K.G. v. J.T.

Rel: March 10, 2023

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,
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may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
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2210352
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K.G.

v.

J.T.

Appeal from DeKalb Juvenile Court
(JU-21-203.01)

FRIDY, Judge.

K.G. ("the mother") appeals from a judgment of the DeKalb

Juvenile Court ("the juvenile court") terminating her parental rights to

G.G.T. ("the child"), the child she had with J.T. ("the father"). For the

reasons discussed herein, we reverse the judgment.
2210352

Background

The child was born after the mother and the father engaged in a

relationship that lasted about three months, according to the father.

Although the father was aware that the mother was pregnant, he had no

involvement with the child's prenatal care. When the child was born in

November 2019, the father said, he and the mother informally shared

physical custody, and the child stayed with him three or four days a week.

The mother was arrested on drug charges in Jackson County on

April 28, 2020, about six months after the child was born. On that day,

the child was visiting with her maternal aunt, but the mother's older

child, the child's half sibling, was present when the mother was arrested.

Because the child's half sibling was in the house while the mother was in

possession of illegal drugs, the mother said, the charges against her

included chemical endangerment of a child. The father said that the

mother told social workers with the Jackson County Department of

Human Resources ("DHR") that she did not know how to get in touch

with him, so, the father said, he was not contacted until the next day.

The child has been in his custody since that day. The child's half sibling

is in the custody of his own father, and the mother has maintained

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contact with that child throughout the events in this case. At trial the

mother said that she had been visiting the half sibling every weekend.

Upon the mother's arrest, she was incarcerated in the Jackson

County jail. At first, she said, she spoke with the father on the telephone

and wrote him letters. However, she said, when he filed an action seeking

sole physical custody of the child, he stopped taking her telephone calls

and did not respond to her attempts to reach him, including a letter she

said that she mailed to him telling him that she was going to receive

substance-abuse treatment. In the custody action, the father was

awarded custody, and the mother was ordered to pay $247 each month in

child support. The mother said that she was not aware of the judgment

until after the father filed the action to terminate her parental rights.

While the mother was in the Jackson County jail awaiting trial on

the drug charges, she was asked to take part in Jackson County Family

Wellness Court ("the FWC"). She pleaded guilty to the charges against

her and then, through the auspices of the FWC, she left the jail to begin

an inpatient substance-abuse-treatment program, New Life for Women

("New Life"). She said that she attempted to call the father from New

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Life, but, because he did not answer or return the telephone call, the

mother had not been permitted to make additional calls to him.

The mother was dismissed from the New Life program after about

six months because, she said, she accepted a vape smoking device from

an unrelated person, despite knowing that she was allowed to accept

items from only family members. She testified that she did not know that

her receipt of an item from someone other than a family member would

result in her dismissal from the program.

After being dismissed from New Life, the mother, still pursuant to

an order of the FWC, entered a second inpatient-treatment facility called

The Father's House, in Geraldine. The mother said that, after changing

facilities, she tried to call the father several times at different telephone

numbers, including the father's number and the family's home telephone

number. In fact, witnesses from The Father's House testified that staff

members assisted the mother in attempting to contact the child "many

times" through the father, to no avail. Anna Corbitt, a counselor at The

Father's House, testified that she assisted the mother in addressing,

stamping, and mailing at least ten letters to the father in which the

mother sought to contact the child. The father claimed he received only

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two letters from the mother while she was in jail and then one additional

letter.

The mother said that because she did not have an appropriate

family member who could pick her up, she was not permitted to leave the

facility to visit the child. The mother sent a handwritten letter to the

juvenile court requesting visitation with the child. The letter was treated

as a motion for visitation. The first hearing on that motion was continued,

the mother said, and, because she moved from The Father's House after

completing its program, she did not receive notice of the next scheduled

hearing until after that hearing had been held. Because she failed to

attend the hearing, she said, her motion was dismissed. The mother was

not represented by counsel at the time, and, she said, she did not realize

that she had any options available after the dismissal.

The mother said that the day that she successfully completed the

program at The Father's House, she went to the father's parents' house,

where she believed the child was living with the father. The paternal

grandfather was the only one home at the time, and it is undisputed that

he advised the mother not to return to the house until the court reached

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a decision. The mother said she was afraid she would be arrested for

trespassing if she returned, so she did not go back.

The mother explained that, at both treatment facilities, she was not

permitted free access to the money she had earned in the various jobs she

held while in treatment. New Life for Women did not permit her to work

at all for the first three months she was in residence. At The Father's

House, the mother said, she was not permitted to work during her first

two months in residence. Both programs had taken a percentage of the

mother's wages -- 80% at New Life and 60% plus a 10% tithe at The

Father's House -- for room and board, then held the remainder of the

mother's earnings for her.

The undisputed testimony was that, at The Father's House, a

resident could not be released from the program successfully until she

had sufficient money to purchase transportation and obtain a place to

live independently. The mother testified that, even after learning that

she had to pay child support and that she had $50 she could have used

toward paying child support, she believed that "it would be best that I

stabil[ize] myself so I can provide for [the child] better." She made a

number of similar comments regarding why she did not pay child support

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after learning of the judgment ordering those payments. She made clear

that, while she was saving money through the program, she did not spend

any money on things for herself.

Witnesses from the FWC and The Father's House testified on

behalf of the mother, saying that she had been an "excellent" and

"amazing" participant in their programs. The counselors from The

Father's House said that, based on their experience, they did not believe

that the mother would relapse. They emphasized the support structure

that the mother had in place, even though she could not rely on her

family. Those witnesses also testified to the mother's successful

completion of programs offered to her during her time in FWC and at The

Father's House, including parenting classes and anger-management

classes (although there was no indication that she needed those classes),

as well as drug-counseling sessions and general counseling sessions.

The father testified that he believed that the mother's parental

rights should be terminated because, he said, he did not trust the mother

or any of the witnesses who testified on her behalf. He said that it would

be unfair for the child if the mother returned and "messed up" the child's

life, the father's mother's life, or his fiancée's life. He testified that he and

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his fiancée were planning to marry in August 2022 and that his fiancée

then intended to adopt the child, if the mother's parental rights were

terminated.

On January 18, 2022, the juvenile court entered a judgment

terminating the mother's parental rights to the child. The juvenile court

found that the mother had abandoned the child, had failed to provide for

the child's material needs or to pay a reasonable portion of support for

the child despite having the means to do so, had failed to maintain

consistent contact with the child, and had "showed lack of effort to adjust

her circumstances to the meet the needs of the child in every instance."

The mother filed a timely motion to alter, amend, or vacate the

judgment. The same day, she filed a notice of appeal, which was held in

abeyance until the juvenile court denied her postjudgment motion. See

Rule 4(a)(5), Ala. R. App. P.

Analysis

In analyzing an appeal involving the termination of parental rights,

we begin with the premise that "[t]he right to maintain family integrity

is a fundamental right protected by the due process requirements of the

Constitution." Bowman v. State Dep't of Hum. Res., 534 So. 2d 304, 305

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(Ala. Civ. App. 1988). As this court has acknowledged on many occasions,

" 'the termination of parental rights is a drastic measure, and we know of

no means by which those rights, once terminated, can be reinstated.' "

D.J. v. Etowah Cnty. Dep't of Hum. Res., 351 So. 3d 1067, 1074 (Ala. Civ.

App. 2021) (quoting D.O. v. Calhoun Cnty. Dep't of Hum. Res., 859 So. 2d

439, 445 (Ala. Civ. App. 2003), quoting in turn V.M. v. State Dep't of

Hum. Res., 710 So. 2d 915, 921 (Ala. Civ. App. 1998)). Indeed, as our

supreme court has written, "Inasmuch as the termination of parental

rights strikes at the very heart of the family unit, a court should

terminate parental rights only in the most egregious of circumstances."

Ex parte Beasley, 564 So. 2d 950, 952 (Ala. 1990).

The mother contends that the grounds the juvenile court found for

terminating her parental rights were not supported by clear and

convincing evidence. A juvenile court's judgment terminating parental

rights must be supported by clear and convincing evidence. P.S. v.

Jefferson Cnty. Dep't of Hum. Res., 143 So. 3d 792, 795 (Ala. Civ. App.

2013). "Clear 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

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probability as to the correctness of the conclusion.' " L.M. v. D.D.F., 840

So. 2d 171, 179 (Ala. Civ. App. 2002) (quoting Ala. Code 1975, § 6-11-

20(b)(4)). Although a juvenile court's factual findings in a judgment

terminating parental rights based on evidence presented ore tenus are

presumed correct, K.P. v. Etowah Cnty. Dep't of Hum. Res., 43 So. 3d

602, 605 (Ala. Civ. App. 2010), this court is required to determine

"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." K.S.B. v. M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App. 2016).

Here, the juvenile court found that the mother had abandoned the

child, had failed to provide for the material needs of the child or to pay

reasonable support when she had been able to do so, had failed to

maintain consistent contact or communication with the child, and had

showed a lack of effort to adjust her circumstances to meet the needs of

the child in every instance.

For the purposes of terminating parental rights, "abandonment" is

defined as

"[a] voluntary and intentional relinquishment of the custody
of a child by a parent, or a withholding from the child, without
good cause or excuse, by the parent, of his or her presence,
care, love, protection, maintenance, or the opportunity for the

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display of filial affection, or the failure to claim the rights of a
parent, or failure to perform the duties of a parent."

§ 12-15-301(1), Ala. Code 1975. "Abandonment implies an intentional act

on the part of the parent." L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ.

App. 2002). In C.C. v. L.J., 176 So. 3d 208, 211 (Ala. Civ. App. 2015), this

court observed that Alabama appellate courts have recognized that the

definition of "abandonment" for purposes of termination of parental

rights contemplates excuse as a basis on which to avoid abandonment.

The mother presented testimony, corroborated by witnesses from

the FWC and The Father's House, that she made numerous efforts to

contact the child during her time in jail and at the facilities, and then

made a visit to the father's house to see the child the day she was released

from The Father's House. There was evidence the father stopped taking

the mother's calls at one point, and he admitted that he did not attempt

to contact the mother to facilitate visitation, even after she came to his

house after her release from The Father's House. He also never

attempted to have the child visit with her half sibling. As one witness

noted, the father put up roadblocks to prevent the mother from having

contact with the child. We cannot conclude, based on this evidence, that

the juvenile court had before it evidence that reasonably could have

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clearly convinced it that the mother had abandoned the child through

voluntary lack of communication or that her constitutional rights to be a

parent to her child were due to be terminated for a failure to maintain

consistent contact with the child.

The evidence also indicates that the mother did not have control

over her finances while she was a resident in the treatment facilities. She

was not aware of the judgment ordering her to pay child support until

she was at The Father's House. She said that she could not successfully

leave the program at the facility until she had transportation and had

obtained a place to live, so she opted to put all of her money toward

buying a car because, as she said, she believed that the best thing for her

to do "was to better myself so that I could better [the child]. That's the

whole thing we were told." Based on the record, we cannot conclude that

the evidence before the juvenile court reasonably could have clearly

convinced it that the mother's constitutional rights to be a parent to her

child should be terminated for voluntarily failing to provide for the child's

material needs or that she had abandoned the child by failing to make

support payments for the child.

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Moreover, contrary to the juvenile court's determination that the

mother "showed lack of effort to adjust her circumstances to meet the

needs of the child in every instance," the evidence shows that the mother

availed herself of every opportunity to improve her circumstances so that

she could also better the child's circumstances. If the mother had been

making as much progress under programs offered by a county

Department of Human Resources instead of the FWC and the treatment

facilities, there would be no question that she had made substantial

progress toward removing barriers to reunification with the child.

We are cognizant of the fact that the record is not entirely devoid of

evidence that would support the juvenile court's judgment, and we are

likewise cognizant that it is not the role of this court to reweigh the

evidence in determining whether to uphold or reverse the juvenile court's

judgment. With that in mind, however, we are firmly convinced that the

evidence presented by the father, when weighed against evidence in

opposition, could not produce in the mind of a reasonable fact finder a

firm conviction that the mother voluntarily and intentionally

relinquished custody of the child, that she withheld from the child,

without good cause or excuse, her presence, care, love, protection, or

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maintenance, that she had failed to provide for the material needs of the

child or to pay reasonable support when she was able to do so, that she

had failed to maintain consistent contact or communication with the

child, or that she had shown a lack of effort to adjust her circumstances

to meet the needs of the child in every instance. In short, we conclude

that no reasonable fact finder could be clearly convinced that this case

involves circumstances so egregious as to warrant the drastic measure of

terminating the mother's parental rights.

For these reasons, the judgment is reversed, and the cause is

remanded to the juvenile court for entry of a judgment consistent with

this opinion.

REVERSED AND REMANDED.

Moore, Edwards, and Hanson, JJ., concur.

Thompson, P.J., dissents, with opinion.

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THOMPSON, Presiding Judge, dissenting.

The record sets forth other facts that are not specifically mentioned

in the main opinion and that support the DeKalb Juvenile Court's

decision.

"Because appellate courts do not weigh evidence, particularly
when 'the assessment of the credibility of witnesses is
involved,' Knight [v. Beverly Health Care Bay Manor Health
Care Ctr.], 820 So. 2d [92,] 102 [(Ala. 2001)], we defer to the
trial court's factual findings. 'The ore tenus rule reflects this
deference; it accords a presumption of correctness to the trial
court's findings because of that court's unique ability to
observe the demeanor of witnesses.' Id.; see also Fitzgerald v.
Jeter, 428 So. 2d 84, 85 (Ala. Civ. App. 1983), and Ex parte
Fann, 810 So. 2d 631, 633 (Ala. 2001)."

J.C. v. State Dep't of Hum. Res., 986 So. 2d 1172, 1185 (Ala. Civ. App.

2007). See also A.T. v. A.G., 81 So. 3d 385, 389 (Ala. Civ. App. 2011)

(" ' "[B]ecause the trial court has the advantage of observing the

witnesses' demeanor and has a superior opportunity to assess their

credibility, this Court cannot alter the trial court's judgment unless it is

so unsupported by the evidence as to be clearly and palpably wrong." ' "

(quoting Ex parte Fann, 810 So. 2d 631, 636 (Ala. 2001))). Although this

court might not have reached the same result as did the juvenile court,

the record contains sufficient evidence to support the juvenile court's

judgment. I would affirm the juvenile court's judgment.

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