A.C.B. v. A.B.B.

374 So.3d 725

A.C.B.

v.A.B.B. and J.E.B.

A.C.B.

v.A.B.B. and J.E.B.

2210259 and 2210260

Court of Civil Appeals of Alabama.

October 21, 2022

Gerald O. Sills of Stubbs, Sills & Frye, P.C., Anniston, for appellant.

Alan H. Polson of McLure & Associates, Montgomery, for appellees.

Shirley A. Millwood, Alexandria, guardian ad litem.

THOMPSON, Presiding Judge.

In July 2021, A.B.B. ("the uncle") and J.E.B. ("the aunt") filed in the Cleburne Probate Court ("the probate court") petitions seeking to adopt their nieces, Z.S.B. and L.J.B. ("the children"). In their adoption petitions, the aunt and the uncle alleged that the children’s father, J.B. ("the father"), was deceased and that the children’s mother, A.C.B. ("the mother"), had impliedly consented to the adoptions by virtue of her abandonment of the children. See § 26-10A-9(a)(1) and (3), Ala. Code 1975.

The mother filed in the probate court an opposition to the adoption petitions and requested that the actions be transferred to the Cleburne Juvenile Court ("the juvenile court"). On September 20, 2021, the probate court entered orders transferring the adoption actions to the juvenile court, pursuant to § 12-12-35, Ala. Code 1975 ("Adoption proceedings, primarily cognizable before the probate court, may be transferred to the [juvenile] court on motion of a party to the proceeding in probate court.").

The juvenile court conducted a hearing at which it received ore tenus evidence over the course of two days. On November 29, 2021, the juvenile court entered orders finding that the mother had impliedly consented to the adoptions through her abandonment of the children and her failure to maintain a significant parental relationship with the children; in those orders, the juvenile court further concluded that adoption was in the best interests of the children. Also on November 29, 2021, the juvenile court entered orders in which it approved the adoption of each child by the aunt and the uncle. For ease of reference, we refer to the orders entered on November 29, 2021, collectively as "the November 29, 2021, judgments."

The mother filed a postjudgment motion addressing the November 29, 2021, judgments on December 10, 2021. On that same date, the mother filed notices of appeal. The mother’s appeals were held in abeyance pending the disposition of her postjudgment motion, which occurred when that motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; Rule 4(a)(5), Ala. R. App. P.; and Rule 1(B), Ala. R. Juv. P. The mother’s appeals became effective on December 27, 2022. See Rule 6(a), Ala. R. Civ. P.; see also Rule 4(a)(5), Ala. R. App. P.; A.P. v. Covington Cnty. Dep’t of Hum. Res., 293 So. 3d 892, 898 (Ala. Civ. App. 2019). This court consolidated the mother’s appeals.

The record indicates the following facts. Z.S.B. was born in 2006, and L.J.B. was born in 2010. The mother also has an older child who had reached the age of majority at the time of the trial of these actions. No information concerning that child is set forth in the record on appeal.

Following L.J.B.’s birth, the mother began using illegal drugs and, according to the aunt and the uncle, battled addiction. However, the mother stopped using illegal drugs at some point, and, although her addiction caused strain in her marriage, the mother remained married to the father. In 2015, the father was killed in a motor-vehicle accident.

In the fall of 2015, after the father’s death, the mother suffered a relapse into addiction, and she attended a substance-abuse-treatment program until approximately early 2016. During the time the mother attended that program, the children lived with their maternal grandparents, C.R. and P.R. ("the maternal grandparents"). The mother relapsed again in March 2017 and attended a seven-month-long substance-abuse-treatment program. The children again lived with the maternal grandparents while the mother was in that treatment program. According to the aunt, the children lived with the maternal grandparents during the remainder of the 20162017 school year but spent much of the summer of 2017 with the aunt and the uncle. The aunt testified that the mother did not communicate with the children during the time she was in the treatment program in 2017. The children returned to the mother’s home in August 2017, after she had completed the treatment program.

In January 2018, the Cleburne County Department of Human Resources ("DHR") investigated the mother, apparently based on a report of substance abuse, and it removed the children from her custody at that time. It appears that DHR filed separate dependency actions pertaining to the children, who were placed in the home of the maternal grandparents, apparently pursuant to a safety plan. C.R., the maternal grandmother, testified that, from January through March 2018, the mother came to her home several times each week to help the children with homework and to put them to bed. However, the maternal grandmother stated, "at some point, she was not doing that." The aunt testified that the mother was arrested on February 28, 2018, and that, in March 2018, the mother agreed, as a part of a plea agreement in the criminal case pending against her, to attend a substance-abuse-treatment program in Mississippi.

The aunt testified that the children resided with the maternal grandparents, who live in Heflin near the mother, from January 2018 through May 2018 but that the children spent the majority of their weekends during that time with the aunt and the uncle. The aunt and the uncle live in Villa Rica, Georgia. We take judicial notice that the aunt and the uncle’s home is approximately 40 miles from Heflin. The aunt also testified that, with the exception of a weeklong trip to the beach with the maternal grandparents, the children had resided in her home during the summer of 2018. The maternal grandmother disputed that testimony, stating that that the children had visited the aunt and the uncle for much of the summer of 2018 but that they "came home" in July, apparently at the time of the beach vacation.

The aunt testified that, at the maternal grandmother’s request, she returned the children to the maternal grandparents’ home on August 1, 2018, so that the children could prepare to begin the 2018-2019 school year. However, according to the aunt, after she took the children to the maternal grandparents’ home, the maternal grandparents asked the aunt and the uncle to meet them at the courthouse to "catch up" on "the case" involving the children. It appears from the record that dependency actions pertaining to the children and initiated by DHR were still pending in the juvenile court and that similar dependency actions filed by the aunt and the uncle also remained pending. The aunt testified that, when she and the uncle arrived at the courthouse, the maternal grandparents and their attorney asked the aunt and the uncle if they would take permanent custody of the children and that the maternal grandparents and/or their attorney represented to the aunt and the uncle that the juvenile court was willing to enter a judgment that same day that would award the aunt and the uncle custody of the children. The aunt stated that she and the uncle agreed to take permanent custody of the children and that the maternal grandparents "vouched" for them and their suitability to rear the children before the juvenile court.

The attorneys’ questions and the testimony of the parties and the witnesses indicate that, on August 1, 2018, the juvenile court entered judgments awarding the aunt and the uncle permanent custody of the children. The parties did not include copies of those judgments in the record on appeal. Regardless, it is undisputed that the children have lived with the aunt and the uncle since August 1, 2018. The record does contain November 17, 2018, judgments of the juvenile court, entered in response to petitions filed by the aunt and the uncle, finding the children dependent and awarding custody of the children to the aunt and the uncle. It is not clear from the record whether the aunt and the uncle’s dependency actions were pending before the August 1, 2018, hearing (and the entry of the August 1, 2018, judgments), or whether the August 1, 2018, judgments addressed only the dependency petitions filed by DHR.

The aunt testified that, between February 2018 and November 2018, the mother had almost no contact with the children and provided no support for them.¹ The aunt stated that the mother had telephoned the children only twice during that time, that both calls occurred in September 2018, and that the mother sounded as if she were under the influence of drugs or alcohol during both of those telephone calls. The aunt contradicted the maternal grandmother’s testimony that the mother had contacted the children from jail during the spring of 2018. The aunt testified that she had obtained, via a subpoena, recordings of the 110 telephone calls the mother had made from jail and that the mother spoke with the children in only 1 of those 110 calls. The rest of the telephone calls, according to the aunt, were to the mother’s parents and to men the mother knew.

The aunt testified that, during one of the two September 2018 telephone calls, she invited the mother to visit the children in person in October 2018. The mother agreed to that visit but then did not attend the scheduled visit. Later in October 2018, the mother was again arrested on drug-related charges and incarcerated. We note that the mother stated that that arrest occurred in September 2018. The aunt testified that, as a condition of the mother’s release from jail, the mother agreed to attend another substance-abuse-treatment program. In November 2018, on the day the mother left jail and was traveling to the treatment program, the aunt and uncle arranged for the children to visit the mother for approximately one hour.

It is undisputed that the mother left that treatment program in late November 2018 or...