Opinion
2210428
09-23-2022
A.M. v. R.S. and J.S.
Appeal from Geneva Juvenile Court (JU-21-125.01)
EDWARDS, JUDGE
In July 2021, R.S. and J.S. ("the paternal grandparents") filed a petition in the Geneva Juvenile Court ("the juvenile court") seeking to terminate the parental rights of A.M. ("the mother") and D.R.R. ("the father") to G.R. ("the child"). After a trial at which the father consented to the termination of his parental rights, the juvenile court entered a judgment on February 10, 2022, terminating the rights of both the mother and the father to the child. The mother filed a timely postjudgment motion and a notice of appeal on February 13, 2022. Her notice of appeal was held in abeyance pursuant to Rule 4(a)(5), Ala. R. App. P. The juvenile court denied the mother's postjudgment motion on February 16, 2022, and the mother's notice of appeal became effective on that date. Id.
Rule 4(a)(5) provides:
"A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59, Alabama Rules of Civil Procedure, shall be held in abeyance until all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59 are ruled upon; such a notice of appeal shall become effective upon the date of disposition of the last of all such motions."
The evidence at trial established that the child was born on August 31, 2017, and that the Coffee County Department of Human Resources ("DHR") became involved with the mother at the time of the child's birth because of the mother's drug use. The mother testified that she had initially agreed to a safety plan proposed by DHR but that, because she did not comply with that plan, DHR had removed the child from the mother's custody and, in early October 2017, had placed the child with the paternal grandparents. According to J.S. ("the paternal grandmother"), the Coffee Juvenile Court entered a judgment awarding custody of the child to her and R.S. ("the paternal grandfather") in 2018 ("the 2018 custody judgment"). The mother and the father both testified that the 2018 custody judgment did not award the mother specific visitation with the child. The mother said that the 2018 custody judgment permitted the paternal grandparents to exercise their discretion regarding the mother's contact with the child.
The mother and the paternal grandmother testified that the mother had sought a specific order granting her the right to visitation in late 2019; we presume that action was brought in the Coffee Juvenile Court. Both the mother and the paternal grandmother agreed that the court entered a judgment awarding the mother supervised visitation on the second and fourth Saturdays of each month from 9:00 a.m. to 4:00 p.m. ("the visitation judgment"). According to the mother, the visitation judgment adopted an agreement of the parties; she said that the paternal grandmother had agreed to the mother's having only supervised visitation. Both the mother and the paternal grandmother indicated that the location of the mother's visits alternated between the mother's house and the paternal grandparents' house and that the mother's uncle supervised the visits held at the mother's house. The mother and the paternal grandmother testified that the mother had exercised that visitation fairly regularly, although the paternal grandmother testified that the mother had missed a few visitations when the mother had been ill or around the time that the mother's mother had died. The mother also admitted to having been late to a visit after having overslept one weekend and to having missed another visit because, she said, she had been attacked by a friend that she had let spend the night at her house. The paternal grandmother testified that the mother did not contact her or the child during the periods between her visits and that the mother did not ask about the child's progress at "school."
Regarding the visits themselves, the mother testified that they went well. She said that the child referred to her as "momma" but that he also sometimes called the paternal grandmother "momma." The paternal grandmother testified that the child had sometimes become nervous and tearful before the visits held at the mother's house and that the paternal grandmother had had to reassure him that she would return to pick him up at the conclusion of the visits. However, the paternal grandmother admitted that the child enjoyed the visits with the mother, although the paternal grandmother described them as "play dates" and indicated that the child would enjoy a play date with anyone.
The mother testified that she lives in a house provided to her by her grandfather and that she does not pay rent. She also testified that she had been gifted an automobile by her mother. The mother said that her monthly expenses included $101 for electricity, $40 for natural gas, $45 for water, $53 for cellular-telephone service, $75 for automobile insurance, and $150 for gasoline. She said that she receives $469 per month in food stamps for herself and her 2-year-old daughter, A.M.N. ("the daughter"). Although she testified that the daughter had attended a day care previously, the mother said that, at the time of the trial, she relied on friends to watch the daughter while she worked.
The mother, who was 35 years old at the time of the trial, said that she had used illegal drugs since she was around 18 years old until approximately a year before she gave birth to the daughter, or 3 years before the date of the trial. She admitted that she had not attended a drug-treatment program, but, she said, she had become involved in a church. When asked, she testified that DHR had not been involved with her and the daughter and that she was rearing the daughter on her own because she did not know who had fathered the daughter.
The mother said that she had been ordered to pay $401 per month to the paternal grandparents in child support in the 2018 custody judgment. She admitted that she had failed to regularly pay child support to the paternal grandparents but said that she was doing the best that she could. The paternal grandmother testified that the mother had paid less than $500 in child support in 2020 and 2021 and had accumulated an arrearage of over $8,000.
According to the mother, she was employed by a hotel at the time of the trial. She said that, although her hours varied and her employer worked with her to ensure that she could attend her visitations with the child, she typically worked approximately 40 hours per week. The mother testified that she earns approximately $800 per month but that she was not certain whether that amount was her gross or net pay. The mother further testified that she had been employed by a fast-food restaurant in 2020 but had lost that job at some point after the COVID-19 pandemic began and that she had worked for a few months for Coffee Baking Company at some point between working the fast-food job and taking the job at the hotel. However, the mother admitted that she had remained at home with the daughter during a portion of the COVID-19 pandemic and that she had been unemployed at the time the termination-of-parental-rights petition was filed in July 2021.
The paternal grandmother testified that, in her opinion, the mother had been under the influence of drugs during a visit in July 2021. According to the paternal grandmother, during that visitation, the mother's "eyes were not right. Her voice was not right. She was 'staggery.' She even fell." The mother was not recalled to testify regarding the paternal grandmother's allegation, but she had already testified that she no longer used illegal substances. No witness testified that the mother had been tested for drugs, and the record does not contain any drug-test results.
The mother admitted that the house in which she lives, which has three bedrooms and one bathroom, "needs a lot of remodeling." She said that the house had electricity but that she had had to use extension cords at times; she stated specifically that she had had to use an extension cord to provide for lighting at the front door. According to the mother, the house had had a "black mold" issue; however, when questioned further, the mother admitted that the house had had mold that was visibly black but that she had not had the mold tested. The mother said that she had informed the paternal grandmother of the issue and had exercised her visits at the paternal grandparents' house to prevent the child from being exposed to the mold, which, the mother said, had made her and the daughter sick. According to the mother, the mold had largely been eradicated by her application of a vinegar and water solution. The mother said that she had also been using an air purifier. The paternal grandmother also testified that the mother had informed her that the mold had been removed, except for in one room, the door to which the mother had told the paternal grandmother she kept shut. The paternal grandmother testified that she had not been inside the mother's house farther than just inside the door but that she had observed that the floor of the one room she had seen when she had dropped off the child for visitation appeared as though the flooring had been removed and that the cement underfloor needed cleaning.
The paternal grandfather testified only briefly. He said that he took the child to "school" every day. He also commented that, if he were able to adopt the child, the child would be eligible for his military-retirement or Social Security benefits. The paternal grandmother also testified that she desired to adopt the child to give him security and permanency. She stated that, in her opinion, the mother had not improved her circumstances because she had changed jobs, had not paid child support, and relies on her family to pay her bills. As mentioned, the paternal grandmother also indicated that she had some concerns about the mother's sobriety.
On appeal, the mother argues that the evidence did not support a conclusion that her current conduct or condition rose to the level of egregiousness that would warrant the termination of her parental rights. She further contends that the paternal grandparents did not prove that no viable alternative to the termination of her parental rights existed. After considering authority involving termination of parental rights in cases in which the child is in the custody of a relative, we agree with the mother that the juvenile court's judgment should be reversed. See, e.g., D.H.E. v. W.D., 330 So.3d 506, 517 (Ala. Civ. App. 2020) (reversing a judgment terminating the parental rights of a mother because the evidence failed to support the conclusion that the mother's conduct or condition was egregious enough to warrant termination of her parental rights); L.M.W. v. D.J., 116 So.3d 220, 225 (Ala. Civ. App. 2012) (reversing a judgment terminating the parental rights of a mother because maintaining the status quo, which was permanent custody vested in a relative, was a viable alternative in light of the fact that the evidence did not support that termination of parental rights was warranted); L.R. v. C.G., 78 So.3d 436, 438 (Ala. Civ. App. 2011) (reversing a judgment terminating the parental rights of a mother and a father when maintenance of the status quo, which was permanent custody vested in a relative, was a viable alternative in light of the parents' relationship with the children and the parents' improving circumstances).
As we explained in L.R., 78 So.3d at 438:
"'A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990).'"B.M. v. State, 895 So.2d 319, 331 (Ala. Civ. App. 2004). A juvenile court's judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep't of Human Res., 534 So.2d 304, 305 (Ala. Civ. App. 1988). '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 Ala. Code 1975, § 6-11-20(b)(4))."
In order to terminate the mother's parental rights, the paternal grandparents were required to establish that the mother was, at the time of the trial, unable or unwilling to discharge her parental responsibilities based on one or more of the factors set out in Ala. Code 1975, § 12-15-319(a), which provides, in pertinent part:
"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 her] 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:
"....
"(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.
"(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review."
Based on our review of the record, the paternal grandparents failed to establish that the mother's current conduct or condition was so egregious that termination of her parental rights was warranted. The mother herself admitted to having had a previous drug problem, which gave rise to the removal of the child from her custody. However, other than the testimony of the paternal grandmother that, in her opinion, the mother had been under the influence of drugs during a single visitation in July 2021, the record lacks evidence indicating that the mother, as of the time of the January 2022 trial, continued to have a drug problem so pervasive that it would impede her ability to act as a parent. § 12-15-319(a)(2). We have explained that a party seeking to terminate the parental rights of a parent based on that parent's drug use must establish that the parent's use of drugs impacts the parent's ability to perform the duties of a parent. J.C. v. Madison Cnty. Dep't of Hum. Res., 293 So.3d 901, 909 (Ala. Civ. App. 2019) (quoting M.G. v. Etowah Cnty. Dep't of Hum. Res., 26 So.3d 436, 442 (Ala. Civ. App. 2009)) ("[A]s we have explained, 'the test [for the termination of parental rights] is whether DHR has presented clear and convincing evidence demonstrating that the parental conduct or condition currently persists to such a degree as to continue to prevent the parent from properly caring for the child.'" (emphasis added in J.C.)). The paternal grandmother's brief testimony relating to the mother's possibly being under the influence of drugs on one occasion in July 2021 does not meet that burden.
Contrary to the allegations in the petition to terminate the mother's parental rights, the evidence at trial indicated that the mother had been visiting with the child quite regularly after she had been awarded supervised visitation in late 2019. The mother testified that she and the child enjoyed their visits and that the child refers to the mother as "momma." The paternal grandmother indicated that, on some occasions, the child would grow nervous over visitations being held at the mother's house, but she admitted that the child enjoyed visiting with the mother at the paternal grandparents' house. Although there was evidence indicating that the mother had not contacted the paternal grandparents or the child between visitations to check on the child, the mother had maintained consistent contact with the child through her frequent visitations.
The paternal grandparents presented evidence indicating that the mother's house had had a mold problem, but other evidence indicated, without dispute, that the mother had adequately addressed that issue. Although the presence of mold or mildew in a parent's house is not ideal, such an issue is simply not sufficient upon which to base the termination of parental rights, especially when the issue has been addressed by appropriate actions of the parent. No other evidence indicated that the mother's house was unsanitary or unsuitable, even if the mother might be in the process of having it remodeled or having the floors replaced. Further, the issue in this case is not whether the child should be returned to the mother but only whether the mother should lose her parental rights, which, at this point, include a supervised-visitation arrangement.
The paternal grandparents presented undisputed evidence indicating that the mother had failed to pay child support despite having been ordered to do so. See § 12-15-319(a)(9) (listing as a factor for a court to consider, when determining whether to terminate parental rights, the "[f]ailure 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"). However, the paternal grandparents did not establish by clear and convincing evidence that the mother was able to provide support for the child. In light of the mother's testimony, we are not entirely certain of the mother's actual gross income, but the $401 child-support award for 1 child must have been based on income far exceeding the $800 per month the mother currently earns. The mother testified, in fact, that she had been unemployed at the time the petition to terminate her parental rights was filed because she had lost her previous employment and had decided to stay home with the daughter during a portion of the COVID-19 pandemic, indicating that, for at least some period, the mother may have been unable to pay child support at all.
We further note that, in a situation similar to the circumstances of this case, in which a child was in the custody of relatives, we held that he mere failure to pay child support was not sufficient in isolation to upport termination of a parent's parental rights. See L.R. v. C.G., 78 o. 3d 436, 444-45 (Ala. Civ. App. 2011) (concluding that a father's failure o pay child support would not alone support termination of his parental rights when his child was in the custody of relatives, the father had been continuing to improve his circumstances after his release from incarceration, and we had determined that maintaining the status quo was a viable alternative to the termination of the mother's parental rights to his child).
According to the schedule of basic child-support obligations, appended to Rule 32, Ala. R. Jud. Admin., in effect at the time of the entry of the 2018 custody judgment, the child-support obligation for 1 child was $50 if based upon $800 monthly gross income and $155 if based upon $1,000 monthly gross income.
As we explained in D.H.E.:
"The record reflects that the custodians are providing a nurturing and caring environment for the child and that the child is flourishing in their care. The intentions of the custodians in caring for the child are commendable. See, e.g., L.M.W. v. D.J., 116 So.3d 220, 225 (Ala. Civ. App. 2012); L.R. v. C.G.,
78 So.3d 436, 444 (Ala. Civ. App. 2011). But terminating the mother's parental rights requires more than proving that the custodians can provide a better home for the child than the mother, because 'the party seeking to terminate parental rights has the burden to present clear and convincing evidence showing that the [mother] is not capable or is unwilling to discharge ... her parental responsibilities and that there are no viable alternatives to terminating parental rights.' Ex parte T.V., 971 So.2d 1, 4 (Ala. 2007). As we stated in A.A. [v. Jefferson County Department of Human Resources, 278 So.3d 1247, 1253 (Ala. Civ. App. 2018)],
"'considering the high evidentiary burden applicable to termination-of-parental-rights cases, C.O. [v. Jefferson Cty. Dep't of Human Res.], 206 So.3d [621] at 627 [(Ala. Civ. App. 2016)], and the lack of evidentiary support for the judgment, we cannot conclude that this case presents the "'most egregious of circumstances'" so as to warrant a termination of the mother's parental rights. S.M.W. [v. J.M.C.], 679 So.2d [256] at 258 [(Ala. Civ. App. 1996)].'"330 So.3d at 517. We conclude, therefore, that the paternal grandparents failed to present sufficient evidence supporting the conclusion that termination of the mother's parental rights was warranted in these circumstances.
We also conclude that maintaining the status quo is a viable alternative in the present case. The paternal grandparents have custody of the child pursuant to the 2018 custody judgment and are providing a safe and loving home for him. Thus, as we observed in L.R., "we are not concerned with [continuing] 'an indefinite custody arrangement with a third party' or a lack of stability for the child[]." 78 So.3d at 443-44 (quoting L.T. v. W.L., 47 So.3d 1241, 1249 (Ala. Civ. App. 2009)). As we said in L.M.W.,
"'[t]he right to parent one's child is a fundamental right, and the termination of that right should occur "'only in the most egregious of circumstances.'"' K.W. v. J.G., 856 So.2d 859, 874 (Ala. Civ. App. 2003) (quoting L.M. v. D.D.F., 840 So.2d 171, 172 (Ala. Civ. App. 2002), quoting in turn Ex parte Beasley, 564 So.2d [950,] at 952 [(Ala. 1990)]). Based on our review of the record, we cannot say that the grandparents have established by clear and convincing evidence that the evidence in support of their petition in this case rises '"to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute."' V.M. v. State Dep't of Human Res., 710 So.2d 915, 921 (Ala. Civ. App. 1998) (quoting East v. Meadows, 529 So.2d 1010, 1012 (Ala. Civ. App. 1988))."116 So.3d at 225-26. As we did in L.M.W., "[w]e conclude that, in this case, maintaining the status quo is a viable alternative to termination of the mother's parental rights." Id. Accordingly, we reverse the judgment of the juvenile court to the extent that it terminated the parental rights of the mother, and we remand the cause for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
Moore, Hanson, and Fridy, JJ., concur.
Thompson, P.J., concurs in the result, without opinion.