Court Case Record C.F. v. STATE DEPARTMENT OF HUMAN RESOURCES. 2150503 UID(6899)


Court Case Number: 2150503

Case Number2150503
Case TypeCriminal
StateAlabama, AL
CountyAll Counties
CourtCourt of Civil Appeals of Alabama.
Court Address
Field Date9/2/2016
Close Date


This appeal arises from a judgment entered by the Jefferson Juvenile Court (“the juvenile court”) terminating the parental rights of C.F. (“the mother”) to J.F. (“the child”).1 We affirm the juvenile court's judgment.
I. The Denial of the Mother's Motion for a Continuance
The mother first argues that the juvenile court erred in denying her motion for a continuance of the trial on the petition to terminate her parental rights. The State Department of Human Resources (“DHR”) filed its petition to terminate the mother's parental rights to the child on September 24, 2015. DHR served the mother with the petition, and, pursuant to Ala.Code 1975, § 12–15–320(a), the juvenile court set the trial for January 28, 2016.2 The mother, who was incarcerated throughout the juvenile-court proceedings, did not file a motion requesting to be transported to the trial or a motion to take and submit her deposition in lieu of live testimony. On the scheduled trial date, the mother's appointed counsel orally moved the juvenile court for a continuance on the ground that counsel had been unable to locate and communicate with the mother. The juvenile court denied the motion.
The mother argues that, in overruling the motion for a continuance, the juvenile court deprived the mother of the opportunity to secure her testimony through a deposition in violation of her right to due process. See generally Pignolet v. State Dep't. of Pensions & Sec., 489 So.2d 588, 591 (Ala.Civ.App.1986) (“Where there is representation by counsel and an opportunity to present testimony through deposition, then due process does not require that an incarcerated parent be allowed to attend the termination hearing.”). However, counsel for the mother did not assert that constitutional argument in her motion for a continuance or in her postjudgment motion. “It has long been the law in this state that constitutional questions not raised in the court below will not be considered for the first time on appeal.” Smith v. State Dep't. of Pensions & Sec., 340 So.2d 34, 37 (Ala.Civ.App.1976). Hence, we do not address the mother's contention that the juvenile court violated her due-process rights
II. Sufficiency of the Evidence
The mother also argues that the juvenile court did not receive sufficient evidence to support its judgment. Generally speaking, upon determining that less drastic measures to termination of parental rights would be unavailing, see Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990), a juvenile court may terminate the parental rights of a parent to his or her child
“[i]f 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.”
Ala.Code 1975, § 12–15–319(a). The mother argues that the evidence in the record does not support grounds for termination and that the juvenile court erred in failing to place the child with one of the mother's relatives as a viable alternative to termination of her parental rights.
A. Grounds for Termination
Grounds for termination must be proven 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 Cty. Dep't. of Human Res., [Ms. 2140752, April 1, 2016] ––– So.3d ––––, –––– (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. McInish,] 47 So.3d [749] at 761 [ (Ala . Civ.App.2006) ].
“To analogize the test set out ․ by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232–33 (D.C.Cir.1947),] for trial courts ruling on motions for a summary judgment 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’; 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., 972 So.2d 1, 9 (Ala.2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id.
The evidence in the record shows that the child, who was born in July 2010, had come under DHR's protection in August 2013 after the mother was found incapacitated while attending an emergency-room visit for the child. The mother tested positive for cocaine shortly thereafter. After the child was removed from the mother's custody, DHR requested that the mother complete a family drug-court program, submit to random drug screens, complete parenting classes, receive mental-health treatment, and obtain and maintain employment and suitable housing. Before October 2013, the mother had been expelled from the family drug-court program for her noncompliance with the program's services and testing procedures. The mother also had not participated in parenting classes or mental-health treatment and had not obtained employment. The mother had lost her housing in a fire and had not obtained replacement housing. By November 2013, DHR had lost contact with the mother. DHR later discovered that the mot
In January 2014, the mother contacted DHR and informed a DHR employee that she had enrolled in a substance-abuse program at a facility called Oakmont Center and that she had scheduled a mental-health evaluation from a facility called Western Mental Health. However, the mother failed to sign a release so that DHR could obtain her records from those facilities, and the mother did not supply DHR with any documentation to prove that she had received any drug-rehabilitation or mental-health treatment. The mother had not completed any part of her rehabilitation plan by April 2014 when the child was placed in foster care.
By November 2014, the mother had informed DHR that she was no longer using drugs. The mother also provided DHR a clean drug test dated November 6, 2014. However, the mother would not submit to random drug screening as DHR advised. The mother also informed DHR that she had obtained employment at a fast-food restaurant and that she was participating in a drug-rehabilitation program. The mother visited with the child inconsistently, sometimes failing to show without prior notice, upsetting the child. DHR again lost contact with the mother in December 2014.
In January 2015, DHR learned that the mother had again been incarcerated. At the time of trial, the mother was in federal prison for an unstated drug-related offense. The mother has not visited with the child since November 2014. The mother did not provide DHR with any evidence indicating that she had completed any of the steps initially outlined by DHR in its rehabilitation plan. At no point did the mother provide support for the child.
In its judgment terminating the mother's parental rights to the child, the juvenile court determined, among other things, that the mother had abandoned the child. “Abandonment” is defined as
“[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.”