Opinion
1190720
12-04-2020
EX PARTE M.B. (In re: M.B. v. J.S. and Ja.S.)
Petition for Writ of Certiorari to the Court of Civil Appeals (Houston Juvenile Court, JU-15-504.02, Lori C. Ingram, Judge; Court of Civil Appeals, 2181008) Amy M. Shumate, Dothan, for petitioner. Laura Peterman Wells, Dothan, for respondents.
Petition for Writ of Certiorari to the Court of Civil Appeals (Houston Juvenile Court, JU-15-504.02, Lori C. Ingram, Judge; Court of Civil Appeals, 2181008)
Amy M. Shumate, Dothan, for petitioner.
Laura Peterman Wells, Dothan, for respondents.
This case was originally assigned to another Justice on this Court; it was reassigned to Justice Shaw on September 28, 2020.
WRIT QUASHED. NO OPINION.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur.
Bryan, Sellers, Mendheim, and Mitchell, JJ., dissent.
SELLERS, Justice (dissenting).
The Houston Juvenile Court entered a judgment terminating the parental rights of M.B. ("the father") to his son B.B. ("the child"), who has been in the custody of J.S. ("the maternal grandfather") and Ja.S. ("the maternal grandmother") (hereinafter referred to collectively as "the maternal grandparents"), who want to adopt the child. In a plurality opinion, the Court of Civil Appeals affirmed that judgment of the juvenile court. M.B. v. J.S., 327 So. 3d 1147 (Ala. Civ. App. 2020). The father petitioned for, and this Court granted, certiorari review. The majority now quashes the writ without an opinion; I dissent as to that decision.
Facts
The father and B.C. ("the mother") were unmarried when the child was born in April 2015; their relationship ended in January 2016. The child has been in the custody of the maternal grandparents since November 2015, at which time the juvenile court awarded them pendente lite custody and awarded the mother and the father visitation.
On July 14, 2016, the juvenile court, following a hearing, entered an order finding the child dependent and awarding legal custody of the child to the maternal grandparents. It is undisputed that neither the mother nor the father received notice of the dependency hearing; thus, neither was present. In June 2018, the maternal grandparents obtained a judgment requiring the father to pay child support.
In January 2019, the maternal grandparents filed a petition seeking to terminate the parental rights of the father to the child. The maternal grandparents alleged in their petition that the father had abandoned the child, had failed to provide for the material needs of the child, had failed to maintain consistent contact with the child, and had failed to adjust his circumstances to meet the needs of the child. The maternal grandparents further indicated that they desired to adopt the child.
The maternal grandparents also sought to terminate the parental rights of the mother. The juvenile court's judgment reflects that the mother stipulated to the termination of her parental rights to the child. The mother did not appeal from that judgment.
On June 14, 2019, the juvenile court held a hearing at which only the father and the maternal grandmother testified. The father testified that, since the maternal grandparents were awarded pendente lite custody of the child in November 2015, they had thwarted his efforts to visit the child. The father further testified that it was his understanding from the pendente lite order that he would be allowed to visit the child a minimum of four hours a week but that he had been limited to only one hour a week on Tuesdays. The father admitted that there were times when he had not shown up for scheduled visits and that there were other times when he had shown up late. The father stated that three months was the longest he had gone without seeing the child and that he did not see the child during that time because he did not have a job, a vehicle, or a cellular telephone to contact the maternal grandparents to arrange visitation. The father explained that the child, who was four years old at the time of the hearing, was "pretty excited" to see him during visits, that their visits "usually go pretty good," and that they have a good time during those visits.
The father indicated that he had been employed as a "concrete finisher" for approximately four months and that he sometimes worked until 6:30 p.m. or 7:00 p.m. He stated that, because of his work schedule, he had occasionally sent the maternal grandmother text messages requesting to see the child on weekends but that she never responded to those messages. The father stated that, in April 2018, the maternal grandparents told him that he did not deserve the child, that he would never get the child back, and that he needed to leave them alone. He further stated that the maternal grandparents had denied his request to allow the child to visit with him and his family during the Christmas holidays in 2018. The father testified that the child had recently started referring to the maternal grandmother and the maternal grandfather as "mom" and "dad" and calling the father by his first name; he stated that this made him "feel terrible." The father stated that he sent the maternal grandmother a text message regarding his concerns over those things and that she told him to stop sending her text messages or she would "call the police."
The father stated that, since August 2017, he had been living with his girlfriend and her seven-year-old child in a rented house that, he said, was clean, well stocked with necessities, and an appropriate place for the child to visit. He further indicated that he had a vehicle but not a valid driver's license; he explained that he usually gets others, including his girlfriend, to drive his vehicle and to transport him to scheduled visitations. The father testified that, although he had not paid any child support in the past, he was now willing and able to do so. He further stated that he had sent the maternal grandmother a text message inquiring how to pay child support but that she did not respond. The father testified that he had no pending criminal charges against him but that he had been arrested once for possession of illegal drugs in 2015, which was before the maternal grandparents were involved with the custody of the child. He stated that he no longer used drugs. Finally, the father indicated that he loved his child, that he wanted to continue having a relationship with the child, that he wanted to see the child more often, and that he would visit with the child every day if permitted.
The maternal grandmother testified about the father's inconsistent visits with the child, stating that, since the maternal grandparents were awarded custody of the child in 2015, the father had missed approximately 20 scheduled visits and that, of those he had not missed, he had often shown up late. She testified that transportation had always been an issue for the father and that he had occasionally either walked or rode a bicycle to visits. The maternal grandmother further testified that, once the father learned of the petition to terminate his parental rights, he "ramped" up his efforts to see the child. According to the maternal grandmother, the father had at times requested to see the child on weekends; she said that he never followed up with those requests. The maternal grandmother admitted that the father had telephoned in attempts to talk to the child but that he always called after the child had gone to bed. She stated that she had recently allowed the child to talk to the father over the telephone, but, because of his age, the child simply did not have much to say.
The maternal grandmother stated that the father constantly sends her text messages about the child and other random things, and she admitted that she had told him that she would call the police if he did not stop sending her so many messages. The maternal grandmother also admitted that the father had sent her a text message inquiring how to pay child support, but she did not state whether she responded to him. The maternal grandmother stated that the only time the father had given the child a gift was when the child turned two years old.
The maternal grandmother denied that she had instructed the child to call her and the maternal grandfather "mom" and "dad," explaining that the child probably learned that in preschool. She further denied that she had instructed the child to call the father by his first name. The maternal grandmother testified that the child is on Medicaid, that he has some speech and behavioral issues requiring therapy twice a week, and that he was attending preschool. According to the maternal grandmother, there had been a history of domestic violence between the father and the mother, but she did not go into any detail. Finally, the maternal grandmother testified that she and the maternal grandfather intended to adopt the child, and she felt it would be in the child's best interests if the father's parental rights were terminated.
After hearing the testimony, the juvenile court entered a judgment terminating the father's parental rights to the child, stating in its order that "it would be in the child's best interest ... for the [maternal grandparents] to provide a stable permanent home for [the] child through adoption." The juvenile court specifically determined that the father had failed to adjust his circumstances to meet the needs of the child, that he had failed to pay child support although he was able to do so, and that he had failed to maintain consistent contact or communication with the child.
Standard of Review
In reviewing the Court of Civil Appeals’ decision on a petition for a writ of certiorari, this Court applies de novo the standard of review applicable in the Court of Civil Appeals. Ex parte Wade, 957 So. 2d 477 (Ala. 2006). In this case, the Court of Civil Appeals applied the ore tenus standard in reviewing the juvenile court's judgment. To terminate parental rights, a juvenile court not only must find by clear and convincing evidence that a child is dependent, but also must determine that an alternative less drastic than termination of parental rights is not available. Ex parte A.S., 73 So. 3d 1223 (Ala. 2011). When the juvenile court has not made specific factual findings in support of its judgment terminating parental rights, an appellate court must presume that the court made those findings necessary to support its judgment, provided those findings are supported by the evidence. Id. The party seeking to terminate a parent's parental rights has the burden of producing clear and convincing evidence that the parent is not capable of discharging, or is unwilling to discharge, his or her parental responsibilities and that there are no viable alternatives to the termination of his or her parental rights. Id.
Analysis
The juvenile court determined that the child was dependent; however, it made no express finding on whether it had considered maintenance of the status quo, i.e., continuing the present custody and visitation arrangement, a viable and less drastic alternative to terminating the father's parental rights. See S.N.W. v. M.D.F.H., 127 So. 3d 1225, 1230 (Ala. Civ. App. 2013) (noting that "maintaining the status quo is a viable option to terminating parental rights when the parent and the child enjoy a relationship with some beneficial aspects that should be preserved such that it would be in the child's best interests to continue that relationship"). Thus, the issue presented is whether the evidence supports the juvenile court's implicit conclusion that maintaining the status quo was not a viable and less drastic alternative to terminating the father's parental rights.
The Court of Civil Appeals determined that maintaining the status quo would not be a viable alternative to termination of the father's parental rights because, it reasoned, the child had been in the custody of the maternal grandparents for more than four years and the evidence supported a finding that the father had been content to maintain the status quo indefinitely. In this regard, the Court of Civil Appeals relied on K.A.P. v. D.P., 11 So. 3d 812 (Ala. Civ. App. 2008). In K.A.P., the father, who was incarcerated for murder, argued that it would better serve the interests of the children if the nonrelative legal custodians continued acting in that capacity without terminating his parental rights. The Court of Civil Appeals rejected that argument, noting that the father would not be in a position to reunite with the children until their adolescence. The court explained that, in order to achieve stability and continuity for the children, "appellate courts generally hold that maintaining an indefinite custody arrangement with a third party is not in the best interests of the child." K.A.P., 11 So. 3d at 820.
Since the release of K.A.P., the Court of Civil Appeals has carved out an exception to the general rule opposing indefinite custody arrangements with third parties in situations where the third party is a relative and the parent and child enjoy a positive relationship. For example, in L.R. v. C.G., 78 So. 3d 436 (Ala. 2011), the maternal grandparents obtained legal custody of their three grandchildren through dependency proceedings. The grandparents then sought to terminate the parental rights of both the mother and the father, alleging, among other things, that the parents had not paid child support and had not consistently exercised visitation with the children. The maternal grandmother also testified that she intended to adopt the children so that she could provide health insurance for them in the future. The father had been incarcerated for drug-related charges, but he was later released. The evidence established, among other things, that, after his release from prison, the father had improved, and continued to improve, his circumstances, that he had visited with the children by telephone and in person as permitted, and that the children desired to have a relationship with him. Accordingly, the Court of Civil Appeals reversed the termination-of-parental-rights judgment, concluding that the juvenile court should have protected the best interests of the children by maintaining the custody and visitation arrangement, rather than terminating the father's parental rights.
In L.M.W. v. D.J., 116 So. 3d 220 (Ala. Civ. App. 2012), the Court of Civil Appeals also concluded that maintaining the status quo was a viable alternative to terminating the mother's parental rights. In that case, the paternal grandparents obtained custody of their grandchild through a dependency proceeding and then moved the juvenile court to terminate the mother's parental rights. The evidence demonstrated that the mother had maintained both a residence and employment for over two years at the time of the trial and that the mother and the child shared a strong bond. The juvenile court entered a judgment terminating the mother's parental rights, citing, among other things, the mother's failure to support the child financially and her lack of consistent visits with the child. The juvenile court stated that maintaining the status quo would provide little, if any, benefit to the child, whereas, if the child was adopted, she would have access to the grandfather's Social Security benefits and health insurance. The Court of Civil Appeals determined that the juvenile court had erred in failing to find that it would be in the best interests of the child to maintain custody in the paternal grandparents subject to the visitation rights of the mother. The court emphasized that a parent has a fundamental right to be a parent to his or her child and that a juvenile court should terminate those rights " ‘only in the most egregious of circumstances.’ " 116 So. 3d at 225 (quoting Ex parte Beasley, 564 So. 2d 950, 952 (Ala. 1990) ).
Like the grandparents in L.M.W. and L.R., the maternal grandparents in this case gained custody of the child through a dependency proceeding and then sought to terminate the father's parental rights so they could adopt the child. I recognize the presumption of correctness that attaches to a juvenile court's judgment when that judgment is based on ore tenus evidence. However, after reviewing the record, I cannot conclude that the maternal grandparents presented clear and convincing evidence warranting a termination of the father's parental rights. The father testified that he is currently drug-free, that he has a job, that he is willing and able to pay child support, that he shares a stable home with his girlfriend, that he has visited with the child in person as permitted, and that he loves the child and desires to maintain a relationship with the child.
The maternal grandparents offered no testimony to dispute the father's testimony concerning his current conditions, nor did they offer any evidence indicating that the father's visits with the child were in any way detrimental to the child. Although the maternal grandmother testified that the father had not paid child support and had inconsistently visited with the child, that evidence alone, under the holdings of L.R. and L.M.W., does not compel a conclusion that continued visitation between the father and the child would no longer serve the best interests of the child. By all accounts, the child is presently in a stable and loving environment, and, according to the father, he loves the child and wants to visit with the child as much as possible. There is simply no evidence to justify denying him his fundamental right to do so simply because the maternal grandparents have expressed a desire to adopt the child. See L.R., 78 So. 3d at 444 ("We are especially mindful that the root of the maternal grandparents’ desire for termination in this case appears to be the desire to be able to adopt the children for purposes of providing insurance coverage to them in the future. Although we commend the maternal grandparents for their obvious love for the children and their careful planning for the future, we cannot agree that the parental rights of the mother should be terminated for such a reason."). Based on the reasoning set forth in L.R. and L.M.W., I conclude that the juvenile court erred in terminating the father's parental rights rather than maintaining the current custody and visitation arrangement. Accordingly, I would reverse the judgment of the Court of Civil Appeals affirming the juvenile court's judgment terminating the father's parental rights.
Bryan and Mendheim, JJ., concur.