Opinion
2181008
03-27-2020
M.B. v. J.S. and Ja.S.
Amy M. Shumate, Dothan, for appellant. Laura Peterman Wells, Dothan, for appellees.
Amy M. Shumate, Dothan, for appellant.
Laura Peterman Wells, Dothan, for appellees.
DONALDSON, Judge.
M.B. ("the father") appeals from the judgment of the Houston Juvenile Court ("the juvenile court") terminating his parental rights to B.B. ("the child"). Because the juvenile court's judgment is supported by the evidence in the record, we affirm the judgment.
Facts and Procedural History
The father and B.C. ("the mother") are the unmarried parents of the child who was born on XX/XX/2015. The father and the mother ended their relationship in January 2016. J.S. and Ja.S. ("the grandparents") are the maternal grandparents of the child. On January 30, 2019, the grandparents filed a complaint seeking to terminate the parental rights of the father to the child.
The grandparents also sought the termination of the mother's parental rights to the child. The mother later stipulated to the termination of her parental rights, and the judgment entered by the juvenile court terminated her parental rights to the child as well. The mother is not a party to this appeal.
The following facts established during the dependency action regarding the child, which preceded the termination-of-parental rights action, are not disputed. The juvenile court entered an order on November 23, 2015, granting pendente lite custody of the child to the grandparents and visitation to the mother and the father. During the hearing on pendente lite issues, the father was informed of his right to counsel but was not represented by counsel. The pendente lite order stated the date of the next hearing. On April 29, 2016, the juvenile court entered an order resetting the date of the final hearing for July 14, 2016, but none of the parties appear to have been notified of that order. Neither the father nor the mother appeared at the final hearing. The juvenile court entered a judgment in the dependency action in July 2016 granting the grandparents custody of the child.
The following facts were elicited at the dependency trial. The juvenile court took judicial notice of the record in the dependency action, but the record in this case does not contain materials from the dependency action.
On June 14, 2019, the juvenile court conducted a trial on the grandparents' petition to terminate the father's and the mother's parental rights. The father and Ja.S. ("the grandmother") testified at the trial. The father testified that he believed that the grandparents were restricting his visitations with the child to an hour on Tuesdays when, he believed, he should have been receiving four hours a week of visitation in accordance with the pendente lite order in the dependency action. The father testified that he had never objected to the Tuesday visitations because he had never received notice of another court date. According to the father, the only document he had received in the dependency action was the pendente lite order entered on November 23, 2015. The father testified that he had never received a copy of the July 2016 final judgment in the dependency action and that he did not attend the final hearing in the dependency action because he had never received notification of the hearing. The father testified that he had learned of the judgment in the dependency action when he appeared in court in June 2018 regarding a child-support action brought against him. The father testified that he had not been represented by an attorney until the termination-of-parental-rights action was commenced and that he had not been able to afford hiring an attorney before that time.
The father testified that he had not paid the grandparents any child support since the grandparents had received custody of the child in 2015. According to the father, he was served in a child-support action against him in September 2017. The father testified that, before he appeared in court for the child-support action in June 2018, he had not been required to pay child support and that "he didn't know how to" pay the grandparents child support. According to the father, he lost his job a month after he appeared in court in June 2018 for the child-support action because he had been late to work. The father testified that he had been unable to pay child support when he was unemployed but that he had later sent the grandmother a text message asking her how to go about paying child support and had not received a response. The father admitted that he did not give the grandparents any money for child support during any of the times he saw them after sending that text message. The father testified that he is now willing and able to provide support for the child.
The father and the grandmother testified regarding his visitations with the child from 6:00 p.m. to 7:00 p.m. on Tuesdays. The father described his visitations with the child as follows: "They usually go pretty good. [The child is] pretty excited to see me. We have a good time. We play around some. Unless my girlfriend shows up with me. And either [the grandmother will] take [the child] and leave or she'll fuss." The grandmother testified that she was fine with the father's girlfriend transporting the father to visitations but that she did not feel like the girlfriend should participate in the visitations because, she said, the child should be spending time with the father during the visitations. The father testified that he had asked the grandparents to have visitations on weekends but had not received a response. The grandmother testified that the father had asked a few times about changing visitations to weekends, that she had responded by suggesting further discussion, and that the father had not responded to her suggestion. The grandmother testified that the father and the mother had chosen Tuesdays as the day for their visitations.
The father testified that, "[i]f possible, I would see [the child] everyday." The father claimed that he had missed only three visitations that had been previously arranged by the parties in four years. The grandmother testified that the father had missed numerous arranged visitations without any notice. The father testified that the grandparents strictly observed the period for the Tuesday visitation. According to the father, the grandparents would leave the visitation location after only 10 minutes had elapsed after 6:00 p.m. on Tuesdays, so, if he was more than 10 minutes late, he would miss that visitation. The grandmother testified that the father was frequently late to the visitations and that, on one occasion, they had waited up to an hour for him to show up. The father testified that the longest visitation period the grandparents have allowed was an hour and a half. The grandmother testified that the father had left visitations early. The father testified that the grandparents only sometimes allowed him to rearrange the visitation schedule when he was not able to attend.
The father testified that he has had periods of one month, two months, and three months during which he did not exercise his visitation. The father testified that the longest period during which he did not see the child was between August and October of 2018 when he did not have a job, a telephone, or a motor vehicle. According to the grandmother, the longest period that the father did not exercise his visitation exceeded three months. The grandmother testified that transportation has been a problem for the father in attending visitations and that she had observed the father arrive at their visitation location after having traveled by walking or bicycling. The father testified that he had visitations with the child three times in May 2019 but that he did not have any visitations with the child in the two Tuesdays before the termination-of-parental-rights trial in June 2019. The father testified that he had notified the grandparents that he was not able to exercise visitations with the child on the Tuesdays in June 2019 because of his work schedule. The father and the grandmother testified regarding their communications pertaining to visitations, the child, and the locations for visitation. The father testified that the grandparents were attempting to "drive a wedge" between him and the child. The grandmother testified that the father had sent harassing messages to her. The father and the grandmother testified regarding whom the child was calling "mom" and "dad," which last name was used for the child, and the child's addressing the father by his first name. According to the father, he has called to talk to the child and has been told that the child is either asleep or eating. The grandmother testified that the father had called after 9:00 p.m. when the child was in bed and that, when the father did speak to the child on the telephone, the child did not say much because of the child's age.
The father testified that he had stated to the grandmother in December 2018 that he needed time to get himself together and that he has done so since then. The father testified that he had been working for a company for the past four months, earning $300 a week. According to the father, he had previously worked at another company for 9 to 10 months before losing that job in July 2018 and that he had been unemployed until February 2019. The father testified that he has lived in a house with his girlfriend and her 7-year-old child since April 2017. The father testified that the rent is $265 a month, that the house has two bedrooms and one bathroom, and that the house is an appropriate place for visitations with the child. The father testified that he has a motor vehicle but no valid driver's license and that someone else drives for him.
The father testified that he has no pending criminal charges against him. According to the father, he was arrested once for possession of illegal drugs four years before the termination-of-parental-rights trial, which was before the grandparents were involved with the custody of the child. The father testified that he is clean and no longer takes illegal drugs. The grandmother testified that there was a history of domestic violence between the father and the mother. According to the grandmother, the mother had called her numerous times and the grandparents had "had to go get her and go see about her and stuff." The grandmother testified that it has been several years since the last domestic-violence incident because the father and the mother have not been together for awhile. According to the father, he had received a court referral on November 23, 2015, requiring him to attend a program unspecified in the testimony. The father testified that he had received a certificate for completing the program but that he was never brought back to the juvenile court to submit the certificate.
On August 28, 2019, the juvenile court entered the judgment terminating the parental rights of the father and the mother, finding, in relevant part:
"4. That the child is a dependent child within the meaning of Title 12-15-102(a) of the Code of Alabama, 1975 (as amended), in that: The child is dependent in that [the child] is without a parent able or willing to provide for the child's support, training or education; and the parents have not been willing or able to discharge his/her responsibilities to and for said child or provide for the physical, emotional and financial needs of said child.
"5. That the parents are unable or unwilling to provide a stable home for said child.
"6. The Court considered the admission and consent of the mother, after consultation with her attorney, that the child
remains dependent and she consents to the termination of her parental rights.
"7. The Court further finds that the father has failed to provide for the material needs of the child or to pay reasonable portion of support of the child, and the father is able to do so. The father has also failed to maintain regular visits with the child or have consistent contact or communication with the child. The father has also failed to adjust his circumstances to meet the needs of the child.
"8. That said child has been under the care and protection of the legal custodians [the grandparents] since 2016 and that his morals, health and general welfare will be best served by granting the permanent care, custody and control of the child to [the grandparents] and that they are equipped to care for and have agreed to receive said child.
"9. It is the opinion of the court that it would be in the child's best interest to terminate parental rights and for the [grandparents] to provide a stable permanent home for said child through adoption."
On August 30, 2019, the juvenile court entered an order correcting a clerical error in the August 28, 2019, judgment.
On September 9, 2019, the father filed a notice of appeal to this court. This court has jurisdiction over the father's appeal pursuant to § 12-3-10, Ala. Code 1975, and Rule 28, Ala. R. Juv. P.
Standard of Review
We apply the following standard of review to the judgment terminating the father's parental rights:
" ‘ "The trial court's decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong." Ex parte State Dep't of Human Res., 624 So. 2d 589, 593 (Ala. 1993). "This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility." Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001). The party seeking to terminate parental rights, however, has the burden of presenting clear and convincing evidence showing that the parent whose rights are at stake is not capable of discharging, or is unwilling to discharge, his or her parental responsibilities and that no viable alternatives to terminating his or her parental rights exist. Ex parte Ogle, 516 So. 2d 243, 247 (Ala. 1987) ; see also K.W. v. J.G., 856 So. 2d 859, 874 (Ala. Civ. App. 2003) (holding that the party seeking to terminate a parent's rights bears the burden of proving that the termination of those rights is the appropriate remedy).’ "
K.J. v. Pike Cty. Dep't of Human Res., 275 So. 3d 1135, 1144 (Ala. Civ. App. 2018) (quoting Ex parte A.S., 73 So. 3d 1223, 1228 (Ala. 2011) ).
Discussion
The father argues that the grandparents did not present sufficient evidence that the child was dependent and that no viable alternatives to the termination of his parental rights exist.
The father also asserts that there is no evidence regarding the child's best interests. "It is well settled that the paramount concern in proceedings to terminate parental rights is the best interest of the child." R.S. v. R.G., 995 So. 2d 893, 903 (Ala. Civ. App. 2008). Accordingly, any evidence relevant to the grounds for, and the alternatives to, the termination of parental rights is related to a child's best interests. Therefore, most if not all of the evidence elicited at the trial in this case pertained to the child's best interests. Moreover, the father does not support this argument with citation to legal authority. As a result, we decline to consider the argument in the manner it was phrased by the father. See Asam v. Devereaux, 686 So. 2d 1222, 1224 (Ala. Civ. App. 1996) ("This court will address only those issues properly presented and for which supporting authority has been cited.").
"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).
"In order to find a child dependent, the juvenile court must find that grounds for termination exist." M.G. v. Etowah Cty. Dep't of Human Res., 26 So. 3d 436, 441 (Ala. Civ. App. 2009). Section 12-15-319(a), Ala. Code 1975, provides that grounds for terminating parental rights exist if clear and convincing evidence establishes that the parents "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." In determining whether such grounds exist, § 12-15-319(a) directs a juvenile court to consider certain factors, including:
"(9) Failure by the parents 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.
"....
"(11) Failure by the parents 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."
The factors listed in § 12-15-319(a) are nonexclusive, and a juvenile court may consider other factors relevant to a child's welfare. § 12-15-319(a) ; J.C. v. State Dep't of Human Res., 986 So. 2d 1172, 1188 (Ala. Civ. App. 2007).
The juvenile court found that the father had "failed to maintain regular visits with the child or have consistent contact or communication with the child." The grandmother testified that the father's exercise of his visitations with the child on Tuesdays was sporadic. The father testified as follows:
"Q. Are you testifying today that you have visited him every Tuesday since 2015?
"A. No. Not every Tuesday.
"Q. Have you gone a month at a time without seeing him?
"A. Yes.
"Q. Have you gone two months at a time without seeing him?
"A. Yes.
"Q. And I think you said earlier you've gone at least three months at a time without seeing him?
"A. That's the longest.
"Q. And then, in those other months, have you seen him twice a month?
"A. Yes.
"Q. But I do believe that you testified that there are times that y'all schedule a visit and you don't show up?
"A. Yes."
In his testimony, the father described a period of three months during which he did not exercise visitation that occurred a few months before the grandparents filed the complaint seeking the termination of his parental rights. According to the grandmother's testimony, the longest period during which the father did not exercise visitation exceeded three months. The juvenile court also received evidence indicating that the father had not exercised his visitation with the child during the two weeks before the trial. Because the juvenile court determines the credibility of the testimony, we conclude that substantial evidence supports the trial court's determination that the father did not maintain consistent visitation with the child.
The father testified that he would see the child every day if he could, and he asserts on appeal that the grandparents interfered with his visitation. The father testified that the grandparents limited him to visitations on Tuesdays, which, based on his understanding of the provisions in the pendente lite order entered in the dependency action, was less than he thought he was entitled to. The father, however, testified that he learned about the final judgment in the dependency action by June 2018, and the grandmother testified that he and the mother had chosen Tuesdays as their day for visitations. The juvenile court received conflicting evidence regarding the parties' communications and conditions regarding visitation, but the evidence did not compel the juvenile court to conclude that the grandparents had prevented the father from having visitations on Tuesdays. The evidence further indicates that the father had little telephone communication with the child. The determination of credibility and the weighing of evidence is within the province of the juvenile court. See K.J. v. Pike Cty. Dep't of Human Res., supra. We therefore conclude that the juvenile court was within its discretion to find that the grandparents did not prevent the father from having contact with the child and that the father had not maintained consistent contact and communication with the child.
Although the juvenile court found that the father did not adjust his circumstances to meet the needs of the child, the court did not specify those circumstances. The evidence supports findings that the father did not obtain reliable transportation and that he did not adjust his circumstances to consistently exercise visitations with the child on Tuesdays. We note that the record does not indicate any attempt by the father to regain custody of the child or any expression by the father of an intent to regain custody in the future and to fulfill his parental responsibilities to the child. The father testified that he had contacted either the child's guardian ad litem or the grandparents' counsel and that the person he contacted had stated that he could not offer assistance, that he did not have legal counsel until the termination-of-parental-rights action was commenced, and that he could not afford legal counsel before that time. The juvenile court, however, received evidence indicating that, in 2015, the father had been informed of his right to counsel in the dependency action. Section 12-15-305, Ala. Code 1975, provides:
"(a) Upon request and a finding of indigency, the juvenile court may appoint an attorney to represent the petitioner and may order recoupment of the fees of the attorney to be paid to the State of Alabama.
"(b) In dependency and termination of parental rights cases, the respondent
parent, legal guardian, or legal custodian shall be informed of his or her right to be represented by counsel and, if the juvenile court determines that he or she is indigent, counsel shall be appointed where the respondent parent, legal guardian, or legal custodian is unable for financial reasons to retain his or her own counsel."
Therefore, if the juvenile court found the father's testimony regarding legal representation credible, the court could have concluded from the evidence that the father has not made any meaningful attempt to regain custody of the child during the more than four years that the child has been in the grandparents' custody. See R.S. v. R.G., 995 So. 2d 893, 903 (Ala. Civ. App. 2008) (holding that "the trial court could have concluded that the father was content to maintain the status quo and leave the child with the maternal grandparents for the foreseeable future" based, in part, on evidence indicating that "the father had never petitioned the court for custody of the child").
In support of his argument that the child was not dependent, the father asserts that he has had a stable home and stable employment. The claim that the father has had stable employment is consistent with the juvenile court's finding that the father was able to pay for child support, but the court also found that "the father has failed to provide for the material needs of the child or to pay [a] reasonable portion of support of the child ...." It is undisputed that the father has not paid the grandparents any child support the entire time that the child has been in the grandparents' custody. The father testified that, at the time of the termination-of-parental-rights trial, he was willing to pay child support, that he did not know how to pay the grandparents child support, and that he had previously asked the grandmother how he could pay child support without receiving a response. The juvenile court, however, received evidence indicating that the father had been served in a child-support action against him in September 2017 and that he had appeared in court for the child-support action in June 2018. The father also admitted that, after inquiring how to pay the grandparents child support, he did not provide any funds to the grandparents any of the times that he saw them afterward. We determine that the juvenile court acted within its discretion in determining that the father's testimony that he was willing to pay child support lacked credibility and that he had had the ability but had refused to pay child support. See K.J. v. Pike Cty. Dep't of Human Res., supra.
The father also argues for the first time in his reply brief that he was unable to pay child support. The father does not provide citations to legal authority to support this argument. "Rule 28(a)(10) [, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008). Moreover, "[a]rguments not raised in the appellant's initial brief are deemed waived." Meigs v. Estate of Mobley, 134 So. 3d 878, 889 n. 6 (Ala. Civ. App. 2013). We therefore decline to consider this argument.
Regarding his home, the father testified that, since April 2017, he has been living in a house suitable for having visitations with the child and that he has been living with his girlfriend and her child. The juvenile court, however, found that the father was "unable or unwilling to provide a stable home for [the] child." The juvenile court, thus, determined either that the father's testimony regarding his housing was not credible or that the father has had stable housing and employment but has been unwilling to seek custody of the child. "[A]lthough a parent might well be able to parent his or her child, when ‘clear and convincing evidence demonstrate[s] that he [or she] [is] obviously not willing to discharge his [or her] parental responsibilities’ a termination of parental rights may well be warranted." L.T. v. W.L., 47 So. 3d 1241, 1248 (Ala. Civ. App. 2009) (quoting R.S. v. R.G., 995 So. 2d at 905 (Moore, J., concurring in the result)). We conclude that the juvenile court did not exceed its discretion in determining that the father has been either unable or unwilling to discharge his parental responsibilities for the child.
The father asserts on appeal that either placing the child in his custody or leaving the child in the custody of the grandparents is a viable alternative to the termination of his parental rights. All the evidence that supports the juvenile court's determination that the father was either unable or unwilling to discharge his parental responsibilities for the child, however, also support the finding that placing custody of the child with the father is not a viable alternative. The child has been in the custody of the grandparents since the child was six months old and for more than four years. The evidence supports a finding that the father had been content to maintain the status quo indefinitely. See R.S. v. R.G., 995 So. 2d at 903 ("Based on the evidence presented at the final hearing, the trial court could have concluded that the father was content to maintain the status quo and leave the child with the maternal grandparents for the foreseeable future.").
"However, one of the overarching purposes of the law allowing juvenile courts to terminate parental rights is to provide stability and continuity for the child. See § 26–18–2, Ala. Code 1975. To that end, the appellate courts generally hold that maintaining an indefinite custody arrangement with a third party is not in the best interests of the child. See, e.g., R.L.B. v. Morgan County Dep't of Human Res., 805 So. 2d 721, 725 (Ala. Civ. App. 2001)."
K.A.P. v. D.P., 11 So. 3d 812, 820 (Ala. Civ. App. 2008). Therefore, we conclude that the juvenile court did not exceed its discretion in determining that maintaining the status quo was not a viable alternative.
Conclusion
For the foregoing reasons, we affirm the judgment terminating the father's parental rights.
AFFIRMED.
Hanson, J., concurs.
Thompson, P.J., concurs in the result, without writing.
Moore and Edwards, JJ., dissent, with writings.
MOORE, Judge, dissenting.
I respectfully dissent from the affirmance of the judgment of the Houston Juvenile Court ("the juvenile court") terminating the parental rights of M.B. ("the father") to B.B. ("the child") because I conclude that the juvenile court did not receive any evidence indicating that the termination of the father's parental rights would be in the best interest of the child.
The record shows that, on January 30, 2019, J.S. and Ja.S. (hereinafter referred to collectively as "the maternal grandparents") filed a complaint seeking to terminate the parental rights of the father and B.C. ("the mother") to the child. In that complaint, the maternal grandparents asserted that they had been awarded custody of the child in a judgment entered by the juvenile court on July 14, 2016, in which the juvenile court found the child to be dependent; they also asserted that they had, on June 26, 2018, obtained an order in a separate action directing the father to pay child support. The maternal grandparents alleged that the father had abandoned the child, had failed to provide for the material needs of the child, had failed to regularly visit with the child, and had failed to adjust his circumstances to meet the needs of the child. The maternal grandparents indicated that they wanted to adopt the child and that it would be in the best interests of the child to terminate the parental rights of the father.
The mother stipulated to the termination of her parental rights; she has not appealed the judgment terminating her parental rights. The discussion in this dissent is limited to the allegations and the evidence relating to the termination of the father's parental rights.
The juvenile court did not find that the father had abandoned the child.
The juvenile court conducted a trial on the complaint on June 14, 2019, and entered the judgment terminating the parental rights of the father on August 28, 2019. The father filed his notice of appeal on September 9, 2019.
The father argues on appeal that the juvenile court erred in terminating his parental rights to the child without receiving sufficient evidence indicating that the child was currently dependent and that termination of the father's parental rights would serve the best interests of the child.
The first point raised by the father does not have any merit. The supreme court has held that, when a private party seeks to terminate a parent's parental rights, the party does not have to prove the dependency of the child. See Ex parte Beasley, 564 So. 2d 950 (Ala. 1990). That conclusion flows from the wording of the statute granting juvenile courts the authority to terminate parental rights, which does not explicitly require any finding of dependency as a predicate to a termination of parental rights. Rather, the statute 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[ ]."
Ala. Code 1975, § 12-15-319(a). That statute requires only that a petitioner present sufficient evidence of the statutory grounds for termination, so a juvenile court does not commit any error in terminating parental rights without receiving further evidence of the dependency of the child. See generally J.C. v. State Dep't of Human Res., 986 So. 2d 1172, 1201-06 (Ala. Civ. App. 2007) (Moore, J., concurring in the result) (explaining that proof of dependency and a finding of dependency are not prerequisites to a valid judgment terminating parental rights).
The second point raised by the father does have merit. When terminating parental rights, a juvenile court is required to consider, as a separate matter, whether termination of parental rights would serve the best interests of the child. J.C., 986 So. 2d at 1193. This court has reversed judgments terminating parental rights when those judgments were not supported by sufficient evidence indicating that the termination would serve the best interests of the child. See, e.g., B.A.M. v. Cullman Cty. Dep't of Human Res., 150 So. 3d 782 (Ala. Civ. App. 2014) ; L.M.W. v. D.J., 116 So. 3d 220 (Ala. Civ. App. 2012) ; C.M. v. Tuscaloosa Cty. Dep't of Human Res., 81 So. 3d 391, 397 (Ala. Civ. App. 2011) ; and L.R. v. C.G., 78 So. 3d 436, 443 (Ala. Civ. App. 2011).
I disagree with any contention in the main opinion that the inquiry into whether termination of parental rights serves the best interests of the child is intertwined with the inquiry into whether there are grounds for termination. See J.C., 986 So. 2d at 1206-12 (Moore, J., concurring in the result). The caselaw cited in this dissent has established that, even when grounds for termination have been proven, the juvenile court must still determine whether it would be in the best interests of the child to terminate parental rights by considering the psychological and other impacts on the child that would result from the potential termination.
In L.R. v. C.G., supra, the maternal grandparents in that case, who had obtained legal custody of their three grandchildren in 2008, filed a complaint in 2010 to terminate the parental rights of the parents of the children. The evidence showed that both parents had abused and sold illegal drugs and had been incarcerated for drug-related crimes but that both had improved their circumstances since they had been released from prison and were visiting with the children, who desired to have a relationship with the parents. The maternal grandparents filed a complaint to terminate the parental rights of the parents, asserting, among other things, that the parents had not paid child support and had not consistently exercised visitation with the children. The maternal grandmother testified that, although she recognized that the parents and the children loved one another, she had filed the complaint to assure that the parents would never be able to regain custody of the children. The maternal grandmother also testified that she intended to adopt the children so that she could secure their stability and provide health insurance for them. This court reversed the judgment terminating the parental rights of the parents, concluding that the trial court should have protected the best interests of the children by maintaining the custody/visitation arrangement rather than terminating the parental rights of the parents. In addressing the termination of the mother's parental rights, this court stated:
"We realize that we have rejected the argument that maintaining the status quo would be a viable alternative in many cases.
" ‘[W]e note that we have previously rejected [maintenance of the status quo as a viable alternative] when grounds for termination exist and the situation is such that, in the foreseeable future, reunification will not be possible. See K.A.P. v. D.P., 11 So. 3d 812, 820 (Ala. Civ. App. 2008) (rejecting maintenance of the status quo when it appeared that potential reunification would be at least 10 years in the future and commenting that, in order to achieve stability and continuity for children, "appellate courts generally hold that maintaining an indefinite custody arrangement with a third party is not in the best interest of the child"); B.J.C. v. D.E., 874 So. 2d 1109, 1118 (Ala. Civ. App. 2003), overruled on other grounds, F.G. v. State Dep't of Human Res., 988 So. 2d 555 (Ala. Civ. App. 2007) (rejecting the father's argument that "maintaining the situation the children had been in for the six years before the termination hearing by leaving them to be raised by family members" was a viable alternative to termination when the father had failed to consistently support or visit with the children and
his situation was unlikely to change in the foreseeable future); A.N.S. v. K.C., 628 So. 2d 734, 735 (Ala. Civ. App. 1993) (rejecting the maintenance of the status quo as an alternative to termination and noting that the father was expecting to be released from prison in seven years but that "[t]he maternal aunt and uncle were willing to adopt the children to give them a feeling of permanency and security").’
" L.T. v. W.L., 47 So. 3d 1241, 1249 (Ala. Civ. App. 2009). In a case such a[s] this one, where the children have been placed in the permanent custody of a relative, we are not concerned with ‘an indefinite custody arrangement with a third party’ or a lack of stability for the children. The children are in a stable and loving placement. However, the evidence is clear that the children and the mother have a relationship that both the children and the mother desire to preserve; the maternal grandmother said that the oldest child would be upset if she were told that she could no longer see or speak with her mother. In addition, the maternal grandmother herself testified that she might well let the mother have visitation with the children even after termination of the mother's parental rights, indicating that she, too, desires to maintain for the children some connection to the mother.
"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. We therefore agree with the mother that maintaining the status quo is a viable alternative to termination of the mother's parental rights in this particular case."
78 So. 3d at 443–44. This court further concluded that the judgment terminating the parental rights of the father should be reversed for the same reasons. 78 So. 3d at 444-45.
In L.M.W. v. D.J., supra, the paternal grandparents, who had obtained custody of their grandchild through dependency proceedings, filed a complaint to terminate the parental rights of the child's mother. The Etowah Juvenile Court entered a judgment terminating the mother's parental rights, citing, among other things, the failure of the mother to financially support the child and her lack of consistent visits with the child. In its judgment, the juvenile court indicated that it had considered maintaining the status quo but had rejected that alternative because it would provide little, if any, benefit to the child, whereas, if the child was to be adopted, she would have access to the grandfather's Social Security benefits and health insurance. This court reversed the judgment, noting:
"The evidence presented at trial established that the mother loves the child and wishes to be a part of the child's life. The evidence also established that the child desires the mother to be a part of her life. As this court has explained:
" ‘ "[I]f, notwithstanding the unfitness of a parent, there remains a significant emotional bond between a child and an unfit parent, and it has been demonstrated that some alternative-placement resource would allow the child to visit periodically with the unfit parent so as to reap the benefit of partially preserving that relationship without incurring the harm of the child being raised on a day-to-day basis
by an unfit parent, the court would be required to weigh the advantage of that arrangement against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child's best interest." ’
" C.M. v. Tuscaloosa Cnty. Dep't of Human Res., 81 So. 3d 391, 397 (Ala. Civ. App. 2011) (quoting D.M.P. v. State Dep't of Human Res., 871 So. 2d 77, 95 n.17 (Ala. Civ. App. 2003) (plurality opinion))."
116 So. 3d at 224–25. Based on the evidence, this court determined that the juvenile court in that case had erred in failing to find that it would be in the best interest of the child to maintain custody in the paternal grandparents subject to the visitation rights of the mother.
Like in L.R. and L.M.W., in this case the maternal grandparents obtained custody of the child through dependency proceedings. The July 14, 2016, judgment in the dependency action awarded the maternal grandparents legal and physical custody of the child, subject to the visitation rights of the father. The maternal grandparents subsequently obtained a judgment requiring the father to pay child support. The father did not pay any child support and exercised his visitation rights inconsistently. The maternal grandparents filed a complaint to terminate the parental rights of the father in order to adopt the child. The father has appealed, arguing that the record does not contain sufficient evidence indicating that it would be in the best interests of the child to terminate the father's parental rights and that the juvenile court should have left the existing custody/visitation arrangement intact.
I agree with the father that the judgment terminating his parental rights should be reversed based on the reasoning in L.R. and L.M.W. By awarding the father visitation in the July 14, 2016, dependency judgment, the juvenile court at least impliedly found that such visitation served the best interests of the child. See K.B. v. Cleburne Cty. Dep't of Human Res., 897 So. 2d 379, 387 (Ala. Civ. App. 2004) ("In awarding visitation rights relating to the disposition of a ‘dependent child’ ..., the [juvenile] court is guided by the ‘best interests of the child’ standard."). The maternal grandparents presented evidence indicating that, since that judgment was entered, the father had not paid child support and had only inconsistently visited with the child; however, as illustrated by L.R. and L.M.W., that evidence alone does not compel a conclusion that continued visitation between the father and the child would no longer serve the best interests of the child.
The father testified that he is currently living drug-free in a proper, stable home, that he is in a stable, loving relationship, and that he has a steady job. The father testified that he loves the child and that he wants to remain a part of the child's life. The father also testified that the child, who was four years old at the time of the termination-of-parental-rights trial, was "pretty excited" to see the father for visits and that those visits "usually go pretty good." The evidence showed that the father had sometimes walked or rode a bicycle to attend visitation when he lacked automotive transportation. The maternal grandparents did not offer any evidence disputing that testimony or asserting that the child had become estranged from the father such that the relationship was no longer worth preserving. On direct examination by counsel for the maternal grandparents, the maternal grandmother testified as follows:
The only evidence that could possibly be construed as showing a deterioration in the parent-child relationship consisted of the testimony that the child now refers to the maternal grandparents as "Daddy" and "Mommy" and calls the father by his first name. However, that evidence alone is not of sufficient quality and quantity that it could have produced a firm conviction in the mind of a reasonable fact-finder that the child had no emotional bond with the father and that termination of the father's parental rights would serve the best interests of the child. See S.J. v. Jackson Cty. Dep't of Human Res., [Ms. 2180312, Sept. 13, 2019] 294 So. 3d 804 (Ala. Civ. App. 2019) (setting forth the standard of review for judgments terminating parental rights).
"Q: And do you believe that it is in [the child's] best interest to have [the father's] parental rights terminated?
"A: Yes.
"Q: Have the parents' rights terminated. Is it your intent to adopt [the child]?
"A. Yes."
However, the maternal grandparents did not present any facts to support the conclusory opinion of the maternal grandmother that the best interests of the child would be served by terminating the father's parental rights in order to make the child available for adoption. The juvenile court did not receive any evidence from which it could have reached an independent judicial determination that the child would be benefited from a judgment terminating the parental rights of the father. In L.R. and L.M.W., the grandparents at least offered some evidence of tangible benefits to the child from adoption, but, in this case, the maternal grandparents did not even explain how their adoption of the child could positively impact the child.
In the proceedings below, the maternal grandparents sought to permanently sever the relationship between the child and the father. See Ex parte M.D.C., 39 So. 3d 1117, 1124 (Ala. 2009) (quoting M.D.C. v. K.D., 39 So. 3d 1105, 1112 (Ala. Civ. App. 2008) (Moore, J., dissenting)) (" ‘A judgment terminating parental rights immediately and permanently severs the parent's right to custody, control, and affiliation with the child.’ "). At trial, the maternal grandparents, as the parties seeking to terminate the father's parental rights, bore the burden of proving, at a minimum, that the child would benefit from a permanent end to visitation between the father and the child. See Ex parte Beasley, 564 So. 2d at 954 (holding that the party seeking to terminate parental rights must show "that termination is in the child's best interest, in light of the surrounding circumstances"); see also A.M. v. Colbert Cty. Dep't of Human Res., 236 So. 3d 81, 89 (Ala. Civ. App. 2015) (Moore, J., dissenting) ("Although the juvenile court correctly noted that no witness directly testified that severing the relationship between the children and the father would emotionally harm the children, the burden of proof was not on the father; rather, the burden rested squarely on [the Department of Human Resources] to prove that permanent loss of that relationship would benefit the children."). In my opinion, the maternal grandparents did not discharge their burden and the record evidence does not support the determination of the juvenile court that termination of the parental rights of the father serves the best interests of the child. Therefore, I conclude that the judgment of the juvenile court should be reversed.
EDWARDS, Judge, dissenting.
I respectfully dissent from the affirmance of the judgment of the Houston Juvenile Court terminating the parental rights of M.B. ("the father") to B.B. ("the child"). I, like Judge Moore, do not believe that J.S. and Ja.S. established that termination of the father's parental rights was in the best interest the child. Thus, although I do not join Judge Moore's writing, I agree with Judge Moore's discussion of this particular issue.