Opinion
CL-2023-0809 CL-2023-0810
03-15-2024
M.W. v. Marshall County Department of Human Resources
Appeals from Marshall Juvenile Court (JU-18-290.03 and JU-21-833.02)
MOORE, PRESIDING JUDGE.
In appeal number CL-2023-0809, M.W. ("the mother") appeals from a judgment entered by the Marshall Juvenile Court ("the juvenile court") in case number JU-18-290.03, terminating her parental rights to Z.T., who was born on February 14, 2017. In appeal number CL-2023-0810, the mother appeals from that same judgment, which was also entered in case number JU-21-833.02, to the extent that it terminated her parental rights to H.W.B., who was born on November 5, 2021. We reverse the juvenile court's judgments.
Procedural History
On August 24, 2022, the Marshall County Department of Human Resources ("DHR") filed separate, but almost identical, verified petitions seeking to terminate the parental rights of the mother to Z.T. and H.W.B. ("the children"). The juvenile court conducted a consolidated trial on the petitions on October 23, 2023. The mother did not appear, and the juvenile court denied a motion to continue the case made by her appointed attorney, who indicated that he had mailed the mother notice of the trial date but had not communicated with her since.
DHR's petitions also sought to terminate the parental rights of J.T. to Z.T. and to terminate the parental rights of K.B. to H.W.B.; however, it was determined that J.T. and K.B. were only putative fathers and not legal fathers of the children. Accordingly, the juvenile court properly declined to address DHR's petition insofar as it sought to terminate the parental rights of J.T. and K.B. See J.R.C. v. Mobile Cnty. Dep't of Hum. Res., 342 So.3d 580, 583 (Ala. Civ. App. 2021) (recognizing that a juvenile court lacks jurisdiction to terminate the parental rights of an alleged or putative father). The judgments were therefore final because they adjudicated every claim over which the juvenile court had jurisdiction.
On November 2, 2023, the juvenile court rendered a single judgment that was entered in both actions. The judgments provide that clear and convincing evidence supported the termination of the mother's parental rights to the children. Specifically, the juvenile court found in the judgments, among other things, that the mother had abandoned the children; that she had failed to maintain consistent contact or communications with the children and had failed to maintain regular visits with the children; that she had failed to provide for the material needs of the children; that reasonable efforts by DHR leading toward the rehabilitation of the mother had failed; that the mother had displayed a lack of effort to adjust her circumstances to meet the needs of the children in accordance with agreements reached with local departments of human resources or licensed child-placing agencies; that the mother was unwilling to discharge her responsibilities to and for the children, that the conduct and condition of the mother was such as to render her unable to properly care for the children, and that such conduct and condition was unlikely to change in the foreseeable future; and that no viable alternatives to the termination of her parental rights existed. The mother timely filed her notices of appeal in both actions to this court; this court consolidated the appeals ex mero motu.
Issue
The mother argues that the sparse record in this case does not contain sufficient evidence to support the findings of fact necessary to sustain the judgments terminating her parental rights to the children. DHR asserts that the mother did not properly preserve this argument for appeal. The juvenile court made specific findings of fact in the judgments. Rule 52(b), Ala. R. Civ. P., provides, in pertinent part:
"When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial."
Based on Rule 52(b), the mother is entitled to challenge the sufficiency of the evidence to support the judgments. See J.P. v. Madison Cnty. Dep't of Hum. Res., [Ms. CL-2022-1182, June 9, 2023] ___ So.3d ___, ___ (Ala. Civ. App. 2023).
Standard of Review
A judgment terminating parental rights must be supported by clear and convincing evidence, which 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."'" C.O. v. Jefferson Cnty. Dep't of Hum. Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).
"'[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'
"KGS Steel, Inc. [v. Mclnish], 47 So.3d [749,] 761 [(Ala. Civ. App. 2006)].
". [F]or trial courts ruling . in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden [,]' [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)]; thus, the appellate court must also look through
a prism 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.'"Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id.
Evidence
The record of the evidence in this case consists solely of nine pages of transcript testimony of one witness -- Marketa Williams, a DHR fostercare worker. Williams testified that DHR obtained custody of Z.T. on February 19, 2021, and custody of H.W.B. on December 15, 2021. Williams was assigned to the children's cases in March 2022, and she last conversed with the mother in August 2022. Williams testified that she had made efforts to communicate with the mother on five occasions via telephone since she had last spoken to her in August 2022, but, she said, the mother had not answered or returned her telephone calls.
At some point, Williams requested that the mother submit to a drug assessment, but the mother did not take the assessment. The mother nevertheless enrolled herself in Family Treatment Drug Court in Marshall County in March 2022. Although Williams had not communicated with the mother since August 2022, Williams testified that she had learned that the mother had withdrawn from Family Treatment Drug Court in October 2022, had sought to reenroll in the program in January 2023, but had never completed the program. Williams testified that she had heard that the mother had participated in another rehabilitation program. Williams did not know whether the mother was in a drug-rehabilitation program at the time of the trial. During her last conversation with the mother in August 2022, Williams talked to the mother about "finding employment, counseling, transportation for the case plan." She stated that, at the time of the trial, DHR was still requesting that the mother find housing and transportation, participate in counseling, and complete a drug assessment.
Williams testified that the mother had not provided the children with any financial support, food, clothing, or other "basic necessities" since Williams had been assigned to the children's cases. According to Williams, the children were in a foster home at the time of the trial, and, she said, they were well-adjusted and happy in that home. She testified that, if the mother's parental rights were terminated, the permanency plan for the children was adoption by their current foster parent. Williams stated that, in her opinion, DHR had exercised all reasonable efforts to reunify the children with the mother, that those efforts had failed, that the mother had not adjusted her circumstances to meet the needs of the children, and that the mother was not willing or able to provide a suitable home for the children.
Analysis
The mother first challenges the sufficiency of the evidence of abandonment, one of the factors a juvenile court shall consider when terminating parental rights. Ala. Code 1975, § 12-15-319(a)(1). In this context, "abandonment" means:
"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."Ala. Code 1975, § 12-15-301(1). We agree with the mother that the juvenile court did not receive clear and convincing evidence that she had abandoned the children within the meaning of § 12-15-301(1). As our analysis of this issue will show, the juvenile court also did not receive clear and convincing evidence indicating that the mother had failed to maintain consistent contact or communications with the children, see Ala. Code 1975, § 12-15-319(a)(11), had failed to maintain regular visits with the children, see Ala. Code 1975, § 12-15-319(a)(10), and had failed to provide for the material needs of the children, see Ala. Code 1975, § 12-15-319(a)(9), which were other statutory factors informing the juvenile court's decision.
DHR presented no evidence indicating how the children had come into its care in 2021. Williams offered no testimony that the mother had abandoned the children before she took over the case in March 2022. Williams also offered no testimony that, after DHR assumed custody of the children, the mother had abandoned them. The record is silent as to whether the mother had post-removal visitation rights with the children under Ala. Code 1975, § 12-15-102(23), and whether she had failed to claim or exercise those rights without good cause or excuse. Clearly, the mother did not communicate with Williams after August 2022, but DHR did not present clear and convincing evidence to support an inference that the mother had also failed to consistently visit with the children or had failed to maintain contact with the children through other means while they were residing in foster care.
DHR presented evidence indicating that the mother had not provided the children with financial support or attended to their material needs while they were in DHR's custody, but DHR did not prove that the mother had been ordered to pay child support. See Ala. Code 1975, § 12-15-314(e) ("When a child is placed in the legal custody of the Department of Human Resources ... and when the parent, legal guardian, or legal custodian of the child has resources for child support, the juvenile court shall order child support in conformity with the Child Support Guidelines as set out in Rule 32, Alabama Rules of Judicial Administration."). Without an order of child support, the juvenile court could not determine that the mother had "failed" to perform her duties to provide financial support and to meet the material needs of the children within the meaning of abandonment set forth in § 12-15-301(1). See B.L. v. Elmore Cnty. Dep't of Hum. Res., 324 So.3d 829, 837 (Ala. Civ. App. 2020) (explaining that in absence of order requiring parent to pay child support in compliance with Ala. Code 1975, § 12-15-314(e), parent could not be found to have failed to pay child support).
The juvenile court also determined that reasonable efforts by DHR leading toward the rehabilitation of the mother had failed, see Ala. Code 1975, § 12-15-319(a)(7), and that the mother had displayed a lack of effort to adjust her circumstances to meet the needs of the children in accordance with agreements reached with local departments of human resources or licensed child-placing agencies. See Ala. Code 1975, § 12-15-319(a)(12). Those findings could only have been based on the following testimony:
"[DHR's counsel]: Okay. Uh, at this point, does DHR believe that they exercised all reasonable efforts to reunify the child[ren] with the mother?
"[Williams]: Yes.
"[DHR's counsel]: All right. Is it DHR's assertions that those efforts have failed? "[Williams]: Yes.
"[DHR's counsel]: From DHR's perspective, has the mother adjusted her circumstances in any way to meet the needs of the children?
"[Williams]: No."
Section 12-15-319(a), Ala. Code 1975, requires clear and convincing evidence of any statutory factor the juvenile court finds to be present. The foregoing testimony does not meet that high evidentiary standard because it consists solely of conclusory allegations or opinions without any supporting factual basis.
In her testimony, Williams did not describe any of the mother's parental deficiencies that had led DHR to assume custody of the children. The juvenile court received no evidence regarding the conduct, condition, or circumstances that had led to the separation of the family. Williams testified that DHR had developed a "case plan," presumably referring to an individualized-service plan designed to reunite the mother and the children, but she did not offer any testimony from which the juvenile court could have determined that the plan was properly tailored to overcome the obstacles to family reunification that DHR had identified, see H.H. v. Baldwin Cnty. Dep't of Hum. Res., 989 So.2d 1094, 1104-05 (Ala. Civ. App. 2007) (plurality opinion) (quoted in K.H. v. Madison Cnty. Dep't of Hum. Res., [Ms. CL-2022-0917, Apr. 7, 2023] __ So.3d __, __ (Ala. Civ. App. 2023), whatever those problems may have been. Williams identified some of the goals that had apparently been set for the mother, but she did not explain what efforts DHR had expended to assist the mother in achieving those goals. The record does not reveal any evidence of the responsibilities that DHR assumed toward reuniting the family or any evidence as to the efforts DHR made to meet those responsibilities. From Williams's testimony, the juvenile court could not have been clearly convinced that DHR had expended reasonable efforts to rehabilitate the mother.
The testimony also does not include any facts supporting Williams's conclusion that the mother had not adjusted her circumstances to meet the needs of the children. Aside from the lack of evidence as to the circumstances that needed adjusting, Williams offered no testimony about the current circumstances of the mother to show the alleged lack of adjustment. See D.O. v. Calhoun Cnty. Dep't of Hum. Res., 859 So.2d 439, 444 (Ala. Civ. App. 2003) ("This court has consistently held that the existence 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."). Williams testified that DHR still wanted the mother to find housing and transportation, to participate in counseling, and to complete a drug assessment, but she offered no evidence indicating that the mother had failed to do so.
As the Texas Court of Appeals explained in a termination-of-parental-rights case,
"conclusory opinion testimony, even if uncontradicted, does not amount to more than a scintilla of evidence; it is no evidence at all. See In re A.H., 414 S.W.3d [802] at 807 [(Tex. Ct. App. 2013)]; see also City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (opinion is conclusory 'if no basis for the opinion is offered[] or the basis offered provides no support'); Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008) (witness cannot 'simply
state a conclusion without any explanation' or ask trier of fact to just 'take [her] word for it' (internal quotations omitted)); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (witness 'must explain the basis of h[er] statements to link his conclusions to the facts')."In re M.A.J., 612 S.W.3d 398, 412 (Tex. App. 2020). By merely reciting the statutory factors in leading questions to elicit one-word responses, DHR did not adduce any evidence to establish the necessary facts sought to be proved, and the juvenile court erred in determining that it had done so.
We conclude that this case is in a similar posture to J.Y. v. Geneva County Department of Human Resources, 293 So.3d 919, 924-26 (Ala. Civ. App. 2019), in which the abbreviated nature of the proceedings resulted in a lack of evidence to support several of the factual findings of the Geneva Juvenile Court. In that case, the Geneva County Department of Human Resources called one witness, its own social worker, whose testimony spanned a mere 17 pages of the transcript of the hearing. As a result, the record contained so little evidence and omitted so much necessary evidence that the judgment could not be sustained. This court reversed the judgment in J.Y., and we are compelled to do the same in these cases.
Section 12-15-319(a) places a high evidentiary burden on a petitioner in a termination-of-parental-rights case to prove every essential fact by clear and convincing evidence.
"We are cognizant of the extraordinary burdens placed on all participants in a termination-of-parental-rights case, but given the constitutional rights of the parents involved in such a proceeding, the interests of the child involved, and the effect that placement of the child will have on numerous lives, it is imperative that the parties completely develop the evidence at trial. ... There is a reason the law sets a high evidentiary bar for the termination of parental rights. See Santosky [v. Kramer], 455 U.S. [745,] 753-54, 102 S.Ct. 1388 [(1982)] ('The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.... If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections....')."In re D.L.W.W., 617 S.W.3d 64, 92 (Tex. App. 2020) (emphasis added).
This court will not permit any evidentiary shortcuts in termination-of-parental-rights cases that would circumvent the required procedural safeguards. See In re A.R., 863 N.W.2d 36 (Iowa Ct. App. 2015).
Accordingly, we hold that DHR did not develop sufficient evidence at trial to sustain the findings of fact necessary to the support the judgments.
Conclusion
To terminate parental rights, a juvenile court must receive clear and convincing evidence of the grounds for termination set forth in § 1215-319 -- "that the parents of a child 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." See Ex parte T.V., 971 So.2d 1 (Ala. 2007). In these cases, the juvenile court found grounds for termination based on its erroneous determination that DHR had presented sufficient evidence of the statutory factors upon which it relied. DHR may have had access to clear and convincing evidence to prove those factors, but DHR failed to present that evidence in the paltry nine pages of Williams's testimony. We therefore reverse the judgments of the juvenile court and remand the cases for further proceedings consistent with this opinion.
CL-2023-0809 -- REVERSED AND REMANDED.
CL-2023-0810 -- REVERSED AND REMANDED.
Edwards, Hanson, and Fridy, JJ., concur.