Rel: January 31, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
________________________
CL-2022-1246, CL-2022-1247, CL-2022-1248,
CL-2022-1249 and CL-2022-1250
________________________
C.S.
v.
Morgan County Department of Human Resources,
J.R., and A.R.
Appeals from Morgan Juvenile Court
(JU-21-12.01, JU-21-12.02, JU-21-12.03, JU-21-12.04,
and JU-21-12.05)
________________________
CL-2022-1277, CL-2022-1279, and CL-2022-1280
________________________
J.R. and A.R.
v.
Morgan County Department of Human Resources,
C.S., and J.B.
CL-2022-1246, CL-2022-1247, CL-2022-1248, CL-2022-1249, CL-2022-
1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
Appeals from Morgan Juvenile Court
(JU-21-12.01, JU-21-12.04, and JU-21-12.05)
________________________
CL-2022-1288 and CL-2022-1289
________________________
J.B.
v.
Morgan County Department of Human Resources,
J.R., and A.R.
Appeals from Morgan Juvenile Court
(JU-21-12.01 and JU-21-12.03)
MOORE, Judge.
On November 29, 2022, the Morgan Juvenile Court ("the juvenile
court") entered in the five related actions below separate, but identical,
judgments determining that A.J.S. ("the child") was dependent, awarding
custody of the child to J.R. and A.R. ("the foster parents"), awarding C.S.
("the mother") supervised visitation with the child, awarding J.B. ("the
father") graduated visitation, subject to suspension if he allowed the
mother unapproved contact with the child, denying the foster parents'
petitions to terminate the parental rights of the mother and of the father
2
CL-2022-1246, CL-2022-1247, CL-2022-1248, CL-2022-1249, CL-2022-
1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
and to adopt the child, and relieving the Morgan County Department of
Human Resources ("DHR") from any further supervisory responsibilities
toward the child. The mother and the father appealed, and the foster
parents cross-appealed. This court consolidated the appeals and cross-
appeals ex mero motu.
Background
In 2019, the mother and the father, who had been childhood friends,
became reacquainted and entered into a brief romantic relationship.
Approximately two weeks after the relationship ended, the mother
informed the father that she was pregnant. The father responded that
he would assume responsibility for the child, but the mother told the
father that she believed that H.R., who she described as her longtime
boyfriend, had fathered the child. The child was born out-of-wedlock on
June 30, 2020. Not long after the birth of the child, the mother informed
the father that H.R. was, indeed, the biological father of the child. Based
on that communication, the father believed that the paternity of the child
had been conclusively established and that he had no familial
relationship with the child.
3
CL-2022-1246, CL-2022-1247, CL-2022-1248, CL-2022-1249, CL-2022-
1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
The mother assumed sole custody of the child. On October 20, 2020,
DHR participated in a welfare check on the child. Based on concerns that
the mother was suffering from a mental illness and that she was abusing
controlled substances, DHR instituted a safety plan, pursuant to which
custody of the child was transferred to the child's maternal grandmother,
who was required to supervise any contact between the mother and the
child. In January 2021, as the end of the 90-day term of the safety plan
was approaching, the mother indicated to DHR that she was going to
resume custody of the child. In response, DHR commenced a dependency
action (case number JU-21-12.01), obtained custody of the child, and
placed the child into foster care.
DHR originally adopted a permanency plan to rehabilitate the
mother and to reunite the child with her biological family. In February
2021, H.R. submitted to genetic testing, which conclusively proved that
he was not the biological father of the child. The mother did not provide
DHR with sufficient information to enable DHR to ascertain the identity
of the biological father of the child. The mother also did not cooperate
with the reasonable efforts of DHR to address her mental-health and
4
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
substance-abuse issues. On May 17, 2021, the juvenile court entered a
judgment finding the child dependent and awarding the mother only
supervised visitation with the child. The mother appealed that
judgment, and this court affirmed the judgment. See C.S. v. Morgan
Cnty. Dep't of Hum. Res. (No. 2200662, Dec. 2, 2021), 368 So. 3d 863 (Ala.
Civ. App. 2021) (table). While that appeal was pending, DHR indicated
that it intended to change the permanency plan to termination of the
parental rights of the mother with adoption by the foster parents. The
mother responded by commencing an action (case number JU-21-12.02)
to regain custody of the child or to allow her unsupervised visitation with
the child.
On January 5, 2022, after genetic testing had established the
father's paternity of the child, the juvenile court allowed the father to
intervene in the dependency action (case number JU-21-12.01), and the
father filed a petition seeking custody of the child. The foster parents
subsequently intervened in the dependency action (case number JU-21-
12.01), and, on April 27, 2022, they commenced their own independent
custody action (case number JU-21-12.03), along with an action to
5
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
terminate the parental rights of the mother and of the father (case
number JU-21-12.04). At approximately the same time, the foster
parents filed a petition to adopt the child in the Morgan Probate Court,
which transferred the adoption action to the juvenile court, commencing
a fifth action (case number JU-21-12.05). The juvenile court consolidated
all five actions for trial purposes, conducted a trial over the course of
several days, and, on November 29, 2022, entered the judgments at issue
in these appeals.
Dismissals
We dismiss appeal number CL-2022-1248 and appeal number CL-
2022-1289, both of which arise from the judgment entered in case number
JU-21-12.03. The record shows that, on April 27, 2022, the foster parents
filed a "verified petition for custody" in which they sought custody of the
child should the child be adjudicated dependent; that petition was, in
substance, a complaint in intervention in case number JU-21-12.01. See
Rule 24(c), Ala. R. Civ. P. The juvenile-court clerk erroneously treated
the petition for custody as an independent dependency petition and
assigned the petition a new case number -- JU-21-12.03 -- but the petition
6
CL-2022-1246, CL-2022-1247, CL-2022-1248, CL-2022-1249, CL-2022-
1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
did not allege any specific facts relating to the dependency of the child,
see Ala. Code 1975, § 12-15-121(c)(1), and it, therefore, did not invoke the
dependency jurisdiction of the juvenile court. See G.W.K. v. B.W.M., [Ms.
CL-2022-0911, July 14, 2023] ___ So. 3d ___ (Ala. Civ. App. 2023). The
judgment entered in case number JU-21-12.03 is therefore a void
judgment and will not support an appeal. Id.
We also dismiss appeal numbers CL-2022-1249 and CL-2022-1250,
arising from the judgments entered in case numbers JU-21-12.04 and
JU-21-12.05, respectively. The judgments entered in those cases denied
the foster parents' petitions to terminate the mother's parental rights
and to adopt the child. The mother did not suffer any adverse ruling in
those cases that would sustain an appeal. In the absence of an adverse
ruling, an appeal must be dismissed. Ex parte D.M., 370 So. 3d 551, 557
(Ala. Civ. App. 2022); Smith v. Renter's Realty, 296 So. 3d 844, 850 (Ala.
Civ. App. 2019).
Finally, we dismiss appeal number CL-2022-1277, arising from the
judgment entered in case number JU-21-12.01. The judgment entered in
that case found the child dependent and awarded custody of the child to
7
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
the foster parents, subject to the visitation rights of the mother and the
father. The foster parents have not pointed this court to any adverse
ruling supporting their appeal, see Rule 28(a)(5), Ala. R. App. P., and
they make no argument for reversal of the judgment. See Rule 28(a)(10),
Ala. R. App. P. We therefore conclude that the foster parents have
abandoned that appeal. See Rule 2(a)(2)(C), Ala. R. App. P.
Issues
In the remaining appeals, the father argues that the juvenile court
erred in finding the child dependent, in denying his petition for custody
of the child, and in providing that his visitation with the child would be
suspended if he allowed the mother unapproved contact with the child.
The mother argues that the juvenile court erred in finding the child
dependent, in denying her claim for custody of the child, and in denying
her claim for unsupervised visitation with the child. 1 The foster parents
1The mother also argues that the juvenile court erred in allowing
the foster parents to intervene in case number JU-21-12.01; however, the
mother did not raise any objection to the foster parents' intervention to
the juvenile court, so that issue has not been preserved for appellate
review. See Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.1992).
8
CL-2022-1246, CL-2022-1247, CL-2022-1248, CL-2022-1249, CL-2022-
1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
argue that the juvenile court erred in denying their petition to terminate
the parental rights of the mother and of the father and their petition to
adopt the child.
Dependency
We first address the dependency determination. In the final
judgments, the juvenile court found that the child was dependent "as to
the father and remains so as to the mother." The mother argues that the
juvenile court did not receive sufficient evidence to support that
determination. The father makes a similar argument; he asserts that the
juvenile court erred in finding that the child was dependent "as to the
father" because none of the statutory grounds for dependency were
established by any evidence, much less the requisite clear and convincing
evidence.
The Alabama Juvenile Justice Act ("the AJJA"), Ala. Code 1975, §
12-15-101 et seq., defines a "dependent child," as
"[a] child who has been adjudicated dependent by a juvenile
court and is in need of care or supervision and meets any of
the following circumstances:
9
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
"1. Whose parent, legal guardian, legal
custodian, or other custodian subjects the child or
any other child in the household to abuse, as
defined in [§] 12-15-301[, Ala. Code 1975,] or
neglect as defined in [§] 12-15-301, or allows the
child to be so subjected.
"2. Who is without a parent, legal guardian,
or legal custodian willing and able to provide for
the care, support, or education of the child.
"3. Whose parent, legal guardian, legal
custodian, or other custodian neglects or refuses,
when able to do so or when the service is offered
without charge, to provide or allow medical,
surgical, or other care necessary for the health or
well-being of the child.
"4. Whose parent, legal guardian, legal
custodian, or other custodian fails, refuses, or
neglects to send the child to school in accordance
with the terms of the compulsory school
attendance laws of this state.
"5. Whose parent, legal guardian, legal
custodian, or other custodian has abandoned the
child, as defined in subdivision (1) of [§] 12-15-301.
"6. Whose parent, legal guardian, legal
custodian, or other custodian is unable or
unwilling to discharge his or her responsibilities to
and for the child.
"7. Who has been placed for care or adoption
in violation of the law.
10
CL-2022-1246, CL-2022-1247, CL-2022-1248, CL-2022-1249, CL-2022-
1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
"8. Who, for any other cause, is in need of the
care and protection of the state."
§ 12-15-102(8)a., Ala. Code 1975.
Section 12-15-310(b), Ala. Code 1975, provides that a juvenile court
shall dismiss a dependency petition if the petitioner fails to prove the
dependency of the child by clear and convincing evidence. "Clear and
convincing evidence" means " [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." Ala. Code 1975, § 6-11-20(b)(4)
(cited in numerous dependency cases).
"Although the juvenile court's factual findings in a
dependency case when the evidence has been presented ore
tenus are presumed correct, T.D.P. v. D.D.P., 950 So. 2d 311
(Ala. Civ. App. 2006), a finding of dependency must be
supported by clear and convincing evidence. Ala. Code 1975,
§ 12-15-310(b). When reviewing a dependency judgment on
appeal, '[t]his 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.' K.S.B. v. M.C.B., 219
So. 3d 650, 653 (Ala. Civ. App. 2016). That is, this court ' "must
... look 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),] to determine whether
11
CL-2022-1246, CL-2022-1247, CL-2022-1248, CL-2022-1249, CL-2022-
1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
there was substantial evidence before the trial court to
support a factual finding, based upon the trial court's
weighing of the evidence, that would 'produce in the mind [of
the trial court] a firm conviction as to each element of the
claim and a high probability as to the correctness of the
conclusion.' " ' K.S.B., 219 So. 3d at 653 (quoting Ex parte
McInish, 47 So. 3d 767, 778 (Ala. 2008), quoting in turn Ala.
Code 1975, § 25-5-81(c))."
H.A.S. v. S.F., 298 So. 3d 1092, 1097-98 (Ala. Civ. App. 2019).
In its findings of fact, the juvenile court determined that the mother
has "mental health issues, pending criminal issues and financial and
housing issues" and expressed "great, deep concern for the mother's
ability to parent the child due to the evidence presented, the observation
of the court of the mother and the overall actions of the mother regarding
the child." The juvenile court recognized that the mother loves the child,
but the juvenile court believed that her love was "not enough to guarantee
the safety of the child while with the mother."
The determination of whether a child remains dependent must be
based on current circumstances. S.S. v. R.D., 258 So. 3d 340, 345 (Ala.
Civ. App. 2018). The mother basically argues that the juvenile court
should have determined that she was able to properly care for the child
12
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
by the time of the final hearings in September 2022 because, according
to the mother, she had resolved many of the problems that had led to the
removal of the child from her custody. A March 2022 psychological
evaluation commissioned by DHR determined that "[the mother] does not
share personal and interpersonal characteristics of known child abusers
and, as such, is considered to be unlikely to physically abuse a child in
the future." In March 2022, the mother started a mental-health program
as ordered by the Madison District Court as a condition to avoid
conviction on criminal charges pending in that court. As part of that
program, the mother began residing in an apartment in Huntsville that
is owned by the mental-health provider overseeing her rehabilitation. By
the time of the final hearings, the mother had secured stable
employment, and she produced a series of negative drug screens.
Stephanie Chasteen, the DHR social worker who had been overseeing the
child's case since February 2022, testified that the mother had been
following the recommendations of her mental-health counselors and that
she had been doing better since she had started the mental-health
program. Chasteen had experienced no problems with the mother during
13
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
the mother's visits with the child, which, Chasteen said, "for the most
part" had been positive. The mother was enjoying unsupervised
visitation with A.M., the child's eight-year-old half sister. N.M., A.M.'s
father, testified that, in 2020, after the mother had exhibited serious
mental-health problems associated with substance abuse, he had
obtained a court order requiring that the mother's visits with A.M. be
supervised. He said that, after April 2022, the mother had drastically
improved, so he had allowed her to resume unsupervised visits, which,
he said, had been going well.
However, as the juvenile court noted, at the time of the final
hearings, the mother lacked the ability to provide the child with
appropriate shelter. The mother testified that the apartment complex
where she was undergoing her mental-health treatment did not allow
children. The mother testified that she would not complete the program
for another six months. Furthermore, the juvenile court could have
reasonably determined that the mother's mental-health issues had not
completely resolved. The juvenile court had previously determined that
the child was dependent in part because of the mother's mental-health
14
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
issues, which had manifested in delusional thoughts, manic episodes,
criminal misconduct, and threatening behavior that had frightened the
child during visits. The juvenile court determined that the mother
seemed to be progressing toward resolving her mental-health issues but
noted that she was only halfway through her rehabilitation program.
Hearing the mother's testimony minimizing her past behavior, including
her concealment of the father's paternity, the juvenile court could have
been reasonably convinced that the mother had not sufficiently recovered
from her mental illness to resume proper custody of the child. It was
within the province of the juvenile court to resolve the competing
evidence to conclude that the child remained dependent as to the mother.
See Montgomery Cnty. Dep't of Hum. Res. v. T.S., 218 So. 3d 1252, 1268
(Ala. Civ. App. 2016).
As the father correctly points out, in the dependency action, DHR
and the foster parents (referred to collectively as "the petitioners") did
not pursue any theory that the father had abused, neglected, or
abandoned the child, see § 12-15-102(8)a.1. & 5., or that the child was
dependent as to the father for any of the reasons set forth in § 12-15-
15
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
102(8)a.2., 3., 4., 7., or 8. The petitioners also did not attempt to prove
that the father was generally unfit to parent the child. The evidence
showed that the father, a 41-year-old union electrician, had coparented
with his wife, from whom he was separated, to raise a 15-year-old son,
who, by all accounts, was doing well and making good grades. The father
resided in a three-bedroom home that was suitable for the child. The
father has no criminal history, no substance-abuse problem, and no
mental or physical disability. The father has a good family-support
system within his nearby community, and numerous relatives and
friends testified that the father was a good person and that he would be
a good parent to the child. The father's visits with the child had gone
well, and the child referred to the father as "Daddy." The foster parents
attempted to prove that the father had committed domestic abuse against
S.H. in 2011, but the Lauderdale County Department of Human
Resources ("the Lauderdale County DHR") had investigated the father at
that time and had determined that he was not a violent person and that
"[i]nformation was not obtained that would warrant allegations [of
abuse] being entered against [the father]." The petitioners did not
16
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
present any evidence of a single act of domestic violence perpetrated by
the father, and the juvenile court did not find that the father had
committed domestic violence.
The evidence further shows that the father was more than willing
to assume the care and custody of the child. When the mother told him
of his probable paternity in late September 2021, the father responded
that he wanted the child and that the mother should immediately inform
DHR of his identity. When DHR contacted the father the next day, the
father agreed to genetic testing. With the father's permission, the mother
scheduled genetic testing to take place at a local laboratory, but DHR
would not accept that laboratory. On October 13, 2021, DHR commenced
a child-support action in the juvenile court and scheduled court-ordered
genetic testing at an approved laboratory to take place in January 2022.
The father retained an attorney and instructed the attorney to move the
juvenile court to expedite the genetic testing with the hope that it would
be completed in time for him to assume custody of the child before
Christmas. As a result of his actions, the genetic testing was moved up
17
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
to December 6, 2021, and the test results were delivered before the end
of 2021.
On October 15, 2021, the father filed a motion to intervene in the
ongoing dependency action (case number JU-21-12.01) for the purposes
of asserting his paternity and a claim to the custody of the child. The
juvenile court disallowed the intervention because it had lost jurisdiction
over the dependency action while the May 17, 2021, judgment was on
appeal, but the father persevered. On January 4, 2022, after the father
obtained the results of the genetic testing proving that he was the
biological father of the child, he again filed a motion to intervene in the
dependency action. Because the juvenile court had regained jurisdiction
of the dependency action by that time, the juvenile court granted the
motion. The father met with DHR social workers to arrange for visitation
with the child and to establish an individualized service plan ("ISP") to
take steps toward gaining custody of the child. On January 18, 2022, the
father admitted his paternity of the child at a permanency hearing, and
the juvenile court adjudicated him to be the father of the child. On
January 31, 2022, the father submitted an agreement in the child-
18
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
support action, pursuant to which he agreed to pay $640 per month in
child support, plus any arrearage; the father has faithfully paid every
installment of child support when due.
On January 7, 2022, DHR conducted the first ISP meeting with the
father. At that ISP meeting, the father agreed that he would maintain
stable housing and employment, that he would provide DHR with a copy
his pay stubs and documents relating to his ownership of his house, and
that he would participate in random drug screens. The father followed
through with each of those requirements. The father opened his house
to DHR, which determined that it was suitable for the child. The father
informed his parents of the prospect that the child might be coming to
live with him and obtained their agreement to assist him with caring for
the child. The father also consistently visited with the child in
accordance with the schedule established by DHR and under the
conditions imposed by DHR and its visitation supervisors. The father
testified repeatedly before the juvenile court that he desired to have
custody of the child and that he was willing to raise the child.
19
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CL-2022-1289
The petitioners asserted that the child was dependent as to the
father by relying solely on the theory that the father lacked "protective
capacity." During the trial, none of the witnesses testified as to the
meaning of "protective capacity," 2 but they testified that they were
"concerned" that the father would not protect the child from being
harmed by the mother. The child's guardian ad litem and the court-
appointed special advocate were particularly "concerned" that the father,
who had been infatuated with the mother at least since they were in high
school together, could potentially place his desire for a romantic
relationship with the mother above the safety needs of the child. In
2In a postjudgment motion, the father referred to Ala. Admin. Code
(Dep't of Hum. Res.), r. 660-5-34-.14(4), which defines "protective
capacities" as:
"Parent/primary caregiver resources that can or do provide for
child safety. These capacities include, but are not limited to,
parenting/caregiving knowledge and skills; attachment to the
children; awareness of and ability to interpret and meet
children's needs; and a willingness and ability to act
protectively when the children experience safety threats."
In context, the petitioners questioned whether the father was willing and
able to act protectively when the child experienced safety threats from
the mother.
20
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
substance, the petitioners asserted that the father was "unable or
unwilling to discharge his [duty to protect] the child." See Ala. Code
1975, § 12-15-102(8)a.6.; Ex parte M.D.C., 39 So. 3d 1117, 1121 (Ala.
2009) (recognizing the duty to protect as one of the parental
"responsibilities" a parent owes a child). Based on comments the father
made to the court-appointed special advocate for the child and his
testimony, the juvenile court could have been clearly convinced that the
father desired a romantic relationship with the mother and that he may
be more forgiving of her faults because of his affection for her; however,
the juvenile court did not receive clear and convincing evidence from
which it could have inferred that his feelings for the mother had robbed
him of his ability and willingness to protect the child.
In the November 29, 2022, judgments, the juvenile court
determined that the father had "failed to move to protect the child" from
the mother. The petitioners presented no evidence indicating that the
father had ever actively neglected to protect the child from the mother.
In 2020, when the mother was exercising sole custody of the child, the
father, as the juvenile court determined, had believed that he was not the
21
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CL-2022-1289
father of the child. The father did not interact with the mother and the
child before DHR removed the child from the mother's home and placed
the child into protective foster care. In 2021, after the father learned of
his paternity, DHR had already instituted supervised visitation for the
mother that, according to DHR's witnesses, had ameliorated any safety
threats to the child. In 2022, when the father intervened in the case and
filed his petition for custody of the child, he specifically requested that
the juvenile court maintain supervised visitation for the mother. While
his petition was pending, the father visited with the child separately from
the mother. The father contacted the mother throughout 2022, but, as
the juvenile court expressly determined, "the child was not present
during the times of contact between the parents." The father never had
an occasion to respond to any safety threat the mother posed to the child
and, consequently, never failed to protect the child from the mother. At
trial, the father testified that he was hopeful that the mother would
eventually have unsupervised visitation with the child, but he
acknowledged that any visitation between the child and the mother
should continue to be supervised unless and until the mother proved that
22
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
she was fit for unsupervised visitation. See, e.g., Cantrell v. Cantrell,
367 So. 3d 426, 451 (Ala. Civ. App. 2022) (holding that a restriction of
supervised visitation may be lifted only upon proof of a change of material
circumstances and proof that unsupervised visitation serves the best
interests of the child).
The petitioners also presented no clear and convincing evidence
indicating that the father lacked a natural protective instinct toward the
child. It is well settled that Alabama law presumes that a parent
possesses all the natural instincts needed to properly raise his or her
child, which presumption may be overcome only by clear and convincing
evidence to the contrary. See Griggs v. Barnes, 262 Ala. 357, 359, 78 So.
2d 910, 912 (1955) (holding that evidence of "a shabby and uncompelling
nature" is insufficient to prove that a parent lacks the capacity to
properly raise his or her child). The best evidence directly bearing on
that point showed that the father possessed the natural qualities
necessary to appropriately protect the child. From approximately 2011
to 2021, the father was in a romantic relationship with S.H. Near the
beginning of their relationship, the Lauderdale County DHR had opened
23
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
an investigation of S.H. to determine whether S.H. had abused or
neglected her minor daughter while S.H. was under the influence of
controlled substances. During that investigation, the Lauderdale County
DHR was asked to consider placing S.H.'s daughter with the father as
part of a safety plan. The father underwent a parenting assessment to
determine whether he would be an appropriate person to act as a
custodian for S.H.'s daughter, who was approximately 10 years old at the
time. Based on that assessment, the counselor retained by the
Lauderdale County DHR determined that the father "was very natural
with his parenting answers," and the counselor informed the Lauderdale
County DHR "that she ha[d] no concerns regarding [the father's] being a
safety plan for [S.H.'s daughter]." The Lauderdale County DHR
subsequently placed S.H.'s daughter in the care of the father, who
exercised his protective capacity on several occasions by denying S.H.
access to her daughter when he deemed it necessary for the safety and
welfare of her daughter. The father testified that the safety plan ended
only after S.H. recovered from her substance-abuse problem.
24
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CL-2022-1289
The juvenile court did not receive into evidence any updated
parenting assessment showing that the father had since lost the
protective capacity he had displayed in 2011 or that his protective
instincts would not be as strong toward his own child. The petitioners
theorized that the father would not appropriately protect the child
because of his desire for a romantic relationship with the mother;
however, the Lauderdale County DHR records showed that, in 2011, the
father was willing to place the safety needs of S.H.'s daughter above his
interest in maintaining his relationship with S.H. The child's guardian
ad litem complained that the father did not have a complete
understanding of the mother's condition and misbehavior, but the
petitioners did not present any evidence indicating that the father needed
such detailed knowledge to discharge the basic responsibility to protect
the child. Nothing in the record indicates that the father cannot detect a
safety threat and appropriately respond to that threat because he cannot
diagnose the reason for the mother's misbehavior. The father testified
that he understood that the mother's visitation needed to be supervised
because her behavior may threaten the safety of child, and he testified
25
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
further that he would take any steps a "normal father" would take to
protect the child.
In reaching its determination that the father lacked protective
capacity, the juvenile court relied almost exclusively on the evidence
indicating that the father had maintained a relationship with the mother
over the objections of DHR. In January 2022, when the father intervened
in the dependency action, DHR instructed the father not to maintain any
contact with the mother "even about the weather." The father testified
that he had understood that DHR wanted him to protect the child from
the mother, but, he said, after conferring with his attorney, he had
concluded that it would be safe to contact the mother about the child.
When DHR discovered that the mother had been to the father's house
and that the father had sent the mother photographs of his visits with
the child, DHR warned the father that it considered those contacts
detrimental to his custody claim, and it curtailed its efforts to unite the
child with the father. The father, however, still associated with the
mother. Between April and September 2022, the father routinely talked
to the mother, and he allowed the mother to regularly visit his home with
26
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CL-2022-1289
A.M., the child's half sibling. The father did not disclose those contacts
to DHR, the child's guardian ad litem, or the court-appointed special
advocate for the child. The petitioners did not present clear and
convincing evidence indicating that the father had resumed a romantic
relationship with the mother or that she had moved in with him, but the
petitioners did prove that the father intended to maintain a relationship
with the mother that may progress in that direction. In the final
judgments, after noting that the father had "issues setting boundaries
with the mother," the juvenile court concluded that the father had
"forfeited any real opportunity to have a steady and solid relationship
when he failed to exercise protective capacity for the child regarding the
mother." We disagree.
In In re Adoption of Soledad, 79 Mass. App. Ct. 1107, 944 N.E.2d
632 (2011) (table) (unpublished opinion), a Massachusetts juvenile court
terminated the rights of the parents of "Soledad," a child with two
siblings. Soledad's father had an extensive criminal history, including
having committed several violent crimes and drug offenses. The
Massachusetts Department of Children and Families took Soledad and
27
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
her two siblings into custody and formulated a service plan that called
for, among other things, Soledad's mother to discontinue interacting with
Soledad's father. Soledad's mother substantially complied with the
service plan; however, she maintained her relationship with Soledad's
father, and she exhibited "a lack of candor" about that continuing
relationship. Id. at n.6. The Massachusetts juvenile court considered
that evidence sufficient to prove that Soledad's mother could not properly
parent her children. On appeal, the Massachusetts Appeals Court
reversed the judgment, stating, in pertinent part:
"[D]uring the period in question, the children were never
exposed to the father. Simply stated, the mother's contact
with the father had no effect on the children because the
mother herself was prevented from seeing them. Even were
we to accept an automatic imputation of adverse effect on the
children from contact with the father, we reject the
department's argument that the parents' association with
each other allows the inference that the mother would expose
the children to their father in the event she were given the
opportunity. We also reject the entirely circular argument
that the mother neglected the children by inviting
termination of her rights through contact with the father
because she had been warned that the department considered
such contact detrimental and grounds for termination.
"To the extent the assertion that the mother failed to
comply with her service plan is based on her contact with the
28
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
father, it merely restates the same complaint and adds
nothing to the department's case for termination."
Id. (footnote omitted).
We find that reasoning persuasive. At trial, DHR conceded that the
father had substantially complied with his ISP and that it would have
recommended that the father be awarded custody except for his
continuing contacts with the mother, which it deemed to jeopardize the
safety of the child. The child's guardian ad litem found no fault with the
father other than his failure to extricate himself from his relationship
with the mother. Because the child was never present during any of the
contacts between the father and the mother, the child was not
endangered in any way by the relationship between the father and the
mother, which, in fact, had no proven effect on the child. The mere fact
that the father regularly associated with the mother does not permit an
inference that, if given the opportunity, he would expose the child to the
mother without proper supervision or allow the mother to interact with
the child in a manner that would endanger the health and safety of the
child. Indisputably, the father did not follow DHR's no-contact edict, and
29
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CL-2022-1289
the father did not heed DHR's warnings that it would oppose his custody
claim if he did not disassociate from the mother; however, the father's
"violation" of the no-contact directive, which, we note, was never
incorporated into any juvenile-court order, does not in any way prove that
the father lacks the ability or willingness to protect the child. Clearly, a
parent does not "forfeit" his or her custodial rights simply by failing to
comply with the terms of an ISP as requested by DHR. See, e.g., B.L. v.
Elmore Cnty. Dep't of Hum. Res., 324 So. 3d 829 (Ala. Civ. App. 2020);
H.B. v. Mobile Cnty. Dep't of Hum. Res., 236 So. 3d 875 (Ala. Civ. App.
2017); S.K. v. Madison Cnty. Dep't of Hum. Res., 990 So. 2d 887 (Ala. Civ.
App. 2008).
We recognize that, in some circumstances, a juvenile court may find
a child dependent or even terminate the parental rights of a parent who
is unable or unwilling to protect his or her child from an abusive or
neglectful coparent. See, e.g., B.M. v. State, 895 So. 2d 319 (Ala. Civ.
App. 2004) (affirming judgment terminating parental rights of father
who refused to believe mother had committed Munchausen's syndrome
by proxy against their oldest child when expert testimony indicated his
30
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
lack of belief rendered father unable to protect child and his siblings);
J.B.B. v. Alabama Dep't of Hum. Res., 120 So. 3d 517, 531 (Ala. Civ. App.
2013) (affirming judgment terminating parental rights of parent who
refused to believe that other parent had sexually abused children due to
lack of protective capacity); B.N.D. v. Barbour Cnty. Dep't of Hum. Res.,
370 So. 3d 271 (Ala. Civ. App. 2022) (recognizing that a child may be
adjudicated dependent if a parent is aware of the abusive behavior of
another parent but fails to prevent that abusive behavior from occurring);
C.W. v. State Dep't of Human Res., 826 So. 2d 171, 173-74 (Ala. Civ. App.
2002) (determining that the children in question were dependent after
considering the mother's refusal to sever her relationship with an abusive
boyfriend, whose attitude toward the Department of Human Resources
hindered the mother's ability to reunite with her children).
On the other hand, when the record contains no evidence indicating
that a parent has failed to protect a child from the other parent in the
past and contains no evidence indicating that the parent lacks the
faculties to recognize a safety threat and to take appropriate measures to
protect a child in the future, the finding that the parent lacks protective
31
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CL-2022-1289
capacity cannot be sustained. In L.M. v. Shelby County Department of
Human Resources, 86 So. 3d 377 (Ala. Civ. App. 2011), this court reversed
a judgment terminating the parental rights of L.M., the father of three
children he shared with J.K., the mother of the children. The Shelby
Juvenile Court found the children dependent based on its determination
that J.K. could not maintain sobriety for any sustained period and that
L.M. would not separate from her. This court concluded that the evidence
was insufficient to sustain the judgment because L.M. recognized the
dangers to the children when J.K. was under the influence, L.M. had
never failed to protect the children from that danger, and L.M. had never
been warned that his continued association with J.K. would prevent his
reunification with his children. Unlike in L.M., DHR notified the father
that it considered his continued contact with the mother to be an
impediment to his unification with the child, but that distinction does not
yield a different result. The evidence shows that the father had never
failed to protect the child from the mother -- the mother, the father, and
the child had never been together at any time. The father recognized
32
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CL-2022-1289
that the child should be safe, and he never did anything to threaten the
safety of the child by improperly exposing the child to the mother.
We conclude that the father has not committed any act or exhibited
any behavior indicating that he had or would jeopardize the safety of the
child. At best, the petitioners presented testimony only speculating that
the father would give the mother unsupervised access to the child. " 'The
fear of harm to the child ... must be a real one predicated upon hard
evidence; it may not be simply gut reaction or even a decision to err-if-at-
all on the side of caution.' " T.J. v. Calhoun Cnty. Dep't of Hum. Res., 116
So. 3d 1168, 1175 (Ala. Civ. App. 2013) (per curiam opinion with Bryan
and Moore, JJ., concurring, and Pittman, J., concurring in the result)
(quoting In re Jertrude O., 56 Md. App. 83, 100, 466 A.2d 885, 894 (1983)).
The evidence cited by the juvenile court in the judgments is not sufficient
to prove that the father was unable or unwilling to discharge his
protective responsibilities to and for the child.
Section 12-15-310(b) generally requires a juvenile court to dismiss
a dependency petition when the allegations of dependency have not been
proven by clear and convincing evidence. The petitioners proved the
33
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CL-2022-1289
allegations against the mother, but not the father. In this circumstance,
we believe it is appropriate to reverse the judgments with instructions
for the juvenile court to vacate the parts of the judgments finding the
child dependent as to the father.
Custody
The mother argues that the juvenile court should not have denied
her petition for custody of the child. As explained above, the mother could
not assume custody of the child, and the child remained dependent as to
the mother. Therefore, we affirm the judgments insofar as they deny the
mother's petition for custody. 3
The juvenile court denied the father's petition for custody,
concluding that placing the child in the home of the father was "not in
3The mother also argues that the juvenile court erred in awarding
the custody of the child to the foster parents instead of to the father. We
conclude that the mother lacks standing to appeal the judgments insofar
as they deny the father's petition for custody, see G.P. v. Houston Cnty.
Dep't of Hum. Res., 42 So. 3d 112, 118 (Ala. Civ. App. 2009), so we do not
address her argument. We do address the father's arguments on that
point, infra.
34
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CL-2022-1289
the best interests and is contrary to the welfare of the child." On January
18, 2022, before DHR determined that the father had violated its no-
contact instructions, the juvenile court had adopted a permanency plan
calling for the child to be placed into the permanent custody of the father.
On February 12, 2022, the juvenile court indicated that it would enter an
order transferring custody of the child to the father without the necessity
of a hearing if the parties agreed. After DHR discovered that the father
had been in communication with the mother, DHR, without petitioning
the juvenile court, abandoned that permanency plan and implemented
stricter visitation guidelines for the father. From that point forward,
DHR opposed the father's custody petition on the ground that the father
lacked appropriate protective capacity to serve as a custodian for the
child. The trial of the father's custody petition focused almost entirely on
whether his contacts with the mother disqualified him from obtaining
custody of the child. In its judgments, the juvenile court relied totally on
the father's alleged lack of protective capacity to deny his custody
petition.
35
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CL-2022-1289
As we have explained, the ultimate factual determination that the
father lacked protective capacity was not supported by the evidence in
the record. Thus, for the same reasons that the juvenile court erred in
determining that the child was dependent as to the father, it also erred
in determining that it would be contrary to the best interests and welfare
of the child to be placed in the home of the father. The evidence shows
that, disregarding the unproven allegation of lack of protective capacity,
the father was in all other respects fit, willing, and able to assume and
exercise custody of the child.
Pursuant to Ala. Code 1975, § 12-15-312(b), once the juvenile court
adopted a permanency plan of placing the child with the father, DHR was
required to use reasonable efforts to finalize that permanency plan unless
the health or safety of the child would be harmed. DHR evidently took
the position that it would not be safe for the child to be placed with the
father, so, after February or March 2022, DHR did not work toward
transitioning the custody of the child to the father; instead, it maintained
only limited visitation between the father and the child. The evidence
does not support DHR's determination that the child could not safely visit
36
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CL-2022-1289
with the father; in fact, in its judgments, the juvenile court ultimately
awarded the father increased and unsupervised visitation with the child
to take place in the father's home. The ill-advised decision of DHR to
limit the visitation between the child and the father thwarted the child
and the father's ability to strengthen their developing familial bond.
In similar situations, this court has endorsed plans to transition a
child into the custody of a parent through graduated visitation, see, e.g.,
Ex parte Marshall Cnty. Dep't of Hum. Res., 234 So. 3d 519 (Ala. Civ.
App. 2016), and we believe that would be appropriate here. Accordingly,
we reverse the judgments insofar as they deny the father's petition for
custody of the child, and we remand the cases with instructions for the
trial court to vacate the portions of the judgments denying the father's
petition and to enter new judgments awarding the father custody of the
child and implementing a transition plan that serves the best interests
of the child.
Visitation
The mother argues that the juvenile court erred in limiting her
visitation with the child to supervised visitation. This court previously
37
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affirmed the May 17, 2021, judgment that awarded the mother
supervised visitation with the child; the November 29, 2022, judgments
only continue that restriction. The mother cannot raise on appeal any
error committed by the juvenile court in making the initial supervised-
visitation award. See Barnwell v. CLP Corp., 264 So. 3d 841, 850 (Ala.
2018) (holding that law-of-the-case doctrine precludes consideration of
alleged errors committed in earlier judgment on appeal from subsequent
judgment). To the extent that the mother argues that the juvenile court
should have awarded her unsupervised visitation based on her current
circumstances, we conclude that the juvenile court did not err. This court
has recognized that supervised visitation may be mandated when it is
deemed necessary to protect a child from an unreasonable risk of physical
or emotional harm emanating from the condition of the parent. See, e.g.,
Pratt v. Pratt, 56 So. 3d 638, 642 (Ala. Civ. App. 2010). For many of the
same reasons we have concluded that the evidence supports the
determination that the child remains dependent as to the mother, we find
that the juvenile court had ample evidence to sustain its determination
that the mother's visitation with the child should remain supervised. The
38
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CL-2022-1289
juvenile court could have reasonably determined that the child, who was
only two years old at the time of the final hearings, still needed the
protection of supervised visitation to assure that the mother would not
subject her to an unreasonable risk of harm should her mental health
falter. Therefore, we affirm the judgments as to this issue.
The father argues that the juvenile court erred in awarding him
visitation with the child, but providing that his visitation would be
suspended if he allowed the mother unapproved contact with the child.
We have reversed the judgments insofar as they deny the father's petition
for custody, but we have ordered the juvenile court to award the father
graduated visitation until the child can transition into his full custody.
The juvenile court may lawfully impose a condition on the father's
visitation requiring him to exclude the mother from contacting the child
during his visits, see T.K.T. v. F.P.T., 716 So. 2d 1235 (Ala. Civ. App.
1998), but the juvenile court cannot include a clause automatically
suspending the visitation between the father and the child if he violates
that condition.
39
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In the judgments, the juvenile court provided, in pertinent part:
"All visitation shall be suspended pending a hearing if [the juvenile court]
is informed that the father has allowed the mother any form of contact
with the child. The mother is given specific rights of visitation and that
is all she is awarded at this time." That clause violates our caselaw
prohibiting an automatic suspension of visitation. In Webber v. Webber,
854 So. 2d 133 (Ala. Civ. App. 2003), this court reversed a judgment
restricting a noncustodial parent from relocating more than 25 miles
from the custodial parent's residence because the judgment contained a
clause providing that the noncustodial parent's visitation would
automatically be suspended upon violation of the restriction. This court
reasoned that visitation is awarded based on the best interests of a child
and that a court cannot speculate that it would be in the best interests of
the child to suspend that visitation based on future circumstances.
Rather than impose an automatic suspension that may actually harm the
interests of the child in strengthening her bond with the father, the
juvenile court could more appropriately sanction the father in a contempt
proceeding for violating the no-contact provision or could, through due
40
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
process, consider a petition to modify, suspend, or terminate the
visitation plan based on such contact. See Barrett v. Barrett, 183 So. 3d
971, 974 (Ala. Civ. App. 2015). Therefore, we reverse the judgments
insofar as they allow for automatic suspension of the father's visitation
and remand the cases; on remand, the juvenile court is instructed to
vacate the provision automatically suspending the father's visitation
upon his allowing unapproved contact between the child and the mother
and to take such other actions regarding the visitation between the
father and the child as are consistent with this opinion.
The Foster Parents' Appeals
We next address the foster parents' appeals challenging the
judgments insofar as they deny their petition to terminate the parental
rights of the mother and of the father and their petition to adopt the child.
Because we have concluded that the evidence failed to show that
the father was unable or unwilling to discharge his parental
responsibilities to and for the child, we conclude that the foster parents
did not prove any ground upon which to terminate his parental rights
under Ala. Code 1975, § 12-15-319(a). See Ex parte T.V., 971 So. 2d 1
41
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
(Ala. 2007) (holding that a petitioner must prove a statutory ground for
termination to prevail on termination-of-parental-rights petition). The
permanency of the child can be achieved by placing the child with the
father, subject to the supervised-visitation rights of the mother, which is
a viable alternative to terminating the mother's parental rights. See
J.C.D. v. Lauderdale Cnty. Dep't of Hum. Res., 180 So. 3d 900, 901 (Ala.
Civ. App. 2015) (holding that awarding custody of children to mother of
children and maintaining supervised visitation with father of children
was viable alternative to termination of parental rights). We therefore
affirm the judgments insofar as they deny the foster parents' petition to
terminate the mother's and the father's parental rights.
The juvenile court denied the foster parents' petition to adopt the
child because it concluded that the mother and the father had not
consented to the adoption as required by former § 26-10A-7(a), Ala. Code
1975, a part of the former Alabama Adoption Code ("the AAC"), former §
26-10A-1 et seq., Ala. Code 1975, which was in effect when the adoption
42
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
action was initiated by the foster parents. 4 The foster parents maintain
that the evidence proved that the mother and the father both had
impliedly consented to the adoption of the child. See Ala. Code 1975,
former § 26-10A-2 and § 26-10A-7; and Ala. Code 1975, former § 26-10A-
9 (recognizing that a parent may impliedly consent to an adoption).
Former § 26-10A-9, which was in effect when the adoption action
was initiated, provided, in pertinent part:
"(a) A consent or relinquishment required by [§] 26-10A-
7 may be implied by any of the following acts of a parent:
"(1) Abandonment of the adoptee.
Abandonment includes, but is not limited to, the
failure of the father, with reasonable knowledge of
the pregnancy, to offer financial and/or emotional
support for a period of six months prior to the
birth.
"(2) Leaving the adoptee without provision
for his or her identification for a period of 30 days.
"(3) Knowingly leaving the adoptee with
others without provision for support and without
communication, or not otherwise maintaining a
4The AAC was effective until December 31, 2023. Effective January
1, 2024, the Alabama Minor Adoption Code, § 26-10E-1 et seq., Ala. Code
1975, and the Alabama Adult Adoption Code, § 26-10F-1 et seq., Ala.
Code 1975, became effective and replaced the AAC.
43
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CL-2022-1289
significant parental relationship with the adoptee
for a period of six months.
"(4) Receiving notification of the pendency of
the adoption proceedings under [Ala. Code 1975, §]
26-10A-17[,] and failing to answer or otherwise
respond to the petition within 30 days.
"(5) Failing to comply with [Ala. Code 1975,
§] 26-10C-1.
"(b) Implied consent under subsection (a) may not be
withdrawn by any person."
A finding that a parent had impliedly consented under former § 26-10A-
9 to a proposed adoption had to be established by clear and convincing
evidence. See Ala. Code 1975, former § 26-10A-25(b)(2) (providing that a
probate court shall enter a final judgment of adoption if clear and
convincing evidence establishes that all necessary consents have been
obtained).
The evidence presented by the foster parents did not clearly and
convincingly prove that the mother had abandoned the child or that she
had failed to maintain a significant relationship with the child, as the
foster parents argue. See S.A. v. M.T.O., 143 So. 3d 799 (Ala. Civ. App.
2013) (holding that mother did not abandon adoptee or fail to maintain a
44
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
significant parental relationship with adoptee by involuntarily losing
custody of adoptee and exercising only limited visitation with adoptee as
ordered by juvenile court in dependency proceedings). But we need not
delve into the evidence to affirm the judgments of the juvenile court
insofar as they denied the adoption petition. "Consent" was defined in
the AAC as the act of "[v]oluntarily agreeing to adoption." Ala. Code
1975, former § 26-10A-2(4). Former § 26-10A-9 provided that a court
"may" find that a parent had consented to the adoption of a child based
on the conduct enumerated in that statute. As construed by this court,
former § 26-10A-9 did not require a court to find that a parent had
voluntarily agreed to the adoption of his or her child by abandoning the
child or by failing to maintain a significant relationship with the child for
six months; former § 26-10A-9 vested the court with the discretion to
consider all the surrounding circumstances when deciding if a parent's
actions implied consent to adoption. See, e.g., J.D.S. v. J.W.L., 204 So.
3d 386 (Ala. Civ. App. 2016). The juvenile court exercised its discretion
to determine that the mother had not voluntarily agreed to the adoption
45
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of the child based on her actions. The foster parents have not proven on
appeal that the juvenile court abused its discretion in that regard.
The foster parents also argue that the father impliedly consented
to the adoption of the child by, among other things, failing to comply with
Ala. Code 1975, § 26-10C-1, and registering with the Putative Father
Registry. We need not consider that issue. Former § 26-10A-7(a)(2)
required the consent of the mother to the adoption of the child. Even if
the father had impliedly consented to the adoption of the child, the
mother had not consented to the adoption, and the absence of her consent
alone defeated the foster parents' petition. Former § 26-10A-25(b)(2)
provided that a court could grant an adoption only upon finding that "[a]ll
necessary consents, relinquishments, terminations, or waivers have been
obtained ...." Therefore, whether the father had impliedly consented to
the adoption by failing to comply with § 26-10C-1 or otherwise is a moot
point.
For the foregoing reasons, we affirm the judgments insofar as they
deny the petition of the foster parents to adopt the child.
46
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
Conclusion
In conclusion, we dismiss appeal numbers CL-2022-1248, CL-2022-
1249, CL-2022-1250, CL-2022-1277, and CL-2022-1289. In appeal
numbers CL-2022-1246 and CL-2022-1247, we affirm the judgments
insofar as they determined that the child remained dependent as to the
mother, denied her petition for custody, and maintained her supervised
visitation with the child. In appeal numbers CL-2022-1279 and CL-2022-
1280, we affirm the judgments insofar as they denied the foster parents'
petition to terminate the parental rights of the mother and of the father
and insofar as they denied their petition to adopt the child. In appeal
number CL-2022-1288, we reverse the judgments to the extent that the
juvenile court determined the child to be dependent as to the father,
denied his petition for custody, and included a provision automatically
suspending the father's visitation with the child, and we remand case
number JU-21-12.01 to the juvenile court for further proceedings
consistent with this opinion.
CL-2022-1249 -- APPEAL DISMISSED.
CL-2022-1250 -- APPEAL DISMISSED.
47
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
CL-2022-1277 -- APPEAL DISMISSED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
CL-2022-1246 -- AFFIRMED.
CL-2022-1247 -- AFFIRMED.
CL-2022-1279 -- AFFIRMED.
CL-2022-1280 -- AFFIRMED.
CL-2022-1289 -- APPEAL DISMISSED.
Edwards, Hanson, and Fridy, JJ., concur.
Thompson, P.J., concurs in the result, with opinion.
CL-2022-1248 -- APPEAL DISMISSED.
CL-2022-1288 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
Edwards, Hanson, and Fridy, JJ., concur.
Thompson, P.J., dissents, with opinion.
48
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
THOMPSON, Presiding Judge, concurring in appeal nos. CL-2022-1249,
CL-2022-1250, and CL-2022-1277, concurring in the result in appeal nos.
CL-2022-1246, CL-2022-1247, CL-2022-1279, CL-2022-1280, and CL-
2022-1289, and dissenting in appeal nos. CL-2022-1248 and CL-2022-
1288.
I concur to dismiss appeal numbers CL-2022-1249, CL-2022-1250,
and CL-2022-1277. I concur in the result to dismiss appeal number CL-
2022-1289 and to affirm the juvenile court's judgments insofar as that
court denied the claims asserted by J.R. and A.R. ("the foster parents")
seeking to terminate the parental rights of C.S. ("the mother") and J.B.
("the father") and contending that the mother and the father had given
implied consent to the foster parents' proposed adoption of A.J.S. ("the
child"). I also concur in the result to affirm the juvenile court's judgments
insofar as that court determined that the child was dependent as to the
mother, denied an award of custody of the child to the mother, and
awarded supervised visitation to the mother. However, I dissent from the
dismissal of the mother's appeal in appeal number CL-2022-1248 because
I would affirm as to that judgment.
49
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CL-2022-1289
I dissent from reversing the juvenile court's judgments insofar as
that court found that the child was dependent as to the father. I conclude
that, in reaching that holding, this court has impermissibly substituted
its judgment for that of the juvenile court.
"This court is limited in its review of a trial court's
judgment when a trial court receives ore tenus evidence. A
trial court's judgment resolving disputed ore tenus evidence
is entitled to a presumption of correctness on appeal and will
not be reversed absent a showing that the trial court exceeded
its discretion or that the factual findings upon which the
judgment is based are so unsupported by the evidence as to be
plainly and palpably wrong. T.D.P. v. D.D.P., 950 So. 2d 311
(Ala. Civ. App. 2006). This ' "presumption of correctness is
based in part on the trial court's unique ability to observe the
parties and the witnesses and to evaluate their credibility and
demeanor ." ' L.L.M. v. S.F., 919 So. 2d 307, 311 (Ala. Civ. App.
2005) (quoting Littleton v. Littleton, 741 So. 2d 1083, 1085
(Ala. Civ. App. 1999)). The determination of the credibility
and veracity of the witnesses is the responsibility of the trial
court. Earheart v. Earheart, 842 So. 2d 695 (Ala. Civ. App.
2002).
"We are not allowed to substitute our judgment for that
of the trial court, even when this court might have reached a
different result, unless the trial court's resolution of the facts
is plainly and palpably wrong. L.R.M. v. D.M., 962 So. 2d 864,
873-74 (Ala. Civ. App. 2007) (citing Griggs v. Griggs, 638 So.
2d 916, 918-19 (Ala. Civ. App. 1994), quoting in turn Young v.
Young, 376 So. 2d 737, 739 (Ala. Civ. App. 1979)). ' "[A]n
appellate court may not substitute its judgment for that of the
trial court. To do so would be to reweigh the evidence, which
50
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
Alabama law does not allow." ' Ex parte R.E.C., 899 So. 2d 272,
279 (Ala. 2004) (quoting Ex parte Foley, 864 So. 2d 1094, 1099
(Ala. 2003)). When addressing the inability of an appellate
court to reweigh the evidence and substitute its judgment for
that of the trial court, our supreme court recognized:
" 'The trial court must be allowed to be the trial
court; otherwise, we (appellate court judges and
justices) risk going beyond the familiar
surroundings of our appellate jurisdiction and into
an area with which we are unfamiliar and for
which we are ill-suited -- factfinding.'
"Ex parte R.T.S., 771 So. 2d 475, 477 (Ala. 2000)."
J.B. v. Cleburne Cnty. Dep't of Hum. Res., 992 So. 2d 34, 39-40 (Ala. Civ.
App. 2008).
At the April 27, 2022, portion of the trial, the father denied recalling
that Morgan County Department of Human Resources ("DHR") social
workers had asked him not to contact the mother, and he represented to
the court that, at that time, he had blocked the mother's ability to contact
him and was not in contact with her. The evidence at the September 2022
portions of the trial demonstrated that, with knowledge of DHR's
disapproval and having experienced the repercussion of having his
visitation with the child decreased because of his earlier contact with the
51
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CL-2022-1289
mother, the father was again communicating with the mother and that
she had been to his home several times. Additionally, the father
acknowledged that he had maintained contact and communication with
the mother even when his own family members had advised him that
doing so might endanger his ability to obtain custody of the child.
The father contends that the evidence does not support the
conclusion that the child needs to be protected from the mother. However,
in addition to her past drug use, the mother has exhibited behavioral
outbursts that have frightened the child and others, and the evidence
supports the conclusion that the mother has experienced delusional
thinking. Although the mother was obtaining mental-health treatment
at the time of the hearings in these matters, she refused to acknowledge
that she had a mental-health issue that had resulted in delusions. The
mother insisted that the extensive evidence concerning her delusions and
bizarre communications with others were the basis of a fictional story or
novel that she was attempting to write. The record contains sufficient
information to call into question the mother's credibility on that issue.
Based on that evidence, the juvenile court concluded that the mother was
52
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a threat to the child. The evidence in the record supports the conclusion
that, although he has never asked the mother about her substance-abuse
and mental-health issues, the father does not share the same concerns
about the child's safety as do DHR social workers, the child's guardian
ad litem, and the juvenile court. The primary concern about placing the
child with the father was his ability and willingness to protect the child
from the mother. The evidence supports the conclusion that the father
was dismissing obvious signs of the mother's mental illness, together
with the warnings from others, in an effort to pursue a relationship with
the mother. That evidence also supports the juvenile court's
determination that the father was unwilling to take action to
demonstrate that he would protect the child. Given the evidence in the
record, particularly the nature of the mother's testimony and the
questions regarding the father's credibility, I disagree that the father has
shown that the juvenile court erred in determining that the child was
dependent as to him. See § 12-15-102(8)6. and 8., Ala. Code 1975. I would
affirm the juvenile court's judgments insofar as that court found the child
dependent as to the father.
53
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1250, CL-2022-1277, CL-2022-1279, CL-2022-1280, CL-2022-1288, and
CL-2022-1289
Regardless, because the main opinion reverses the juvenile court's
determination that the child was dependent as to the father, the
remaining issues raised by the father should be pretermitted. On
remand, the juvenile court will enter new judgments. Therefore, this
court's opinion on the issue of custody and visitation to the father in the
judgments that are being reversed is dicta.
54