Rel: November 1, 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, 2024-2025 ________________________
CL-2024-0430 ________________________
A.D.J.
v.
Mobile County Department of Human Resources
Appeal from Mobile Juvenile Court (JU-21-1185.02)
MOORE, Presiding Judge.
A.D.J. ("the father") appeals from a judgment entered on April 24,
2024, by the Mobile Juvenile Court ("the juvenile court"), terminating his
parental rights to B.J. ("the child"). We affirm the judgment.
The Judgment
Upon finding in its judgment that the father had abandoned the
child, the juvenile court terminated the father's parental rights on the CL-2024-0430
ground that he was unable or unwilling to discharge his parental
responsibilities to and for the child. See Ala. Code 1975, § 12-15-319. The
judgment recounts that the child was born in 2012, during the marriage
of the father and L.F. ("the mother"). Later in 2012, the mother and the
father divorced; the divorce judgment failed to mention the child but, in
2013, the divorce judgment was amended to adjudicate the father's legal
paternity of the child. Despite the knowledge of his legal paternity, the
father never established a parental relationship with the child, having
seen the child only four times between 2012 and 2021. In August 2021,
the mother surrendered custody of the child to the Mobile County
Department of Human Resources ("DHR"), informing DHR that she could
no longer care for the child. The father saw the child only twice after the
child was placed into foster care -- on February 14, 2024, following genetic
testing that confirmed his paternity, and on April 17, 2024, the day of the
termination-of-parental-rights trial.
Despite finding that the father had abandoned the child, the
juvenile court found that DHR had used reasonable efforts to rehabilitate
the father but that the father had failed to avail himself of any services
2 CL-2024-0430
or to meaningfully participate in visitation, having talked to the child on
the telephone only four times after February 14, 2024. The juvenile court
also determined that there were no viable alternatives to the termination
of the father's parental rights. The child testified at trial and expressed
some interest in getting to know the father, but the child ultimately said
that he wanted to be adopted by his foster parent, which the juvenile
court concluded was in the child's best interests.
Issues
On appeal, the father raises several arguments that are premised
on the alleged error of the juvenile court in determining that he
abandoned the child. His remaining arguments are either disposed of by
our disposition of the abandonment issue or are undeveloped.
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
3 CL-2024-0430
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. McInish,] 47 So. 3d [749] at 761 [(Ala. Civ. App. 2006)].
"... [F]or 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[,]' [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (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.' § 25-5- 81(c)[, Ala. Code 1975]."
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
4 CL-2024-0430
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. We review the legal
conclusions to be drawn from the evidence without a presumption of
correctness. J.W. v. C.B., 68 So. 3d 878, 879 (Ala. Civ. App. 2011).
Discussion
For the purpose of terminating of parental rights, "abandonment"
refers to
"[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). As the father recognizes in his brief to
this court, "abandonment occurs when a parent intentionally forsakes
their parental responsibilities without justifiable cause." The father's
brief, p. 11; see also C.C. v. L.J., 176 So. 3d 208, 211 (Ala. Civ. App. 2015).
Whether a parent has abandoned a child is a question of fact for the
5 CL-2024-0430
juvenile court to determine based on its assessment of the competing
evidence, and a finding of abandonment will not be set aside if it is
supported by clear and convincing evidence. See A.D. v. R.P., 345 So. 3d
657, 668 (Ala. Civ. App. 2021).
In this case, the juvenile court received sufficient evidence from
which it reasonably could have been clearly convinced that, from the time
the child was born, the father had withheld from the child his presence,
care, love, protection, and the opportunity for the display of filial
affection. Although the father did pay child support for the child between
2016 and December 2023, by his own admission the father intentionally
avoided any interpersonal relationship with the child from 2012 to 2024,
having seen the child only a few times. The payment of child support
alone does not preclude a juvenile court from finding that a parent has
abandoned a child. See A.E. v. M.C., 100 So. 3d 587, 598 (Ala. Civ. App.
2012) ("Although 'maintenance,' i.e., support, is one of many factors to
consider in determining whether a parent has abandoned a child, it is
clear that failing to be present and act as a parent is equally
significant.").
6 CL-2024-0430
The father asserts, however, that he had "good cause or excuse" for
his absence from the child's life because, he says, he was uncertain as to
his paternity of the child until February 2024, when genetic testing that
was conducted as part of the termination-of-parental-rights proceeding
established that he was the biological father of the child. When the child
was born in 2012, the father was married to the mother, making him the
legal father of the child regardless of his biological paternity. See Ala.
Code 1975, § 26-17-204(a)(1), and Ex parte Presse, 554 So. 2d 406 (Ala.
1989). The father nevertheless testified that he had doubted his
biological paternity of the child because he and the mother had been
separated during the period leading up to the child's birth and they had
divorced shortly thereafter, making no provision for the child in their
uncontested divorce judgment. The father testified that he had not
undergone any genetic testing to determine his parentage of the child in
the years following the entry of the divorce judgment. Without genetic
testing proving his biological link to the child, the father decided not to
forge a parental relationship with the child because, he said, he did not
7 CL-2024-0430
want to parent the child only to later find out that the child was not his
biological child.
On cross-examination, the father admitted that he had understood
that he was the legal father of the child since at least 2013. On May 6,
2013, in postdivorce proceedings, the divorce judgment was amended to
declare the father to be the legal father of the child. The father testified
that, during hearings in the postdivorce proceedings, the judge had
explained to him that, regardless of whether genetic testing showed that
he was not the biological father of the child, he was the legal father of the
child with a responsibility to support the child. The father acknowledged
that the amended divorce judgment required him to pay child support for
the benefit of the child, which, he said, he started paying in 2016.
The father claimed that he had requested genetic testing during the
postdivorce proceedings but that his request had been denied. The father
also asserted that he had repeatedly requested genetic testing every time
he had appeared in court after 2013, but the father did not provide any
documentary evidence of any such request. On November 17, 2023, the
father requested genetic testing as part of the termination-of-parental-
8 CL-2024-0430
rights proceeding. When asked why he had allowed 12 years to pass
before formally requesting genetic testing, the father simply responded:
"The time passed ...."
Because the 2013 amended divorce judgment clearly informed the
father that he was the legal father of the child, see Ala. Code 1975, § 26-
17-201(b)(3) (providing that a legal father-child relationship may be
established by adjudication), the juvenile court impliedly determined
that the father did not have a good excuse for failing to parent the child.
The juvenile court evidently concluded that the father's alleged
uncertainty as to his biological parentage of the child was not a sufficient
reason to excuse the father's behavior toward the child following the
declaration of his legal paternity. The father argues that the juvenile
court erred in that respect.
In his brief, the father states, in pertinent part:
"The critical factor is the delayed confirmation of [the father's] paternity. Until the court-ordered [genetic] test confirmed his paternity in February 2024, ... [the father] lacked legal certainty about his role as the child's father. Without this confirmation, it would have been inappropriate for [the father] to assert parental rights or responsibilities,
9 CL-2024-0430
and his limited engagement was justifiable given the legal ambiguity.
"This reasoning aligns with Alabama's ruling in Ex parte J.W.B., 933 So. 2d 1081, 1085 (Ala. 2005), where the [supreme] court recognized that delays in confirming paternity must be considered when evaluating a parent's actions. Similarly, other courts have found that delays in confirming paternity can mitigate findings of abandonment. For example, the District of Columbia Court of Appeals in In re B.A.S., 880 A.2d 1003, 1011 (D.C. 2005), recognized that delays in confirming paternity and logistical issues should be considered when determining abandonment. The Nebraska Supreme Court also ruled in In re Interest of Z.S., 761 N.W.2d 238, 244-45 (Neb. 2009), that a father's delay in asserting parental rights could not be equated with abandonment when paternity was uncertain."
The father's brief, p. 12. We reject this argument.
When a man is the legal father of a child, the law does not require
evidence of genetic testing to support an adjudication of paternity. In
those circumstances, evidence of genetic testing may be admitted to
disprove paternity but that evidence is not necessary to prove paternity.
See Ala. Code 1975, § 26-17-631(1). As explained above, under Alabama
law, the father was the legal father of the child when the child was born
in 2012 based on his marriage to the mother. The 2013 amended divorce
judgment further erased any doubt as to the father's legal status as the
10 CL-2024-0430
child's father, despite the absence of evidence of genetic testing. Thus,
there was no "legal ambiguity" that prevented the father from asserting
his legal rights and accepting his legal responsibilities toward the child.
The father clearly understood that he was bound by the paternity
adjudication despite the absence of evidence of genetic testing because,
as he testified, he realized that, based on the 2013 amended divorce
judgment, he was obligated to pay child support for the benefit of the
child.
Ex parte J.W.B., 933 So. 2d 1081 (Ala. 2005), the lone case cited by
the father to support his argument,1 bolsters the judgment of the juvenile
court. In J.W.B., an unwed father, who was considered a putative father
for adoption purposes, see A.D.S. v. S.J.L., 70 So. 3d 345, 350 (Ala. Civ.
App. 2010), asserted that he had good reason for failing to parent his
child because, among other things, he was not certain of his paternity
1The foreign-jurisdiction cases upon which the father relies could
not be located. The citations lead to Anderton v. WasteAway Services, LLC, 880 A.2d 1003 (Conn. App. Ct. 2005), a workers' compensation case, and Michigan Education Association v. Secretary of State, 761 N.W.2d 234, 243 (Mich. Ct. App. 2008), a declaratory-judgment case. 11 CL-2024-0430
until genetic testing conducted several weeks after the birth of the child
excluded another man from being the child's father, and, in the
meantime, the maternal family had seized on that uncertainty to prevent
him from seeing the child. The Madison Probate Court rejected those
excuses, concluding that the weight of the evidence showed that the
putative father had not been prevented from seeing the child by the
maternal family and that, in fact, he had been disinterested in forming a
parental relationship with his child. The supreme court affirmed the
probate court's determination that the putative father had unjustifiably
failed to form a significant relationship with his child, thereby impliedly
consenting to his adoption. J.W.B. holds that a trial court may find that
a lack of definitive scientific proof of paternity is not a sufficient excuse
for a putative father to avoid his parental responsibilities to and for his
child. In this case, the juvenile court likewise found that the father was
not justified in refusing to form a significant parental relationship with
the child based on the lack of genetic testing confirming his paternity.
Furthermore, the father was the legal father of the child, not a
putative father, which makes his excuse even less credible. In In re
12 CL-2024-0430
Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009), the Nebraska Supreme
Court affirmed a judgment terminating the parental rights of a legal
father based on facts remarkably similar to the facts in this case. In 2002,
Andrew J. was married to Miranda J. when she gave birth to Chance J.,
making Andrew the legal father of Chance; however, Andrew doubted his
biological paternity because he had been separated from Miranda before
the time of Chance's birth, Chance did not physically resemble him, and
Miranda had remarked that Chance may be another man's child. Based
on his uncertainty, Andrew refused to act as a father toward Chance. In
April 2008, after Nebraska authorities filed a petition to terminate his
parental rights, Andrew obtained genetic testing, the results of which
proved that Chance was his biological child and, at that point, he
expressed interest in acting as a father to Chance. A Nebraska juvenile
court concluded that Andrew had abandoned Chance and terminated his
parental rights.
On appeal, the Nebraska Supreme Court held that the undisputed
facts showed that Andrew had intentionally refused to act as a parent
toward Chance since his birth.
13 CL-2024-0430
"Given these undisputed facts, the question before us is whether Andrew had just cause or excuse to withhold his presence, care, love, protection, maintenance, and the opportunity for the display of parental affection of Chance. Andrew argues that he had just cause or excuse, because prior to genetic testing, he believed that he was not Chance's father."
279 Neb. at 90, 776 N.W.2d at 526. The Nebraska Supreme Court
rejected that argument, concluding that Andrew's "paternal uncertainty"
did not justify his abandonment of Chance, who was "born into wedlock."
279 Neb. at 91, 776 N.W.2d at 527. The court considered that Andrew
had made no effort to obtain genetic testing to confirm his suspicions that
he was not Chance's biological father until after termination proceedings
were commenced. The court held that Andrew could not avoid his
parental obligations to Chance "that easily." Id.
In this case, the father alleged that he had repeatedly requested
genetic testing to confirm his suspicion that the child was not his
biological child. Because no records were presented to support those
allegations, the juvenile court was not required to believe the father;
however, even if the father had made the requests as he testified, the
failure of the father to obtain the genetic testing until 2024 does not
14 CL-2024-0430
excuse his abandonment of the child. The child was born in wedlock, and
the 2013 paternity adjudication confirmed the father's legal relationship
to the child. Alabama law allows a trial court to reopen a paternity
adjudication "if there is scientific evidence presented by the defendant
that he is not the father." Ala. Code, 1975, § 26-17A-1(a). The father did
not obtain that evidence and seek to have the 2013 amended divorce
judgment set aside; therefore, he could not disregard the 2013 amended
divorce judgment and deny his paternity and the rights and
responsibilities arising therefrom. The father contends that his
subjective belief that the child might not have been his biological child
was sufficient to excuse his behavior toward the child, but a legal father
cannot avoid his parental duties so easily. Thus, the juvenile court
correctly determined that the father had no "good cause or excuse" to
withhold his emotional support from the child.
The father also asserts that, after genetic testing proved his
biological paternity of the child, he made reasonable efforts to establish
a relationship with the child, which, he says, were hampered by
"logistical barriers and [DHR]'s failure to provide sufficient support." The
15 CL-2024-0430
father's brief, p. 13. In effect, the father argues that the juvenile court
should not have concluded that he had abandoned the child because he
was willing to act as a parent toward the child. That argument is
meritless.
After the mother surrendered custody of the child to DHR in
August 2021, DHR placed the child with D.N. ("the foster parent"), a
friend of the mother's. The child bonded with the foster parent. On April
15, 2022, after DHR learned of the father's paternity, it conducted an
individualized-service-plan ("ISP") meeting, at which the father agreed
to submit to a psychological evaluation, to complete parenting classes,
and to attend supervised visits with the child. The father did not
accomplish any of those tasks, because, as he testified, he would not have
been able to care for the child anyway. The father did not maintain
contact with DHR after the April 2022 ISP meeting. Thereafter, DHR
instituted a permanency plan calling for the termination of the father's
parental rights and adoption by the foster parent.
Due to the lack of his efforts to cooperate with DHR and to satisfy
the goals of the ISP, the father did not see the child until the date of the
16 CL-2024-0430
genetic testing. After the genetic testing, the father spent five minutes
with the child eating ice cream at a local McDonald's fast-food restaurant.
The father also shared five telephone conversations with the child
leading up to the April 17, 2024, trial date. Throughout the day of the
trial, the father visited with the child. The child testified that, even after
those contacts, he did not really know the father. The father admitted
that he still had no significant parental relationship with the child when
he testified that he wanted to forestall termination of his parental rights
to "build a relationship with [the child] and get to know him." The child
expressed a willingness to get to know the father, but he maintained that
he wanted to be adopted by the foster parent.
In A.E. v. M.C., supra, a legal father had abandoned his child
following an adjudication of his paternity, allowing his child to be raised
by the mother and, after the mother died, by the mother's relatives.
When his child was six years old, the legal father filed a petition to gain
custody of the child, and the custodians of his child countered by filing a
dependency petition. The legal father exercised visitation with the child
while those petitions were pending. The Marshall Juvenile Court denied
17 CL-2024-0430
the dependency petition and awarded the father custody of his child. This
court reversed the judgment, concluding that the legal father had not
cured his abandonment of his child by filing a custody action and
exercising pendente lite visitation. This court explained that, because
the legal father had abandoned his child, his child had bonded with the
custodians, whom she viewed as her parental figures, and that removing
her from their custody would cause her psychological harm. This court
held: "We cannot conclude that, under these facts, the father's stated
willingness to appear in the child's life and serve in a parental role
diminished or erased his abandonment of her for the vast majority of her
life." 100 So. 3d at 598. A.E. was a dependency case, but it applied the
same definition of "abandonment" as applies in termination-of-parental-
rights cases. See § 12-15-301(1). The reasoning in A.E. supports the
juvenile court's determination in this case. The father could not negate
his abandonment of the child for over 12 years by attempting to form a
parental relationship with the child in the 2 months leading up to the
trial and asserting that he was ready to act as a concerned parent toward
the child. By that time, the child had been residing with the foster parent
18 CL-2024-0430
for over two years, had bonded with the foster parent, and had decided
that he wanted to be adopted by the foster parent. Under those
circumstances, we conclude that the juvenile court did not err in finding
that the father had abandoned the child despite his contacts with the
child during 2024.
The father argues that DHR did not use reasonable efforts to
reunite him with the child and that the juvenile court did not fully
consider other viable alternatives to the termination of his parental
rights.
"Because we have determined that the juvenile court's abandonment finding is supported by the evidence, we need not consider the father's other arguments, including that [the Department of Human Resources] failed to make reasonable efforts to rehabilitate him and that [the Department of Human Resources] did not establish that no viable alternative to the termination of his parental rights existed. Once a parent has abandoned a child, [the Department of Human Resources] is not required to make reasonable efforts to rehabilitate that parent. See [Ala. Code 1975,] § 12-15- 319(a)(1); L.L. v. J.W., 195 So. 3d 269, 273 (Ala. Civ. App. 2015) ('[I]n cases of abandonment, a juvenile court can terminate parental rights even in the absence of proof that the state has used reasonable effort to rehabilitate the parent and reunite the family ....'). Furthermore, once a parent has been found to have abandoned a child, the juvenile court is not required to consider whether a viable alternative to the
19 CL-2024-0430
termination of his or her parental rights exists. See C.F. v. State Dep't of Hum. Res., 218 So. 3d 1246, 1251 (Ala. Civ. App. 2016) (stating that, '[w]hen a [parent] abandons [his or her] child and no longer maintains a significant parental relationship with [his or] her child, [he or] she loses [the] right to compel the state to exhaust viable alternatives before terminating [his or] her parental rights'); see G.S. v. Cullman Cnty. Dep't of Hum. Res., 253 So. 3d 383, 398 (Ala. Civ. App. 2017)."
K.F. v. Millwood, [Ms. CL-2023-0393, Feb. 23, 2024] ___ So. 3d ___, ___
(Ala. Civ. App. 2024). The fact that the juvenile court made superfluous
findings regarding reasonable efforts and viable alternatives does not
require this court to review the evidence to sustain those findings. See
T.B. v. Lee Cnty. Dep't of Hum. Res., 216 So. 3d 1246, 1253 (Ala. Civ.
App. 2016).
Finally, the father raises an argument that the judgment
terminating his parental rights does not serve the child's best interests.
He does not, however, develop that argument; instead, he focuses on the
alleged absence of viable alternatives. See J.D. v. E.R., 266 So. 3d 1088,
1099 (Ala. Civ. App. 2018) ("We will not reverse the juvenile court's
judgments on an undeveloped and unsupported argument.").
Nevertheless, we conclude that the juvenile court received more than
20 CL-2024-0430
sufficient evidence indicating that the best interests of the child would be
served by the termination of the father's parental rights. The mother,
who had raised the child since his birth, was unable or unwilling to
parent the child and consented to the termination of her parental rights.
The child had been securely residing with the foster parent in a stable,
custodial arrangement since 2021. DHR had determined that the foster
parent was providing the child a suitable home and that the child would
be best served by remaining there. The juvenile court reasonably could
have been clearly convinced that the stability and permanency interests
of the child would be served by terminating the father's parental rights
to allow the child to be adopted by the foster parent. See C.S. v. Mobile
Cnty. Dep't of Hum. Res., 166 So. 3d 680, 686 (Ala. Civ. App. 2014).
Conclusion
Based on the foregoing, the judgment entered by the juvenile court
terminating the father's parental rights to the child is affirmed.
AFFIRMED.
Edwards, Hanson, Fridy, and Lewis, JJ., concur.