T.M. v. K.M.G.

68 So. 3d 849
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 18, 2011
Docket2091135
StatusPublished
Cited by1 cases

This text of 68 So. 3d 849 (T.M. v. K.M.G.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T.M. v. K.M.G., 68 So. 3d 849 (Ala. Ct. App. 2011).

Opinion

PITTMAN, Judge.

T.M. (“the father”) appeals from a judgment terminating his parental rights as to T.L.M. (“the child”), who was born on October 23,1997.

This appeal has its genesis in a complaint filed by K.M.G. (“the mother”) to terminate the father’s parental rights. In that complaint, the mother asserted that the father had consistently failed to pay child support, that he had just completed serving a sentence for a child-abuse conviction, and that the child’s best interests would be served by terminating the father’s parental rights. The father and the mother were married on October 3, 1997; they separated on August 8, 1998. On October 19, 1999, the mother and the father were divorced by a judgment that incorporated an agreement of the parties. That judgment awarded primary physical custody and control of the child to the mother, awarded the father standard visitation, and ordered the father to pay monthly child support in the amount of $158.

In November 1999, the mother prosecuted a criminal nonsupport action against the father, who was subsequently convicted in February 2001; at that time, the father owed an arrearage of $1,900. The father subsequently spent time in jail for a theft conviction and then began visitation with the child again in 2003. In 2004, the father was charged with felony child abuse of the child of his paramour; he was convicted and served an additional prison term from November 2006 until January 2010. In 2009, several months before his release from prison, the father wrote the mother seeking visitation with the child, but the mother responded that the child did not want a relationship with him; she asked the father to voluntarily relinquish his parental rights. The father refused, and the mother thereafter brought the action from which this appeal arises.

The juvenile court conducted an ore ten-us proceeding on July 10, 2010; at that proceeding, the mother, the father, and the child’s paternal grandmother testified. On [851]*851August 16, 2010, the juvenile court terminated the father’s parental rights in a judgment containing detailed findings of fact; this timely appeal follows. In addition to asserting that the judgment does not comply with the either prong of the test set forth in Ex parte Beasley, 564 So.2d 950 (Ala.1990), the father also contends that the juvenile court erred in failing to appoint a guardian ad litem to represent the interests of the child.

Our standard of review of judgments terminating parental rights is well settled.

“A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is ‘required, to apply a presumption of correctness to the trial court’s finding[s]’ when the trial court bases its decision on conflicting ore tenus evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002) (emphasis added). Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007) (footnote omitted); see also R.S. v. R.G., 995 So.2d 893, 900 (Ala.Civ.App.2008). Of course, “a trial court’s ruling on a question of law carries no presumption of correctness on appeal.” Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008); see also Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005).

The father first asserts that the juvenile court erred in failing to appoint a guardian ad litem to represent the interests of the child. The father cites § 12-15-304, Ala.Code 1975, as authority for his contention. We note that the Alabama Legislature recently totally revised and reorganized the statutory provisions pertinent to juvenile proceedings with the passage of the Alabama Juvenile Justice Act, § 12-15-101 et seq, Ala.Code 1975 (“the Act”), which took effect on January 1, 2009. Article 3 of the Act extensively modified the provisions relating to dependency and termination-of-parental-rights actions. See § 12-15-301 through § 12-15-324.

The pertinent statutory provision referenced by the father states: “In all dependency and termination of parental rights proceedings, the juvenile court shall appoint a guardian ad litem for a child who is a party to the proceedings and whose primary responsibility shall be to protect the best interests of the child.” Ala.Code 1975, § 12-15-304(a) (emphasis added). That language replaced the former provision that read: “The court, at any stage of a proceeding under this chapter, may appoint a guardian ad litem for a child who is a party to the proceeding if he has no parent or guardian or custodian appearing on his behalf or their interests conflict with those of the child.” Ala. Code 1975, former § 12-15-8(a) (emphasis added). The plain language of the statute now in effect mandates what was previously a discretionary appointment of a guardian ad litem whenever a child is a party to a dependency or termination-of-parental-rights action, regardless of whether that child has a “parent or guardian or custodian appearing on his behalf.”

We note, however, that the record reveals that the father failed to object to the lack of an appointment of a guardian ad litem at trial and that he failed to raise that issue in a postjudgment motion. It is [852]*852well settled that an appellate court cannot reverse a judgment on the basis of an argument that was not first presented to the trial court. Blasdel v. Blasdel, 65 So.3d 428, 432 (Ala.Civ.App.2010) (citing Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992)); see also White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008) (quoting Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 285 (Ala.2005)) (“ ‘we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal’ ”). “[0]ur review is restricted to the evidence and arguments considered by the trial court.” Andrews, 612 So.2d at 410.

The father also contends that the test established in Ex parte Beasley, supra, was not satisfied at trial.

“Where, as here, the custodial parent petitions to terminate the parental rights of the noncustodial parent, the trial court’s analysis consists of two parts. [Ex parte Beasley,] 564 So.2d [950,] 954 [ (Ala.1990) ]. First, the trial court must determine whether grounds exist for terminating parental rights. 564 So.2d at 954. Grounds exist for terminating parental rights if the parent in question is ‘unable or unwilling to discharge [his] responsibilities to and for the child, or ... the conduct or condition of the parent[] is such as to render [him] unable to properly care for the child and ... such conduct or condition is unlikely to change in the foreseeable future.’ Ala.Code 1975, [former] § 26-18-7(a) [ (amended and renumbered as § 12-15-319(a)) ]....”

Ex parte J.E., 1 So.3d at 1006-07. In addition, a judgment terminating parental rights must be based on “clear and convincing evidence, competent, material, and relevant in nature.” Ala.Code 1975, § 12-15-319(a).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tm v. Kmg
68 So. 3d 849 (Court of Civil Appeals of Alabama, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
68 So. 3d 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tm-v-kmg-alacivapp-2011.