A.D. v. R.P.
2190881
ALABAMA COURT OF CIVIL APPEALS
REL: March 5, 2021
OCTOBER TERM, 2020-2021
Appeal from Lauderdale Juvenile Court (JU-19-553.01)
PER CURIAM.
A.D. (“the father“) and R.P. (“the mother“) are the divorced parents of J.L.D. (“the child“). The parties’ 2017 divorce judgment awarded the
In June 2019, the mother filed in the Lauderdale Juvеnile Court (“the juvenile court“), through the juvenile intake-officer, a pro se petition seeking to have the parental rights of the father terminated. The father filed a combined motion to dismiss, motion for a summary judgment, motion to strike, and an answer on September 11, 2019. After several continuances, the juvenile court held a trial on June 26, 2020, and August 4, 2020, after which it entered a judgment terminating the parental rights of the father. The father timely appealed.
The termination of parental rights is governed by
“(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 hеr] 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 a hearing on a petition for termination of parental rights, the court shall consider the best interests of the child. 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[].
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for the needs of the child.
“(.... “(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 care agency, and agreed to by the parent.
“(11) Failure by the parent[] to maintain consistent contact or communication with the child.”
Furthermore,
“[a] rebuttable presumption that the parent[] [is] unable or unwilling to act as [a] 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.”
“[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the
display of filial affection, or the failure to сlaim the rights of a parent, or failure to perform the duties of a parent.”
The test a juvenile court must apply in an termination-of-parental-rights action brought by a custodial parent is well settled:
“First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in
§ 26-18-7 [,Ala. Code 1975 , now codified at§ 12-15-319 ]. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered.”
Ex parte Beasley, 564 So. 2d 950, 954 (Ala. 1990). A juvenile court‘s judgment terminating parental rights must be supported by clear and convincing evidence. P.S. v. Jefferson Cnty. Dep‘t of Hum. 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
” ‘must ... look through [“the prism of the substantive evidentiary burden,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (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
The mother testified at trial that the father had not consistently exercised his visitation after the divorce. She said that the father‘s visits had stopped completely in February 2018 after an altercation that occurred when she took the child to the father‘s home for visitation. She explained that the father had failed to pick up the child from school and
According to the mother, the father had violated the 2018 PFA order by contacting her through social media or by text message or telephone. In some of the communications thаt were admitted into evidence, the father stated that he did not want a man named P.2 or another man named R. around the child and threatened R. by stating: “[B]ring him
The mother explained that the father had a history of drug abuse and that he had been using heroin at the time of the parties’ divorce. Although she admitted to having smoked marijuana with the father at one point in their relationship, the mother said that she had not used any other drug and that she had not smoked marijuana since the birth of the child in 2010. The mother testified that she did not believe that the father could rehabilitate successfully enough to have a relationship with the child and that she believed that the child would not be safe in the father‘s
The mother presented a group of letters that the father had sent to the child from the Lauderdale Detention Center in June 2019. The mother complained that the letters contained information and language not appropriate for the child. The letters included the use of profanity (e.g., “man, its been fucked up out here“), references to the father‘s use of drugs (methamphetamine and heroin), references to death (“I‘ve died 3 times and I‘ve had people try to take my life“), and a request that the child “help” him by asking the mother to allow the child to contact the father.
The mother described the child as a straight-A student and testified that he was involved in Boy Scouts and soccer. She explained that the child had received counseling through his school after the February 2018 altercation between the mother and the father, which the child had witnessed, but that he had not needed additional counseling after the completion of the 2017-18 school year. The mother said that the child
The father testified at the June 26, 2020, trial proceedings. He said that, after the divorce, he had regularly exercised some, but not all, of his visitation and that he had spoken to the child on the telephone every night after the parties’ divorce and up until the 2018 PFA order was entered. Although the father denied having harmed the mother during the February 2018 incident giving rise to the 2018 PFA order and blamed her for yelling at him and trespassing on his property, the 2018 PFA order, which is in the record, contains a finding that the father was a credible threat to the mother and to the child. The father initially testified that he would pass a drug test and that he had last used marijuana in January 2019 when he was attempting to detox from heroin. However, the father refused to take the drug test ordered by the juvenile court. He then admitted that he had last used heroin only four days before the June 26, 2020, trial date.
The child‘s guardian ad litem stated his recommendation to the juvenile court on the record. He explained that, in his opinion, the juvenile court should terminate the parental rights of the father. He supported his recommendation with the following statement:
“I believe that there are things out there, there are demons that he has that have definitely taken ahold of him[,] and that [are] preventing him from being able to be a responsible parent and to do things the way [they] neеd[] to be done. ... [I]n this case I do believe that it would be appropriate to grant the [termination of parental rights] purely for the sake of [the child]. He needs to go on about his life without the fear of someone that cannot take care of themselves ruling over what he does on a day-to-day or any kind of basis whatsoever. ... I truly feel that [the father] loves his child, but there is I don‘t believe any way that he can help [or that] he should have any kind of decision-making ability for [the child]. I truly believe he loves [the child], but he -- but it hasn‘t got to the point of recognizing his own inabilities to be able to foster a caring, loving, providing relationship for [the child] in any way. And that‘s saying, ... if you just take that one part away and focus
purely on a father-son relationship, I don‘t believe that that exists in any way. “....
“... I believe that [the child] emotionally and truly wants [an adoptive] relationship [with the stepfather]. It seems to me that the stepfather wants that as well, and I truly believe that is there.”
On appeal, the father argues that the juvenile court erred by failing to dismiss, or to enter a judgment on the pleadings in his favor on, the mother‘s pro se petition to terminate his parental rights because, he contends, the mother failed to allege that no viable alternatives to the termination of his parental rights existed. He also contends that the juvenile court should have dismissed the mother‘s petition pursuant to
We have been unable to locate any Alabama authority relating to appellate review of the denial of a motion for a judgment on the pleadings pursuant to
“[t]he purpose of judgment on the pleadings is to avoid an unnecessary trial when an affirmative defense bars suit. Thus, permitting review of a denial after a judgment on the merits would allow a preliminary assertion of an affirmative defense to overcome a judgment reached after a full examination of the equities involved at trial. We hold that denial of a motion for judgment on the pleadings is not reviewable on appeal from a final judgment in a trial on the merits.”
Stainback, 84 N.C. App. at 77, 351 S.E.2d at 807-08.
The Nebraska Supreme Court relied on guidance from a learned treatise to conclude that the denial of a
” ‘In most situations the evidence at trial will depart from the pleadings and, in view of
Rule 15(b) , the pleadings will bedeemed amended to conform to the evidence, absent a showing of prejudice to the other party, and the original judgment on the pleadings motion probably rendered moot. When the evidence is consistent with the pleadings, the appellate court should order a judgment entered for the defendant on the ground that the facts elicited at trial demonstrated a good defense to the action rather than because of the defect in the pleadings.’ ”
302 Neb. at 997, 926 N.W.2d at 622-23. The court explained that, because Nebraska‘s pertinent rule governing pleading, Neb. Ct. R. Pldg. § 6-1115(b), is like
Furthermore, we note that a motion for a judgment on the pleadings is akin to a motion for a summary judgment, although a
However, еven assuming that this court should review the denial of a
“When a motion for judgment on the pleadings is made by a party, ‘the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.’ ”
Universal Underwriters Ins. Co. v. Thompson, 776 So. 2d 81, 82 (Ala. 2000) (quoting B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So. 2d 989, 991 (Ala. 1992)). “A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party.” Universal Underwriters,
The father contends that the mother‘s failure to allege in her pro se petition that no viable alternative to the termination of the father‘s rights existed required the entry of a judgment on the pleadings in his favor. Certainly, we do not dispute the fact that, in order to terminate a parent‘s parental rights, a juvenile court must have before it clear and convincing evidence that no viable alternative to the termination of that parent‘s parental rights exists. See Ex parte Beasley, 564 So. 2d at 954. However, the fact that such proof is required to terminate parental rights does not necessarily equate to a requirement that a petition contain specific allegations of that element.3 See Traywick v. Kidd, 142 So. 3d 1189, 1194-95 (Ala. Civ. App. 2013). As we explained in Traywick, “[a] complaint
Furthermore, because the mother‘s several allegations included that the father was a drug addict who had exposed the child to domestic violence, that the child had attended counseling to address his exposure to domestic violence, and that the child had indicated a desire not to have contact with the father, we cаnnot conclude that the juvenile court was required to have determined that the father was entitled to a judgment as a matter of law merely because he asserted that a viable alternative to the termination of his parental rights existed. Whether a particular alternative is a viable one is a question of fact for the juvenile court to
We turn next to the father‘s argument that the juvenile court should have stricken the mother‘s pro se petition based on her failure to sign it and her failure to include her address.4 Both the inclusion of a signature and an address are required by
“Rule 11(a) provides that, if a pleading is not signed or is signed with intent to defeat the purpose of the rule, it ‘may’ be stricken. A trial court, under the rule, is not required to strike an unsigned pleading. Thus, Rule 11(a) itself contemplates that even a pleading that violates Rule 11(a) can stand.”
State v. $93,917.50, 171 So. 3d 10, 16 (Ala. 2014). Although the father contends that the mother‘s failure to sign her petition should not be overlooked because of his right to due process, especially because this case involves termination of his fundamental right to parent, he does not explain how the mother‘s failure to sign the pro se petition impacted his due-process rights in any way. The father clearly received notice of the petition, was appointed counsel who ably represented him at trial, appeared on the first day of the two-day trial, and was permitted to testify on his own behalf. Based on our review of the record, it appears that the father received all process that he was due. Even had the failure of the mother to sign her pro se pleading violated the father‘s due-process rights,
In his brief on appeal, the father points out that the record does not definitively demonstrate that the father was served with the mother‘s petition. However, his counsel entered a notice of appearance on August 27, 2019, filed a combined answer and motion to dismiss on September 11, 2019, filed various other motions on the father‘s behalf, and appeared and represented the father at the trial without ever asserting a lack of proper service before the juvenile court. Therefore, if service was not properly made, any error was waived. See C.M. v. Madison Cnty. Dep‘t of Hum. Res., 133 So. 3d 890, 893 (Ala. Civ. App. 2013) (explaining that the filing
Finally, we turn to a consideration of the evidence underlying the juvenile court‘s judgment terminating the father‘s parental rights. The father contends that the evidence did not rise to clear and convincing evidence that warranted termination of his parental rights. He specifically argues that the evidence did not establish grounds for termination, the current conditions of the father, or that no viable alternatives to termination of his parental rights existed. He also contends that the juvenile court erred by terminating his parental rights for the convenience of the mother.
The evidence presented to the juvenile court indicated that the father had not visited the child since at least February 2018, after the altercation between the mother and the father. Although the father‘s more liberal visitation under the divorce judgment was significantly
“For the purposes of terminating parental rights, ‘abandonment’ consists of
” ‘[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.’
”
§ 12-15-301(1), Ala. Code 1975 . ‘Abandonment implies an intentional act on the part of the parent.’ L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002).”
C.C. v. L.J., 176 So. 3d 208, 211 (Ala. Civ. App. 2015).
As the juvenile court found, the father had not maintained consistent contact or communication with the child and had withheld his
The father also argues that the record lacks evidence of his current circumstances because he failed to appear at the August 4, 2020, trial proceedings. Indeed,
” ‘[t]his court has consistently held that the existence of evidence of current conditions or conduct relating to a parent‘s inability оr unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.’ D.O. v. Calhoun County Dep‘t of Human Res., 859 So. 2d 439, 444 (Ala. Civ. App. 2003).”
A.R. v. State Dep‘t of Hum. Res., 992 So. 2d 748, 760 (Ala. Civ. App. 2008). However, the requirement that a party seeking to terminate the parental rights of a parent present evidence regarding the current circumstances of a parent is related to the requirement that the juvenile court find by clear and convincing evidence that the parent is unable and unwilling to care for the child. See D.O. v. Calhoun Cnty. Dep‘t of Hum. Res., 859 So. 2d 439, 444 (Ala. Civ. App. 2003) (“[E]xistence of evidence of current conditions or conduct relating to a parent‘s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.“). When a parent has abandoned his or her child and that abandonment has continued for the four months preceding the filing of a petition to terminate parental rights, our statutory law provides “[a] rebuttable
The juvenile court‘s finding that the father had abandoned the child absolved the mother of the requirement of presenting separate evidence regarding the father‘s current circumstances that would prove that he was currently unable to unwilling to act as a parent to the child. Instead, the father had the opportunity to present evidence rebutting the presumption of his unwillingness or inability to act as a parent. See C.F. v. State Dep‘t of Hum. Res., 218 So. 3d 1246, 1251 (Ala. Civ. App. 2016) (“[O]nce DHR proved that the mother had abandoned the child in the four months before it filed its petition, the juvenile court could presume that the mother was unable or unwilling to act as a parent, and the burden shifted to the mother to rebut that presumption.“). The father admitted on the first day of the trial that he had used heroin four days earlier, did not appear on the second day of the trial, and presented no convincing evidence indicating that he was currently able and willing to parent the child that would rebut the presumption created by his abandonment of the child. Thus, we reject the father‘s argument that the juvenile court erred by
The father‘s argument that the juvеnile court‘s conclusion that no viable alternative to the termination of his parental rights existed also lacks merit. As we explained in C.C., 176 So. 3d at 216, “a noncustodial parent who has abandoned his or her child does not have a sufficient familial relationship that merits due-process protection and ... a juvenile court may terminate the parental rights of that parent without exhausting other viable alternatives if to do so would be in the best interest of the child.” The mother testified, and the guardian ad litem stated in his recommendation, that the child desired to be adopted by the stepfather, who had provided for him both financially and emotionally since the mother‘s marriage to him in 2018, and that the child‘s best interest would be served by terminating thе father‘s parental rights so that the adoption could proceed.
Finally, we reject the father‘s argument that the juvenile court erred by terminating his parental rights merely for the convenience of the mother. To be sure, our appellate courts have in the past reversed
“No evidence was produced at trial, and no argument has been made, that [the father] has harmed or has in any way interfered with [the mother‘s] custody of the child. Termination of the father‘s parental rights in this case would seem to us to be an unnecessarily drastic action not supported
by clear and convinсing evidence. Although we agree that [the father‘s] conduct toward his son may satisfy the criteria set forth in Ala. Code (1975), §§ 26-18-3 [now codified at§ 12-15-301 ] and26-18-7(c) [now codified at§ 12-15-319(d) ], as constituting ‘abandonment,’ termination of his parental rights appears to be overwhelmingly for the convenience of the parents.”
The evidence in the present case, however, is more substantial than mere proof of abandonment of the child by the father. The mother sought and received PFA orders based on the father‘s assault on her, which, according to the mother‘s testimony, occurred in the presence of the child. The 2018 PFA order specifically found that the father posed a credible risk to the safety of the child. In addition, the mother testified that the father had violated the 2018 PFA order by contacting the mother; some of his communications appeared to threaten the mother, the stepfather, or others close to her. According to the father‘s letters to the child, he had “died 3 times” and had had others try to kill him, indicating that the father‘s lifestyle posed danger to himself and, therefore, potentially to the child. The father was admittedly addicted to heroin, which he had last used on approximately June 22, 2020, only four days before the first day
Having considered and rejected the father‘s several arguments in favor of reversal, we affirm the judgment of the juvenile court terminating the father‘s parental rights.
AFFIRMED.
All the judges concur.