harmless given abundant other evidence (abandonment, lack of communication) |
| Whether less drastic alternatives were required before termination (due-process) | Mother argued abandonment relieved court of exploring alternatives | Father argued court should have considered alternatives to termination | Affirmed: abandonment forfeits due-process right to require exploration of alternatives; termination proper without exhausting alternatives |
Key Cases Cited
- C.O. v. Jefferson Cty. Dep’t of Human Res., 206 So.3d 621 (Ala. Civ. App. 2016) (explains clear-and-convincing standard and appellate review of fact findings)
- L.M. v. D.D.F., 840 So.2d 171 (Ala. Civ. App. 2002) (definition and application of clear-and-convincing evidence)
- Ex parte McInish, 47 So.3d 767 (Ala. 2008) (appellate framing: review through the prism of the substantive evidentiary burden)
- Ex parte T.V., 971 So.2d 1 (Ala. 2007) (presumption of correctness for ore tenus fact-findings)
- J.W. v. C.B., 68 So.3d 878 (Ala. Civ. App. 2011) (distinguishing review of factual findings from legal conclusions)
- B.H. v. M.F.J., 197 So.3d 997 (Ala. Civ. App. 2015) (abandonment and presumption of inability/unwillingness to parent)
- Curley v. United States, 160 F.2d 229 (D.C. Cir. 1947) (analogy for viewing evidence under a heightened evidentiary burden)