H.T. v. G.T., J.T., and Calhoun County Department of Human Resources

REL: February 3, 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, Montgomery, Alabama
36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is
printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
________________________

2210396 and 2210397
________________________

H.T.

v.

A.C. and Calhoun County Department of Human Resources

Appeals from Calhoun Juvenile Court
(JU-20-542.01 and JU-20-543.01)
_________________________

2210398
________________________

H.T.

v.

G.T., J.T., and Calhoun County Department of Human
Resources

Appeal from Calhoun Juvenile Court
(JU-20-546.01)
2210396, 2210397, and 2210398

EDWARDS, Judge.

In July 2020, the Calhoun County Department of Human

Resources ("DHR") filed petitions in the Calhoun Juvenile Court ("the

juvenile court") seeking to have S.T., L.T., and K.T. ("the children")

declared dependent; those actions were assigned case numbers JU-20-

542.01, JU-20-543.01, and JU-20-546.01, respectively. S.T. and L.T. ("the

daughters") are the daughters of A.B.C. and H.T. ("the father"). K.T.

("the son") is the son of the father and A.M. The juvenile court entered

judgments in November 2020 declaring the children to be dependent;

those judgments indicated that the determinations of dependency were

based on an agreement of the parties. The children were placed in the

custody of DHR.

In December 2020, G.T. and J.T. ("the intervenors"), who are the

maternal great-aunt and the maternal great-uncle of the son, filed in case

number a motion to intervene and a complaint seeking custody of the son.

The juvenile court granted the motion to intervene. The intervenors had

served as a placement for the son beginning in late July 2020. The father

and A.M. answered the intervenors' custody complaint.

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In July 2021, the father filed in all three actions what he entitled a

"Motion for Placement." In those motions, the father alleged that he had

completed all services that DHR had offered to him, that he had stable

employment and a stable residence, and that he was ready, willing, and

able to serve as the children's parent. The juvenile court denied the

father's motions the day after they were filed. On the motion of the

guardian ad litem that had been appointed for the children, the juvenile

court consolidated all the actions.

In September 2021, the guardian ad litem filed a motion in case

numbers JU-20-542.01 and JU-20-543.01 seeking to transfer custody of

the daughters to their maternal aunt, A.C. ("the maternal aunt"), who

was currently serving as their placement. The father filed a response to

the guardian ad litem's motion in both actions and also filed in both

actions a motion to restore custody of the daughters to him, alleging

again that he had completed all services that DHR had offered to him

and was a fit and proper person to have custody of the daughters. The

juvenile court set both the motions of the guardian ad litem and the

motions of the father for a trial to be held in November 2021.

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After the consolidated dispositional trial in all three actions, which

was held on November 15, 2021, and December 13, 2021, the juvenile

court entered a dispositional judgment in each action on January 10,

2022, finding that the children remained dependent. In the judgments

entered in case numbers JU-20-542.01 and JU-20-543.01, the juvenile

court awarded custody of the daughters to the maternal aunt. In the

judgment entered in case number JU-20-546.01, the juvenile court

awarded custody of the son to the intervenors. The father filed

postjudgment motions in all three actions, which the trial court denied

on February 3, 2022, after having held a hearing.

The father filed a timely notice of appeal in each action. 1 The

notices of appeal filed in case numbers JU-20-542.01 and JU-20-543.01

named the maternal aunt as an appellee. The notices of appeal did not,

however, list the maternal aunt as a party upon whom the notices of

1The appeal of the judgment entered in case number JU-20-542.01
was assigned appeal number 2210396; the appeal of the judgment
entered in case number JU-20-543.01 was assigned appeal number
2210397; and the appeal of the judgment entered in case number JU-20-
546.01 was assigned appeal number 2210398. Neither A.M. nor A.B.C.
appealed the judgments.
4
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appeal would be served. In May 2022, the father filed a motion in this

court seeking to have the maternal aunt dismissed as an appellee,

indicating in that motion that "they [sic] were added in error." This court

granted the father's motion and dismissed the maternal aunt as an

appellee. However, upon submission of the appeals, this court

determined that, because the father was seeking review of the judgments

entered in case numbers JU-20-542.01 and JU-20-543.01 on the ground

that the juvenile court could not have properly awarded custody of the

daughters to the maternal aunt, a nonparent, the maternal aunt must

necessarily be an appellee. We ordered that the maternal aunt be

restored as an appellee, that she be served with a copy of the notices of

appeal, that she be served with the brief filed by the father and DHR, and

that she be granted 28 days to either file a brief or to notify this court

that she would not be filing a brief. That period expired without the

maternal aunt ever filing a brief, and the appeals, which we consolidated

ex mero motu, are now ripe for our review.

The record on appeal contains the transcript of an August 2021

permanency hearing relating to the son and to M.W., another child of

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A.M. who is not related to the father, and the transcript of the trial held

in November and December 2021. The testimony relevant to the father

and the children reveals that the father had been living with A.M. in

early 2020. However, in April 2020, A.M. tested positive for marijuana.

A.M.'s testimony indicated that DHR had implemented a safety plan in

April 2020, but the record contains only two safety plans, which were

implemented in June 2020 and in July 2020, respectively. Pursuant to

the June 2020 safety plan, which was implemented after an alleged

incident of domestic violence between A.M. and the father that allegedly

occurred in June 2020, the son was placed in the home of S.L. According

to A.M., in June 2020, she had resided in the same residence with S.L.

and the son. A.M. testified that, in July 2020, DHR had learned that

A.M. had been caring for the son while unsupervised and that DHR had

then terminated the safety plan with S.L. A.M. testified, and the July

2020 safety plan contained in the record indicates, that, following the

termination of the June 2020 safety plan, DHR instituted a new safety

plan for the son, pursuant to which he was placed with the intervenors.

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Neither safety plan contained in the record on appeal concerns the

daughters. The father's testimony and the dependency petitions relating

to the daughters indicated that they had been residing with the father

and A.M. pursuant to a safety plan because their mother, A.B.C., and her

boyfriend, W.M., had tested positive for several illegal drugs in or around

April 2020. The dependency petitions also mention the alleged incident

of domestic violence between A.M. and the father but do not indicate

when the daughters were placed with the maternal aunt. During her

testimony, the maternal aunt indicated that the daughters had initially

been placed with their maternal great-grandmother but that she had

moved in December 2020; thus, although it is not clear from the record,

it appears that the daughters may have been placed with the maternal

aunt in or around December 2020.

The father and A.M. testified about the alleged incident of domestic

violence in June 2020. A.M. testified that, although she had, in fact, filed

a protection-from-abuse ("PFA") petition and had received an ex parte

PFA order, the allegations that she had made in that petition were at

least partly untrue. She denied that the father had been physically

7
2210396, 2210397, and 2210398

violent with her at any time, but she admitted that he may have engaged

in verbal abuse, including calling her a "worthless piece of shit" and a

"dumb bitch." She said that the father had acted in anger during the

June 2020 incident and said that they were "past that"; she indicated

that the services provided by DHR had been helpful to the father and

said that he "was not the same man he used to be." The father also denied

having engaged in any physical abuse of A.M. but admitted to calling her

the above-described names and saying other hurtful things. The father

had successfully had the ex parte PFA order set aside after a hearing at

which he denied that the allegations in the PFA petition were true; A.M.

had not appeared at that hearing. The June 2020 safety plan indicated

that A.M. and the father "cannot control their behavior as evidenced by

[the father's] testing positive for alcohol and [A.M.'s] testing positive for

THC and alcohol following a domestic violence dispute between them."

According to the father, when DHR first became involved with him

and A.M., DHR had "indicated" him for domestic violence and alcohol use.

He said that he had appealed that finding and that, after a review, DHR

had amended the indicated finding to only "alcohol." The record contains

8
2210396, 2210397, and 2210398

no documentation of any "indicated" or "not indicated" findings relating

to the father. He testified that DHR had required that he submit to color-

code drug testing, an anger-management assessment, a domestic-

violence assessment, and a parenting assessment. The father said that

only the anger-management assessment had indicated that he had

required services and that he had completed an online anger-

management course. He also said that he had submitted to random drug

tests and that the result of only one test had come back indicated for

methamphetamine, which, he said, he had proven was a false positive

with a subsequent drug test. The father admitted that he takes the drug

Adderall, which is prescribed to him by a physician to treat attention-

deficit disorder.

The father testified that he had never used illicit drugs and that he

had last drank alcohol around a year and a half before the trial. He also

testified that, although he had tested positive for alcohol the day after

the alleged domestic-violence incident, he had not been under the

influence of alcohol on the day of the alleged incident. He testified at the

9
2210396, 2210397, and 2210398

trial that he and A.M. had ended their romantic relationship in August

2021 but that they remained friends and were good coparents.

The father further said that he had moved out of the residence he

had shared with A.M. and that he intended to purchase a mobile home.

He denied that A.M. had spent the night at his new residence despite the

fact that her vehicle had been seen parked outside the residence at 1:00

a.m. He explained that he had borrowed her vehicle while his vehicle

was in the repair shop. He also denied that he was living with A.M. when

A.B.C. had moved into A.M.'s residence for approximately one week. He

said, however, that he was aware that A.M. was allowing A.B.C. to move

into A.M.'s residence to help A.B.C. out and that he and A.M. had

discussed the fact that they should require A.B.C. to prove that she was

not using drugs. The father testified that A.B.C. had passed a drug test

requested by a potential employer around the time that she moved into

A.M.'s residence but that A.M. had kicked A.B.C. out when A.B.C.

refused to take another drug test. The father denied that he had told

A.M. to allow A.B.C. to move in or to kick out A.B.C.; he said that he had

simply advised A.M. about the situation.

10
2210396, 2210397, and 2210398

According to the father, at the time of the trial in November 2021,

he was employed by a company that contracted drivers to work for

Federal Express. At that time, he testified that he worked six days per

week. He explained in December 2021 at the second day of trial that he

had changed to a different contracting company so that his hours would

be more flexible. He said that, at his new job, he typically worked four or

five days per week but said that he might work more during the holiday

season. He testified that his typical hours were from 9:00 a.m. to 3:00

p.m. or 4:00 p.m.

In November 2021, on the first day of the trial, the father testified

that he had not been regularly visiting the son, that "it had been a while"

since he had last visited with the son, and that he had seen the son at

some point during the son's unsupervised visitation with A.M. during a

two-month period in June and July 2021. He indicated that he had

chosen not to visit the son on his own because A.M. was visiting the son

and he was visiting the daughters. He specifically testified that he and

the mother "tag-teamed it" and had decided that "she would work with

[the son] and [he would] work with [the daughters]." He also said that

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he had felt like DHR was more concerned with the intervenors than with

him having visits with the son and that "they" were against him seeing

the son, so he had "wanted to keep everyone happy [and to] wait for his

time in court." On the second day of the trial in December 2021, the

father testified that he had been hampered in visiting the son by his long

work hours. The juvenile court reminded the father that his testimony

in November 2021 had been different and asked the father again why he

had not been visiting the son; the father said that he had chosen not to

see the son because he was working long hours to save up money "to get

the wheels rolling on getting [the] son back" and that he would get off of

work after DHR's offices were closed for the day.

G.T. testified that she is the maternal aunt of A.M. She said that

she and her husband, J.T., had provided care to the son, who suffers from

cerebral palsy caused by his exposure to the disease HSV-1, which had

resulted in his contracting encephalitis. At the time of the trial, the son,

who was born in October 2019, did not speak, had not yet crawled or

walked, could not feed himself, and ate only pureed foods because he was

not able to chew. The son's exposure to HSV-1 was not the fault of the

12
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parents; in fact, testimony indicated that G.T. had transmitted the virus

to the son when he was a newborn. G.T. testified that she had been

present at the hospital when the son was born and that she had assisted

A.M. after the child's birth by accompanying her to medical appointments

for most of the son's infancy. According to G.T., the father had not

attended the appointments and was not well-versed regarding the care

that the son needed.

G.T. said that the father had not paid any child support and had

not visited the son at her home or at DHR's offices; she indicated,

however, that the father may have visited with the son when A.M. had

unsupervised visitation in June and July 2021. According to G.T., the

father had not attended an individualized-service-plan meeting since

July 2020. She admitted that she and the father did not have a good

relationship and that she had refused to supervise his visitation at her

home. However, she testified that she would have gladly taken the son

to DHR's offices had the father arranged for visitation there. When

questioned about why she did not want to have contact with the father,

she explained that the father had harassed her via text message and had

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even recorded her and the son on video at a gas station when she and the

father happened to run into each other. J.T. testified that, during the

incident at the gas station, the father had belittled G.T. and "was ugly to

her"; J.T. said that he did not want the father to visit at his home because

of the aggression that he had shown during the incident at the gas

station. In addition, G.T. recounted an incident at DHR's offices when

the father had harassed her and J.T. by taunting them and recording

them on video; she said that they had asked the father to stop and had

ultimately left the office to avoid further confrontation. G.T. also

explained that she had never liked the way that the father had treated

A.M. She said that A.M. had admitted to her that the father had been

verbally abusive during their relationship.

The maternal aunt testified that she was A.B.C.'s sister and that

the daughters were her nieces. She testified that she had routinely

supervised the father's visits with the daughters and that they had

interacted well during those visits. When asked about concerns that she

might have about the father, the maternal aunt mentioned that her

concerns stemmed from her knowledge that the father had been abusive

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to A.B.C. in front of the daughters at some point in the past; however, the

maternal aunt said, she had no other concerns about the father's ability

to care for the daughters. Regarding A.B.C., the maternal aunt testified

that A.B.C. had moved in with the father and A.M. for about a week after

A.B.C.'s residence was destroyed in a fire.

The maternal aunt, who works at the same Federal Express facility

as the father, further testified that the father would sometimes approach

her at work but that she would not engage with him if he spoke to her.

She indicated that she had had little interaction with the father but also

indicated that he had been confrontational toward her. She said that

once he had told her, "I think you need to get home to my kids," as she

was leaving work one evening. She also testified that she had learned

that the father had taken photos or a video of the children at a pool to

which the maternal aunt had taken them to go swimming; she said that

the father had not approached her at that time and that she had not

known that he had been there until she later learned of the photos or the

video.

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James Marinos, the DHR caseworker assigned to the family's cases

in August 2021, testified at the August 2021 hearing and at the trial. He

admitted that he had not known A.M. or the father for very long and that

he could not provide testimony relating to whether either had benefited

from the services that DHR had provided to them. He testified that both

A.M. and the father had completed all services that DHR had

implemented and that he had not recommended that they be provided

further services. Marinos also testified that he had no concerns about

the father's alcohol use, that he was not concerned about the father's

protective capacity, and that he had not been informed of any further

incidents of domestic violence or "anger disorder." The only complaint

Marinos had about the father was that his home, which Marinos had

made a scheduled visit to, was "too neat" and "appeared staged."

However, Marinos admitted that the father may have cleaned the home

in preparation for his visit and said that the father's home contained

furniture, clothing, and food.

We first address the father's argument that the children should

have been returned to his custody because, he says, " 'the granting of

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temporary custody to a non-parent, that is in the nature of pendente lite

relief, does not defeat the presumption in favor of the natural parent.' "

N.G. v. L.A., 790 So. 2d 262, 265 (Ala. Civ. App. 2000) (quoting J.F. v.

A.G., 607 So. 2d 234 (Ala. Civ. App. 1991)). The father does not explain

what custody order he contends was "in the nature of pendente lite relief,"

and we do not see any such orders in the record. The November 2020

dependency judgments entered in each case were not pendente lite

orders. See C.L. v. D.H., 916 So. 2d 622, 626 (Ala. Civ. App. 2005)

(explaining that "an adjudication of dependency and an accompanying

custodial placement of a child in a dependency proceeding is an

appealable order," despite the fact that other proceedings may be

contemplated at a later date, provided that the juvenile court has

considered all the evidence concerning the current state of the children

and later proceedings will turn on new evidence). Accordingly, we reject

the father's argument on this point.

The father, relying on Ex parte Mathews, 428 So. 2d 58, 59 (Ala.

1983), next argues that the juvenile court's judgments awarding custody

of the children to nonparents should be reversed because the juvenile

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court did not find the father to be unfit. The father contends that, as a

parent, he had a prima facie right to the custody of the children. See Ex

parte Mathews, 428 So. 2d at 59 ("The prima facie right of a natural

parent to the custody of his or her child, as against the right of custody

in a nonparent, is grounded in the common law concept that this primary

parental right of custody is in the best interest and welfare of the child

as a matter of law."). However, in making this argument, the father

overlooks the fact that the juvenile court had previously determined that

the children were dependent and awarded their custody to DHR in the

November 2020 judgment. Once that occurred, the juvenile court was

not required to determine that the father was unfit in order to award

custody of the children to the intervenors and the maternal aunt.

Instead, the juvenile court, having initially determined the

children's dependency and having determined that the children remained

dependent in 2021, had the authority to make a custodial disposition of

the children under Ala. Code 1975, § 12-15-314(a)(3). We explained in

P.D. v. S.S., 67 So. 3d 128, 131-32 (Ala. Civ. App. 2011), that the parental

presumption "applies in child-custody disputes between a parent and

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nonparent; it does not apply if the child or children, the custody of whom

is disputed, have been found to be dependent." More recently, we stated

that "[i]n the dispositional phase of a dependency proceeding, however,

the father of a child does not have any presumptive right to custody of

his child as against more distant relatives." D.W. v. M.M., 272 So. 3d

1107, 1112 (Ala. Civ. App. 2018). Thus, we must reject the father's

argument that the juvenile court's judgments should be reversed because

they did not determine that he was unfit. However, the father's challenge

regarding the failure to find him unfit is akin to a challenge to the

juvenile court's findings of continued dependency of the children, and we

will therefore consider whether the evidence supports the findings of

dependency of the children.

As Judge Moore explained in his dissent in J.B. v. Cleburne County

Department of Human Resources, 992 So. 2d 34, 49 (Ala. Civ. App. 2008)

(Moore, J., dissenting):

"[W]hen a parent petitions the juvenile court to regain custody
of the child, the juvenile court is confronted with several
separate, but interrelated, questions: (1) whether the child
remains dependent, see J.P. v. S.S., 989 So. 2d 591 (Ala. Civ.
App. 2008), (2) whether reasonable efforts at reunification, if
required, have failed or succeeded, see Ala. Code 1975, § 12-
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15-65(f), and (3) whether it is in the best interests of the child
to be returned to the custody of the parents. See Ala. Code
1975, § 12-15-71(a)."

As is the case when the Department of Human Resources seeks a

change in a child's disposition, when a juvenile court is considering a

motion filed by a parent seeking a return of a child to the parent's

custody, the Department of Human Resources must establish first that

the child remains dependent. See D.D.P. v. D.M.B., 173 So. 3d 1, 3 (Ala.

Civ. App. 2015); see also J.B., 992 So. 2d at 50 (Moore, J., dissenting)

("[W]hen the state has deprived a parent of custody of a child on the basis

of the child's dependency, the burden rests on the state to prove by clear

and convincing evidence that the child remains dependent. Having

proven that circumstances existed at one time that rendered the child

dependent, the state is not relieved of its burden of proving that the child

remains dependent at a later time or under different circumstances.").

To establish continuing dependency, the Department of Human

Resources should present evidence regarding that status. When the

continuing dependency is based on the same or similar circumstances

that caused the original dependency, such evidence may include

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indicating that reasonable efforts have been made to rehabilitate the

parent and to correct the conduct or condition that resulted in the child's

original dependency, unless the Department of Human Resources has

been relieved of making such efforts, and that those efforts have either

failed or have not been successful enough to permit reunification. J.B.,

992 So. 2d at 50 (Moore, J., dissenting) ("[I]n order for a juvenile court to

deprive parents of the custody of a dependent child, the burden would be

on [the Department of Human Resources], as the representative state

agency, to prove by clear and convincing evidence that reasonable efforts

at reunification, if required, have failed or, in an ongoing dependency

case, at the very least, that such efforts had not yet succeeded."). If the

Department of Human Resources cannot establish the continuing

dependency of the child by clear and convincing evidence, the juvenile

court lacks jurisdiction to enter a judgment awarding custody of the child

to anyone but the parent and is required by statute to dismiss the

dependency action. See Ala. Code 1975, § 12-15-310(b) ("If the juvenile

court finds that the allegations in the petition have not been proven by

clear and convincing evidence, the juvenile court shall dismiss the

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petition."); H.C. v. S.L., 251 So. 3d 793, 794 (Ala. Civ. App. 2017) ("If the

child is not dependent at the time of the dispositional judgment, the

juvenile court lacks jurisdiction to make a custody determination.").

The juvenile court's factual findings in a dependency case when the

evidence has been presented ore tenus are presumed correct. T.D.P. v.

D.D.P., 950 So. 2d 311 (Ala. Civ. App. 2006). A finding of dependency

must be supported by clear and convincing evidence. Ala. Code 1975, §

12-15-310(b). When a juvenile court has not made specific factual

findings in support of its judgment, we must presume that the juvenile

court made those findings necessary to support its judgment, provided

that those findings are supported by the evidence. K.C. v. Jefferson Cnty.

Dep't of Hum. Res., 54 So. 3d 407, 413 (Ala. Civ. App. 2010). In addition,

the juvenile court may consider the totality of the circumstances when

making a finding in a dependency proceeding. G.C. v. G.D., 712 So. 2d

1091, 1094 (Ala. Civ. App. 1997); see also T.D. v. S.R., 293 So. 3d 434, 436

(Ala. Civ. App. 2019); R.G. v. Calhoun Cnty. Dep't of Hum. Res., 716 So.

2d 219, 222 (Ala. Civ. App. 1998); and D.P. v. State Dep't of Hum. Res.,

571 So. 2d 1140 (Ala. Civ. App. 1990).

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The term "dependent child" is defined in Ala. Code 1975, § 12-15-

102(a)(8), as follows:

"(8) DEPENDENT CHILD. a. A child who has been
adjudicated dependent by a juvenile court and is in need of
care or supervision and meets any of the following
circumstances:

"1. Whose parent, legal guardian, legal
custodian, or other custodian subjects the child or
any other child in the household to abuse, as
defined in [Ala. Code 1975, §] 12-15-301 or neglect
as defined in [§] 12-15-301, or allows the child to
be so subjected.

"2. Who is without a parent, legal guardian,
or legal custodian willing and able to provide for
the care, support, or education of the child.

"3. Whose parent, legal guardian, legal
custodian, or other custodian neglects or refuses,
when able to do so or when the service is offered
without charge, to provide or allow medical,
surgical, or other care necessary for the health or
well-being of the child.

"4. Whose parent, legal guardian, legal
custodian, or other custodian fails, refuses, or
neglects to send the child to school in accordance
with the terms of the compulsory school
attendance laws of this state.

"5. Whose parent, legal guardian, legal
custodian, or other custodian has abandoned the
child, as defined in [§] 12-15-301[(1)].
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"6. Whose parent, legal guardian, legal
custodian, or other custodian is unable or
unwilling to discharge his or her responsibilities to
and for the child.

"7. Who has been placed for care or adoption
in violation of the law.

"8. Who, for any other cause, is in need of the
care and protection of the state."

Section 12-15-301(1) defines the term "abandonment" 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
display of filial affection, or the failure to claim the rights of a
parent, or failure to perform the duties of a parent."

The evidence relating to the daughters does not rise to the level

necessary to support a conclusion that they continue to be dependent.

Marinos testified that he had not requested that the father participate in

further services upon the father's completion of those services that DHR

had previously offered. Although Marinos testified that he could not say

that the father had benefited from the services that he had completed, he

also failed to testify that the father had not benefited from those services.

The evidence indicated that the father has both gainful employment and
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a safe and clean residence. Although some evidence casts doubt on their

testimony, both the father and A.M. testified that they were no longer

involved in a romantic relationship; notably, no evidence indicated that

DHR had informed either the father or A.M. that they would be required

to separate in order to be reunified with the children. A.M. testified that

the father had changed for the better after completing the services offered

by DHR. Although the record contains some evidence indicating that the

father had been confrontational toward the intervenors and maternal

aunt, Marinos specifically testified that he had not learned of any

incidents of domestic violence or anger during his tenure as caseworker.

The evidence concerning A.B.C.'s brief period of living with either A.M.

or A.M. and the father after her residence was consumed in a fire was, in

our opinion, irrelevant.

With respect to the father's relationship with the daughters, the

maternal aunt testified that the father had visited the daughters

regularly, that they and the father had interacted well during those

visits, and that she had no concerns about the father's ability to care for

the daughters other than concerns about his past behavior with A.B.C.

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2210396, 2210397, and 2210398

Although the maternal aunt testified that the father had been abusive to

A.B.C. in front of the daughters in the past, she did not indicate when the

father and A.B.C. had last resided together. The maternal aunt indicated

both that the father had been confrontational with her and that she had

had little interaction with him; she did not testify, as did the intervenors,

that the father had harassed her or that he had been unpleasant to her,

other than to say that he had spoken to her at work a few times and that

she had not engaged with him. While the father's tendency to confront

his children's caregivers is not an admirable trait, his interactions with

the maternal aunt do not appear to have caused her undue upset or

impacted her ability to supervise his visitation with the daughters such

that those interactions could be considered serious enough upon which to

rest a finding of dependency. Our review of the record convinces us that

the juvenile court lacked clear and convincing evidence indicating that

the conduct or condition of the father at the time of the trial was such

that the daughters remained dependent. The juvenile court's judgments

regarding the daughters in case numbers JU-20-542.01 and JU-20-

26
2210396, 2210397, and 2210398

543.01 are therefore reversed, and the causes are remanded for the entry

of judgments consistent with this opinion.

Regarding the son, however, the record discloses that the father,

although he may have seen the son on a few occasions in June or July

2021, had failed to establish regular visits or otherwise communicate

with the son for over a year before requesting specific visitation from

DHR in the period between the November 2021 trial date and the

December 2021 trial date. The father had not participated in the son's

care, had not attended any physician or physical-therapy appointments

with the son, and had not, as far as the record reveals, communicated

with the intervenors about the welfare of the son after he was placed in

their home. Thus, the evidence indicates that, after the child's removal

from the custody of the father, "the child [was deprived of] the presence,

care, protection, or filial affection of the father," § 12-15-301(1), and "that

the [father] [failed to] claim[] the rights or perform[] the duties of a

parent," id., suggesting that the father's conduct could be considered

abandonment of the son. See A.E. v. M.C., 100 So. 3d 587, 598 (Ala. Civ.

App. 2012) (explaining that "failing to be present and act as a parent is

27
2210396, 2210397, and 2210398

[an] equally significant" consideration when a juvenile court is

considering whether a parent's conduct amounts to abandonment).

At the postjudgment hearing, the juvenile court addressed its

reasons for its judgment, which included its conclusion that the father

lacked credibility based on its concerns that the father had committed

perjury during either the hearing on the PFA petition or during the trial

before the juvenile court. In addition, the juvenile court explained on the

record:

"What did bother me was his attitude outside of this
courtroom as everyone, including himself, testified to that he
basically didn't go see [the son] because he didn't like what
DHR had set up. And, again, I'm paraphrasing. But that was
the intent. Not providing any support for his children bothers
me tremendously. I will say this I think [the issue regarding
the son] is clear-cut. … He didn't participate. He's admitted
he didn't participate. He has no idea how to handle the special
needs of that child. He didn't care to find out is basically what
he testified to because he didn't like the situation."

In its postjudgment order, the juvenile court specifically found that,

"[w]hether by choice or inability, the father was and is incapable of

providing care for a child with special needs of this type."

Although the juvenile court did not specifically make a finding of

abandonment, based on the evidence, the juvenile court could have been
28
2210396, 2210397, and 2210398

clearly convinced that the father's conduct amounted to abandonment of

the son and could therefore have concluded that the son remained

dependent based on Ala. Code 1975, § 12-15-102(8)5., and § 12-15-301(1).

In addition, in light of the juvenile court's comments on the record at the

postjudgment hearing and its statement in the postjudgment order, the

juvenile court was clearly convinced that the father was either "unable

or unwilling to discharge his … responsibilities to and for the [son]," see

§ 12-15-102(8)6., as evidenced by the father's failure to participate in

regular visitation and his failure to learn about the special needs of the

son through attendance at medical appointments, and that therefore the

child was dependent under § 12-15-102(8)6. Furthermore, at the

postjudgment hearing, the juvenile court spoke of the father's disinterest

in participating in reunification efforts because of his dislike of "the

situation," and we have explained that a parent's failure to participate in

services and reunification plans to ameliorate the conditions that gave

rise to the child's initial or continuing dependency may be considered

evidence of continuing dependency. See R.R. v. Chilton Cnty. Dep't of

Hum. Res., [Ms. 2200709, Jan. 7, 2022] ___ So. 3d ___, ___ (Ala. Civ. App.

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2210396, 2210397, and 2210398

2022) (indicating that a parent should "participate in the services offered

[the Department of Human Resources] in an attempt to ameliorate the

conduct or condition that led to [the Department of Human Resources's]

involvement with the family," finding fault with the father, who had not

cooperated with DHR or participated in services, and affirming the

finding of dependency based, in part, on the father's lack of cooperation

in reunification efforts). Because we may presume that the juvenile

court made those findings that are necessary to support its judgment,

provided such findings are supported by clear and convincing evidence

contained in the record, see K.C., 54 So. 3d at 413, and because a juvenile

court may consider the totality of the circumstances when making a

finding of dependency, see G.C., 712 So. 2d at 1094, we conclude that the

dependency finding contained in the judgment entered in JU-20-546.01

regarding the son is amply supported by the evidence.

The father specifically challenges the juvenile court's

determinations that DHR made reasonable efforts to rehabilitate him,

that those efforts had failed, and that "the problems requiring removal

[of the children from the custody of the father] continued to exist." We

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2210396, 2210397, and 2210398

need not address this issue regarding the daughters because of the lack

of evidence of their continuing dependency. Regarding the son, the father

contends that DHR did not make reasonable efforts to rehabilitate him

and that those efforts that DHR did make did not fail. To support his

argument, the father points to evidence indicating that he had benefited

from the services DHR had provided and Marinos's testimony indicating

that he had not recommend any further services be provided to the father.

" 'Reasonable efforts' include 'efforts ... to make it
possible for a child to return safely to the child's home,'
[former] Ala. Code 1975, § 12-15-65(m) [now codified at Ala.
Code 1975, § 12-15-301(13)], such as efforts to rehabilitate the
parent so that the parent can 'again exercise familial rights
and responsibilities toward the child in question.' Miller v.
Alabama Dep't of Pensions & Sec., 374 So. 2d 1370, 1374 (Ala.
Civ. App. 1979); see also D.M.P. v. State Dep't of Human
Res., 871 So. 2d 77, 89 n.10 (Ala. Civ. App. 2003) (plurality
opinion). Whether efforts at reunification have been
reasonable and whether those efforts have failed or succeeded
are questions of fact for the juvenile court to determine. T.B.
v. Cullman County Dep't of Human Res., 6 So. 3d 1195, 1199
(Ala. Civ. App. 2008).

" 'In making that determination, the juvenile court
must first identify the parental conduct,
circumstances, or condition that led to the removal
of the children and prevented their return to the
custody of the parent.... The juvenile court must
then consider the efforts expended by the parent
in overcoming those problems and the progress the
31
2210396, 2210397, and 2210398

parent has made in eliminating or reducing those
problems, so that they no longer constitute a
barrier to reunification.'

"T.B., 6 So. 3d at 1199."

R.T.B. v. Calhoun Cnty. Dep't of Hum. Res., 19 So. 3d 198, 204 (Ala. Civ.

App. 2009).

Contrary to the father's assertions in his brief, however, the

juvenile court was not required to return the son to his custody merely

because the father completed the services offered to him. We have

explained that, "[i]n assessing the success of reasonable efforts at

reunification, the juvenile court is not limited to determining solely

whether the parent has complied with the reunification plan or

conditions established by [the Department of Human Resources]."

R.T.B., 19 So. 3d at 205. Although some of the evidence adduced at trial

might have supported the conclusion that the father's participation in

services had alleviated the conduct or conditions that served as a barrier

to reunification, the father's failure to visit with, maintain contact with,

or even check on the welfare of the son could have been considered by the

juvenile court as evidencing that the father had intentionally withheld

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2210396, 2210397, and 2210398

from the son "his … presence, care, love, protection, maintenance, or the

opportunity for the display of filial affection" and had failed "to claim the

rights … or … to perform the duties of a parent." § 12-15-301(1).

Although the juvenile court was considering only the dependency of the

son, Ala. Code 1975, § 12-15-319(a)(1), is instructive here. That Code

section provides that "reasonable efforts to … reunite the child with the

parent[]" are not required when that parents has been found to have

abandoned his or her child. Because, as we have already determined, the

juvenile court could have concluded that the father had abandoned the

son, we are not convinced that the father's completion of services and

Marinos's testimony that additional services were not required

necessitates the conclusions that the father and the son should be

reunified and that the dependency judgment entered in case number JU-

20-546.01 regarding the son should be reversed.

Because we have determined that clear and convincing evidence

supports the juvenile court's dependency finding in the judgment entered

in case number JU-20-546.01 regarding the son, and because we are not

convinced that the father is entitled to reunification merely because he

33
2210396, 2210397, and 2210398

had completed services offered by DHR, we affirm that judgment.

However, the record lacks sufficient evidence to support the findings of

dependency in the judgments entered in case numbers JU-20-542.01 and

JU-20-543.01 regarding the daughters. Accordingly, we reverse the

juvenile court's dependency judgments entered in case numbers JU-20-

542.01 and JU-20-543.01, and we remand those causes for proceedings

consistent with this opinion.

2210396 -- REVERSED AND REMANDED.

2210397 -- REVERSED AND REMANDED.

2210398 -- AFFIRMED.

Moore, Hanson, and Fridy, JJ., concur.

Thompson, P.J., concurs in the result, without opinion.

34