Rel: December 13, 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-2024-0273 _________________________
Fernando Morgan, as guardian ad litem for K.J.W.
v.
T.R.W.
Appeal from Montgomery Juvenile Court (JU-08-93.06)
EDWARDS, Judge.
In September 2021, the Montgomery County Department of Human
Resources ("DHR") filed in the Montgomery Juvenile Court ("the juvenile
court") a petition seeking to terminate the parental rights of L.J.M. ("the
mother") and T.W. ("the father") to K.J.W. ("the child"). In its petition, CL-2024-0273
DHR specifically alleged that the mother and the father had abandoned
the child for a period exceeding four months before the filing of the
petition and relied on the presumption supplied by application of Ala.
Code 1975, § 12-15-319(d), that the mother and the father were therefore
"unable or unwilling to act as parents." After several continuances, the
juvenile court held a trial on the termination of the mother's parental
rights in November 2023. The mother consented to the termination of
her parental rights, and the juvenile court entered a judgment
terminating her parental rights on November 28, 2023. In that
judgment, apparently because the father appeared at the trial after the
child had contacted him through social media, the juvenile court
"bifurcated" the trial on the termination of the father's parental rights to
permit DHR to engage in reunification efforts for the father and to
consider potential relative resources.
The trial on the termination of the father's parental rights occurred
on March 13, 2024. The father did not attend the trial. The juvenile
court entered a judgment on April 14, 2024, denying DHR's petition to
terminate the father's parental rights. In that judgment, the juvenile
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court concluded that DHR had failed to make any efforts to rehabilitate
the father during the period between the November 2023 trial and the
March 2024 trial. Although the juvenile court stated that "th[e] father
may have failed to claim the rights of a parent, or to perform the duties
of a parent," the juvenile court appeared to blame DHR for failing to
locate the father earlier. Ultimately, the juvenile court concluded that
DHR had not met its burden of proving abandonment of the child by the
father. The child's guardian ad litem, Fernando Morgan, has appealed
the judgment on behalf of the child.
The termination of parental rights is governed by Ala. Code 1975,
§ 12-15-319. That statute reads, in pertinent part:
"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[]. In a hearing on a petition for termination of parental rights, the court shall consider the best interests of the child. In determining whether or not the parent[] [is] unable or unwilling to discharge [his or her] responsibilities to and for the child and to terminate the parental rights, the juvenile court shall
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consider the following factors including, but not limited to, the following:
"(1) That the parent[] [has] abandoned the child, provided that in these cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parent[].
"....
"….
"(d) A rebuttable presumption that the parent[] [is] unable or unwilling to act as [a] parent[] exists in any case where the parent[] ha[s] abandoned a child and this abandonment continues for a period of four months next preceding the filing of the petition. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period."
The term "abandonment" is defined in Ala. Code 1975, § 12-15-
301(1), 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."
A juvenile court's judgment terminating parental rights must be
supported by clear and convincing evidence. P.S. v. Jefferson Cnty. Dep't
of Hum. Res., 143 So. 3d 792, 795 (Ala. Civ. App. 2013). "Clear and
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convincing evidence" 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.' " L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala.
Civ. App. 2002) (quoting Ala. Code 1975, § 6-11-20(b)(4)). Although a
juvenile court's factual findings in a judgment terminating parental
rights based on evidence presented ore tenus are presumed correct, K.P.
v. Etowah Cnty. Dep't of Hum. Res., 43 So. 3d 602, 605 (Ala. Civ. App.
2010), "[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 (1986),] 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." ' "
5 CL-2024-0273
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)).
The evidence before the juvenile court consisted of certain
documentary evidence, including the child's birth certificate, a judgment
adjudicating the father's paternity, and a record of the father's 2011
conviction for shooting into an occupied vehicle. The juvenile court also
heard the testimony of Nijah Cheatham, the DHR caseworker currently
assigned to the child's case; Cynthia Foote, the current DHR program
supervisor; and the child. As previously noted, the father did not attend
the trial.
Cheatham testified that she had been the child's caseworker for
approximately two months. Although she indicated familiarity with the
case file, she often indicated when testifying that she was uncertain or
unsure of certain facts and dates preexisting her brief tenure. She
testified that DHR had not offered the father any services because, she
said, she understood that DHR had not been able to establish contact
with the father. Cheatham reported that DHR had attempted to contact
the father in the past through the use of mail sent to his last known
6 CL-2024-0273
address. She said that DHR personnel had not had any contact with the
father since the November 2023 trial. She also indicated that she did not
have a telephone number for the father.
Cheatham admitted that she was aware that the child had had
some contact with the father through text messages and/or a cellular
telephone. However, it was not entirely clear when Cheatham learned of
the child's contact with the father. She also admitted that she did not
know if the previous caseworker had established contact with the father
or whether the previous caseworker had provided the father with contact
information for DHR at the November 2023 trial. She did clearly state,
however, that the father had not "come forward attempting to be involved
in any services."
Regarding the child's prospects for adoption, Cheatham testified
that she was aware of a person named "S.L." who was a potential
adoptive resource. Cheatham indicated that S.L. was interested in
pursuing adoption of the child; she testified that S.L. had requested "to
start doing the overnight visits on the weekend." She also said that the
child had requested that she reach out to a "Ms. H." but that she had not
7 CL-2024-0273
yet done so. According to Cheatham, the State Department of Human
Resources also had been looking at one potential adoptive placement for
the child but that "[the child] was not sure" about that potential
placement.1
Foote testified that she had previously been the DHR supervisor
assigned to the child's case but that she had since become the DHR
program supervisor. She testified that DHR had not had any contact
with the father before his appearance at the November 2023 trial, which
occurred shortly after the child had made contact with him. She also said
that DHR had not had any contact with the father after the November
2023 trial.
According to Foote, she was not aware of any contact that the child
had had with the father before November 2023. She stated that, as far
as she knew, the child's contact with the father had begun only recently.
More specifically, she said that, to her knowledge, the child had had no
previous contact with the father between her entry into DHR's custody
1Because the child was over the age of 14 at the time of the March
2024 trial, her consent to the adoption is required. Ala. Code 1975, § 26- 10E-7(a)(1). 8 CL-2024-0273
in 2018 and the November 2023 trial. She also said that the father had
abandoned the child by his previous conduct and that his abandonment
had exceeded a period of four months.
When questioned about DHR's procedure for identifying adoptive
resources, Foote testified that, once termination of parental rights occurs,
a child is placed on "the Heart Gallery website" so that prospective
adoptive parents can apply to adopt that child. She said that, before
termination of parental rights occurs, DHR may attempt what she
described as "a legal-risk placement," which allows a child to be placed in
a prospective adoptive home pending termination of parental rights. She
said that DHR had attempted to find a legal-risk placement for the child.
Foote indicated that the child had provided the names of persons
that she thought might be interested in adopting her. According to Foote,
one of those persons, a Ms. H., was a former foster parent of the child.
Foote said that Ms. H. was elderly and that she would not be able to adopt
the child. However, Foote said that, although she did not recall the
specific names, two persons had been listed on the most recent
individualized-service plan so, she said, they would be explored. When
9 CL-2024-0273
asked if she knew who "S.L." was, Foote answered that she did not. Foote
also indicated that DHR had previously located two prospective adoptive
families, that the child had visited with both of those families, but that
the child had not been interested in pursuing placement with one of the
families. Foote did not clearly indicate what occurred with the other
family.
The child testified that she had only recently had contact with the
father and that she had not recalled having ever met the father before
November 2023. She admitted that she might have met him when she
was very young. The child testified that she had seen her father only
twice that she recalled: at a funeral and at the trial, which were both in
November 2023. She said that she had located the father through the
paternal grandmother, R.M., who, she said, she had located on a social-
media website. She described the father as being shocked when she
contacted him and said that she had been surprised that he had
responded to her.
The child testified that she had spoken with the father the day
before the termination-of-parental-rights trial because she had felt bad
10 CL-2024-0273
for not answering his text messages and/or telephone calls. She testified
that he had telephoned her the day before the trial and that, when she
had not answered, he had texted her to ask if she had blocked his number.
She said that she had responded to his text message by saying, "no," and
that she had returned his telephone call after her soccer game that
evening. Although she indicated that she had been happy when the
father had initially answered her in November 2023, when asked if she
desired to continue contact with the father, she answered: "Not really."
When asked if she would desire to maintain a relationship with the father
after she is adopted, she also answered in the negative, stating: "I would
like to move past all of that."
According to the child, the father had told her that he did not have
the means to provide for her. She said that he had told her that he did
not have his own residence or an automobile; she also testified that she
thought that he lived with friends because he had told her that he "did
not have a place right now." When asked if the father had employment,
the child testified: "Not that I know of." She said that she had not asked
him about his employment.
11 CL-2024-0273
The child testified that she desired to be adopted. She explained
that she knew two potential adoptive resources, S.L. and Y.O. She said
that both women had been visiting her for about one year and that both
had taken an interest in her. She said that S.L. had spent time with her,
had come to her soccer games, and had spoken to her every day. She also
said that, "if I ever need anything, like, you know, like soccer or school or
anything, prayer or anybody to talk to, [S.L. and her family] are the
people that I can call." The child also testified that S.L. had completed
foster-care classes and that she had been to S.L.'s home for a visit.
As Morgan argues, the evidence presented at the trial established
that, in the four months preceding the filing of the petition, the father
had had no contact with the child, who had been in the custody of DHR
since approximately May 2018, and that he had not provided any support
of any kind for the child. The child testified that her first memory of ever
meeting the father was in November 2023, when she met him in person
on two occasions, after she took steps to locate her paternal relatives
through the use of social media. Similarly, Foote testified that, as far as
she was aware, the father had not had contact with the child or with DHR
12 CL-2024-0273
before November 2023. The juvenile court even found that "the ... child
has resided in foster placement for many years, with little to no contact
with the father." The juvenile court therefore erred in concluding that
DHR failed to prove that the father had abandoned the child in the four-
month period preceding the filing of the termination-of-parental-rights
petition. Accordingly, by operation of Ala. Code 1975, § 12-15-319(d), "a
rebuttable presumption that the [father] [is] unable or unwilling to act
as [a] parent[]" arose.
As we explained in C.F. v. State Department of Human Resources,
218 So. 3d 1246, 1251 (Ala. Civ. App. 2016),
"[b]ased on [former Ala. Code 1975,] § 12-15-319(b)[, the predecessor statute to § 12-15-319(d)], once DHR proved that the [parent] had abandoned the child in the four months before it filed its petition, the juvenile court could presume that the [parent] was unable or unwilling to act as a parent, and the burden shifted to the [parent] to rebut that presumption."
That is, once the rebuttable presumption under § 12-15-319(d) arose, "the
father had the opportunity to present evidence rebutting the
presumption of his unwillingness or inability to act as a parent." A.D. v.
R.P., 345 So. 3d 657, 669 (Ala. Civ. App. 2021). Thus, we will examine
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the evidence to determine whether the presumption arising under § 12-
15-319(d) was rebutted by the evidence presented to the juvenile court.
As noted, the father did not attend the March 2024 trial. His
attorney presented no evidence on his behalf. The testimony of the child
established that the father was not currently able to perform the duties
of a parent because, she said, he did not have the means to support her
and did not have his own residence or automobile. The father's attempts
to maintain contact with the child through text and telephone calls are
not enough to rebut the presumption that the father is unable or
unwilling to meet his obligations as a parent.
Because the father abandoned the child, the juvenile court was not
required to determine whether viable alternatives to the termination of
his parental rights existed. 2 See W.W. v. H.W., 384 So. 3d 663, 670 (Ala.
2We note, however, that DHR presented evidence indicating that it
had considered the paternal relatives that the father had provided to them and that neither of those paternal relatives was a viable relative resource. DHR rejected the paternal grandmother because she had indicated findings for abuse dating from 2002 and 2004, and the paternal aunt, although initially interested in seeking custody of the child, had declined to do so after an argument with the father.
14 CL-2024-0273
Civ. App. 2023). As we explained in W.W., " ' "[b]y abandoning [his] child,
[the father] 'lost any due-process rights that would have required the
juvenile court to explore other alternatives before terminating [his]
parental rights.' " ' " 384 So. 3d at 670 (quoting T.T. v. C.E., 204 So. 3d
436, 439 (Ala. Civ. App. 2016), quoting in turn L.L. v. J.W., 195 So. 3d
269, 274 (Ala. Civ. App. 2015), quoting in turn C.C. v. L.J., 176 So. 3d
208, 217 (Ala. Civ. App. 2015)). Because the father abandoned the child,
the juvenile court was not required to consider whether maintenance of
the status quo would be a viable alternative to the termination of the
father's parental rights, and it erred in doing so.3
3The juvenile court specifically relied on T.W. v. Calhoun County
Department of Human Resources, 391 So. 3d 306, 316 (Ala. Civ. App. 2023), in its judgment. We held in T.W. that maintaining the status quo is a viable alternative when the record lacks evidence indicating that a special-needs child will likely achieve permanency through adoption and when the evidence reflects that a beneficial bond between the child and a parent exists and should be preserved. Although the child in this case would, by virtue of her age, be a "special-needs child," see Ala. Admin. Code (Dep't of Hum. Res.), r. 660-5-22-.06 (defining a "special-needs child," for the purposes of subsidized adoption, as, among other things, a child who is over five years of age), the facts of this case are starkly different than those presented in T.W. The father in the present case does not have a beneficial relationship with the child worth preserving, having abandoned her for a period of years before the child took steps to locate him; the child testified that she did "not really" desire to maintain 15 CL-2024-0273
We have further explained, however, that, even when a parent has
abandoned his or her child, a juvenile court must still "consider whether
the termination of the [parent's] parental rights would serve the child's
best interest." W.W., 384 So. 3d at 670. As Morgan argues, the evidence
presented to the juvenile court supports the conclusion that termination
of the father's parental rights is in the child's best interest. The child has
been in DHR's custody for nearly six years. The child has never had a
beneficial relationship with the father, with whom she likely had had no
contact before November 2023. The evidence indicates that the father
lacks the means to support the child; according to the child, the father
does not have a residence, does not have an automobile, and might not
even have employment. The child testified that she did not desire to
maintain contact with the father and that she instead desired to be
adopted. Foote testified that the child is adoptable and that DHR is
actively seeking a prospective adoptive home for her, even having had
the child attend home visits with two potential adoptive parents. The
a relationship with the father; and the child stated that she desired to be adopted and "move past all that." 16 CL-2024-0273
child testified that S.L., who she described as a support to her, had
completed foster-care classes in furtherance of potential adoption.
Accordingly, we agree with Morgan that the evidence does not support
the juvenile court's conclusion that the child's best interest would not be
served by termination of the father's parental rights.
In conclusion, the juvenile court's judgment fails to apply the
rebuttable presumption arising under § 12-15-319(d) that the father is
unable or unwilling to serve as a parent. The evidence, which indicated
that the father does not have the means to provide for the child, does not
support a conclusion that that presumption was rebutted. In addition,
the juvenile court's finding that the child's best interest would not be
served by termination of the father's parental rights is not supported by
clear and convincing evidence. Accordingly, we reverse the judgment of
the juvenile court, and we remand the cause for the juvenile court to enter
a judgment consistent with this opinion.
REVERSED AND REMANDED.
Moore, P.J., and Hanson, Fridy, and Lewis, JJ., concur.