M.G.S. v. Lee County Department of Human Resources (Appeal from Lee Juvenile Court: JU-19-311.02).

• Court: Court of Civil Appeals of Alabama
• Decided: May 10, 2024
• Docket: CL-2023-0102
• Status: Published

Opinion

Rel: May 10, 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-2023-0102 _________________________

M.G.S.

v.

Lee County Department of Human Resources

Appeal from Lee Juvenile Court (JU-19-311.02)

HANSON, Judge.

In 2018, D.G.-L. ("the father") came to the United States from

Guatemala and brought with him D.G. ("the child"), the oldest child born

of his marriage to M.G.S. ("the mother").1 The mother and the father's

1In the record, the mother is alternately identified as "M.S.G." CL-2023-0102

two younger children remained in Guatemala. In September 2019, the

father caused a motor-vehicle accident while the child was a passenger

in the vehicle. It does not appear that the child was injured in that motor-

vehicle accident. However, as a result of that accident, the father was

arrested on several charges, including driving under the influence. At the

time of the accident, the mother was in Guatemala and there were no

other relatives in the United States with whom the child could reside, so

the Lee County Department of Human Resources ("DHR") filed in the Lee

Juvenile Court ("the juvenile court") a petition seeking to have the child

declared dependent and seeking an award of pendente lite custody of the

child.

In the dependency action, the juvenile court entered an order on

October 15, 2019, in which it found the child dependent. DHR provided

reunification services to the father, and in the summer of 2020, the

reunification plan was for the child to be returned to the father's custody.

However, for reasons not made clear in the record, that reunification plan

changed in September 2020. The new reunification plan for the child was

to return the child to the mother in Guatemala, and attempts were made

to conduct a home study on the mother's home. In August 2022, the

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juvenile court entered an order in the dependency action in which it,

among other things, approved another change in the reunification plan

for the child to a concurrent plan of either returning the child to the

mother's custody or for the child to be adopted by her foster parents.

On March 31, 2022, DHR filed a petition in the juvenile court in

which it sought to terminate the parental rights of the mother and the

father. The juvenile court conducted a final hearing in the termination-

of-parental-rights action on January 6, 2023, at which it received ore

tenus evidence. The mother attended the final hearing from Guatemala

via teleconferencing using a social-media application. The father, who

was incarcerated at the time, did not attend the final hearing.

On February 10, 2023, the juvenile court entered in the

termination-of-parental-rights action a judgment in which it terminated

the parental rights of the mother and of the father and awarded

permanent custody of the child to DHR. The mother filed a timely notice

of appeal from the February 10, 2023, judgment to this court.

Before the mother's appeal was submitted to this court, DHR

sought permission in this court to file in the juvenile court a motion

seeking relief pursuant to Rule 60(b), Ala. R. Civ. P., from the February

3 CL-2023-0102

10, 2023, judgment. See Rule 60(b), Ala. R. Civ. P. ("Leave to make the

motion need not be obtained from any appellate court except during such

time as an appeal from the judgment is actually pending before such

court."); S.J. v. Henry Cnty. Dep't of Hum. Res., 367 So. 3d 1111, 1113

(Ala. Civ. App. 2022) ("[T]he mother and the father were each required to

obtain leave of this court in order to file a Rule 60(b)[, Ala. R. Civ. P.,]

motion challenging the judgment that was before this court for appellate

review."). This court granted DHR's motion and reinvested the juvenile

court with jurisdiction to enter a ruling on the Rule 60(b) motion.

In its Rule 60(b) motion, DHR alleged that the juvenile court's

judgment was void for want of due process because it had not provided

the mother a translator in her native language. Thus, DHR's motion

sought relief under Rule 60(b)(4). See Ex parte R.S.C., 853 So. 2d 228,

235-36 (Ala. Civ. App. 2002) ("A judgment is void under Rule 60(b)(4)[,

Ala. R. Civ. P.,] only if the court that rendered the judgment lacked

subject-matter jurisdiction, personal jurisdiction, or if it acted in a

manner inconsistent with due process of law."). On October 10, 2023, the

juvenile court entered a detailed judgment denying the Rule 60(b)

motion. No appeal was taken from the October 10, 2023, judgment.

4 CL-2023-0102

The record sets forth the following facts and legal arguments. The

mother is a native of and continues to live in Guatemala, and her first

and primary language is Mam. During the time that the child has been

in foster care, the mother has communicated with the juvenile court

during hearings and in visits with the child using a videoconferencing

application and the assistance of two Spanish-language interpreters. The

mother appeared at the final hearing from Guatemala using a

videoconferencing application available through social media. At the

beginning of the final hearing, the mother had difficulty accessing the

social-media application that the juvenile court had ordered to be used

during that hearing. While the Spanish-language translators assisted

the mother in using that application, the mother's attorney raised several

arguments before the juvenile court, including that Spanish was not the

mother's primary language and that fairness required that the mother

be provided an interpreter who spoke her primary language. The juvenile

court stated that it had been unable to locate an interpreter who spoke

Mam.

In his arguments before the juvenile court, the mother's attorney

briefly asserted that he was unable to render the mother effective

5 CL-2023-0102

assistance of counsel. The mother's attorney first explained that he was

"new to the case" and had only attended one previous hearing, which had

been a permanency hearing. The case-action-summary sheet provided by

the State Judicial Information System indicates that the mother's

attorney was appointed to represent the mother in the termination-of-

parental-rights action on August 31, 2022. The mother's attorney also

represented to the juvenile court that, when he had spoken with the

mother, Cici Melius, a Court Appointed Special Advocate ("CASA")

worker, and Joanne Camp, the mother's former attorney, had interpreted

the conversation for the mother in Spanish and English. The mother's

attorney contended that the mother could not effectively communicate in

Spanish, which, he said, he knew "from speaking to the mom on the one

occasion that I talked to her and we had somebody trying to translate

Spanish to her." In support of his contention that the mother did not

speak Spanish well, the mother's attorney also stated that the mother

had been unaware of the date of the hearing because, he said, she could

not understand the Spanish-language notice with which she was served.2

2The record contains no information regarding whether the mother

could read Spanish. 6 CL-2023-0102

In response to a question from the juvenile court regarding whether he

was able to communicate with the mother, the mother's attorney

responded, "Can I communicate with [the mother] on a first-grade level

like I am talking to a client who is in first grade, or can I communicate

with her like she's a [25]-year-old mother who is about to have her

[parental] rights terminated? No, I cannot." DHR's attorney maintained

that the mother has only a second- or third-grade education, which might

impact her understanding of the proceedings; later evidence presented

by DHR indicates that the mother had an education level consistent with

that of a second-grade student. During the initial arguments in the final

hearing, the mother's attorney also argued that he was unable to

effectively represent the mother because, he said, he could not ask her

questions while witnesses were testifying. When asked whether he had

any supporting authority on the issues he was arguing, the mother's

attorney answered, "[n]o, sir, I do not."

"The unsworn statements, factual assertions, and arguments of

counsel are not evidence." Ex parte Russell, 911 So. 2d 719, 725 (Ala. Civ.

App. 2005). Therefore, given the arguments and factual assertions of the

parties' attorneys regarding whether the mother spoke Spanish

7 CL-2023-0102

sufficiently well to understand and communicate effectively with the

court and with her attorney, the juvenile court commenced the final

hearing by receiving evidence on the issue of the mother's ability to

communicate in Spanish. Isis Fulgham, a state-certified interpreter of

the Spanish language, informed the juvenile court that she does not

speak Mam, the mother's primary language. Fulgham served as the

mother's interpreter during the final hearing. The juvenile court

questioned the mother regarding whether she understood the juvenile

court's and the attorneys' questions concerning her ability to understand

and communicate. In response, the mother stated that she speaks "a

little" Spanish. However, she stated that she had not had problems

communicating with the Spanish-language interpreters in this case and

that she was satisfied that she could continue to do so. The juvenile court

then questioned the mother about the basic facts of the case, such as the

identities and respective locations of the father and the child.

The juvenile court also received testimony from Claudia Medrano,

another Spanish-language interpreter who had worked with the mother.

Medrano stated that she had interpreted for the mother approximately

60 to 70 times, including interpreting so that the child could

8 CL-2023-0102

communicate with the mother during videoconferencing visitation;

evidence was later presented indicating that the child can no longer

communicate in Mam and that the mother and child needed an

interpreter to communicate. Medrano stated that she had been able to

adequately communicate in Spanish with the mother, had not had

difficulty enabling the mother to understand concepts, and that the

mother's ability to communicate in Spanish at the time of the hearing

was consistent with her ability to communicate at the time Medrano was

first assigned to this matter approximately one-and-a-half years before

the final hearing. According to Medrano, the mother asked for

clarifications only because of her education level. Medrano explained that

if she is interpreting and a person uses "big words, like college words,"

the mother often does not understand, and Medrano must provide a

definition of the word for the mother. When asked by DHR's attorney

whether "the difficulty [in communicating with the mother] is

[attributable] more [to] an education level, not language," Medrano

answered in the affirmative.

Based on the foregoing evidence, the juvenile court overruled the

objections raised by the mother's attorney, explaining:

9 CL-2023-0102

"It appears to me that [the mother] is able to adequately communicate. The mother has been involved in prior hearings in this case, and this case has been going on for a while with her participating both in court and out of court. And even in the process of trying to set up the virtual [videoconferencing- application] links this morning, it appears that she has been able to understand, and we were actually able to walk her through logging in to Zoom [(a videoconferencing application)], which apparently was new for her. And although we were not able to use that means because of other technical difficulties, it appeared that we were able to adequately communicate. So, we will proceed forward."

After that decision, the mother's attorney asked permission, which

was granted, to explain to the mother that if she did not understand

something at any point during the hearing, she could ask questions. The

juvenile court also instructed the mother that "[i]f at any time you need

to speak to [the mother's attorney] privately, if you will, let us know that

as well." Those instructions, as well as the remainder of the testimony,

arguments, and comments during the hearing, were interpreted for the

mother by Fulgham.

During the final hearing, the mother provided testimony and

answered questions from her attorney, DHR's attorney, the child's

guardian ad litem and the juvenile-court judge regarding the merits of

DHR's termination-of-parental-rights petition. Later, during the hearing

on DHR's Rule 60(b) motion, Fulgham testified that she believed that the

10 CL-2023-0102

mother had understood and communicated effectively in Spanish during

the final hearing. Fulgham further stated there had been no point during

the final hearing in which she thought that the mother had not

comprehended what was being asked or said during that hearing.

With regard to the merits of DHR's petition seeking to terminate

the mother's parental rights, the record reveals the following facts. 3 The

mother and the father are married and have three children. The child,

who was nine years old at the time of the final hearing, is the parents'

oldest child. The two younger children, who were seven and three years

old, respectively, live in Guatemala with the mother. The mother testified

that in 2018, the father and the child traveled through "the desert" to

reach the United States. The initial immigration status of the father and

the child was not clear, but at the time of the final hearing, the father

was incarcerated by the Immigration and Customs Enforcement agency,

and he faced deportation to Guatemala. The record indicates that, at the

3The father has not appealed the judgment terminating his parental rights. Accordingly, we set forth evidence pertaining to the father only as it might impact the resolution of the issues raised in the mother's appeal. 11 CL-2023-0102

time of the final hearing, the child was an undocumented foreign

national.

Three officers from the Opelika Police Department testified

regarding incidents in which the father was arrested. That evidence

indicates that the father was arrested for driving under the influence on

September 14, 2019; that incident resulted in the child being placed in

DHR's custody. The father was also arrested for driving under the

influence on February 18, 2021. On November 22, 2022, the father was

arrested on an outstanding failure-to-appear warrant after a routine

traffic stop. The record does not indicate whether those arrests formed

the basis for DHR's decision in August 2022 to change its permanency

plan for the child from a return to the father's custody to a return to the

custody of the mother.

Samantha Colyer, the DHR social worker assigned to the child's

case in August 2020, testified that after a review hearing conducted on

September 2, 2020, DHR began attempting to identify means by which

the child could be returned to the mother's custody in Guatemala. It is

undisputed that the mother was not capable of traveling to Alabama from

Guatemala to retrieve the child; Colyer cited both financial reasons and

12 CL-2023-0102

the mother's lack of a visa as reasons the mother could not travel to

Alabama. Therefore, DHR asked that the mother submit to a home study.

Also at that time, DHR arranged videoconferencing visits between the

mother and the child to occur every two weeks. As has been already

mentioned, Medrano served as an interpreter for the mother and the

child during those videoconferencing visits.

Three attempts were made to obtain a home study on the mother's

home. Colyer testified that a CASA worker arranged the first home

study, which was to be conducted by a Guatemalan social-services agency

and was scheduled to occur in December 2020. The mother did not appear

for that initial home study. Latasha Durr, a CASA worker, testified that

her agency arranged another home study in 2021 through the

Guatemalan embassy in Atlanta, Georgia; she stated that embassy

personnel had been instrumental in attempting to have the home study

performed. The home-study report from the child-services agency in

Guatemala revealed that the Guatemalan social workers discovered that

the mother did not live in the house she sought to have evaluated;

instead, that home belonged to other people who were not related to the

mother. In her testimony, the mother admitted that she had sought to

13 CL-2023-0102

have a house that was not hers evaluated. Medrano testified that, after

that second home study, she verified that the mother had the telephone

number of the Guatemalan embassy so that the mother could arrange for

a home study to be conducted on the home in which the mother was

actually living. 4

In response to a question whether a third attempt had been made

to conduct a home study, Durr testified that in 2022, the Guatemalan

social-services agency had interviewed the mother in its offices but that

no attempt at traveling to and evaluating the mother's home was made.

Durr stated that she did not know why the third attempt at visiting the

mother's home had not been completed. At the time of the final hearing,

there was no home study that approved the placement of the child in the

mother's home. Britt-nae Dowdell, another DHR social worker, stated

that DHR could not approve placing the child in the mother's custody in

the absence of an approved home study.

4We note that Durr also provided testimony that she had worked on

a case in the past in which a child in DHR's custody had been returned to Guatemala. She explained that, in that case, the Guatemalan social- services agency had approved the home study for the mother of that child and that the Guatemalan embassy had provided an escort to accompany that child in his or her travels from the United States to Guatemala.

14 CL-2023-0102

At the time of the final hearing, the mother testified that she was

living with her two younger children in the paternal grandparents' home.

However, Medrano testified that during a teleconferencing visit with the

child that occurred approximately one month before the final hearing, the

mother had showed the child images of a home that, the mother said, she

was constructing for the family. Medrano stated that, during the

videoconferencing visit that occurred in the week before the final hearing,

the mother stated that she had been living in that still uncompleted

home. In describing that home, Medrano stated: "it wasn't a house. It was

basically, like, a box made out of blocks with no windows, you know, no

doors and basically just a little bit -- some dishes and a curtain and a

radio, you know, a few things." Medrano also said that there were no beds

in the home. From statements made by the attorneys during arguments

before the juvenile court and during the questioning of witnesses, it

appears that the mother's home had dirt floors.

Medrano testified that the alternating weekly videoconferencing

visits between the mother and the child, in which she served as an

interpreter, were brief and typically lasted only 10 to 15 minutes. She

said that during her conversations with the child, the mother often

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repeated the same questions. According to Medrano, the child was often

not interested in the conversations with the mother and would terminate

the videoconference call. Medrano testified that although the child could

sometimes see her younger siblings in the background during the

videoconference calls with the mother, she and her siblings never spoke

to each other. Medrano also stated that the mother would sometimes ask

the child inappropriate questions and that she would have to redirect the

conversation to appropriate topics. Dowdell, a DHR social worker, also

testified about that nature and brevity of the mother's videoconference

visits with the child; she said that the child would often respond to the

mother by saying only "yes" or "no."

The mother testified that when the father traveled with the child

to the United States, the father had planned to purchase land in the

United States. She said that she did not know whether the family's plan

had been for the entire family to relocate to the United States or to

resume living together in Guatemala. However, she said, at the time of

the final hearing, she wanted the child return to Guatemala to live with

her. When asked how she planned to have the child return to her home

in Guatemala, the mother responded that she did not know. She then

16 CL-2023-0102

stated that she needed assistance from the juvenile court in paying for

the child to return to Guatemala and to purchase clothes and other

supplies for the child. The mother stated that, upon the child's return,

she would "get a new house" in which the family could live. The mother

also said that, if the child returned to Guatemala, she intended to ask the

father to purchase clothes, a television, and other items that the child

might need.

At the time of the final hearing, the mother said that she and the

two younger children were living in the paternal grandparents' three-

bedroom home with seven other family members. She stated that that

home has access to clean water. The mother denied that the father had

sent her money or financial support from the United States. However,

Dowdell testified that the mother had reported to her that the father had

sent money to her on a monthly basis while he has been in the United

States. The mother said that she supports herself and the parents' two

younger children through her jobs; she cuts coffee beans and works as a

household cleaner. The mother also stated that the father's father ("the

paternal grandfather") gave her money toward her support. On cross-

examination on the issue of how she financially supports herself and her

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children, the mother conceded that the paternal grandfather had died in

June 2022, more than six months before the final hearing.

The child has been in the same foster home since she was placed in

foster care in August 2019. Durr acknowledged that previous CASA

workers had recommended that the child be returned to the custody of

either the father or the mother. However, at the final hearing, Durr

recommended that the parents' parental rights be terminated so that the

child could be adopted by her foster parents. As bases for her

recommendation, Durr cited the length of time that the child had been in

foster care, the fact that no favorable home study had been completed in

the two-and-a-half years that DHR had attempted to reunite the mother

and the child, and the fact that the mother had lied about where she lived

during the 2021 attempt at obtaining a home study. According to Durr,

the child also repeatedly expressed that she wants to stay in the foster

parents' home, where, according to Durr, she is happy and thriving.

Dowdell testified that the child wanted to stay in the United States, that

the child was happy with the foster parents, and that she wanted to be

adopted by the foster parents.

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The mother acknowledged that the child no longer speaks Mam and

that the two must communicate through an interpreter. She also

admitted that the child does not want to return to Guatemala. However,

the mother said, the child is her only daughter, and she loves and misses

the child.

After the first day of testimony, the juvenile court conducted

another brief hearing at which it received ore tenus evidence on the issue

of the impact on the child's immigration status with regard to various

rulings the juvenile court might make on DHR's termination-of-parental-

rights petition. Rebecca Salmon, the executive director of the Access to

Law Foundation, testified that in order to begin the process for the child

to obtain legal status within the United States, the juvenile a court must

enter an order awarding permanent custody of the child to DHR or to

another custodian. Salmon explained that the length of the process for a

child to obtain legal status and/or citizenship in the United States is

impacted by the foreign national's home country. In this case, she said,

within approximately six months to one year after a permanent custody

award, the child could obtain documentation allowing the child to apply

for residency within the United States and for a social security number.

19 CL-2023-0102

The residency requirement for Guatemalan foreign nationals was

approximately five years at the time of the final hearing. Salmon

explained that, if the child had that residency status after five years and

had been adopted by the foster parents before she reached the age of 16,

the child would automatically become a United States citizen. However,

if the child were not adopted and remained in the permanent custody of

DHR or the foster parents, the child would remain under that initial

residency status and would have to apply for lawful residency status,

often referred to as a "green card," on her own after she reached the age

of majority.

Salmon also testified regarding the medical benefits to which the

child might be entitled in the United States. Salmon explained that, even

under the pendente lite custody order, DHR could have sought Medicaid

coverage for the child that would cover catastrophic injuries or

conditions. However, she explained, within approximately eight months

or one year of a permanent custody order, the child could obtain full

benefits under Medicaid. Neither party discussed whether any health-

insurance coverage might be provided through the foster parents if the

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parents' parental rights were terminated and the foster parents adopted

The child's foster mother testified that the child is thriving in the

foster parents' home, where the child had resided since June 2019. The

foster mother stated that she and her family love the child, that the child

loves them, and that she considers the child to be a part of the family.

The foster parents want to adopt the child. The foster mother testified

that the foster parents would be willing to continue having the child in

their home in foster care if the juvenile court did not terminate the

parents' parental rights, but she expressed concern that leaving the child

in foster care might impact the child's path to obtain citizenship in the

United States. She also said that, even if the juvenile court terminated

the parents' parental rights, she would allow the child to maintain

contact with the mother if the child wanted to do so.

Due-Process Issues

On appeal, the mother first argues that the juvenile court's

judgment terminating her parental rights was fundamentally unfair

because, she says, she received ineffective assistance of counsel. In the

first part of her argument that she received ineffective assistance of

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counsel, the mother contends that DHR failed to properly notify the

Guatemalan Consulate General pursuant to the requirements of the

Vienna Convention on Consular Relations and Optional Protocol on

Disputes ("the Convention"), opened for signature Apr. 24, 1963, 21

U.S.T. 77 (entered into force with respect to the U.S. Dec. 24, 1969).

Article 37 of the Convention addresses information state authorities

must provide to a foreign national's embassy "in cases of deaths,

guardianship or trusteeship, wrecks and air accidents." See also In re

Adoption of Peggy, 436 Mass. 690, 700, 767 N.E.2d 29, 38 n.12 (2002)

(Noting that the Convention imposes a duty to notify the "appropriate

consular post of any case involving appointment of guardian for minor

who is 'a national of the sending State.' ") (quoting Article 37 of the

Convention).

The mother raises her argument that DHR failed to comply with

Article 37 of the Convention for the first time on appeal. Recently, this

court reversed A.B. v. A.A., 334 So. 3d 223 (Ala. Civ. App. 2021), in which

this court had held that because a lack of due process can render a

judgment void, an argument concerning due process could be raised for

the first time on appeal. This court explained:

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"We note, though, that the holding in A.B. [v. A.A., 334 So. 3d 223 (Ala. Civ. App. 2021),] is contrary to well- established precedents from this court and from our supreme court. In Yeager v. Lucy, 998 So. 2d 460, 463 (Ala. 2008), our supreme court held that an appellant's argument that 'the trial court violated Art. I, § 10 of the Constitution of Alabama 1901, which provides "[t]hat no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party " ' was not preserved for review. The supreme court explained:

" ' "The rule is well settled that a constitutional issue must be raised at the trial level and that the trial court must be given an opportunity to rule on the issue, or some objection must be made to the failure of the court to issue a ruling, in order to properly preserve that issue for appellate review. This Court succinctly stated this rule as follows:

" ' " 'In order for an appellate court to review a constitutional issue, that issue must have been raised by the appellant and presented to and reviewed by the trial court. Additionally, in order to challenge the constitutionality of a statute, an appellant must identify and make specific arguments regarding what specific rights it claims have been violated. '

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" ' "Alabama Power Co. v. Turner, 575 So. 2d 551 (Ala. 1991) (citations omitted)."

" 'Cooley v. Knapp, 607 So. 2d 146, 148 (Ala. 1992).'

"Yeager, 998 So. 2d at 463. Additionally, in Elliott Law Group, P.A. v. Five Star Credit Union, 297 So. 3d 1148, 1153 n.6 (Ala. 2019) (Per Mitchell, J., with Sellers and Stewart, JJ., concurring), it was held that, because the appellants failed to raise the issue of due process with the trial court, that issue was waived.

"In C.F. v. State Department of Human Resources, 218 So. 3d 1246, 1248 (Ala. Civ. App. 2016), C.F. argued to this court that the juvenile court's denial of her motion for a continuance violated her due-process rights. This court noted, though, that the due-process argument had not been raised to the trial court. Quoting Smith v. State Department of Pensions & Security, 340 So. 2d 34, 37 (Ala. Civ. App. 1976), this court explained: ' " 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." ' C.F., 218 So. 3d at 1248. Therefore, we did not address C.F.'s due-process argument. Multiple other opinions from this court similarly hold that issues of due process must be preserved for appellate review. See, e.g., Docen v. Docen, 294 So. 3d 767, 770 (Ala. Civ. App. 2019); Smith v. Smith, 196 So. 3d 1191, 1198 (Ala. Civ. App. 2015); A.F. v. Madison Cnty. Dep't of Hum. Res., 58 So. 3d 205, 213 (Ala. Civ. App. 2010); and Wu v. Wu, 37 So. 3d 792, 796-97 (Ala. Civ. App. 2009).

"We also note that our supreme court has recently recognized that a party may attack, as void, a judgment that was entered in a manner that is inconsistent with due process by filing with the trial court a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P. See Crowder v. Blevins, [Ms. SC-2023- 0445, Mar. 22, 2024] ___ So. 3d ___, ___ (Ala. 2024). Therefore,

24 CL-2023-0102

a party has a procedural vehicle through which to challenge, in the first instance, a denial of due process in the trial court.

"We conclude that the precedents requiring preservation of issues of due process are well-established and well-reasoned, and the inconsistent reasoning set forth in A.B. was incorrect. Therefore, to the extent that A.B. holds that an appellant is not required to preserve a due-process argument for appellate review, A.B. is hereby expressly overruled. We unequivocally hold, in accordance with the other well- established precedents, that issues of due process must be first presented to a trial court to be preserved for appellate review."

J.M.L. v. Tuscaloosa Cnty. Dep't of Hum. Res., [Ms. CL-2023-0765, Apr.

26, 2024] ___ So. 3d ___, ____ (Ala. Civ. App. 2024).

The mother did not argue before the juvenile court that DHR's

purported failure to comply with the Convention was error or that it

violated her due-process rights. She may not raise that argument for the

first time on appeal. J.M.L. v. Tuscaloosa Cnty. Dep't of Hum. Res.,

supra. Accordingly, we do not address that argument.

The mother next contends that the juvenile court's judgment should

be reversed because, she says, she did not receive effective assistance of

counsel in the juvenile court. This court has explained that a parent's

right to his or her child is fundamental and is protected by the due-

process protections set forth in the Fourteenth Amendment to the United

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States Constitution. Crews v. Houston Cnty. Dep't of Pensions & Sec.,

358 So. 2d 451, 454-55 (Ala. Civ. App. 1978).

" 'Our Supreme Court has noted that in termination-of- parental-rights cases, "a parent has a right to appointed counsel." ' D.A. v. Calhoun County Dep't of Human Res., 976 So. 2d 502, 505 (Ala. Civ. App. 2007) (quoting Ex parte E.D., 777 So. 2d 113, 115 (Ala. 2000)). 'Inherent in that right to legal representation is the right to effective assistance of counsel.' D.A. v. Calhoun Count[y] Dep't of Human Res., 976 So. 2d at 505."

A.S.H. v. State Dep't of Hum. Res., 991 So. 2d 755, 757 (Ala. Civ. App.

2008).

The mother argues that the termination-of-parental-rights action

was fundamentally unfair because, she says, a language barrier

prevented her from communicating adequately with her attorney in the

juvenile court. As mentioned earlier, the attorney who represented the

mother was appointed in late August 2022. There is no argument that

the mother's previous attorney had been unable to effectively

communicate with the mother during the underlying dependency action

or in the first five months that the termination-of-parental-rights action

was pending. Regardless, as a part of her argument on this issue, the

mother points out that the juvenile court was required to appoint an

26 CL-2023-0102

interpreter to assist her in communicating with the court and her

attorney.

"(a)(1) If at any stage of a criminal proceeding, protection from abuse proceeding, or juvenile court proceeding or during the juvenile court intake process conducted pursuant to Sections 12-15-118 and 12-15-120[, Ala. Code 1975,] and Rule 12 of the Alabama Rules of Juvenile Procedure, the defendant, juvenile, complainant, petitioner, or a witness informs the court that he or she does not speak or adequately understand the English language, the court may appoint an interpreter.

"(2) The defendant, juvenile, complainant, petitioner, or witness shall inform the appropriate court of his or her need for an interpreter immediately upon receiving notice to appear in the court.

"(3) If the court determines that due process considerations require an interpreter, the court shall appoint a qualified person to interpret the proceedings for the defendant, juvenile, complainant, petitioner, or witness requesting assistance. The interpreter shall also interpret the testimony or statements of the defendant, juvenile, complainant, petitioner, or witness, and, where applicable, assist in communications with counsel.

"(4) If the court has reason to believe that the defendant, juvenile, complainant, petitioner, or witness requesting an interpreter is capable of speaking and understanding the English language, the court may require that the requestor provide reasonable proof to the court of his or her inability to speak or understand the English language."

27 CL-2023-0102

§ 15-1-3(a), Ala. Code 1975.5

The juvenile court appointed two Spanish-language interpreters for

the mother to assist her during court proceedings and in her contacts

with the child. In addition, one of the CASA workers also spoke Spanish

and appears to have been the interpreter for the mother and her attorney

when they spoke during the week before the final hearing. The mother

contends on appeal that she did not comprehend or speak Spanish

sufficiently well that she could effectively communicate with her

attorney, even with the assistance of the Spanish-language interpreters.

The mother argues that in order to comply with § 15-1-3(a), the juvenile

court was required to locate and obtain for her an interpreter who spoke

Mam, her primary language, and that its failure to do so rendered the

assistance provided by her attorney ineffective.

"The United States Court of Appeals for the Eleventh Circuit has held:

5Section 15-1-3, Ala. Code 1975, is a part of a title governing criminal procedure. However, § 15-1-3 states that it applies to a "juvenile court proceeding." In V.G.J. v. Tuscaloosa County Department of Human Resources, 368 So. 3d 886, 889 (Ala. Civ. App. 2022), this court applied § 15-1-3 in the context of a termination-of-parental-rights appeal. Neither party has argued that § 15-1-3 does not govern the appointment of an interpreter in this matter, and, therefore, we do not address that issue. 28 CL-2023-0102

" 'As a constitutional matter, the appointment of an interpreter is within the trial court's discretion. Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989); see also Perovich v. United States, 205 U.S. 86, 91, 27 S. Ct. 456, 51 L. Ed. 722 (1907) .... The basic inquiry is whether the failure to provide an interpreter made the trial fundamentally unfair. [United States v.] Edouard, 485 F.3d [1324,] 1337 [(11th Cir. 2007)]; Valladares, 871 F.2d at 1566.'

"Jimenez v. Secretary, Florida Dep't of Corr., 450 F. App'x 826, 828 (11th Cir. 2012); see also United States v. Tapia, 631 F.2d 1207, 1210 (5th Cir. 1980) ('If the Court below determines, after a hearing, that [the] defendant ... was inhibited from such comprehension of the proceedings or the testimony given against him in English to such an extent as to have made the trial fundamentally unfair, [it] should grant him a new trial.'). Consistent with that standard, this court has recognized that, when determining whether an indigent party has received effective assistance of appointed counsel in juvenile-court proceedings, 'the test ... is whether an examination of the entire record demonstrates that the complaining party was afforded a fair trial.' Crews v. Houston Cnty. Dep't of Pensions & Sec., 358 So. 2d at [451,] 455 [(Ala. Civ. App. 1978).]"

V.G.J. v. Tuscaloosa Cnty. Dep't of Hum. Res., 368 So. 3d 886, 891 (Ala.

Civ. App. 2022). This court has further explained with regard to the "fair

trial" such as that referenced in V.G.J., supra, that

"procedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the

29 CL-2023-0102

opposition's claims; and representation by counsel if it is desired."

Crews v. Houston Cnty. Dep't of Pensions & Sec., 358 So. 2d at 455.

The record demonstrates that although the juvenile court

attempted to obtain an interpreter who spoke Mam, it was unable to

locate any interpreter who spoke that language. However, the record also

indicates that the mother spoke at least some Spanish, and, therefore,

the juvenile court appointed the Spanish-language interpreters for the

mother. In addition, one of the CASA workers also spoke Spanish and

interpreted for the mother when she spoke with her attorney before the

final hearing. The juvenile court also received ore tenus evidence on the

issue of the mother's ability to communicate in Spanish.

In its February 10, 2023, final judgment, the juvenile court found,

in pertinent part, that "it was clear that the interpreter was able to

communicate effectively with the mother." In its October 10, 2023,

judgment denying DHR's Rule 60(b) motion, the juvenile court

specifically determined: 6

6Although no appeal was taken from the October 10, 2023, judgment denying DHR's motion made pursuant to Rule 60(b), Ala. R. Civ. P., that judgment is included in a supplement to the record on appeal in this matter. 30 CL-2023-0102

"The court observed the mother's interaction with the court through the interpreter and was -- and is -- convinced that the mother was able to adequately communicate with English-speaking persons through a Spanish-language interpreter. Furthermore, the Spanish-language interpreter did not indicate any problem communicating with the mother. It is this court's finding that the mother was able to communicate as well as any person of her ability and circumstances would be. (The circumstances were difficult, as the mother participated virtually on her telephone, and she chose to do other things while the hearing was going on …. Furthermore, this court has looked to a Mam-to-English interpreter in the past and has been unable to find one.

"It appears that this is a very different situation than the one is V.G.J. v. Tuscaloosa County Department of Human Resources, 368 So. 3d 886 (Ala. Civ. App. 2022), as in this case, the mother showed that she was able to communicate through a Spanish-language interpreter. The mother had a Spanish interpreter both at trial and in preparation for trial. Although the mother did intimate that she spoke 'a little Spanish,' the evidence made it clear, and the court found, that the mother in this case is fluent in spoken Spanish. Having another termination-of-parental-rights trial with a different interpreter would do nothing other than delay permanency for the child without any valid reason for doing so."

Thus, the juvenile court concluded, in essence, that the performance of

the mother's attorney had not been ineffective because of the purported

language barrier. The juvenile court determined that, although it could

not locate an interpreter in the mother's native language, the mother was

sufficiently fluent in Spanish to effectively communicate with the court

and her attorney.

31 CL-2023-0102

The juvenile court relied on ore tenus evidence and its own

observation of the mother and other witnesses in determining that the

mother was sufficiently fluent in Spanish that the use of Spanish-

language interpreters during the pendency of the termination-of-

parental-rights action and during the final hearing did not render the

proceedings so fundamentally unfair as to constitute a deprivation of her

due-process rights. Such a determination is within the discretion of the

juvenile court. See, generally, V.G.J., supra; see also United States v. Da

Silva, 725 F.2d 828, 831 (2d Cir. 1983) (holding that when a criminal

defendant's native language was Portuguese but the evidence established

that he also spoke Spanish and was provided a Spanish-language

interpreter, the trial court's finding that the defendant "was able to

communicate effectively in Spanish" could be "disregard[ed] only on a

showing of clear error"); Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim.

App. 2009) ("Therefore, the trial judge -- having the defendant in his

presence, observing his level of comprehension, and asking him

questions, has wide discretion in determining the adequacy of

interpretive services.").

32 CL-2023-0102

Moreover, nothing in the language of § 15-1-3 requires that an

interpreter who speaks the person's primary language be provided. In the

context of providing an interpreter in a criminal action, the Texas Court

of Appeals has recently explained:

"If a defendant cannot understand the proceedings, fundamental fairness and due process require that the court provide an interpreter. See Linton[ v. State], 275 S.W.3d [493,] 500 [(Tex. Crim. App. 2009)]. Whether an accused receives adequate interpretation is a matter within the trial court's discretion because it depends on 'a potpourri of factors.' Id. 'The question on appeal is not whether the "best" means of interpretive services were employed, but whether the services ... were constitutionally adequate such that the defendant could understand and participate in the proceedings.' Id."

Tolentino v. State, [No. 01-22-00442-CR, Apr. 23, 2024] ___ S.W.3d ___,

___ (Tex. App. 2024).

The record supports the juvenile court's findings that the mother

communicated sufficiently well in Spanish through her interpreters that

the juvenile court's inability to locate an interpreter fluent in her primary

language did not impair her ability to communicate with her attorney.

Moreover, the evidence also demonstrates that the mother understood

the termination-of-parental-rights proceedings. During the final hearing,

the mother was told that she could ask questions during the hearing if

33 CL-2023-0102

she did not understand something that was said. In addition, during the

final hearing, the juvenile court informed the mother that she could ask

her attorney questions or speak with him at any point.7 The record does

not indicate that the mother or her attorney ever asked for a pause in the

final hearing to consult each other. We cannot say that the mother has

demonstrated that, because of the interpreter services she received in the

juvenile court, she received ineffective assistance of counsel such that the

proceedings below were a violation of her due-process rights or were

fundamentally unfair. See State v. Lopez-Ramos, 913 N.W.2d 695, 709

(Minn. Ct. App. 2018) (rejecting a defendant's argument that the

appointment of a Spanish-language interpreter was insufficient because,

"while [the defendant's] first language is Mam, the video recording and

trial transcript show that he had a sufficient mastery of Spanish to

effectively communicate" using a Spanish-language interpreter).

Termination-of-Parental-Rights Issues

7The mother's attorney did not request or arrange for a method by

which he could communicate separately and in real time with the mother during the final hearing; such separate communication may be achieved through the videoconferencing application initially recommended by the juvenile court and similar to the one the mother elected to utilize during the final hearing. 34 CL-2023-0102

The mother also argues that the evidence does not support the

juvenile court's judgment terminating her parental rights. In an action

involving a claim seeking the termination of parental rights, a juvenile

court must apply a two-pronged test to determine whether to terminate

a parent's parental rights. Ex parte T.V., 971 So. 2d 1, 4 (Ala. 2007)

(citing Ex parte Beasley, 564 So. 3d 950, 945-55 (Ala. 1990)). This court

has often stated that that that two-pronged test requires that a juvenile

court determine whether a child is "dependent" and whether there are

viable alternatives to termination. See, e.g., B.M. v. State, 895 So. 2d 319,

331 (Ala. Civ. App. 2004). However, in the context of a termination-of-

parental-rights action, the use of the term "dependent" does not refer to

that term as defined under the Alabama Juvenile Justice Act, § 12-15-

101 et seq., Ala. Code 1975, in § 12-15-102(8), Ala. Code 1975. Instead,

"[i]n order for the juvenile court to make a finding that a child is

dependent in a case involving termination of parental rights, the juvenile

court must first determine by clear and convincing evidence that grounds

[under § 12-15-319(a), Ala. Code 1975,] for termination of parental rights

exist." Talladega Cnty. Dep't of Hum. Res. v. J.J., 187 So. 3d 705, 711

(Ala. Civ. App. 2015). See also Ex parte T.V., 971 So. 2d at 4 ("For a

35 CL-2023-0102

finding of dependency, the court must consider whether there are

grounds for terminating the parental rights, including but not limited to

the grounds specified in [former] § 26-18-7[, Ala. Code 1975, now § 12-15-

319, Ala. Code 1975].").

" 'Once the court has complied with this two-prong test -- that is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child -- it can order the termination of parental rights . ' "

Ex parte T.V., 971 So. 2d at 5 (quoting Ex parte Beasley, 564 So. 2d at

945-55). A judgment that orders the termination of a parent's 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. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.' "

L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002) (quoting § 6-11-

20(b)(4), Ala. Code 1975).

The mother argues that the juvenile court erred in determining that

the evidence supported a finding that there were grounds under § 12-15-

36 CL-2023-0102

319(a), Ala. Code 1975, for the termination of her parental rights. Section

12-15-319(a) provides, in part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. 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 parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following: …."

The mother points out that, in its termination-of-parental-rights

petition, DHR made allegations pertaining only to certain portions of §

12-15-319(a), and that the juvenile court did not refer to any of those

provisions in reaching its February 10, 2023, judgment. Specifically,

DHR alleged that the parents had failed to provide any financial support

for the child, see § 12-15-319(a)(9); that they had failed to maintain

regular visits with the child, see § 12-15-319(a)(10); that they had failed

to maintain consistent contact or communication with the child, see § 12-

15-319(a)(11); and that they had failed to adjust their circumstances to

meet the needs of the child, see § 12-15-319(a)(12). The mother contends

37 CL-2023-0102

that the evidence does not support the termination of the mother's rights

under any of the bases cited by DHR in its petition, and, therefore, she

argues that the juvenile court's judgment is not supported by the

evidence in the record on appeal.

The mother is correct that, in its February 10, 2023, judgment, the

juvenile court did not make any specific finding citing any of the grounds

listed in § 12-15-319(a). Instead, the juvenile court stated in that

judgment that "[t]he court finds that termination of parental rights is

substantiated in this case on multiple grounds and by clear and

convincing evidence, material and substantive in nature." The juvenile

court made many detailed findings concerning the facts of the case.

Although the juvenile court did not connect any of those specific factual

findings to the grounds set forth under § 12-15-319(a), this court may

presume that the juvenile court made those determinations necessary to

support its judgment and that are supported by the evidence. Ex parte

A.S., 73 So. 3d 1223, 1228 (Ala. 2011); D.M. v. Walker Cnty, Dep't of Hum.

Res., 919 So. 2d 1197, 1210 (Ala. Civ. App. 2005).

Although there was some evidence that the mother missed some

videoconferencing visits with the child, the evidence supports a

38 CL-2023-0102

conclusion that the mother's contact with the child was somewhat

consistent. Thus, we agree with the mother that the evidence would not

support the termination of her parental rights on the bases that she failed

to visit and that she failed to maintain consistent contact with the child.

We note, however, that nothing in the juvenile court's February 10, 2023,

judgment indicates that the juvenile court relied on those grounds in

reaching its decision.

The mother points out that the failure to financially support a child

should be considered in a termination-of-parental-rights action only

when the parent is capable of providing financial support; she contends

that she was unable to make any financial contribution to the child's

support. See § 12-15-319(a)(9). This court has stated that poverty alone

is not a sufficient basis for the termination of a parent's parental rights.

D.S.R. v. Lee Cnty. Dep't of Hum. Res., 348 So. 3d 1104, 1109 (Ala. Civ.

App. 2021) (citing C.B. v. State Dep't of Hum. Res., 782 So. 2d 781, 785

(Ala. Civ. App. 1998)). There is nothing in the record that indicates that

the mother was asked to contribute financially for the support of the child

or that the juvenile court considered that basis in reaching its judgment.

Further, while poverty cannot be the sole basis for terminating parental

39 CL-2023-0102

rights, as is discussed below, the juvenile court's judgment indicates that

the juvenile court relied on other grounds in terminating the mother's

parental rights.

Among other things, the juvenile court found in its February 10,

2023, judgment:

"The child is a native of Guatemala who was brought to the United States by the father without objection by the mother. … Neither the father nor the mother have made the necessary efforts to relieve [the child] of her dependency.

"The mother remains in Guatemala and has made little if any efforts to regain custody of the child. She has not seen the child in person in years and has made no efforts to support the child. There were extraordinary efforts to conduct a home study of the mother's home in Guatemala, but even that was undermined by the mother. It does not appear that she has a very strong bond with this child. Their conversations are reportedly not very involved and not very engaging. There is almost no engagement between [the child] and her siblings when electronic communications take place. The [mother and the child] do not understand each other very much, and as [the child] has gotten older, she has steered away from her native language to the extent that she now must have an interpreter to even speak with the mother.

"The court further notes that the mother's demeanor throughout these court hearing -- which obviously are of the highest importance -- where in the mother did not appear very interested in what was going on or being said in the proceedings. She often seemed distracted by other things and was doing such things as riding a bus, walking around, and speaking when off camera while the proceedings were doing on. Furthermore, it came to the court's attention that the

40 CL-2023-0102

mother was posting still shots of the proceedings on social media with comments and markups unbecoming of a court proceeding. The mother's overall demeanor and her manner of testimony indicated that she viewed this child as more of a possession to be held onto than a child to sacrifice for."

We note that this court must rely on the juvenile court's determinations

with regard to the demeanor and credibility of the mother during the

final hearing. See Ex parte Bryowsky, 676 So. 2d 1322, 1326 (Ala. 1996)

("The trial court is in the better position to evaluate the credibility of the

witnesses ... and the trial court is in the better position to consider all of

the evidence, as well as the many inferences that may be drawn from that

evidence ….").

In its final judgment, the juvenile court also determined that DHR

and the CASA workers had made "extraordinary" efforts to reunite the

mother and the child when, in addition to providing an interpreter for the

mother's visitations with the child, they arranged for three separate

home studies for the mother. None of those attempts resulted in an

approved home study, and in one, the mother attempted to mislead

Guatemalan social-services personnel and the juvenile court by having

the home study performed at another person's residence. The record does

not indicate that the mother had a suitable home at the time of the final

41 CL-2023-0102

hearing. During the week before the final hearing, the mother informed

the child and Medrano that she was living in a partially constructed

home. However, the mother testified that she was living with the

paternal grandparents at the time of the final hearing and that she

planned to relocate from that residence if the child were returned to her

custody. At the time of the final hearing, DHR had been working to

reunite the mother and the child for two-and-a-half years, and the mother

did not have a stable residence to which the child could return. Therefore,

the evidence supports a conclusion that the mother had not adjusted her

circumstances to meet the child's needs. See § 12-15-319(a)(12).

Moreover, the child was unable to communicate with the mother in

her native language and had not seen the mother in person for at least

four years. At the time of the final hearing, there was no feasible plan in

place that would allow the child to return to Guatemala. The child had

been in foster care for three-and-a-half years at the time of the final

hearing and had been in the same foster home for all that time. In its

judgment, the juvenile court also found that the child had formed a

significant and important emotional bond with her foster parents and

that it would not be in the child's best interests to sever that bond. See §

42 CL-2023-0102

12-15-319(a)(13); see also A.D. v. R.P., 345 So. 3d 657, 665 (Ala. Civ. App.

2021) (holding that an issue not alleged in a party's petition may be

considered by the juvenile court if that issue is tried by the implied

consent of the parties under Rule 15(b), Ala. R. Civ. P.); Herring v.

Madison Cnty. Dep't of Hum. Res., 279 So. 3d 1151, 1162 (Ala. Civ. App.

2018). We conclude that the evidence in the record and the findings in

the juvenile court's judgment support the conclusion that the mother was

either unwilling or unable to discharge her responsibilities to and for the

child and support the juvenile court's finding that the mother's

circumstances and condition were unlikely to change in the foreseeable

future. See § 12-15-319(a).

The mother last argues that the juvenile court erred in determining

that there were no viable alternatives to the termination of her parental

rights. See Ex parte T.V., 971 So. 2d at 5. The mother contends that

maintaining the "status quo" by leaving the child in DHR's custody in

foster care and allowing the mother to continue videoconference visits

with the child was a viable alternative to termination.

In general, leaving a child in foster care indefinitely is not a viable

alternative to termination because doing so does not provide the child

43 CL-2023-0102

with permanency. T.W. v. Calhoun Cnty. Dep't of Hum. Res., [Ms. CL-

2022-0694, June 2, 2023] ___ So. 3d ___, ___ (Ala. Civ. App. 2023); B.M.

v. Jefferson Cnty. Dep't of Hum. Res., 183 So. 3d 157, 161 (Ala. Civ. App.

2015). See also K.A.P. v. D.P., 11 So. 3d 812, 820 (Ala. Civ. App. 2008)

("[T]he appellate courts generally hold that maintaining an indefinite

custody arrangement with a third party is not in the best interests of the

child."). An exception to that general rule exists for situations in which

maintaining the status quo would allow the parent and child to maintain

a beneficial relationship and where the evidence demonstrates that

preserving that relationship would be in the child's best interests. S.N.W.

v. M.D.F.H., 127 So. 3d 1225, 1230 (Ala. Civ. App. 2013).

With regard to whether there was a viable alternative to

termination in this case, the juvenile court found that "given the overall

circumstances, including [the child's] immigration and medical-care

situation, being adopted by her foster parents is a far better option for

her than them just being custodians." It then stated that it had

considered and rejected all possible alternatives to termination as not

being viable. "The determination of whether a viable alternative to

termination of parental rights exists is a question of fact to be decided by

44 CL-2023-0102

the juvenile court." J.B. v. Cleburne Cnty. Dep't of Hum. Res., 991 So. 2d

273, 282 (Ala. Civ. App. 2008).

In the two-and-a-half years that DHR worked to reunite the mother

and the child, the mother did not obtain a favorable home study, and on

one occasion, she had Guatemalan social-service workers evaluate a

home in which she did not reside. Neither the mother nor DHR set forth

a plan pursuant to which the child might ever be reunited with the

mother.

Moreover, the juvenile court determined that the bond between the

mother and the child is not strong. The child has not seen the mother in

approximately four years, and she no longer speaks her primary

language and requires a translator to speak with the mother. The

interpreter's description of the conversations between the mother and the

child indicate that they are superficial and that the child often grows

bored and terminates the videoconference visit with the mother. Thus,

there is no evidence of a bond between the mother and the child that is

so beneficial to the child that preserving the relationship and leaving the

child in foster care indefinitely would be in the child's best interests.

45 CL-2023-0102

The child has been in foster care for three-and-a-half years, and in

that time, she has formed loving relationships with the members of her

foster family. The child's foster parents want to adopt her and provide

her permanency. The record also demonstrates that, if the child is

adopted, she has a years' long, but clear, path to obtaining United States

citizenship. However, if the child remains indefinitely in foster care, she

will leave foster care when she reaches the age of majority with only

residency status and without a green card. The juvenile court determined

that, under the facts of this case, it was not in the child's best interests

to be returned to Guatemala and her mother's custody. In an action

involving the possible termination of a parent's parental rights, "the

paramount consideration of the [juvenile] court, and of this court, is the

best interests of the children involved." A.R.E. v. E.S.W., 702 So. 2d 138,

140 (Ala. Civ. App. 1997). Given the facts of this case, we cannot say that

the mother has demonstrated that the juvenile court erred in

determining that there were no viable alternatives to the termination of

the mother's parental rights.

We affirm the juvenile court's February 10, 2023, judgment.

AFFIRMED.

46 CL-2023-0102

Moore, P.J., and Fridy and Lewis, JJ., concur.

Edwards, J., concurs in the result, without opinion.