source: Caselaw Access Project

author: THOMPSON, Judge. MURDOCK, Judge,

license: Public Domain

text:
    B.J.C. v. D.E. and D.E.
    2020453.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2003.
    Rehearing Denied Sept. 12, 2003.

      Andrew J. Coleman, Birmingham, for appellant.
    James R. Kramer, Alabaster, for appel-lees.
   THOMPSON, Judge.

B.J.C. (“the father”) appeals the termination of his parental rights.

In October 1996, the Jefferson County Department of Human Resources (“DHR”) filed dependency petitions asking the Juvenile Court of Jefferson County (“the trial court”) to determine custody of H.M.A. and H.Y.A. (hereinafter together referred to as “the children”), who were then four years old and two years old, respectively. At that time, the children’s mother, L.A.H., was married to S.L.H. DHR filed its petitions after it learned that S.L.H. was suspected of, and later charged with and convicted for, sexually abusing one of the children. L.A.H. and S.L.H. had one child, T.D.H., who was the children’s half brother. It appears that the trial court ultimately terminated S.L.H.’s parental rights to T.D.H., and no appeal was taken from that termination judgment. It appears that T.D.H. had been in the custody of the maternal grandparents for a number of years.

In its October 1996 petitions, DHR sought to have the children placed in the custody of their maternal grandparents, W.A. and E.A. (“the maternal grandparents”). The father and his parents, B.J.C., Sr. (“the paternal grandfather”), and D.C. (“the paternal grandmother”), sought to intervene and sought an award of visitation with the children. The father’s parents are hereinafter together referred to as “the paternal grandparents.”

In November 1996, the trial court entered orders finding the children dependent and placing the children in the custody of the maternal grandparents; the trial court also awarded the children’s mother and father, and the paternal grandparents, visitation with the children. The record contains no indication that the children have ever been in the custody of DHR.

On January 25, 2002, D.E. and D.E. (“the maternal aunt and uncle”) filed a petition seeking to terminate the father’s parental rights so that they could adopt the children. In those petitions, the maternal aunt and uncle asserted that L.A.H., the children’s mother, had been killed on October 1, 2001. On February 20, 2002, the father filed petitions seeking an award of custody of the children, and the paternal grandmother later filed a letter requesting an award of visitation, or the enforcement of a previous order awarding her visitation with the children.

The trial court conducted an ore tenus hearing on July 19 and July 22, 2002. On September 25, 2002, it entered judgments terminating the father’s parental rights to the children. After a series of post-judgment filings and orders, the father filed one notice of appeal that encompassed both termination judgments.

In their brief on appeal, the maternal aunt and uncle contend that the timing of the judgments and the postjudgment filings in this case render the appeal untimely. A recitation of the dates of those filings and orders is not necessary for the purposes of this opinion. Suffice it to say that the father’s postjudgment motions were untimely, that the father sought additional time to appeal, and that the trial court misapplied the procedural requirements of Rule 77(d), Ala. R. Civ. P., in allowing the father additional time in which to appeal. However, the record on appeal is devoid of any indication that the maternal aunt and uncle opposed the father’s Rule 77(d) motion before the trial court or that they argued to the trial court that it had misapplied Rule 77(d). Although it is clear that, under a proper application of Rule 77(d), the trial court did not have the authority to allow the father additional time to appeal, our supreme court has held that where a party does not oppose before the trial court another party’s Rule 77(d) motion, the appellate courts may not consider the jurisdictional issue of timeliness when the case is presented for appellate review. Ex parte H.F., 843 So.2d 190 (Ala.2002); Ex parte S.W.T., 782 So.2d 766 (Ala.2000). This court is bound by that precedent and may not dismiss the appeal on the basis that it was not timely filed.

The children were placed in the custody of the maternal grandparents in 1996 after allegations arose that S.L.H., the children’s stepfather, had sexually abused one of the children. S.L.H. was convicted on two sexual-offense charges in connection with his molestation of one of the children. S.L.H. is currently incarcerated, serving a 21-year prison sentence and a 10-year prison sentence; those sentences run concurrently.

At the time of the termination hearing, the children had been in the legal custody of the maternal grandparents for more than six years. The record on appeal contains little information about the children’s mother, other than to indicate that she was killed in October 2001.

In 1997, the trial court awarded the paternal grandmother “reasonable unsupervised visitation” with the children, and it awarded visitation to the father and the paternal grandfather under the condition that that visitation be supervised by the paternal grandmother. The paternal grandmother is a truck driver, and, according to her testimony, she traveled frequently in her employment and spent only a few days each month at home. The paternal grandmother testified that she quit her job as a truck driver in order to allow her to spend more time with the children after the children’s mother died. It appears that, until shortly before the termination hearing, the paternal grandmother and the maternal grandparents were able to work out a schedule to allow her to visit with the children on the days she was at home.

The father has a long history of drug and alcohol addiction. The father was incarcerated on receiving-stolen-property charges from May 2001 through November 28, 2001; he enrolled in a drug-treatment program while in prison. The father maintained at trial that he had stopped using illegal drugs and that he is now a recovering addict. The father testified that he has been attending Narcotics Anonymous or Alcoholics Anonymous meetings since May 2002 and that he has seen a psychiatrist a few times.

The father has provided little support for the children during the six years they have been in the custody of the maternal grandparents, and months or years have passed between the times he did attempt to provide support for the children. In approximately 1998, when the father was employed by the paternal grandfather, the father sent the maternal grandparents $50 per week in child support for T.D.H. and the children; the father admitted that he paid that support for only approximately nine months. In January 2002, shortly after his release from prison, the father paid $750 in child support. At the time of the termination hearing, the father was employed full-time and earned approximately $10 per hour. The father acknowledged, however, that he had made no attempt to pay child support for the children since January 2002.

The father admitted that he had had absolutely no relationship with, and had not visited, the children between 1995 and 1997. The record indicates that the father has visited the children only infrequently since that time. The father has typically visited the children when the paternal grandmother had the children for her visitation. However, the paternal grandmother testified that before his release from prison in November 2001 the father had done little for the children and had rarely visited them. The paternal grandmother stated that she could see an improvement in the father since his release from prison.

The record contains copies of cards the children have sent to the father in which the children requested that he schedule a visit with them. In one card, one of the children stated that she had forgotten what the father looked like.

The record indicates that a visitation dispute between the paternal grandmother and the maternal grandparents arose in late January or early February 2002. At that time, the maternal aunt and uncle had already filed their termination petition. After two visits with the paternal grandmother in late January or early February 2002, one of the children was very upset about conversations she had had with the paternal grandmother and the father pertaining to the facts of this case. Although there was an order in place that awarded the paternal grandmother reasonable visitation with the children, the maternal grandparents informed the paternal grandmother and the father that they could only visit the children in the maternal grandparents’ home, under their supervision. Both the paternal grandmother and the father testified that, although the children requested that they schedule a visit with them, they elected not to visit the children in the maternal grandparents’ home because, they contended, they were not comfortable in that home. Therefore, other than briefly seeing the children at school one day, the paternal grandmother and the father, at the time of the termination hearing, had not visited the children since late January or early February 2002. Both the paternal grandmother and the father blamed the maternal grandparents for their failure to visit the children during those months. However, on questioning from the trial court, the father acknowledged that it had been his decision to forgo any visitation with the children during that time.

At the time of the termination hearing, the father was living, rent-free, in a residence owned by the paternal grandparents. The paternal grandmother characterized that home as “rundown” and stated that nobody had lived in that home for four years before the father moved into it. The maternal grandmother testified that the roof in that house leaked and that the walls in the bathroom had been ripped out but not yet replaced. The father stated that the living room had been torn down and that he planned to reconstruct it. He also acknowledged that there was no lock on the front door of that house, and that he sometimes left the door to the house wide open even when he was not there.

At the termination hearing, the father admitted that he could not properly provide for or care for the children, and he dismissed his petition seeking custody of the children. The father continued to object to the maternal aunt and uncle’s adopting the children, however. The father admitted that he believed that, in living with the maternal aunt and uncle, he “did not think [the children] could be in better hands.” However, in essence, the father wanted to maintain the right to be a part of the children’s lives so that he could maintain the right to visit them.

When the children’s mother was killed, the maternal aunt and uncle, who had visited the children often when they were living with the maternal grandparents, decided to attempt to adopt the children. They moved from Nashville to Birmingham and purchased a four-bedroom, three-bath house located near the maternal grandparents’ home. The maternal aunt testified that the children have adjusted well to living with the maternal uncle and her and that they were excited by the change. The children see the maternal grandparents almost daily.

The children are both seeing a counsel- or. Also, the maternal aunt has a bachelor’s degree in psychology and a masters degree in counseling. She has worked with children with emotional and behavioral problems and with elementary-school children. At the time of the termination hearing, the maternal aunt was not working; she stated that she would probably return to work when the children’s younger half brother enrolled in kindergarten.

At the end of the termination hearing, the children’s guardian ad litem recommended that the father’s parental rights be terminated.

Section 26-18-7, Ala.Code 1975, which sets forth the statutory authority for the termination of parental rights, provides:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for [the] needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“[Listing offenses.]
“(8) That parental rights to a sibling of the child have been involuntarily terminated.

“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:

“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

This court has stated:

“Every parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Human Resources, 636 So.2d 419 (Ala.Civ.App.1994).

“ ‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. § 26-18-7, Ala.Code 1975. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a), Ala.Code 1975. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26-18-70»), Ala.Code 1975.’
“M.H.S. v. State Dep’t of Human Resources, 636 So.2d at 421.
“Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). The trial court must first determine that the child is dependent. Id. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Id. On appeal, the ^ trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. M.H.S. v. State Dep’t of Human Resources, supra. In a proceeding to terminate parental rights, the paramount consideration of the trial court, and of this court, is the best interests of the children involved. Id.”

A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997).

The father first argues that the maternal aunt and uncle were not parties to the original dependency action, and, therefore, that they could not file a petition to terminate his parental rights. A petition to terminate a parent’s parental rights may be filed by “[DHR], any public or private licensed child-placing agency or parent, with permission of the court, or any interested party.” § 26-18-5(a), Ala. Code 1975 (emphasis added). The father contends that because the maternal aunt and uncle did not intervene in this action and had riot previously been awarded custody of the children, they were not “proper parties” to file a petition to terminate his parental rights. The trial .court stated that it interpreted the term “interested party” in § 26-18-5(a) to mean any person interested in the children’s welfare. We note that in establishing who could file a petition to terminate parental rights, the Alabama Legislature elected to use the words “interested party” rather than “party.” See § 26-18-5(a), Ala.Code 1975 (most recently amended effective April 22, 1998).

This issue has been addressed in another case. In that case, although this court concluded that the issue was not preserved for appellate review, we found that the term, “interested party” in § 26-18-5(a) provided statutory authority to allow foster parents to seek the termination of a parent’s parental rights. N.A. v. J.H., 571 So.2d 1130 (Ala.Civ.App.1990) (“N.A. v. J.H. I”). After this court issued its judgment in N.A. v. J.H. I, the appellants filed in the trial court a Rule 60(b), Ala. R. Civ. P., motion, contending that the termination judgment was void because the termination petition had been filed by foster parents. N.A v. J.H., 581 So.2d 492 (Ala. Civ.App.1991) (“N.A. v. J.H. II”). In reviewing the trial court’s denial of that Rule 60(b) motion, this court noted that the appellants, in filing that motion, were seeking to circumvent their failure to properly preserve that' issue in the first appeal. N.A. v. J.H. II, supra. The court also reiterated that, as to the merits of the interested-party issue, the court had “already addressed the issue ... and ha[d] determined that-the termination proceeding was proper On the petition of the foster parents.” N.A. v. J.H. II, 581 So.2d at 493. Given that authority, in which this court determined that foster parents were “interested parties” who could file a petition to terminate parental rights, we cannot say that the father has demonstrated that the trial court in this case erred in concluding that the maternal aunt and uncle were interested parties entitled to file a termination-of-parental-rights petition pursuant to § 26-18-5(a).

The father also argues that the trial court erred in terminating his parental rights. In its termination judgments, the trial court made detailed findings of fact pertaining to the father’s history • during the six years the children have been in the custody of their maternal relatives. The trial court cited the father’s “long history of drug and alcohol addiction”; his lack of a stable residence; his failure to provide more than occasional financial support for the children in spite of his maintaining full-time employment; his failure to maintain a relationship with the children for years; and his visiting them only “rarely” in the recent past. The trial court concluded that the father is, and would be for the foreseeable future, unable to discharge his parental responsibilities and that there were no viable alternatives to the termination of the father’s parental rights.

In his brief on appeal, the father argues that the evidence does not support a finding of his abandonment of the children, and, therefore, he argues, the trial court’s judgment should be reversed. The trial court, however, did not rely on the theory of abandonment in reaching its judgment. We conclude that other grounds listed under § '26-18-7, Ala.Code 1975, support the trial court’s termination judgments, and, therefore, we do not reach the issue whether the father’s conduct amounted to abandonment under § 26-18-7(c), Ala. Code 1975.

The father contends that he did provide support for the children. However, his own testimony established that he paid regular support of $50 per week for only approximately nine months in 1998, and that he paid a total of $750 in support in January 2002. The children have been in the custody of their maternal grandparents since late 1996. The father admitted that, other than during the nine-month period in 1998 and in January 2002, he had paid no support, although he was employed full-time for almost all of the time the children were in the maternal grandparents’ custody. The father admitted at the July 2002 termination hearing that he had made no effort to pay child support for the children after January 2002. The evidence supports the trial court’s conclusion that the father had failed to consistently support the children.

The father also contends that the maternal aunt and uncle should not be “allowed to benefit” from the actions taken by the maternal grandparents that, he maintains, prevented him from visiting the children. The father has a history of failing to visit the children. The maternal grandmother testified that the only way she knew if the father had visited the children during their visitation with the paternal grandmother was if the children reported to her that they had seen him. The maternal grandmother stated that the children reported visiting with the father only infrequently. The paternal grandmother testified that, before he went to prison in May 2001, the father rarely visited the children and that he had done very little for them.

One of the children became very upset after the visits in late January or early February 2002 with the paternal grandmother and the father during which the paternal grandmother and the father discussed this case with the children. In response, the maternal grandparents specified that any future visitation until the next court hearing would have to be supervised. The father did not attempt to visit the children at the maternal grandparents’ home. The trial court pointed out to the father that the offered supervised visitation was not “about [the father],” and that it was “about [the children].” The father agreed, and he also admitted that the children had indicated that they would like him to schedule a visit. However, the father stated that he had elected not to visit the children because he believed he would feel uncomfortable visiting the children in the maternal grandparents’ home.

The father insists in his brief on appeal that his failure to visit was not his fault because, he maintains, the maternal relatives prevented his visitation. However, the record demonstrates that the period in which the father contended that the maternal grandparents had prevented him from visiting lasted only from late January or February 2002 to July 2002. The father offers no explanation for his failure to consistently visit the children during the six years they had been in the maternal grandparents’ custody. Further, during the period between late January or early February 2002 and the July 2002 termination hearing, the father elected, in order to avoid his own discomfort, not to visit the children at the maternal grandparents’ home. The trial court’s comments during the hearing support a conclusion that the trial court did not find the father’s choice not to visit the children to be consistent with the father’s claims that the maternal grandparents were at fault for his lack of visitation with the children.

The father also contends that there were viable alternatives to the termination of his parental rights. The father contends that the petitioners, the maternal aunt and uncle, were themselves viable alternatives to the termination of his parental rights. In other words, the father advocates maintaining the situation the children had been in for the six years before the termination hearing by leaving them to be -raised by family members. The father testified only that he wanted to remain a part of the children’s lives and to be able to visit them. He did not know when, if ever, he would be capable of adjusting his own circumstances in order to meet the needs of his children.-

In A.N.S. v. K.C., 628 So.2d 734 (Ala.Civ.App.1993), a maternal aunt and uncle petitioned to terminate the parental rights of an incarcerated father. The father testified that he might be released from prison seven years after the termination hearing in thát case. In rejecting the father’s argument that the maternal aunt and uncle were viable alternatives to the termination of his parental rights, this court found that “[t]he only alternative available to the trial court was to maintain the status quo,” but that “[t]he maternal aunt and uncle were willing to adopt the children to give them a feeling of permanency and security.” A.N.S. v. K.C., 628 So.2d at 735. This court affirmed the trial court’s termination judgment.

Similarly, in this case, the father advocates only maintaining the status quo, and he has no idea whether or when he might be able to adjust his circumstances to meet the children’s needs. See A.N.S. v. K.C., supra. The evidence supports the trial court’s determinations regarding the status quo in this case: that the father has failed to consistently support the children or maintain visitation with them, that he failed to consistently provide for the children’s support, and that his situation is not likely to improve in the foreseeable future. The evidence also supports the trial court’s determination that the maternal aunt and uncle can provide the “safe and stable home environment” that the children need and that such a home would be in the children’s best interests. Given the record on appeal, we cannot say -that the trial court abused its discretion in entering its judgments terminating the father’s parental rights. A.R.E. v. E.S.W., supra; M.H.S. v. State Dep’t of Human Res., supra.

AFFIRMED.

YATES, P.J., and PITTMAN, J., concur.

CRAWLEY and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

I respectfully dissent.

I 'write separately for two reasons. The first is to note my concern with this court’s reliance in this and other cases on A.R.E. v. E.S.W., 702 So.2d 138 (Ala.Civ.App.1997). Notwithstanding that concern, I would not dissent in this case if not for the fact that it is not clear to me that the trial court properly applied our law regarding termination of parental rights and the examination of viable alternatives in connection therewith. This latter concern is the second reason for this writing.

I.

This court has in numerous termination-of-parental-rights cases cited A.R.E. In recent cases in which I have agreed with the result reached by the main opinion of this court, I have merely concurred in the result of that opinion (rather than concurring in the opinion itself, thereby indicating my agreement with its reasoning) if the opinion relies upon A.R.E. I take this opportunity to explain my reasons for doing so.

This court-stated mA.R.E.:

“Every parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Human Resources, 636 So.2d 419 (Ala.Civ.App.1994).”

702 So.2d at 139 (emphasis added). The notion that a parent’s right to the custody of his or her child can be overcome merely by a showing (whether by clear and convincing evidence or otherwise) that removal of the child from the parent’s custody would be “in the best interest of the child,” is valid if one bears in mind that our law presumes that a natural parent’s maintenance of custody of a child is in the child’s best interest, and only allows this presumption to be rebutted upon a showing of “unfitness” or forfeiture. See Ex parte Beasley, 564 So.2d 950 (Ala.1990); Ex parte Terry, 494 So.2d 628 (Ala.1986); Ex parte Berryhill, 410 So.2d 416 (Ala.1982); § 26-18-7, Ala.Code 1975. See generally D.M.P. v. State Dep’t of Human Res., 871 So.2d 77 (Ala.Civ.App.2003) (plurality opinion with two judges concurring and three judges concurring in the result). Without this understanding, I find the above-quoted statement from A.R.E. to be confusing, at best.

In A.R.E., this court also stated:

‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. § 26-18-7, Ala.Code 1975. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a), Ala. Code 1975. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26-18-7(b), Ala.Code 1975.’
“M.H.S. v. State Dep’t of Human Resources, 636 So.2d [419,] 421 [(Ala.Civ.App.1994)].
‘Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). The trial court must first determine that the child is dependent. Id. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Id. On appeal, the trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. M.H.S. v. State Dep’t of Human Resources, supra. In a proceeding to terminate parental rights, the paramount consideration of the trial court, and of this court, is the best interests of the children involved. Id.”

702 So.2d at 139-40 (emphasis added).

With regard to the foregoing, I first note that our Supreme Court in Ex parte Beasley did not hold that a trial court has “the authority to terminate parental rights” merely if it finds that the parents are “unable or unwilling to discharge their responsibilities to and for the children.” Under Ex paHe Beasley, a trial court has this “authority” only where both prongs of a “two-pronged test” are satisfied. See D.M.P., 871 So.2d at 93 (plurality opinion).

Further, the “two-pronged test” identified in Ex parte Beasley is different than that articulated in A.R.E. In Ex parte Beasley, our Supreme Court stated:

“The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered.”

564 So.2d at 954 (emphasis added).

Thus, while A.R.E. cites “dependency” as the first prong of the Beasley test, Ex parte Beasley states that “grounds for the termination” is the first prong. “Dependency” and “grounds for termination” are two different things. A “dependent child” is defined in § 12-15-1(10), Ala.Code 1975. If a child is found to be “dependent,” § 12-15-71, Ala.Code 1975, provides for six possible dispositions, only one of which is “termination” — and that only in “appropriate cases.” See generally D.M.P., 871 So.2d at 81 (plurality opinion) (discussing, among other things, “appropriate cases” for termination). Ex parte Beasley provides that an “appropriate case” for termination is one in which the trial court finds, first, that there are “grounds for the termination” and, second, that, having considered the viable alternatives, termination is in the best interests of the child. Ex parte Beasley, 564 So.2d at 954-55. See D.M.P., 871 So.2d at 81 (plurality opinion).

II.

Having said the foregoing, there certainly appears to be substantial evidence in the present case to support the conclusion that the first prong of Ex parte Beasley— “grounds for the termination” — existed. Given the particular record before us and the judgment of the trial court, however, I question whether the trial court examined or “considered” whether some arrangement, perhaps involving the maternal grandparents or the maternal aunt and uncle, other than termination, would better serve the interests and welfare of the children. It may be that no such better arrangement exists; however, I would remand this cause to the trial court for such a determination consistent with the plurality opinion in D.M.P.

CRAWLEY, J., concurs.

      . Although the maternal aunt and uncle had physical custody of the children at that time, they deferred to the maternal grandparents, the children’s legal custodians, to make decisions regarding visitation matters with the father and the paternal grandmother.

      . "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.” Ex parte Mathews, 428 So.2d 58, 59 (Ala. 1983). "The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for.” Striplin v. Ware, 36 Ala. 87, 89 (1860) (quoted with approval in Ex parte D.J., 645 So.2d 303, 305 (Ala.1994)).

      . By statute, our Legislature has recognized that the “unfitness” to parent a particular child may arise from a parent’s voluntary relinquishment or abandonment of that child. See § 26-18-7(a)(l), Ala.Code 1975.

      . In Ex pane Beasley, our Supreme Court did state, however, that if a nonparent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency. 564 So.2d at 954.


author: MURDOCK, Judge.

text:
    STATE DEPARTMENT OF HUMAN RESOURCES v. I.P. and E.W.
    2020512.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.
    Rehearing Denied Sept. 26, 2003.
    William H. Pryor, Jr., atty. gen.; J. Coleman Campbell, deputy atty. gen.; and Lynn S. Merrill and Connie J. Caraway, asst, attys. gen., Department of Human Resources.
    David B. Norton, Selma, for appellee I.P.
   MURDOCK, Judge.

The Department of Human Resources (“DHR”) appeals from a judgment of the Dallas Juvenile Court refusing to terminate the parental rights of I.P, the mother, and E.W., the alleged father, to their son, M.P.

M.P. was born in February 1998 as a premature baby. He has cerebral palsy and hydrocephalus, an abnormal accumulation of cerebrospinal fluid within the ventricles inside the brain. Shunts were installed to help drain excess fluid from M.P.’s head. M.P. remained in the hospital from his birth until May 1998, when he was released into his mother’s care.

In September 1998, M.P. was admitted to the hospital because of weight loss and breathing problems. Shortly thereafter, the hospital refused to release M.P. to his mother because M.P.’s doctor was concerned about the mother’s care of M.P. Thereafter, DHR was granted temporary custody of M.P., and he was placed in a foster home, where he remained through the trial of this case in January 2003.

In March 2002, DHR filed a petition to terminate the mother’s and alleged father’s parental rights as to M.P. Because DHR was unable to locate the alleged father’s whereabouts and because it was uncertain of the alleged father’s paternity, DHR requested that the trial court authorize it to serve the alleged father and any other person who might be MJP.’s father with notice by publication. Thereafter, the trial court ordered service by publication, and DHR filed proof of publication in the trial court in July 2002.

On January 13, 2003, the trial court conducted a hearing on DHR’s termination petition. The trial court heard the testimony of two witnesses, the mother and Christine Fails-Raymond, a social worker at DHR who had handled M.P.’s case from its inception. Based largely on undisputed testimony, the record reflects that, in addition to other aspects of M.P.’s medical condition, he was unable to walk and could not control his head movement. His care required vocational-rehabilitation services and special equipment to increase his mobility and head control. He also required a special feeding tube that had to be meticulously cared for to prevent infections. M.P. regularly visited doctors in Montgomery, Birmingham, and Selma. At the time of trial, M.P. was approximately five years old; his medical condition had not improved since he was an infant.

The testimony of Fails-Raymond and the mother reflects that DHR attempted to provide the mother with parenting classes and to provide her with services that might enable her to care for M.P. However, the mother did not make herself available for DHR’s assistance and DHR was often unable to locate her. The mother regularly failed to keep M.P.’s medical and rehabilitation appointments, and she was unwilling to complete training regarding how to care for M.P. Further, the mother did not complete the parenting-skills classes provided by DHR, and she failed to utilize available counseling services.

The mother visited M.P. twice in the 25 months preceding the trial. The last time that she visited M.P. was more than five months before the trial, and she did not stay for the entire allotted visitation during her last visit. Also, there was no evidence of a significant emotional bond between M.P. and the mother, and the mother had no relatives who were willing to assist her with M.P.’s care.

The alleged father, who did not appear at trial, had never been involved in M.P.’s life.

While the foregoing evidence supported DHR’s petition to terminate the parents’ parental rights, Fails-Raymond admitted in her testimony that, given M.P.’s condition, it was a “long shot” that DHR would find an adoptive family for M.P. The foster mother, who had cared for M.P. for the four years preceding the trial, had informed DHR that she could not financially afford to adopt M.P.

The trial court entered a handwritten final judgment on the case action summary-sheet as follows:

“1-13-03. In accordance with section 26 — 18—7(a)(1), Code of Alabama (1975), the petition of the [Department] of Human Resources to terminate the parental rights of [the mother] and [the father] as the parents of [M.P.] is denied.”

As indicated, the entry was dated January 13, 2003.

On February 14, 2003, DHR filed a post-judgment motion. The trial court purported to deny DHR’s postjudgment motion on March 3, 2003. On March 10, 2003, DHR filed a notice of appeal. DHR argues that the trial court abused its discretion by denying the petition to terminate the mother’s and the alleged father’s parental rights because, DHR says, the trial court’s decision was not supported by the evidence and was plainly and palpably wrong.

Although no party has questioned this court’s jurisdiction, we first consider whether we have jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). We conclude that the appeal in this case was untimely and that, therefore, the appeal must be dismissed.

We first note that the postjudgment motion filed by DHR on February 14, 2003, was ineffective to suspend the time for filing a notice of appeal. Although a post-judgment motion pursuant to Rule 59, Ala. R. Civ. P., will suspend the running of the time for filing a notice of appeal, see Rule (4)(a)(3), Ala. R.App. P., DHR filed its postjudgment motion on February 14, 2003, 32 days after the January 13, 2003, entry of a final judgment by the trial court. Because the postjudgment motion was not filed within 14 days after the entry of the judgment, it was untimely, see Rule 1(B), Ala. R. Juv. P., and, therefore, it did not suspend the running of the time for filing a notice of appeal. See C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002). Rule 28(C), Ala. R. Juv. P., requires that “[w]ritten notice of appeal shall be filed within 14 days of the date the judgment ... appealed from is filed in the clerk’s office.” Rule 4(a)(1), Ala. R.App. P., provides, in pertinent part, that a “notice of appeal shall be filed within 14 days (2 weeks) of the date of the entry” of a final order or judgment issued by a juvenile court. Because DHR’s notice of appeal was not filed within 14 days of the trial court’s entry of a final judgment on January 13, 2003, it was untimely. As a result, this court is without subject-matter jurisdiction and DHR’s appeal is due to be dismissed. See Rule 2(A)(1), Ala. R.App. P.

APPEAL DISMISSED. .

CRAWLEY, THOMPSON, and ■ PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

      . The court must apply a two-pronged test in any parental-rights-termination case. First, the court must find that there are "grounds for the termination of parental rights.” Second, the court must consider, in light of any viable alternatives, whether termination would be in the child’s best interest. See Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990) (also stating that there must be a showing of dependency in a case where a nonparent is the petitioner); D.M.P. v. State Dep’t of Human Res. 871 So.2d 77 (Ala.Civ.App.2003) (plurality opinion). Although DHR presented ample evidence from which the trial court could have concluded that grounds for the termination of the parents' parental rights existed, see § 26-18-7(a), Ala.Code 1975, the trial court might have concluded, given the unlikelihood of M.P.'s being adopted and the lack of any evidence of a permanent and stable custodial placement, that DHR had not shown it was in M.P.'s best interest to terminate the parents' parental rights, at least not at the present time. Compare Ex parte Brooks, 513 So.2d 614, 615 (Ala.1987) (affirming the trial court’s decision not to terminate a father’s parental rights because termination was not in the best interest of the child, even though both the father and the mother had requested termination of the father's parental rights and the father had abandoned the child, noting, among other things, that termination would sever the child's rights to "support, parental affiliation, and inheritance"), overruled on other grounds by Ex parte Beasley; Glover v. Alabama Dep’t of Pensions & Sec., 401 So.2d 786, 788 (Ala.Civ.App.1981) (reversing the trial court’s decision to terminate the parental rights of a mother diagnosed with paranoid schizophrenia because there was little likelihood that the children, who were both mentally retarded, would be adopted and "the future presented after termination and permanent removal of maternal and family ties ha[d] little if any more prospects of serving the best interests of the children than if they were returned to the mother”). Because we must dismiss this appeal, we do not address the question whether the record contains substantial evidence to support such a conclusion.

      . Based on the other entries on the case action summary sheet, it is apparent that the trial court's January 13, 2003, judgment was written and signed by the trial judge. Although the trial judge filed the same order on February 4, 2003, in a separate writing (which also bears the date Januaiy 13, 2003), the trial court’s January 13, 2003, judgment constituted the entry of a final judgment. See Rule 58(c), Ala. R. Civ. P. (providing, in part, that "[n]otation of a judgment ... in the civil docket ... constitutes the entry of the judgment”).


author: YATES, Presiding Judge.

text:
    Willard G. PREUSSEL v. Beverly R. PREUSSEL.
    2020069.
    Court of Civil Appeals of Alabama.
    Sept. 5, 2003.

      Patrick A. Jones, Huntsville, for appellant.
    Dinah P. Rhodes, Huntsville, for appel-lee.
   YATES, Presiding Judge.

This is a child-support-modification case.

Willard G. Preussel (“the father”) and Beverly R. Preussel (“the mother”) were married on October 24, 1980, and divorced on November 9, 1989. Two children, a son and a daughter, were born of the marriage. On August 1, 2001, the mother moved for a rule nisi and a modification of child support. She claimed' that the father had not paid his monthly child-support obligation of $1,106.30 pursuant to the divorce judgment. She also requested postminority'support for the parties’ son several weeks before he reached the age of 19. She requested, among other things, that the court find the father in contempt for his failure to comply with the divorce judgment; that the court award her the amount of the father’s child-support arrearage, plus 12% annual interest; and that the father pay postmi-nority support for the son. The father timely answered, claiming that his failure to pay child support was justified because the daughter was over the age of 19 and because the son was emancipated upon his graduation from high school and his subsequent enlistment in the United States Marine Corps Reserves (“the Reserves”). Following ore tenus proceedings, the court, on June 7, 2002, entered the following order:

“This cause comes to be heard on the [mother’s] Petition for Rule Nisi and Modification, and the [father’s] answer to the same. The -parties have appeared in Court and presented evidence and testimony. Upon consideration of the same, the court does hereby ORDER as follows:
“1. The [father] failed and refused to pay child support as ordered by this court from July 2000, until August, 2001, when the parties’ youngest child reached age 19 years. Although the [father] claims that the parties’ youngest child was emancipated at age 17 by virtue of his entry into the United States Marine Corps Reserves, the court does not find the child to have been emancipated. The child’s entry into the United States Marine Corps Reserves required a five-month training period during which the child was required to live at various military bases. The child was not paid by the United States government until he had completed said training, although the government provided him with housing, food and uniforms during said training. At the completion of the training, the child was 18 years of age, and returned home to live with the [mother]. At the time, the child was not self-supporting, nor could he have sustained himself without financial assistance from his parents.
“The [father] took no steps to have his child support modified or reduced. The [father] took no steps to have the child legally declared an emancipated minor. Emancipation is governed by statute and can only occur when a minor child has reached age 18. Anderson v. Loper, 689 So.2d 118 (Ala.Civ.App.1996). Based on the evidence presented at trial, this Court finds that the child was not emancipated prior to his 19th birthday, which occurred on August 23, 2001.
“Child support payments become final judgments on the day they are due, and payments that mature before a filing of a petition to modify child support are not modifiable. Ex parte State ex rel. Lamon, 702 So.2d 449 (Ala.1997). The trial court has no power to forgive accrued arrearages in child support payments. Id. It is undisputed that the [father] paid only $414.87 in child support [in] July, 2000. It is undisputed that the [father] failed and refused to pay any chid support thereafter. Accordingly, the [mother] is awarded a judgment in her favor and against the [father] in the amount of $17,232.14. The [father] shall satisfy the judgment by paying the [mother] the monthly sum of $1,100, commencing June 15, 2002, and continuing on the 15th day of each month thereafter until paid in full. An income withholding order is entered to collect said child support arrears. In the event the income withholding order is not implemented prior to June 15, 2002, then the [father] shall pay said sum directly to the [mother] until the income withholding order is commenced.
“2. The [father] shall pay the sum of $1,890 per semester to [the son] to assist [the son] with his college expenses. The court finds that said sum is equivalent to the room and board charged at the University of Alabama at Huntsville. Said sums shall be paid by the [father] to [the son] at the beginning of each semester or quarter as the case may be, and shall be due and payable by the [father] for a period of four years, or until [the son] obtains a four-year college degree, whichever shall occur first. Said payments shall be further conditioned upon [the son] maintaining a C average. In making this award, the Court has considered the Pell Grants and G.I. Bill benefits currently available to [the son],
“4. The [father] is found to be in contempt for his willful failure to abide by this court’s decree of divorce. The [mother] is awarded a judgment in her favor and against the [father] in the amount of $2,424.16, for which execution may issue.”

On July 3, 2002, the father moved for a new trial or for relief from the judgement. That motion was denied as a matter of law. The father appeals.

The father alleges, among other things, that the trial court erred in requiring him to pay a child-support arrearage. He contends that the son was emancipated during the period for which the court assigned the arrearage award. We disagree.

This court has stated:

“The age of majority in this state is 19, Ala.Code 1975, § 26-1-1, and a parent has a duty to support a child who is under the age of 19. [State ex rel.] Shellhouse [v. Bentley], 666 So.2d [517], 518 [(Ala.Civ.App.1995)]. However, once a child is emancipated, a parent no longer has a duty of support. B.A. v. State Department of Human Resources ex rel. R.A., 640 So.2d 961, 962 (Ala.Civ.App.1994).
“Emancipation of a minor child is governed by statute and can occur only when a minor child has reached the age of 18. Ala.Code 1975, § 26-13-1. The trial court must base its decision on emancipation on the best interest of the minor child. Id. ‘The best interest standard affords freedom for the trial court to consider numerous and varied factors .... A multitude of factors are proper for consideration when the trial court is determining what is in the best interest of the child, and there are no specific rules or guidelines that will control every case.’ Hodge v. Hovey, 679 So.2d 1145, 1148 (Ala.Civ.App.1996) (citations omitted). The trial court ... is entrusted to make the ultimate decision on contested issues, and its judgment will not be set aside unless this court finds that the judgment is plainly and palpably wrong. Swann v. Swann, 627 So.2d 429, 430 (Ala.Civ.App.1993).”

Anderson v. Loper, 689 So.2d 118, 120 (Ala.Civ.App.1996). However,

“[w]hen a minor’s situation is such that he no longer needs to be supported, then his right to support from his parents, or either of them, should no longer exist. This is because the amount of child support required to be paid by a parent has always been dependent upon two factors; first, the needs of the child and second, the ability of the parent to pay. When a minor is employed and self-supporting, and may properly be expected to continue to do so, his parents are relieved from the obligation of support. ‘Self-support’ has its common and ordinary meaning, that is, the independent support of oneself.”

Brooks v. Brooks, 386 So.2d 472, 474 (Ala.Civ.App.1980) (citations omitted). Additionally, “[a] party may not unilaterally reduce child support payments without the consent of the court. Child support debts are final judgments once due, and the support already owed cannot be waived.” Phillippi v. State ex rel. Burke, 589 So.2d 1303, 1304 (Ala.Civ.App.1991) (citation omitted).

Although the father contended that the son was emancipated, he testified that he knew that the son had returned to live with the mother by January 2001, after the son had finished his stint in boot camp; that he did not know whether the son was self-supporting; and that he had no information on the son’s income, work hours, or living expenses.

The record indicates that the son was not self-supporting; the mother paid for his housing, utilities, groceries, car insurance, and cellular-telephone service.

Our supreme court has stated:

“It is well settled that child support payments become final judgments on the day they are due and may be collected as any other judgment is collected; and that payments that mature or become due before the filing of a petition to modify are not modifiable. Furthermore, it is well settled that a trial court has no power to forgive an accrued ar-rearage.”

Ex parte State ex rel. Lamon, 702 So.2d 449, 450-51 (Ala.1997) (citations omitted).

It is undisputed that the father has not paid child support since July 2000, when he paid only $414.87, and that he did not seek to have the child-support award modified. We conclude that the court properly calculated the father’s arrearage to be $17,232.14, which consisted of the $619.43 deficit owed for July 2000 and the $1,106.93 owed per month for the period of August 2000 through August 2001, plus interest.

The father next argues that the trial court erred in finding him in contempt for nonpayment of the child-support arrearage. However, he fails to cite any authority to support his arguments. Our supreme court has stated that “ ‘[wjhere an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’ ” Spradlin v. Birmingham Airport Auth, 613 So.2d 347, 348 (Ala.1993). Thus, we affirm the trial court’s finding of contempt.

Finally, the father raises the issues whether the trial court’s postminority-sup-port award was reasonable, given his financial status, and whether the court placed the appropriate restrictions upon that award.

The court required the father to pay postminority support for the son in the amount of $1,890 per semester. He argues that because of his alleged financial hardship he is unable to pay that amount. This court has stated:

“[Ex parte] Bayliss[ 550 So.2d 986 (Ala.1989),] clearly specifies those factors that shall, and those that may, be considered by the trial court when it is deciding whether to order support for postminority college education. In an award of postminority educational support for a child of divorced parents, the trial court ‘ “shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.” ’ A.L. v. B.W., 735 So.2d 1237, 1239 (Ala.Civ.App.1999); Thompson v. Thompson, 689 So.2d 885, 887 (Ala.Civ.App.1997) (quoting Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989)). The court suggested that trial courts also should consider ‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’ Id. at 987. The trial court must also determine if the noncustodial parent has ‘sufficient estate, earning capacity, or income to provide financial assistance without undue hardship.’ Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Undue hardship does not imply the absence of personal sacrifice, because many parents sacrifice to send their children to college. Id.”

Penney v. Penney, 785 So.2d 376, 378-79 (Ala.Civ.App.2000).

The son graduated from high school in May 2000, at age 17. He entered the Reserves in July 2000 in order to help pay for college. He returned from boot camp approximately five months later in December 2000, at age 18. The son then received $3,200 as payment for the five months he had spent in boot camp. He enrolled as a full-time student at The University of Alabama in Huntsville (“U.A.H.”) for the spring 2001 semester. The son earned approximately $186 per month from the Reserves. He also worked 30-35 hours per week at a restaurant as a server during the spring 2001 and' fall 2001 semesters. Since entering college, the son had received between $200 and $250 from the father to assist with college expenses. The son stated that he was not a “freeloader” and wanted to pay either his mother or a dormitory for room and board.

The mother, who owned a pet-grooming service, testified that her yearly income was approximately $19,000. As previously mentioned, the mother paid for the son’s housing, utilities, groceries, car insurance, and cellular-telephone service. She also provided financial assistance to the son while he was in boot camp, because the enlistees are not paid until after they complete basic training. The mother testified that she was not financially able to provide for the son for the duration of his college years, although she had previously provided room and board. The record indicates that the mother’s home had burned approximately one month before the hearing. The mother’s total losses, which included her automobile, exceeded her insurance coverage. She stated that she had no financial means with which to compensate the losses.

The father, who was a senior scientist at Dyneties, Inc., testified that his yearly salary was $103,000. As of December 2001, the father had over $14,000 in savings and a retirement account containing over $471,000. The father stated that four hos-' pital visits and his overall debt load in the year 2000 contributed to his inability to pay his children’s college expenses. However, he presented no evidence of any expenditures related to the hospital visits.

Despite his contention of financial hardship, the record reflects that the father had paid off between $3,000 and $5,000 of his new wife’s debt. He was also paying his wife’s automobile loan, which totaled $7,692.52. The record also indicates that a $1,026 purchase at Robbins Music Center was deducted from the father’s checking account in February 2002. The father also paid the tuition and fees at another in-state college for one of his stepsons for the fall 2000 and spring 2001 semesters. The father also provided his stepson, who was approximately 22 years old and did not work, with room and board and a car that the father leases. The father also admitted that he had purchased a house in New York in which he permitted another stepson to live. The record reflects that the father had also paid for a substantial portion of the daughter’s room and board at The University of Alabama (“UA”) until the mother petitioned the court for postminority support for the son.

We note that the parties testified that the father had savings bonds to assist the children with their college expenses. However, the parties were unsure as to the actual value of the bonds, and they submitted no independent evidence of the value of the bonds to the court.

In comparing the father’s estate, earning capacity, and income to that of the mother, we cannot say that the court’s award of postminority support was unreasonable. We conclude that the trial court did not abuse its discretion in awarding postminority support in the amount of $1,890 per semester for the son.

The father argues that the trial court erred in failing to place sufficient restrictions on its postminority-support award. He alleges that the judgment should be reversed because it failed to require the son to maintain full-time status and because it failed to credit the father for the hours of course work the son had already completed before the award of postminority support.

“Following Bayliss, this court has held that the trial court must set reasonable limitations on the parent’s responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent. These limitations include (1) limiting the support to a reasonable period, (2) requiring the child to maintain at least a ‘C’ average, and (3) requiring that the child be enrolled as a full-time student.”

Penney, 785 So.2d at 379 (citations omitted).

Here, the court properly limited the award of postminority support to a reasonable period by requiring payment for four years of college or until the son obtained a four-year college degree, whichever came first. The court also properly conditioned the award upon the son maintaining a “C” average, thus meeting the second prong listed in Penney. However, the court’s order does not comply with the third prong listed in Penney because it does not require the son to maintain full-time status. Therefore, that portion of the judgment must be reversed.

The father also argues that his responsibility to pay postminority support was “attenuated by at least one and one-half years.” He contends that because the son had already completed three semesters or one and one-half years of course work, his postminority-support obligation should be reduced by as much.

“In cases that involve an award of post-minority support for a college education, this court has held that the award of such support will be retroactive to the date of the filing of the petition for the support. Thompson v. Thompson, 689 So.2d 885 (Ala.Civ.App.1997) (citing Bayliss v. Bayliss, 575 So.2d 1117 (Ala.Civ.App.1990)). In Thompson, this court quoted a Pennsylvania court and concluded that: ‘There is a sound policy favoring retroactivity in most cases, because the party entitled to support should not be penalized for having to resort to time-consuming court proceedings.’ 689 So.2d at 889 (citation omitted).”

Brown v. Brown, 719 So.2d 228, 232 (Ala.Civ.App.1998).

The record shows that the son entered college in the spring 2001 semester. He then completed both the spring and summer 2001 semesters before the mother filed for postminority support on August 1, 2001. In applying relevant caselaw, the four-year period during which the father is obligated to provide postminority support began as of the date of the filing for postminority support.

We affirm the trial court’s judgment insofar as it awards the mother a child-support arrearage, holds the father in contempt, and awards postminority support for the son. We reverse the trial court’s judgment insofar as it fails to place certain restrictions on the award of post-minority support, and we remand the case for the trial court to enter a judgment making the award retroactive to the date of the filing and containing the restrictions outlined in Penney, supra, including the requirement that the son maintain full-time status as a student.

The mother’s request for an attorney fee on appeal is granted in the amount of $3,000.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

      .We note that although the son dropped one class and received no credit for another class during the spring 2001 semester and that he received an incomplete for two classes during the fall 2001 semester, he never dropped below full-time status at U.A.H. He explained that he had received such marks because of his obligations to the Reserves and his employer. He further stated that he had since completed the incomplete course work for the fall 2001 classes and was awaiting his grades for those courses at the time of the hearing.

      . The mother had insured the home for $64,000; however, her damages exceeded $75,000.

      . The daughter was approximately 21 years old and had been enrolled at UA since the fall 1999 semester.