M.E. v. Shelby County Dhr

972 So.2d 89

M.E. v. SHELBY COUNTY DEPARTMENT OF HUMAN RESOURCES.

2050806.

Court of Civil Appeals of Alabama.

May 4, 2007.

James v. Green, Jr., Alabaster, for appellant.

Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst. attys. gen., Department of Human Resources, for appellee.

MOORE, Judge.

This is a termination-of-parental-rights case. After an ore tenus proceeding held on December 7, 2005, the Shelby County Juvenile Court entered a judgment on April 19, 2006, terminating the parental rights of M.E. ("the mother") and S.E. ("the father") to Sh.E. and Ma.E. ("the children"). The mother moved to alter, amend, or vacate the judgment. After the trial court denied the postjudgment motion, the mother timely appealed. The mother argues that the State failed to present clear and convincing evidence justifying termination of her parental rights.

Standard of Review

In cases in which the State petitions for termination of parental rights, the State has the burden of showing that the parent is not capable or is unwilling to discharge his or her parental responsibilities and that there are no viable alternatives to terminating parental rights. Ex parte T.V., 971 So.2d 1, 4 (Ala.2007) (citing Ex parte Ogle, 516 So.2d 243, 247 (Ala. 1987), and K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003)). "In order to terminate parental rights, the trial court must find by clear and convincing evidence that the child is dependent and that an alternative less drastic than termination of parental rights is not available. Ala.Code 1975, §§ 12-15-65(e), 26-18-1 to 26-18-10; Ex parte Beasley, 564 So.2d 950, 952 (Ala. 1990)." Ex parte T.V., 971 So.2d at 4. "`"[C]lear and 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."'" Ex parte T.V., 971 So.2d at 9 (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002), in turn citing Ala.Code 1975, § 6-11-20(b)(4)).

When a trial court conducts ore tenus proceedings, its findings of fact will not be disturbed on appeal "`unless those findings are plainly and palpably wrong and not supported by the evidence.'" H.E.B. v. J.A.D., 909 So.2d 840, 842 (Ala. Civ.App.2005) (quoting Williams v. Lide, 628 So.2d 531, 534 (Ala.1993)). However, the ore tenus rule "`does not extend to cloak a trial judge's conclusions of law, or incorrect application of law to the facts.'" H.E.B., 909 So.2d at 842 (quoting Eubanks v. Hale, 752 So.2d 1113, 1144 (Ala.1999)). "`"The appellate courts do not sit in judgment of the facts, and [they] review the factfinder's determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law."'" Ex parte T.V., 971 So.2d at 9 (quoting Hinds v. Hinds, 887 So.2d 267, 272-73 n. 2 (Ala.Civ. App.2003), quoting in turn Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala.1985)).

Therefore, when a parent raises on appeal a question as to the sufficiency of the evidence supporting a termination of his or her parental rights, we are required to determine whether clear and convincing evidence supports the trial court's findings of fact. Ex parte T.V., 971 So.2d at 7. This inquiry mandates that the appellate court affirm the judgment if, after a "careful search of the record," Moore v. State Dep't of Pensions & Sec., 470 So.2d 1269, 1270 (Ala.Civ.App.1985), it finds clear and convincing evidence supporting findings of dependency and an absence of viable alternatives less drastic than termination of parental rights. Columbus v. DHR, 523 So.2d 419, 421 (Ala.Civ.App.1987); see also L.M., 840 So.2d at 179 ("Due to the serious nature of the action of terminating a parent's parental rights, this court must carefully review the unique set of facts established in each case in determining whether clear and convincing evidence was presented to support the termination of those rights."). If not, we are compelled to reverse. See P.H. v. Madison County Dep't of Human Res., 937 So.2d 525 (Ala.Civ. App.2006); and B.G. v. State Dep't of Human Res., 875 So.2d 305, 309 (Ala.Civ.App. 2003).

History and Background

The mother and the father met in November 2000, when the mother was 21 years old; a month later, they began living together. The mother quickly discovered that the father used an excessive amount of alcohol and medication not prescribed to him. She informed the father that she would leave him if he did not stop. After the father quit drinking and taking drugs, the two married in Ohio.

Within a few months, the mother and the father engaged in a physical altercation in which the mother cut her hand. A neighbor alerted the police; the father was arrested and jailed, but he was never convicted of any offense. The parties reconciled afterwards with a mutual agreement that they would not physically harm one another.

Shortly after that incident, the mother became pregnant with twins. In June 2001, the mother and the father had another episode of domestic violence in which the father "tackled" the mother. According to the mother, because of this incident, the mother began to hemorrhage and lost one of the twins. The police again arrested the father, but he was never convicted of any crime.

The mother and father separated for a brief amount of time, during which time the father was the subject of a "protection-from-abuse" order. However, the mother later reconciled with the father because, she stated, he had obtained counseling. The mother gave birth to Sh.E. on February 27, 2002, while the couple was reconciled.

After the birth of Sh.E., the mother testified, she discovered the father had resumed using illegal drugs and that he had been convicted of driving while impaired by marijuana. The mother also found drug paraphernalia, which, she said, indicated to her that the father was smoking crack cocaine. She also noted the father's erratic behavior, which suggested to her that he was again using drugs. Despite this evidence, the mother did not leave the father and she again became pregnant.

On February 1, 2003, the mother gave birth to Ma.E., who was born 13 weeks' premature. The father visited the mother in the hospital after the birth and pushed her while she was holding the newborn, causing security guards to escort the father from the hospital. Although the mother testified that she was concerned for the safety of her children, she and the children continued to live with the father in Kentucky after this incident.

In approximately April 2003, the mother and father engaged in another episode of domestic violence. As a result of an argument, the mother testified, the father dragged her through their home while the children were sleeping. She called the police and the father fled the house. The mother also contacted the London County Cabinet of Family Services (an agency in Kentucky equivalent to Alabama's Department of Human Resources) requesting protection and assistance.

The mother testified that she and the children moved out of the family residence after the April 2003 incident. According to the mother, she and the children lived on their own in Hazel Green, Kentucky, and the father moved in with his mother in Corbin, Kentucky. However, the mother and the father continued to talk because of the children. The mother also allowed the father weekend visitation with the children. The mother testified that, at times, she was concerned for the safety of her children because the father and his parents threatened to "kidnap" the children and the father would do things such as spit in her face. The mother testified that she had reported those threats and incidents to the police and that she had obtained a restraining order against the father.

The mother testified that after she obtained the restraining order, she decided to move on with her life. She began dating another man and she became pregnant by him. While she was pregnant, the father came to the home she shared with the children and physically assaulted her, causing her to miscarry the unborn child. Again, the father was not convicted of any crime for this assault described by the mother.

Despite the recurring incidents of domestic violence, the mother and father reconciled briefly at the end of 2003. As a result, the mother became pregnant with the father's child. She referred to this unborn child as "Evan." When the mother was 27 weeks pregnant with Evan, the father again assaulted the mother, which, according to the mother, caused her to miscarry the unborn child. The father was eventually convicted of domestic violence as a result of this attack. However, before his conviction, the mother continued to live with the father. She testified that she stayed with the father in order to raise enough money to leave him.

On March 23, 2004, the mother moved with the children to Montevallo, Alabama, to live with her great-aunt, C.D. The mother testified that she moved to Alabama to escape the recurring domestic violence perpetrated against her. However, the father came with the mother and the children. The mother testified that the father simply drove her and the children to Alabama because the couple owned only one car and that she had intended that the father would leave once she and the children had safely settled in her great-aunt's home.

Less than a month after arriving in Alabama, on April 19, 2004, the Shelby County Department of Human Resources ("DHR") received a Child Abuse and Neglect Report regarding the children that had been filed by Children's Services in Ohio. The report detailed the mother and father's extensive domestic-violence history, as well as the involvement of child-protective services in Ohio and Kentucky. DHR learned that the Adams County, Ohio, Children's Services had obtained...