PER CURIAM.
L.M. ("the father") and J.K. ("the mother") separately appeal from a judgment entered by the Shelby Juvenile Court ("the juvenile court") that terminated their parental rights to their three children ("the children")
The record reveals that the children were first removed from the custody of the mother and the father, who lived together but were not married, in December 2007 when the mother gave birth to the youngest child and both the mother and that child tested positive for cocaine. In December 2008, the children, who had been in the custody of the Shelby County Department of Human Resources ("DHR"), were returned to the mother and the father. The mother and the father were ordered to continue random drug testing and, the record reveals, the mother and the father missed several drug screens in the latter part of 2008 and throughout early to mid 2009. On August 31, 2009, the juvenile court held the mother and father in contempt for failing to attend drug testing and for failing to meet with in-home service providers and counselors. On September 16, 2009, the children were removed from the home of the mother and the father for a second time. After the mother tested positive for cocaine on September 17, 2009, DHR filed its first petitions to terminate the parental rights of the mother and the father.
On March 9, 2010, the juvenile court, after conducting a hearing, denied DHR's petitions to terminate the parental rights of the mother and the father based in part on evidence indicating that neither the father nor the mother had tested positive for any illegal drugs since the children were removed from their home in September 2009. The juvenile court ordered, among other things, that the children remain in the custody of DHR; that the mother and the father continue with services arranged by DHR; that the mother and the father continue regular drug and alcohol testing; and that the mother participate in regular drug and alcohol counseling.
On May 20, 2010, the mother tested positive for alcohol and an opiate. On June 12, 2010, the mother tested positive for ethyl glucuronide, which, the juvenile court found, suggested that the mother had been exposed to alcohol. On July 22, 2010, the juvenile court found the mother in contempt based on the positive drug and alcohol screens. On August 9, 2010, DHR filed its second petitions to terminate the parental rights of the mother and the father to the children in case nos. JU-07-1075.03, JU-07-1076.03, and JU-07-1077.03. DHR alleged, among other things, that the mother and the father were not able or willing to provide a fit and suitable home for the children. After conducting an ore tenus hearing on February 14, 2011, the juvenile court entered a single judgment on March 31, 2011, terminating the parental rights of the mother and the father. After the mother's postjudgment motion was denied by operation of law, both parties appealed.
On appeal, the mother and the father argue that, based on the doctrine of res judicata, the juvenile court erred in considering evidence in support of terminating their parental rights at the February 2011 termination hearing of matters that occurred before the entry of the March 2010 judgment denying DHR's first petitions to terminate their parental rights. They also argue that DHR failed to present clear and convincing evidence sufficient to terminate their parental rights.
The father argues that the doctrine of res judicata should have barred the admission of evidence at the February 2011 termination hearing that related to facts and circumstances that existed before the entry of the March 2010 judgment denying DHR's first petitions to terminate the parental rights of the mother and the
Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725-26 (Ala.1990).
Our research reveals no Alabama caselaw that addresses the precise question presented on appeal, i.e., whether the doctrine of res judicata barred DHR, in the second termination-of-parental-rights hearing, from presenting evidence that existed before the entry of the judgment denying DHR's first petitions to terminate the parental rights of the mother and the father. However, we are not without guidance from other jurisdictions. See In the Matter of Newman, 49 Or.App. 221, 619 P.2d 901 (1980); In re Interest of V.B., 220 Neb. 369, 370 N.W.2d 119 (1985); People in Interest of J.R., 711 P.2d 701 (Colo.App. 1985); In Interest of A.S., 12 Kan.App.2d 594, 752 P.2d 705 (1988); and Scott v. Prince George's Cnty. Dep't of Soc. Servs., 76 Md.App. 357, 545 A.2d 81 (1988). Because the factual background and arguments made by the appellant in Scott v. Prince George's County Department of Social Services, supra, are the most similar to the factual background and arguments made in the present case, a detailed discussion of that case ensues.
In Scott, the mother, Martine Scott ("Scott"), gave birth to twins in November 1980, and the Prince George's County Department of Social Services ("the Department") became involved with Scott and the twins in January 1981. 76 Md.App. at 364-65, 545 A.2d at 84-85. A Maryland juvenile court placed the twins in the Department's care in January 1981, and the twins were returned to Scott and subsequently returned to the Department's care several times between February 1981 and October 1982, at which point Scott apparently abandoned the twins with a non-English-speaking babysitter. 76 Md.App. at 365-66, 545 A.2d at 85-86. In August 1983, the Department filed a petition to terminate Scott's parental rights to the twins, and, in February 1985, a Maryland trial court denied the Department's petition but ordered Scott to participate in psychological counseling, to disclose her mother's address so the Department could investigate her as a possible relative placement for the twins, to execute a service agreement with the Department, and to cooperate with the Department. 76 Md.App. at 367, 545 A.2d at 86. After Scott failed to comply with the provisions of the
On appeal, Scott argued, among other things, that the doctrine of res judicata prevented the Department from using evidence that was presented to the trial court in the first termination trial against her in the second termination trial and that the trial court could only consider evidence of facts that occurred after the first judgment denying the Department's petition to terminate her parental rights. The Maryland Court of Appeals began its discussion of Scott's res judicata argument by noting that it would apply the "same evidence test" to the two termination trials to determine whether the cause of action was the same in both cases for res judicata purposes. 76 Md.App. at 375, 545 A.2d at 90. As we set forth above, Alabama also follows the "same evidence test" for determining whether two causes of action are the same for res judicata purposes. See Dairyland Ins. Co. v. Jackson, supra. The Maryland Court of Appeals stated:
76 Md.App. at 375-77, 545 A.2d at 90-91.
After a discussion of cases in other jurisdictions that had reached the same conclusion, i.e., that the doctrine of res judicata did not act as a bar in a second termination hearing to presenting evidence of matters that occurred before the first termination hearing, the Maryland Court of Appeals limited its holding by stating:
76 Md.App. at 379-80, 545 A.2d at 92 (footnote omitted; emphasis added).
We think the rationale used by the Maryland Court of Appeals should apply to this case. The record reveals that DHR filed second petitions to terminate the parental rights of the mother and the father after the mother failed to comply with the juvenile court's order denying DHR's first petitions to terminate her parental rights because she continued to test positive for drugs and/or alcohol after the first judgment denying DHR's petitions to terminate parental rights. In its second petitions, DHR alleged that the mother and the father, five months after the juvenile court had given them the "proverbial second
In its judgment terminating parental rights, the juvenile court made extensive specific findings of fact. Although some of those facts are set forth above, they bear repeating for a full understanding of the juvenile court's reasons for terminating the parental rights of the mother and the father. The juvenile court made the following findings of fact:
B.M. v. State, 895 So.2d 319, 331 (Ala.Civ. App.2004). In order to meet the first prong of the test, DHR must prove by clear and convincing evidence that grounds for termination exist. See § 12-15-319, Ala.Code 1975; and Bowman v. State Dep't of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). Section 12-15-319 provides, in pertinent part:
The juvenile court was required to consider the factors set forth in § 12-15-319(a)(1)-(12) to determine whether the father and the mother were unable or unwilling to discharge their parental responsibilities to and for the children. The juvenile court found that the mother was unable to remain free of alcohol and drugs for a "sustainable period of time," see § 12-15-319(a)(2), that reasonable efforts made by DHR toward the rehabilitation of the mother and the father had failed, see § 12-15-319(a)(7), and that the mother and the father had failed to adjust their circumstances to meet the needs of the children, see § 12-15-319(a)(12).
"A juvenile court's factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably
We will begin our discussion with the arguments presented by the father. On appeal, the father argues that (1) the juvenile court violated his constitutional rights by concluding that his failure to sever his relationship with the mother was a sufficient ground for terminating his parental rights and (2) that DHR failed to present clear and convincing evidence sufficient to support termination of his parental rights. As argued by DHR in its brief on appeal, the father failed to present his constitutional argument to the juvenile court, and, thus, he is presenting that argument for the first time on appeal. Accordingly, we cannot address that argument. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) ("[An appellate c]ourt cannot consider arguments raised for the first time on appeal; rather, [the appellate court's] review is restricted to the evidence and arguments considered by the trial court."). However, we will consider the father's argument that DHR failed to present clear and convincing evidence sufficient to terminate his parental rights to the children.
The father contends that his failure to end his relationship with the mother is not clear and convincing evidence of his failure to adjust his circumstances to meet the needs of the children. We agree, as the father contends, that the juvenile court terminated the father's parental rights based only on the undisputed fact that the father continued to reside with the mother who, the juvenile court found, was unable to stop using drugs and alcohol for a "sustainable period of time." Thus, we must consider whether the juvenile court's sole basis for terminating the father's parental rights was sufficient to support its judgment.
This court has affirmed judgments terminating the parental rights of a parent when that parent has failed or refused to remove himself or herself from a living situation that presented a danger to the parent's child, see C.W. v. State Dep't of Human Res., 826 So.2d 171, 173-74 (Ala. Civ.App.2002) (determining that the children in question were dependent after considering the mother's refusal to sever her relationship with an abusive boyfriend, whose attitude towards DHR hindered the mother's ability to reunite with her children), even if the child's other parent was the individual that presented a danger to the child. See B.M. v. State, 895 So.2d at 334 (when clear and convincing evidence indicated that the mother had abused one of the parties' children and the father testified that he did not believe the mother had abused the child, this court affirmed the judgment terminating the parental rights of the father on the basis that the trial court could have concluded that the father, who had undisputedly never harmed the children, could not protect the children from the danger of harm presented by the mother). Thus, the juvenile
After a thorough review of the record, this court is unable to find evidence sufficient to support a finding that the father could not, or was unwilling to, protect the children from the potential harm presented by the mother's inability to remain alcohol and drug free. There is nothing in the record before this court indicating that the father had ever failed to protect the children from the mother when she was under the influence of drugs or alcohol. In fact, the father testified that he recognized the danger presented to the children if the mother continued to abuse alcohol, and he stated that he was willing to sever his relationship with the mother if the mother continued on a path of substance abuse.
Moreover, as the father argues on appeal, there is no indication in the record that DHR ever conveyed to the father that he needed to sever his relationship with the mother in order to be reunited with the children. A parent's parental rights cannot be terminated on the ground that the parent did not adjust his or her circumstances to meet the needs of the children, or on the ground that efforts to rehabilitate the parent had failed, when the sole barrier to reunification was not communicated to the parent by DHR. See H.H. v. Baldwin Cnty. Dep't of Human Res., 989 So.2d 1094, 1105 (Ala.Civ.App. 2007) (opinion on return to remand) (Per Moore, J., with two judges concurring in the result) ("The natural starting point in any fair and serious attempt to rehabilitate the parent and to reunite the parent with the child is identification of that characteristic, conduct, or circumstance that renders the parent unfit or unable to discharge his or her parental responsibilities to the child. Once DHR identifies the source of parental unfitness, the overarching goal of family reunification requires DHR to communicate its concerns to the parent and to develop a reasonable plan with the parent that is tailored toward the particular problem(s) preventing the parent from assuming a proper parental role.").
In the present case, there was not clear and convincing evidence presented that anyone from DHR had ever informed the father that his maintaining a household or a relationship with the mother was a barrier, let alone the sole barrier, to his reunification with his children. The father testified that he had not been told by DHR to sever his relationship with the mother, and the representative from DHR that testified during the February 2011 termination hearing could not confirm that anyone from DHR had ever conveyed to the father that he was required to sever his relationship with the mother before DHR would consider returning the children to his custody. Thus, because there was not sufficient evidence from which the juvenile court could have concluded that the father had been informed that his failure to sever his relationship with the mother would prevent the return of the children to his custody, there was not clear and convincing evidence to support a finding that the father exhibited a "[l]ack of effort ... to adjust his ... circumstances to meet the needs of the child[ren] in accordance with agreements reached, including agreements reached with local departments of human resources ..., in an administrative review or a judicial review." § 12-15-319(a)(12) (emphasis added).
Furthermore, there was not clear and convincing evidence to support a finding that DHR's attempts to rehabilitate the
Our review of the record has failed to reveal clear and convincing evidence to support a conclusion that the father was unable or unwilling to discharge his responsibilities to and for the children or to prove that the father's conduct or condition rendered him unable to properly care for the children and that that conduct or condition was unlikely to change in the foreseeable future. § 12-15-319. The record revealed that the father consistently visited the children, that he was physically and financially capable of caring for the children, and that there were no problems with the father's home that would prevent his reunification with the children. Accordingly, that part of the juvenile court's judgment terminating the father's parental rights is reversed.
In light of our conclusion that there was not clear and convincing evidence to support termination of the father's parental rights, we must also reverse the judgment insofar as it terminates the mother's parental rights. Our review of the record reveals that DHR presented clear and convincing evidence sufficient for the juvenile court to have concluded that the mother could not remain free of drugs and alcohol for a "sustainable period of time" and, thus, that there was sufficient evidence from which the juvenile court have concluded that the children were dependent based on the mother's conduct, condition, and circumstances. See § 12-15-319(a)(2). However, there is no evidence in the record indicating that the welfare of the children would be endangered by the mother if the father was in the home to supervise the family. In other words, we can find nothing in the record to support a conclusion that the father would be unable to protect the children from the potential harm presented by the mother's presence in the home with the children. See T.B. v. DeKalb Cnty. Dep't of Human Res., 12 So.3d 90, 99 (Ala.Civ.App.2008) (plurality opinion) (reversing a judgment terminating the parental rights of the mother in light of the fact that the judgment terminating the parental rights of the father had been reversed when there was no indication that the conduct or condition of the mother that hindered her ability to independently meet the needs of the children presented a danger to the children while the father remained in the home to supervise the family).
As the mother points out in her brief to this court, and as noted above, a juvenile court is required to consider viable alternatives to terminating a parent's parental rights. B.M. v. State, 895 So.2d at 331. From the facts in the record before this court in this particular case, we cannot determine the basis for DHR's failure to recommend that the custody of the children be returned to the father with orders that he strictly supervise the mother's contact
2100733—REVERSED AND REMANDED.
2100773—REVERSED AND REMANDED.
MOORE, J., concurs.
BRYAN and THOMAS, JJ., concur specially, with writings.
THOMPSON, P.J., and PITTMAN, J., concur in the result, without writings.
BRYAN, Judge, concurring specially.
I fully concur in the main opinion, despite the fact that it is based, in part, on this court's decision in T.B. v. DeKalb County Department of Human Resources, 12 So.3d 90, 99 (Ala.Civ.App.2008), in which I filed a dissenting opinion. See T.B., 12 So.3d at 99-100. In T.B., I dissented from the judgment reversing the mother's parental rights because I did not believe that this court had properly reversed the judgment terminating the parental rights of the father in a companion case, J.B. v. DeKalb County Department of Human Resources, 12 So.3d 100 (Ala. Civ.App.2008). However, in the present case, I fully concur in the conclusion reached in the main opinion that the juvenile court erroneously terminated the father's parental rights. Thus, despite the fact that I find clear and convincing evidence in the record to support the juvenile court's conclusion that the mother was unable to remain drug and alcohol free for a "sustainable period of time," I agree with the conclusion in the main opinion that the judgment terminating the parental rights of the mother should be reversed because, from all that appears in the record before this court, there is nothing that would prevent an appropriately tailored award of custody to the father from being a viable alternative to the termination of her parental rights.
However, this conclusion is based on the fact that the record reveals that the mother and the father are in a committed long-term relationship. Indeed, the mother and the father indicated that they held themselves out to have a common-law marriage. Thus, I believe the decision in this case could be different if the facts of the case indicated that the relationship between the mother and the father was not stable. The record reveals that the mother works for, or at least with, the father and that the mother and the father are "always together." I find no basis in the record for concluding that the father cannot protect the children from any potential danger presented by the possibility of the mother's continued substance abuse.
With that being said, I caution the mother to continue her diligent efforts at maintaining an alcohol and drug-free lifestyle. My approval of this court's decision today should not be read as an approval of the mother's behavior, which has resulted in her children being kept in foster care for an extended period.
THOMAS, Judge, concurring specially.
Although I dissented in H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094, 1110 (Ala.Civ.App.2007), T.B. v. DeKalb County Department of Human Resources, 12 So.3d 90, 100 (Ala.Civ. App.2008) (Thomas, J., dissenting), and J.B. v. DeKalb County Department of Human Resources, 12 So.3d 100, 119 (Ala.Civ.
