Alabama Cases July 07, 2023: K.W. v. Lee Cnty. Dep't of Human Res.

Case Description

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Appeals from Lee Juvenile Court (JU-16-308.07)

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MOORE, JUDGE.

K.W. ("the mother") and C.M. ("the father") appeal from a judgment entered by the Lee Juvenile Court ("the juvenile court") terminating their parental rights to E.M. ("the child"). We affirm the judgment.

Background

The child was born out of wedlock on March 18, 2012. At first, the child resided with the mother and the father in Talladega County. The relationship between the mother and the father was plagued by domestic violence, substance abuse, mental-health issues, and criminal misconduct, and the child was removed from the family home in 2013. The mother separated from the father, and the child was returned to the custody of the mother in 2014. Over the next seven years, due primarily to the substance-abuse and mental-health problems of the mother, the child was removed from the custody of the mother and placed with relatives or foster parents on four other occasions. After each removal, the mother complied with rehabilitation efforts and convinced the childwelfare authorities that the child should be returned to her care. Each time the child was returned, the mother would act properly while under 2

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the supervision of child-welfare authorities, but, when that supervision ended, the mother would relapse, necessitating another removal of the child. Throughout most of this period, the father could not personally care for the child because he was incarcerated in a federal penitentiary in 2015 and was serving a 10-year sentence for possessing a firearm after having been convicted of multiple felonies.

In early 2021, the mother relapsed into methamphetamine use, lost her employment, lost her home, and began acting erratically. The mother temporarily moved with the child into a camper, which the child said lacked utilities and running water. The child claimed that, after the mother left her unattended in the camper, she had become overheated, dehydrated, and nauseated, which was confirmed by records from a local hospital where the child had obtained treatment. After the child was discharged from the hospital, the mother and the child resided in a series of hotel rooms. On July 26, 2021, law-enforcement officials received a report from a neighboring hotel guest that the mother was yelling at the child and possibly harming her. A social worker employed by the Lee County Department of Human Resources ("DHR") arrived on the scene,

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and, based on her observation that the mother appeared impaired, the social worker executed a summary removal of the child. At the time of the removal, the child denied that the mother had physically harmed her, but the child stated that she had hidden in the corner of the room to avoid the mother and that she had become afraid of the mother.

After the July 26, 2021, episode, the mother's mental health deteriorated, and she was committed to the psychiatric ward of a local hospital. After being discharged from the hospital, the mother committed a series of criminal acts, which resulted in her arrest and confinement in the Lee County Jail for 90 days on charges of disorderly conduct and public intoxication. Through a court-referral program, the mother again sought services to control her methamphetamine addiction and mentalhealth issues, but she violated the rules of one of the programs and was returned to jail. While incarcerated, the mother met with DHR representatives, who informed her that DHR planned to file a petition to terminate her parental rights so that the child could achieve permanency.

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On May 6, 2022, the mother was released from jail, and DHR filed a petition seeking to terminate the mother's parental rights. Upon her release from jail, the mother followed the same pattern that she had previously followed when she was faced with juvenile-court proceedings involving the custody of the child -- she entered and completed the Ready to Work Program, secured full-time employment, and obtained suitable, independent housing. She also began attending therapy and counseling for her substance abuse, and she enrolled in parenting classes. The mother produced a series of negative drug tests showing that she was not using controlled substances. Her mental health stabilized. By the time of the termination-of-parental-rights trial in early October 2022, the mother presented as a sober, stable, and reformed parent with a commitment toward properly raising the child. The mother testified that she wanted the child returned to her custody.

However, DHR presented evidence indicating that the child did not want to return to the care of the mother; instead, she expressed a preference to be adopted by her foster parents. B.Y., the longstanding court-appointed special advocate for the child ("the CASA volunteer"),

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testified that, before the July 26, 2021, episode, the child had had a strong, loving bond with the mother and that the child had consistently expressed a desire to reunite with the mother when they had been separated in the past. After the July 26, 2021, episode, the CASA volunteer testified that the bond between the mother and the child was "irreparably damaged." The child confided to the CASA volunteer that she no longer desired to be reunited with the mother like before, and that, if the juvenile court ordered her to reunite with the mother, she would run away rather than comply. The CASA volunteer testified that the child was having nightmares about the possibility of reuniting with the mother, and the child's foster mother testified that the child did not want to even visit with the mother due to the severe anxiety she was experiencing over her custody situation. The testimony of the CASA volunteer and the foster mother established that the child wanted to be adopted by the foster parents and that they were ready, willing, and able to be adoptive resources.

Over the course of a three-day trial in October 2022, DHR, through its witnesses and counsel, advocated for the juvenile court to "stop the

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cycle" that had plagued the life of the child by terminating the parental rights of the mother and the father so that the child could achieve stability and permanency through adoption by the foster parents. On the other hand, the mother, the father, and their counsel and witnesses urged the juvenile court to focus on the rehabilitation efforts and current circumstances of the mother, who, they said, could safely parent the child. On October 13, 2022, after a thorough consideration of the competing evidence, the juvenile court entered a judgment terminating the parental rights of the mother and the father. The mother and the father timely appealed to this court, which consolidated their appeals ex mero motu .

Issue

The mother and the father argue that the judgment should be reversed because the juvenile court did not receive sufficient evidence to warrant the termination of their parental rights.

Standard of Review

A judgment terminating parental rights must be supported by clear and convincing evidence, which is "'"[e]vidence that, when weighed

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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."'" C.O. v. Jefferson Cnty. Dep't of Hum. Res. , 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F. , 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).

"'[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'

" KGS Steel, [Inc. v. Mclnish ,] 47 So.3d [749,] 761 (Ala. Civ. App. 2006).

". [F]or trial courts ruling . in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden [,]' [Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986)]; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the

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claim and a high probability as to the correctness of the conclusion.' [Ala. Code 1975, § 25-5- 81(c).]"

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V. , 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B. , 68 So.3d 878, 879 (Ala. Civ. App. 2011).

Analysis

The Mother's Appeal

Grounds for Termination

Section 12-15-319(a), Ala. Code 1975, provides, in pertinent part:

"If the juvenile court finds ... that the parent[] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[|."

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In this case, the juvenile court expressly determined that the mother "has proven herself, by clear and convincing evidence, to be unwilling and/or unable to discharge her parental responsibilities," and the juvenile court found that the conduct or condition of the mother that had led to the removal of the child from her custody was "unlikely to change in the foreseeable future." The mother contends that the juvenile court erred in finding grounds for terminating her parental rights because, she says, she had been successfully rehabilitated by the time of trial.

The mother did present evidence designed to show that she was rehabilitated at the time of trial. A substance-abuse therapist from the Opelika Addiction Center ("OAC") testified that, after she had performed an assessment on the mother on January 7, 2022, the mother had undergone inpatient substance-abuse treatment in two accredited drugtreatment facilities and had received follow-up care through OAC, Alcoholics Anonymous, Narcotics Anonymous, and biblical counseling. The OAC therapist indicated that the mother had made "great progress" through her treatment and that she was no longer using illegal drugs, as evidenced by consistent negative drug-test results since August 2021.

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The OAC therapist also opined that the mother had no current mentalhealth issues. A pastor involved in the Ready to Work Program testified that the mother had been proactive in seeking assistance to overcome her problems and that she was doing well at the time of the trial. Other evidence showed that the mother had been steadily employed since being released from jail in the fall of 2021 and that she had been residing in a house that she had leased four months before trial.

The evidence presented by the mother was not undisputed, however. In her testimony, the OAC therapist described the five steps toward substance-abuse recovery, with the last two being the "action stage" and the "maintenance stage." During the action stage, the addict actively changes his or her lifestyle to reduce the likelihood of relapse. After that stage is completed, the addict must dedicate himself or herself to maintaining the lifestyle changes by using healthy coping skills to avoid returning to the negative behaviors or negative influences that will lead to relapse. According to the OAC therapist, at the time of trial, the mother was currently in the action stage, attending weekly counseling sessions and participating in a peer support group. The OAC therapist

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could not predict when the mother would achieve the goal of reaching the maintenance stage, and the OAC therapist had not established any time limit for the mother to complete the recovery program. That testimony indicated that the mother had not been fully rehabilitated with respect to her addiction to methamphetamine; instead, it indicated that the mother was only progressing toward a goal to lessen her chance of relapse.

The juvenile court considered the testimony of the OAC therapist in the context of the other evidence presented during the trial. The mother admitted in her substance-abuse assessment that she had been using methamphetamine on an almost daily basis since she was 19 years old, which would have been in 2012, the same year the child was born. DHR presented compelling evidence showing that, over the years, the mother would temporarily stop using drugs only when under DHR's supervision. By staying sober while being monitored, and complying with family-reunification services, the mother would convince her service providers and DHR social workers that she was able to resume care of the child. Once the mother regained custody of the child, and DHR

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supervision ended, the mother would almost immediately relapse into drug use and associated misconduct, necessitating the removal of the child and starting the cycle all over again.

The mother's pattern began in May 2013 when the child was removed by the Talladega County Department of Human Resources. After the mother completed substance-abuse treatment and met the other goals established for her, the child was returned to the mother in August 2014. The pattern reemerged on July 11, 2016, when DHR removed the child from the custody of the mother when the mother was having a manic episode after abusing methamphetamine and marijuana. The mother again successfully accomplished her rehabilitation goals and reclaimed custody of the child in April 2017. In March 2018, the mother experienced a drug-induced nervous breakdown, during which she locked herself and the child in a bathroom in the store where the mother worked and refused to leave. DHR removed the child. After the mother regained sobriety and achieved all other family-reunification goals, the CASA volunteer and DHR social workers, convinced that the mother had become "born again" and that she could maintain her sobriety, supported

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the mother's petition to regain custody of the child. In December 2019, the juvenile court granted the mother's petition but ordered DHR to continue to supervise the mother and the child. The CASA volunteer testified that she had regularly visited with the mother and the child and that she had reported that, throughout 2020, they seemed to be doing well. Based partly on those reports, the juvenile court relieved DHR from its supervisory role in December 2020. By February 2021, only two months later, the mother was again using methamphetamine and associating with other addicts.

In the termination-of-parental-rights judgment, the juvenile court summarized the competing evidence as follows:

"There is no real dispute that the mother has had a longterm struggle with addiction. There is no real dispute that she is doing better now than she was following her most recent relapse. There is no real question that she has a historical pattern of relapsing, and then improving when [the child] is removed, and then [re]gressing again when the child comes back into her life."

The juvenile court considered the key inquiry in the case to be "how much data the Court should look at from the past in order to make a decision about [the child's] future." At trial, the mother essentially argued that

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the juvenile court should discount that historical pattern and give more weight to the improvements she had made at the time of the trial. The juvenile court rejected that contention, stating in the judgment, in pertinent part:

"This Court finds that the proper lens [to be used in deciding the case] is the one that gives the most accurate indicator of foreseeable events. There is no doubt that this Court must consider [current circumstances] but it doesn't have to do so in a vacuum. ... The best evidence of a trend is not an individual data point but the curve that best fits all the data points."

The juvenile court did not err in its analysis.

Because statutory grounds for termination are phrased in present and future terms, a juvenile court may terminate parental rights only when convinced that the parent is currently unable or unwilling to discharge his or her parental duties properly, see D.O. v. Calhoun Cnty. Dep't of Hum. Res. , 859 So.2d 439, 444 (Ala. Civ. App. 2003), and that the conduct or condition of the parent will likely persist into the foreseeable future. See D.M. v. Walker Cnty. Dep't of Hum. Res., 919 So.2d 1197, 1211 (Ala. Civ. App. 2005). "'[T]he mere fact that, at one time, the parent may have committed conduct or suffered from a condition that

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rendered the parent unable to properly care for the child does not authorize a juvenile court to terminate parental rights.'" B.L. v. Elmore Cnty. Dep't of Hum. Res. , 324 So.3d 829, 839 (Ala. Civ. App. 2020) (quoting M.G. v. Etowah Cnty. Dep't of Hum. Res., 26 So.3d 436, 442 (Ala. Civ. App. 2009) (plurality opinion)). That does not mean, however, that past circumstances have no bearing on the determination of whether a parent can currently provide proper care for a child or continue to do so in the foreseeable future. Our caselaw clearly provides that a juvenile court may consider evidence of a parent's past conduct to assist the court in assessing and weighing the evidence regarding the parent's current condition and circumstances and in predicting whether his or her conduct or condition is likely to continue into the foreseeable future. See J.P. v. D.P. , 260 So.3d 862, 872 (Ala. Civ. App. 2018).

Evidence of past circumstances is especially relevant when a juvenile court considers terminating the parental rights of a parent with a substance-abuse problem. Section 12-15-319(a)(2) requires a juvenile court to consider "excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for the needs of

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the child." (Emphasis added.) The legislature recognized that a long history of excessive use of controlled substances may render a parent unable to care for the needs of a child. The legislature intended that a juvenile court consider evidence of the complete history of a parent who has a longstanding substance-abuse problem along with evidence of the parent's more recent circumstances in deciding whether the substanceabuse problem represents a continuing obstacle to a safe family reunification.

Moreover, as the OAC therapist testified in this case, "addiction is a disease that has periods of relapse and recovery." A parent may present as sober and stable at the time of trial, but that does not necessarily mean that the parent no longer has an addiction that would prevent the parent from meeting the needs of the child or that the parent will not be impaired from the addiction in the foreseeable future. Even in cases in which a juvenile court determines that a parent is presently sober, the juvenile court remains tasked with determining whether "relapse [is] so likely or imminent that the [parent] should [be] considered as having a current drug problem that interfere[s] with [his or] her ability to properly

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care for [his or her child]." M.G., 26 So.3d at 443. To make that factsensitive determination, the juvenile court should consider the history of relapse and recovery that is unique to the parent whose rights are subject to termination. See J.C. v. State Dep't of Hum. Res. , 986 So.2d 1172, 1195 (Ala. Civ. App. 2007) (holding that the juvenile court did not err in considering a parent's past conduct when "[t]he evidence showed that the mother had a history of abstaining from drugs for extended periods of time only to use drugs again months later").

Furthermore, "the question whether a parent has truly and completely rehabilitated so as to resume the custody of a child is a question of fact to be determined by the juvenile court." R.L.M.S. v. Etowah Cnty. Dep't of Hum. Res. , 37 So.3d 805, 811 (Ala. Civ. App. 2009).

" 'If the juvenile court is convinced from its observations that the parent acted shortly before the termination-of-parental-rights hearing so as to make it appear that he or she was addressing or had resolved identified obstacles to reunification but that, in reality, the barriers to reunification had only been temporarily removed or merely hidden, the juvenile court may conclude that grounds for termination still exist.'"

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R.L.M.S. , 37 So.3d at 811 (quoting J.W.M. v. Cleburne Cnty. Dep't of Hum. Res., 980 So.2d 432, 438-39 (Ala. Civ. App. 2007)). A juvenile court certainly can consider the history of a parent when assessing the likelihood that the parent has benefited from drug-rehabilitation services so as to be able to sustain his or her recovery into the foreseeable future or whether the parent has only temporarily controlled or hidden the addiction.

In this case, the mother asserted that she had recovered sufficiently to resume taking care of the child. DHR challenged the veracity of that claim by presenting evidence indicating that the mother had repeatedly made the same claim in earlier legal proceedings. The mother emphasizes the positive testimony of the OAC therapist supporting her claim, but DHR provided evidence indicating that the mother had, in the past, also convinced other professionals to support her claim. When questioned about whether that pattern would continue, the mother testified as follows:

"Q: As we sit here and [the child] has spent most of her life with DHR, why do you think this time is going to be different?

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"[The mother]: (No response.)"

The evidence presented by DHR filled that silence by showing that the current circumstances of the mother did not differ from those of the past, when the mother claimed to have beaten her addiction only to relapse. This case is readily distinguishable from other cases in which the petitioner "did not present any evidence ... regarding the depth of the [parent's] drug addiction or the extent of her recovery" or "introduce any reports or elicit any testimony from any witness indicating that the [parent's] current ... abstinence should not be considered a reliable indicator of her commitment to ending her drug problem altogether." M.G. , 26 So.3d at 443; see also S.U. v. Madison Cnty. Dep't of Hum. Res. , 91 So.3d 716, 721 (Ala. Civ. App. 2012) (plurality opinion).

In the judgment, the juvenile court thoroughly explained how it had weighed the evidence of the mother's past circumstances to reach a decision about the mother's current circumstances. The judgment provides, in pertinent part:

"Unfortunately, throughout [the child's] life, the mother's parenting has been like a descending sine wave of activity, where each trough is a time of neglect and trauma

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for [the child]. ... The best information is that, in this particular circumstance, upward movement is as much or more a predictor of a future fall as it is of sustained progress. Will the mother break the cycle this time? This Court hopes so but to find that would be speculative and would go against the clear and convincing evidence in this case. This Court is not willing to once again bet [the child's] life on mere speculation when it is contrary to the best evidence. This Court bet on the mother in previous iterations of this case and regrettably, [the child] has paid the price.

"The mother has been given multiple opportunities to prove herself rehabilitated and willing and able to discharge her parental responsibilities. And each time she is given opportunity to do that, she has reverted back to her old ways. This case arose out of her most recent regression back into a lifestyle of drug use. The fact that she has been able to get cleaned up and dressed for Court does not erase the underlying truth, nor does it erase the harm done to [the child]. One would not allow a child that had been run over by a car while playing in the highway with her parent to stay in the highway just because no cars are currently in view. What mother's counsel requests is the functional equivalent. We have enough information now to know that just because you are seeing taillights of one threat doesn't mean that more threats are not coming. The mother's road has proven to be an unnecessarily dangerous one and [the child] should not be returned to its dangers."

We conclude that the juvenile court did not err in determining that, despite her drug-rehabilitation efforts, the duration and nature of the mother's methamphetamine addiction rendered the mother unable to

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meet the needs of the child and that the mother was likely to relapse in the foreseeable future. We would add only that, even if the mother has truly recovered from her addiction, it is evident that her past conduct so alienated the child that she cannot meet the emotional needs of the child, who, the testimony reflects, prefers to remain estranged from the mother so that she can mature into an adult without further neglect and trauma.

The juvenile court determined that the circumstances existing at trial represented, at best, only another brief correction of the underlying drug addiction that had led the mother to commit numerous acts jeopardizing the safety, security, and emotional health of the child and that, despite her latest rehabilitation efforts, the mother's drug addiction persisted to such a degree that it prevented her from regaining custody of the child. We conclude that those determinations are supported by clear and convincing evidence and the fair inferences to be taken from that evidence. "Accordingly, we do not agree that the judgment terminating the mother's parental rights should be reversed due to the alleged failure of the juvenile court to consider the current conditions of the mother." R.L.M.S , 37 So.3d at 812.

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Reasonable Efforts

The mother next maintains that DHR failed to use reasonable efforts to rehabilitate her. Upon removing the child from the custody of the mother's home and placing the child in foster care, DHR generally has a duty to use reasonable efforts to reunite the family. See Ala. Code 1975, § 12-15-312. The mother complains that after the July 26, 2021, episode, DHR did nothing to assist the mother with rehabilitating her from her substance-abuse and mental-health problems and offered her only parenting classes.

The evidence shows that, immediately after the July 26, 2021, episode, the mother experienced a mental-health crisis that led to her commitment to a local hospital. Following her release from the hospital, the mother was reported to be missing by a relative. The mother testified that she had left town only briefly and that she had soon returned to the area. When she did return, however, she was arrested and jailed. DHR representatives first had the opportunity to work with the mother when she was in jail. DHR representatives conducted meetings with the mother when she was in jail and requested that she be screened for drug

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use while incarcerated. During a meeting between the mother, the CASA volunteer, and a DHR social worker, the mother acknowledged that DHR had done everything it could possibly do to help her with maintaining custody of the child. Nevertheless, after the mother was released from jail, DHR still referred her to parenting classes, which the mother attended and completed. In the meantime, DHR continued to monitor the progress the mother was making in her outpatient care through OAC, which was addressing the mother's substance-abuse and mental-health problems.

The law requires DHR to use reasonable efforts but not unlimited or even maximal efforts. P.H. v. Colbert Cnty. Dep't of Hum. Res. , 239 So.3d 1158, 1163 (Ala. Civ. App. 2016). What constitutes reasonable efforts is a fact-dependent inquiry, and there is no one set of efforts that is reasonable, and thus required, under all circumstances. The efforts required by DHR depend on the particular facts of the case, the statutory obligations regarding family reunification, and the best interests of the child. J.B. v. Jefferson Cnty. Dep't of Hum. Res. , 869 So.2d 475, 482 (Ala. Civ. App. 2003).

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In this case, the juvenile court determined that DHR "has made reasonable and consistent efforts to promote reunification between [the child] and [the mother]. However, reunification remains improper." The record indicates that, since 2016, DHR provided the mother multiple services designed to rehabilitate her and to reunite her with the child. Through court referral, the mother entered into at least two inpatient substance-abuse treatment programs in 2022. Upon her release from jail, the mother began receiving outpatient care through OAC and other providers. It was not unreasonable for DHR to decline to duplicate those services or to supplement them with only parenting classes.

The mother mainly faults DHR for not facilitating visitation between her and the child. DHR did attempt to arrange telephone communication between them, but the child refused to participate. As for in-person visitation, DHR did indicate at one point that it would allow supervised visitation between the mother and the child upon the mother's producing a negative drug screen, but DHR failed to follow through on that plan. However, the mother produced the negative drug screen in January 2022, just before she enrolled in an inpatient drug-rehabilitation

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program and was subsequently returned to jail. Given those circumstances, and the extreme reactions the child was having to the idea of resuming a relationship with the mother, DHR could have reasonably determined that visitation was not in the child's best interest at that time. After her release from jail, the mother filed a motion with the juvenile court to allow for visitation, but the juvenile court reserved ruling on that motion, which was impliedly denied when the juvenile court terminated the mother's parental rights. See generally State Dep't of Hum. Res. v. A.J.T. , 939 So.2d 46, 47 (Ala. Civ. App. 2006) (providing that termination of parental rights necessarily includes the right to visitation, and judgment reserving visitation was inconsistent). According to the record on appeal, the juvenile court never ordered DHR to provide visitation. Thus, we cannot say that DHR failed to use reasonable efforts by not providing the mother with visitation.

Viable Alternatives

The mother last argues that the juvenile court erred in terminating her parental rights because, she says, it should have maintained the foster-care arrangement and allowed the mother supervised visitation

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until the child could be slowly transitioned back into her care. A juvenile court must exhaust all viable alternatives before terminating parental rights. See S.M.M. v. R.S.M., 83 So.3d 572 (Ala. Civ. App. 2011). However, the alternative offered by the mother was not viable in this case. The child adamantly refused to visit with the mother and to return to the care of the mother. The child did indicate that she might seek out the mother when she becomes an adult, but she was clear that she did not want any relationship with the mother until then. The child insisted that she wanted to be adopted by the foster parents. After hearing the evidence that the child feared the mother and that their once loving bond had been irreparably damaged, and observing the mother admit during her testimony that she had emotionally harmed the child, the juvenile court properly determined that it was not in the best interest of the child to visit with the mother or to be reunited with the mother. This case does not fall within the line of cases in which this court has determined that maintenance of the status quo should be implemented to preserve a beneficial emotional bond between a child and his or her parent. See ,

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e.g. , B.A.M. v. Cullman Cnty. Dep't of Hum. Res. , 150 So.3d 782, 786 (Ala. Civ. App. 2014). We find no merit to this argument.

The Father's Appeal

Grounds for Termination

In the judgment, the juvenile court terminated the parental rights of the father. To support that determination, the juvenile court found that, "while [C.M.] has held himself out as [the child's] father, he too has had a life of instability, drug use, and drug trafficking, and he is currently imprisoned for a felony." The juvenile court concluded that the father "has not been there for [the child] to live out his parental responsibilities" and that "[h]e chose actions that equated to abandonment of his parental roles and abandonment of [the child]." The juvenile court further found that the conduct or condition of the father was not likely to change in the foreseeable future. In his brief, the father assails those findings and argues that the juvenile court did not have a valid reason for terminating his parental rights.

Pursuant to Ala. Code 1975, § 12-15-319(a)(4), in determining whether a parent is unable or unwilling to discharge his parental

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responsibilities to and for his child, the juvenile court shall consider "[c]onviction of and imprisonment for a felony." The legislature has evidently determined that such a serious criminal history weighs heavily against the character of a parent and his or her ability to discharge his or her parental responsibilities to provide a child a safe and stable home. See G.L.C. v. State Dep't of Hum. Res. , 777 So.2d 706, 708 (Ala. Civ. App. 1999). Thus, even in the absence of other factors, conviction of and imprisonment for a felony alone may justify an inference that a parent cannot or will not properly parent his or her child. See T.M. v. K.M.G. , 68 So.3d 849, 853 (Ala. Civ. App. 2011) ("Moreover, the juvenile court referenced the fact that the father had been most recently in prison for a felony child-abuse conviction, and that fact alone would support a judgment terminating his parental rights ." (emphasis added)).

The record shows that the father was convicted of multiple felonies in Georgia between 2001 and 2003 for escape, theft, selling and possessing cocaine, and aggravated assault. In 2014, while residing in Talladega County, the father was arrested and charged with unlawful possession of illegal drugs and drug paraphernalia and carrying a pistol

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without a permit. The father was convicted of those crimes and remained in the Talladega County jail until August 2015. In February 2016, the father was arrested by federal authorities on a charge of being a felon in possession of a firearm, i.e., the pistol that was found on him when he was arrested in 2014. In July 2015, the father was convicted on the charge of being a felon in possession of a firearm and was sentenced to serve 10 years in a federal penitentiary in Talladega. DHR clearly established that the father had been convicted of, and was currently imprisoned for, a felony.

In determining whether the father's conviction and imprisonment for a felony warranted termination of his parental rights, the juvenile court considered the impact that the father's arrest and imprisonment had had on his parenting of the child. DHR presented evidence indicating that the father had resided with the child for only a little over a year before the child was removed from the family home in 2013. By the time the child was returned to the mother's custody in 2014, the father was already in jail. The father did eventually reunite with the child in the fall of 2015, but he was taken into federal custody only a few months

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later. Since February 2016, the father has had only telephone contact with the child and visitation in a prison setting during the periods the mother had custody of the child. Testimony indicated that the child seemed to enjoy the visits and loved the father, but, as the juvenile court concluded, the father had not assumed any ordinary parenting duties toward the child for most of her life. At the time of trial, the father was residing in a halfway house that did not allow children, and he testified that he could not take custody of the child until, at the earliest, August 2023, when his confinement was scheduled to end and his probation period was to commence.

From the foregoing evidence, the juvenile court could have been clearly convinced that the conviction of and imprisonment for a felony had rendered the father unable or unwilling to parent the child, a sufficient ground for termination of his parental rights. Thus, we need not consider whether the juvenile court erred in finding that the acts of the father equated to abandonment, see K.A.P. v. D.P., 11 So.3d 812, 819 (Ala. Civ. App. 2008) (holding that judgment terminating parental rights was sufficiently supported by evidence associated with imprisonment of

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parent, obviating any need to consider abandonment and other factors), which, we note, is a separate factor altogether from conviction of and imprisonment for a felony. See J.L. v. State Dep't of Hum. Res. , 961 So.2d 839, 849 (Ala. Civ. App. 2007) ("However, § 26-18-7(a)(4)[, Ala. Code 1975, the predecessor to § 12-15-319(a)(4),] has nothing to do with abandonment or voluntary relinquishment of custody; rather, § 26-18-7(a)(4) establishes conviction and imprisonment for a felony as a separate ground for termination that stands on its own."). Any error the juvenile court might have made in conflating the factors would amount to, at most, harmless error. See Rule 45, Ala. R. App. ("No judgment may be reversed or set aside, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.").

The father acknowledges that he could not parent the child at the time of trial as a result of his confinement, but he argues that the juvenile court erred in finding that the conduct or condition that prevented him from parenting the child would not likely change in the foreseeable

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future. At trial, the father testified that, in February 2023, he would transition from the halfway house in which he was currently residing to his own apartment under "home confinement" and that, in August 2023, he would complete his sentence. The father anticipated that, upon his release, he would reside in the Birmingham area and that he would be able to take custody of the child at that time. The juvenile court rejected that plan, finding that the child urgently needed stability and that delaying her permanency so that she could later reunite with the father, who, according to the juvenile court, had proven by his history to be an unstable and unsuitable caretaker, would not be in the best interests of the child.

The evidence in the record bears out the juvenile court's concerns. By the time of trial, the child had been out of parental custody and residing in the care of relatives or in foster care for most of her life. The CASA volunteer testified that, during the period leading up to trial, the child had constantly expressed a desire for her custodial situation to be resolved so that she could gain a sense of security through adoption. The child had forged a strong bond with her foster parents, and she

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considered them her only hope for a stable life. When the child found out about the termination proceedings before the last day of trial, the child expressed hope that she would finally be freed for adoption so she could achieve the permanency she so desperately needed.

The father had proven to be an unsuitable candidate for providing the permanency that the child needed. As set out above, the father had served as a caretaker for the child for only two brief periods, both of which ended as a result of his criminal activities. Notably, when offered services that would have assisted him in reuniting with the child in 2013, the father declined those services and elected to separate from the mother and the child instead. The father did telephone the child frequently from prison and did visit with the child in prison on some weekends when the mother had custody of the child, but the father had never actually performed day-to-day parenting functions. The child apparently loves the father, but the juvenile court apparently could not overlook that the father had never acted as a proper parent toward the child and that the chances of him suddenly being able to act in a protective capacity and providing the child a stable and safe home environment was remote.

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In S.U. v. Madison County Department of Human Resources , supra , this court reversed a judgment terminating the parental rights of S.U. to her two children. Like the father in this case, S.U. had been convicted of a felony and imprisoned. At the time of trial, she was residing at the Lovelady Center, a rehabilitation facility for women in need, awaiting the end of her sentence while she transitioned back into the community. This court determined that the Madison Juvenile Court had erred in terminating S.U.'s parental rights because the evidence showed that all the barriers to family reunification had either been resolved or would be resolved in the foreseeable future. The father argues that the facts of this case so closely parallel those in S.U. that the same result should obtain. We disagree.

Before S.U. was arrested and imprisoned, the Madison County Department of Human Resources had not identified any problems with her child-rearing skills, "having left the children with the mother after an investigation by a social worker." 91 So.3d at 720. S.U. and her children "had enjoyed a stable residence for a lengthy period before their separation." 91 So.3d at 722. At the time of trial, S.U. "was residing in

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a facility that would allow her to personally care for the children." 91 So.3d at 720. Her imprisonment did not prevent from resuming her former parental role, and her sentence was due to end in only three weeks from the date of the trial. Id. Significantly, the children had no other prospects for permanency. At the time of trial, they were residing in a second foster home. Their foster parent had declined to adopt them, and no other adoptive resource had been identified. 91 So.3d at 719.

In this case, the evidence shows that, before his imprisonment, the father had never provided the child a safe and stable home. In March 2013, the mother, after accusing the father of physical abuse, obtained a protection-from-abuse order preventing the father from contacting her or the child. In May 2013, the child was removed from the family home due in part to the father's substance-abuse problem. At that time, the father was cited for neglect of the child. By his own admission, the father could not personally care for the child at the time of trial, and he testified only that he might be able to assume her care almost a year later. The child will not linger in foster care if the father does not gain custody because

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DHR has identified a definite adoptive resource who the child knows and loves and who stands ready to immediately proceed with adoption. S.U. does not stand for the proposition that parental rights cannot be terminated if a convicted felon establishes that his or her sentence will end relatively soon after trial. As S.U. illustrates, in measuring the effect of the time that it will take for an imprisoned parent to transition toward assuming care of his or her child, the court must consider all of the current circumstances, especially those concerning the child. See J.L., 961 So.2d at 851 (emphasizing that, in determining whether parental rights of a convicted felon who was no longer imprisoned should be terminated, court had to consider the current circumstances of the child who had been in foster care for four years while the father was serving his sentence and she was awaiting adoption by her foster family). In this case, the juvenile court properly determined that any delay in providing the child permanency would adversely affect her emotional health and jeopardize her fragile sense of security. The juvenile court decided, based on the current circumstances of the child, that it would be in the best interests of the child to be freed for adoption immediately rather than

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wait 10 months to determine whether the father could regain custody of the child. Considering all of the relevant circumstances, we conclude that the juvenile court did not err in determining that the conduct or condition of the father would prevent him from properly caring for the child in the foreseeable future.

Viable Alternatives

Finally, the father contends that there were two viable alternatives to terminating his parental rights. First, the father contends that the juvenile court should have preserved the parental rights of the mother. See Herring v. Madison Cnty. Dep't of Hum. Res. , 279 So.3d 1151 (Ala. Civ. App. 2018) (reversing a judgment terminating the parental rights of a mother because father's parental rights had been preserved, he could act as custodian of children, and he could supervise visitation with mother as a viable alternative to termination). However, we have already determined that the juvenile court properly terminated the parental rights of the mother. The mother cannot serve as the custodian of the child and supervise visitation with the father as she had in the past. The facts of this case thus differ materially from those in Herring .

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The father also argues that the juvenile court could have maintained the status quo by leaving the child in foster care until he served the remainder of his sentence and was able to resume his relationship with the child. As a general rule, leaving a child in foster care is not a viable alternative to termination of parental rights. See T.W. v. Calhoun Cnty. Dep't of Hum. Res. , [Ms. CL-2022-0694, June 2, 2023] ___ So.3d ___ (Ala. Civ. App. 2023). Two cases upon which the father primarily relies do not establish an exception to this rule. In L.R. v. C.G. , 78 So.3d 436 (Ala. Civ. App. 2011), and L.M.W. v. D.J., 116 So.3d 220 (Ala. Civ. App. 2012), this court reversed judgments terminating parental rights and ordered the juvenile court to maintain the child in the custody of grandparents, not foster parents. The father also relies on arguments presented in Justice Sellers's dissent in Ex parte M.B. , 327 So.3d 1163 (Ala. 2020) (Sellers, J., dissenting), which, of course, is not binding authority. See Rule 28(a)(10), Ala. R. App. P. (requiring citation to legal authority).

This court has recognized that, in rare cases, particularly those in which a child has special needs, the prospects for adoption are remote,

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and the foster parent is willing to act as a long-term custodian and facilitate visitation between a parent and a foster child, a juvenile court should maintain the status quo when necessary to prevent harm to the child and to preserve a strong and beneficial bond between parent and child. See T.W. , supra . In this case, the child clearly needs permanency, but she has no special needs that would impede her adoptability, she has a definite adoptive resource with whom she shares concrete plans to make her "forever family," and the foster mother would not commit to another custodial arrangement other than adoption, which she considered to be the only custodial alternative that would provide the child the full relief she needed. Arguably, the father and the child do share a bond. The testimony showed that the child enjoyed her visits with the father and that the telephone communication between the two of them had been positive. The child inquired about continuing at least the telephone calls in March 2022 and even expressed some hope that she could stay in contact with the father after adoption. However, the shared love between a parent and a child is not enough to forestall termination of parental rights when that remedy serves the best interests of the child.

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CL-2022-1116 and CL-2022-1117

See M.H. v. Calhoun Cnty. Dep't of Hum. Res., 848 So.2d 1011, 1016 (Ala. Civ. App. 2002). Under the circumstances of this case, the juvenile court did not err in declining to maintain the status quo.

Conclusion

We conclude that the juvenile court did not commit any reversible error in terminating the parental rights of the mother or the father. Therefore, we affirm the judgment.

CL-2022-1116 -- AFFIRMED.

CL-2022-1117 -- AFFIRMED.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.