author: THOMPSON, Judge.

text:
    S.E. v. STATE DEPARTMENT OF HUMAN RESOURCES. J.E. III v. State Department of Human Resources.
    2020049 and 2020074.
    Court of Civil Appeals of Alabama.
    April 25, 2003.

      Paige W. Elliott, Tuscaloosa, for appellant S.E.
    Robert J. Lee of Brinyark & Nelson, P.C., Tuscaloosa, for appellant J.E.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

On April 2, 2002, the Tuscaloosa County Department of Human Resources (“DHR”) filed an action against S.E. (“the mother”) and J.E. Ill (“the father”) in the Tuscaloosa Juvenile Court (“the trial court”), seeking the termination of the mother’s and father’s parental rights as- to G.E. (“the daughter”) and J.E. IV (“the son”). (The mother and the father are hereinafter referred to collectively as “the parents”; the daughter and the son are hereinafter referred to collectively as “the children.”) On May 30, 2002, J.E. II (“the grandfather”) filed an action in the trial court seeking to have custody of the children placed with him and the grandmother. The trial court appointed a guardian ad litem to represent the interests of the children. On August 19, 20, and 23, 2002, the trial court held a hearing and received ore tenus evidence. On October 3, 2002, the trial court entered separate judgments terminating the parental rights of both the father and the mother, denying the grandfather’s custody request, and placing the children in the custody of DHR to be placed for adoption. The mother and the father filed separate appeals.

According to the record, the parents were married at the time of the appeals and were living in a mobile home on the grandparents’ property. The father was 26 years old at the time of the termination hearing. The daughter was born on April 8, 1996, and the son was born on May 20, 2001. The record indicates that DHR took custody of the daughter in late 2000, when she was four years old; DHR has had custody of the son since his birth.

The trial court heard the testimony of Jean Channel, a school nurse who has been employed by the Tuscaloosa Board of Education for 23 years. Channel worked at the Sprayberry Original Education Center (“the center”), screening new students for educational and medical assessments; the daughter was enrolled at the center following a referral by the Alabama Institute for the Deaf and the Blind. According to Channel’s testimony, the daughter had been diagnosed with poor eyesight, tibial-torsion (severely bowed legs), two abscessed front teeth, and sporadic seizures; Channel also indicated that those health problems had never been treated by a medical professional. Additionally, Channel testified that the daughter often came to the center in clothes that were too small and in diapers that were also too small and that were occasionally soiled.

The center instructed the mother in the identification of and in the treatments for the daughter’s medical needs. According to Channel, the mother initially complied with the instructions, but she failed to follow through for a sustained period. Channel testified that the mother was very childlike and “needed someone to ... take her by the hand and help her to take care of her child.”

After meeting with the mother on several occasions, Channel determined that the mother was “a virtual prisoner ... in her own home.” Channel testified that the mother confided in her that she was not allowed to talk when the father came home from work and that, on occasion, the mother and the daughter would sit in a closet so the daughter’s noise would not upset the father.

Channel stated that, on one occasion, the daughter missed several days from the center and when she returned she had a black eye and a cut above her eye. Channel testified that the mother explained the daughter’s injuries by indicating that the father tried to “attack” and “choke” the daughter and her. On cross-examination, however, Channel acknowledged that some of the bruises on the daughter’s body were consistent with typical childhood accidents. Based on the foregoing information, the center contacted DHR; based on DHR’s initial investigation, the daughter was placed in the care of a foster parent. Channel testified that the daughter responded very well to the foster parent’s care, which reduced Channel’s interaction with the daughter.

Pam Strickland became the daughter’s foster parent in late October 2000; she became the son’s foster parent shortly after his birth in mid-2001. Strickland testified that she has been trained in the therapeutic aspects of raising special-needs children. Strickland took the daughter to the dentist for treatment for her two abscessed teeth; she testified that the teeth were black and worn down to “stubs.” According to Strickland, when the daughter arrived in her home, she was not toilet trained; however, Strickland was able to toilet train the daughter within a week or two. Strickland testified that the daughter spoke only four or five words when she arrived in her home but that the daughter’s speech and physical dexterity have improved while in Strickland’s care. Strickland testified that the daughter lacks reasoning skills and cannot control her impulses, which, Strickland says, often leads to destructive or aggressive behavior.

According to Strickland, the son has several medical conditions that qualify him as a special-needs child. The son has asthma and requires a breathing machine; a caretaker must supervise the son throughout his breathing-machine treatments. In addition to the asthma, the son has acid reflux, which has damaged parts of his throat, his nodules, and his vocal cords; because of the acid reflux, the son drinks specialized liquids from a modified children’s cup. The son suffers from eczema and must take short baths and use special lotions that are applied to both the eczema and to his uninfected skin. Strickland testified that, as a result of the son’s asthma, she has had to perform mouth-to-mouth resuscitation on the son and once had to rush the son to a hospital emergency room because he had quit breathing.

Strickland testified that the children’s schedule was regimented and required constant attention to detail. Strickland testified that the schedule for the son’s asthma medication changes frequently; she opined that keeping up with the son’s medical condition requires personal initiative on the part of the son’s caretaker. According to Strickland, the son’s asthma medication contains adrenaline, which keeps him up late at night; the daughter awakens early and is rambunctious throughout the day, but goes to bed at 8:00 p.m.

April Lane, the coordinator of the Indian Rivers Mental Health Clinic’s intensive children’s services program, testified that she evaluated the standardized DHR reports completed on the daughter, including a report from Strickland. Lane, who holds a Ph.D. in counseling from the University of Alabama, a master’s degree in family studies from Pennsylvania State University, and a bachelor’s degree in child development from Ohio Wesleyan University, diagnosed the daughter as having an attachment disorder, meaning that the daughter experienced a “lack of primary early attachment” that has “pervasive effects intellectually, socially, [and] emotionally.” Lane testified that attachment disorder can be caused by abuse, neglect, poor day-care facilities, or being raised by parents who had poor childhood experiences. Lane testified that the daughter’s inability to control her impulses is a sign of attachment disorder and that such a disorder could lead to sociopathic behavior if left untreated. According to Lane, mature, emotionally strong parents are the best treatment for an attachment disorder. Lane testified that children with an attachment disorder must be given a great deal of structure and that the primary caregiver of a child with an attachment disorder should possess much patience.

Stacey Bonner, the social worker assigned to the children and the parents, met with the parents on seven different occasions from August 23, 2000, through March 5, 2001, to discuss their Individualized Service Plan (“ISP”). Bonner also inspected the parents’ house and recommended changes that would enhance the children’s safety, such as repairing holes in the floor of the house. The father completed a domestic-abuse-awareness course recommended by Bonner after “dropping out” of a previous course on that subject. According to Bonner, it was necessary for the parents to attend DHR’s 12-week parent-training program for 8 to 9 months because they were unable to retain and build on the information provided in the program from week to week.

Bonner expressed concern about the parents’ and the grandparents’ ability to care for the son because he requires constant attention and averages five medical appointments each month; the parents have been to only one of the son’s medical appointments. The fact that the parents have only one vehicle concerned Bonner because of the son’s medical problems.

Bonner testified that the parents and the grandparents were allowed to visit the daughter for one hour per week and that their behavior during those visits was “peculiar.” The mother was often “withdrawn” during the visitation, but Bonner admitted that the mother’s behavior could have been caused by her depression. According to Bonner, the father was often angered by the daughter’s behavior during the visitation and responded in an inappropriate manner, such as by leaving the visitation room. She stated that on one occasion the father left the visitation to sleep in his vehicle; the father denied that allegation. Bonner indicated that the parents argued in front of the daughter during the visitations and that, on occasion, they brought books and newspapers with them into the one-hour visitation.

According to Bonner, the parents would occasionally bring well-intentioned yet inappropriate gifts for the daughter, such as a professional-wrestling video and a professional-wrestling T-shirt. Bonner noticed that the father was angered when the daughter did not express any interest in these gifts. Bonner recalled an instance where the daughter threw a stuffed animal at the father and he threw it back at her. The father testified that his response was playful; Bonner agreed, but testified that his action was still inappropriate. In Bonner’s presence, the grandfather made inappropriate comments to the daughter such as “if you don’t hug me, I’m gonna shoot you.” Bonner testified that, even though the grandfather’s comment was a joke, it was an inappropriate comment for a special-needs child. According to Bonner, the daughter responded well to the mother and the grandmother but not to the father or the grandfather.

Bonner identified other instances demonstrating the parents’ and the grandparents’ lack of adequate parenting abilities. Bonner testified that the father failed to react to an incident when the son was choking and spitting-up during a visitation, even though the father was holding the son; however, the mother was complemented by the DHR staff for her reaction to that situation. Bonner recalled conversations in which the parents and the grandmother stated that perhaps they should give up custody of the children because they did not know how to handle the special needs of the children.

Bonner testified that the financial situation of the parents and the grandparents was a concern. The grandfather is disabled and receives a disability check of $386 per month as his only income. Upon an inspection of the grandparents’ house, Bonner determined that the grandparents did not have adequate space for the baby crib and the son’s breathing machine. Further, Bonner testified that the grandmother might have contributed to the daughter’s attachment disorder because the daughter often spent time with the grandmother in her formative years.

According to Bonner, the parents and the grandparents love the children, and she stated that the parents “have maintained contact” and “regular visits” with the children. Bonner testified that the parents generally brought appropriate gifts to the visitations, including clothes, baby-wipes, diapers, cookies and other snacks, jumpsuits and a toy for the son, and coloring books for the daughter on her birthday. Bonner testified that a March 15, 2002, ISP report generated by DHR states the parents’ positive attributes as love for the children, attendance at all necessary meetings, and their family support.

Riley Lumpkin, a licensed counselor, was assigned by DHR to counsel the father on managing his anger. Lumpkin testified that, according to the father, the majority of the domestic abuse in the parents’ relationship was initiated by the mother, and that, according to the father, his physical abuse was simply a defensive response to her physical abuse. Based on his personal observations, Lumpkin determined that the father had severe self-esteem issues caused by the grandfather’s controlling and demeaning personality. Lumpkin testified that the father had been very honest with him during the counseling sessions and that his anger management was greatly improved. Lumpkin believes that the father would handle the return of the children to the home better than the mother would.

As an incident to counseling the father, Lumpkin also spoke with the mother on several occasions. According to Lumpkin, the mother came from a very abusive home and her mother was a schizophrenic. Lumpkin concluded that the mother suffered from depression that he believes would affect her ability to handle the children in an emergency situation. Lumpkin testified that, even though the parents had made some progress, the children’s safety would be compromised if they were returned to the parents’ home.

Darlene Terry is a licensed social worker who was assigned to teach the mother skills such as coping, parenting, and financial management; Terry visited with the mother 90 times through September 2000. Terry testified that the mother had a compliant and submissive personality. According to Terry, the mother’s insecurities were normal reactions to stress, and her indecisiveness was typical of a dependent woman who, because of her mother’s mental illness, was a “motherless” child. According to Terry, the mother quite often feels empowered as a parent, but she is aware of the children’s special needs and is afraid she cannot fulfill those needs. Terry testified that the mother is not as fearful as she used to be but that she is almost wholly dependent on the father and the grandparents.

Terry testified that she initially felt that the parents should take the son home after his birth, but that the parents refused. Further, the parents requested that their visitation with the son be reduced from one visit per week to one visit every two weeks; Terry stated that she could not “fathom” why they did not want to visit their son as frequently as possible. Terry identified signs of postpartem depression in the mother, which Terry attributed to the birth of the son by Cesarian Section. Terry testified that, as far as meeting someone else’s needs, the mother is primarily concerned with the father. According to Terry, the mother and father were not capable of handling two special-needs children.

The father testified that Rebecca McKinley, a counselor who specialized in parent-child relationships and disciplinary issues, also met with him at DHR’s request. According to the father, McKinley taught him to deal with the daughter’s attention-deficit disorder and spatial delay. The father stated that the daughter has always been aggressive, defiant, and 'rebellious. Although he denied ever yelling at or shaking the children when he was angry, the father testified that he had learned less physical methods of discipline, such as “time out.” The father was prescribed the antidepressant Paxil in order to reduce his stress.

According to the father, the grandparents would continue to play a role in the lives of the parents and the children because they live next door to the parents and often assist with the children’s care. The father testified that he would continue to rely on the grandparents for financial assistance. The father stated that the the grandparents have reliable transportation that would be of assistance if the son had an emergency medical situation.

The father testified that he rarely visited the son in the intensive-care unit after his birth because at the time the father was employed driving a truck for Birmingham Beverage. Peggy Thornton, the managing nurse of the neonatal unit, testified that the nurses’ reports indicated a lack of parental involvement during the time the son was in intensive care. The father testified that he did not visit the son in August 2001, when the son stopped breathing and was rushed to Children’s Hospital while in Strickland’s care because he believed that he could not be in the same area as “the foster mother.” The father acknowledged that neither he nor the mother had attended the children’s medical appointments in the last year.

The father, who had previously questioned his own ability to care for the children, testified that the training he received from DHR had alleviated some of his doubts about raising his special-needs children. The father testified that he completed CPR training in order to be prepared if the son has an asthma attack and that he is familiar with the son’s prescription medications. The father stated that the parents have developed a new schedule that would provide for the children’s needs and maximize both parents’ time with the children.

At the time of the termination hearing, the father was employed as a cashier earning $7 per hour, and he worked from 10:00 p.m to 6:00 a.m. The father testified that he had health insurance for himself, and that he could upgrade that coverage to coverage for his family for $135 per month. The father admitted that he had filed a petition in bankruptcy and that he was not current with the court-ordered child-support payments until he received an income-tax refund of $4,000, which was applied to the past-due child-support payments. We note that there was some testimony indicating that, Strickland, the foster parent, should have received the dependent-child tax credit the parents claimed on their income-tax return because the children had resided in her home for more than eight months of the tax year.

The father has attended every scheduled visit with the daughter since DHR took custody in 2000. The father testified that he and the mother could not see the son for several months but that they now see him once every two weeks. The father testified that he and the mother visit the son only once every two weeks because “[the son] is nervous about seeing us really.” The father testified that the son was only able to stay with the parents for 25 minutes during the visitations because a bond had not formed between the son and them; other testimony confirmed that the son cried throughout the parents’ visitations. The father also admitted that on a few visits the daughter has said “daddy mean” and has refused to hug him goodbye.

The mother admitted that the daughter had not been to a dentist until she was taken into DHR’s custody. The mother stated that she noticed the daughter’s rotting teeth, but that she did not take her to a dentist because “a close relative” told her that those “baby” teeth would eventually fall out on their own. After first testifying that he could not recall, the father admitted that he knew that the daughter’s front teeth were rotten. The father also acknowledged the daughter’s slow speech and her undeveloped vocabulary, but he testified that he did not see that as a problem. The mother confirmed that the daughter was not toilet trained when she entered DHR’s custody; she stated that the daughter was wearing “pullups.” The mother testified that she did not receive prenatal care during the first five months she was pregnant with the son.

The father admitted that the mother had stayed in a domestic-violence shelter on two occasions in 2000, although he denied that he had committed any physical abuse. The mother testified that there had been some domestic violence in the marriage before DHR intervened, but that, because of DHR’s counseling, there had not been any violence in the house in the four years before the termination hearing.

The mother testified that after the son’s birth, she tried to visit the son in the hospital every day, but that on some days she did not go because she did not have money for gasoline for her vehicle; the mother admitted that on those occasions she did not contact DHR about obtaining a ride to the hospital. The mother also claimed that cooking the father’s supper and her own father’s death while her son was in the hospital were reasons she did not visit the son in the hospital; the mother later testified that her father’s death had nothing to do with the missed visits.

The mother testified that she was not working at the time of the hearing. According to the mother, she was overwhelmed by her former employment, which she said had caused her stress and had kept her from working effectively. When asked what caused the stress, the mother testified, “I cannot recall right now.” The mother testified that she had applied for Social Security disability based on her inability to deal with stress but that her claim was denied; the mother testified that she could have reapplied for Social Security benefits or appealed the decision. The mother stated that while stress prevents her from working outside the home, she is not affected by stress when she works with the children inside the home.

The mother attests that DHR’s assistance has been very helpful and that it has prepared the parents for the possible return of the children. However, the mother testified that she would still need substantial assistance from DHR if the children were returned to her custody.

The grandmother testified that she was 49 years old at the time of the hearing; the parents live on the grandparents’ property. The grandmother testified that she was the daughter’s primary caretaker before DHR intervened. The grandmother testified that, before DHR took custody of the children, the daughter came to her house “shaking” on two occasions because the parents were arguing.

According to the father, he has never had a drinking problem; the father testified that he had not consumed an alcoholic beverage since the mother temporarily left him in late 2000. The grandmother originally testified that she had not had a drink since 1998; however, she later admitted that, in the spring of 2000, she had driven the mother to a DHR appointment after having consumed two alcoholic beverages and that she lied to the DHR personnel who questioned her about the smell of alcohol on her breath. The grandmother acknowledged that DHR had requested that she seek some form of treatment for alcohol dependency; however, the grandmother testified that she has never sought any form of treatment for alcohol dependency because a counselor told her it was not necessary. The father testified that the grandfather, while intoxicated, physically abused him once when he was six years old, but that the grandfather never drank alcohol after that incident.

The grandmother testified that she participated in the father’s counseling sessions in order to understand the children’s needs. The grandmother also met with the children’s doctors on two occasions. The grandmother testified that she was familiar with the children’s illnesses, including the son’s asthma and his use of the breathing machine. However, the grandmother testified that she had not completed a CPR course as she was instructed to do by DHR.

The grandmother testified that the grandfather was disabled and that he has experienced a lack of energy caused by diabetes, but that he can work in his home workshop if the weather is nice. The grandmother was not employed at the time of the hearing, and she has a very limited work history. The grandmother testified that because she was in good health and does not work she would be able to care for the children if the grandfather was awarded custody. The grandmother stated that she would not have any problem administering the children’s medication because she had been administering the grandfather’s medication for the past several years. The grandmother admitted on cross-examination that she and the grandfather have not been able to save any money since the grandfather became disabled and that they have had to spend their personal savings.

The grandfather, who appeared pro se, took the stand on his own behalf. The grandfather admitted that he was depressed because of his disability and his loss of employment. The grandfather testified that he had seen a psychiatrist and that he was competent to serve as either the primary custodian of the children or as a secondary custodian if the parents were awarded custody.

Section 26-18-7, Ala.Code 1975, sets forth the statutory authority for the termination of a parent’s parental rights; it 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:
“(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. § 26-18-7(b), 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 parents filed separate appeals. However, both parents make the same arguments in asserting that the trial court erred in terminating their parental rights. Therefore, we address those arguments together.

The parents argue that DHR did not present clear and convincing evidence justifying the trial court’s termination of their parental rights. The trial court must consider instances of abuse and maltreatment of the children before terminating parental rights. § 26-18-7(a)(3),, Ala.Code 1975. Channel contacted DHR based on the mother’s allegation that the father “attaek[ed]” her and tried to “choke” her and the daughter; there is evidence indicating that the daughter suffered bruises and a black eye as a result of that altercation and that she missed several sessions at the center. Finally, the mother and father testified that the mother had resided in a domestic-abuse shelter for a period.

There is also evidence indicating that the children were victims of maltreatment. While she was in the parents’ custody, the daughter’s teeth abscessed, but she had never been to a dentist. Channel testified that the daughter often came to school improperly clothed and with a diaper that was undersized and occasionally soiled. The testimony of the mother, the grandparents, and the DHR personnel indicated that the daughter’s vocabulary was inadequate for her age. Finally, the mother testified that she did not receive prenatal care for the first five months she was pregnant with the son; the son experienced complications at birth and spent the first several months of his life in the neonatal intensive-care unit.

The trial court must also consider whether the parents have adjusted their circumstances to meet the needs of the children as determined by DHR. See § 26-18-7(b)(4), Ala.Code 1975. In this case, the trial court focused on the parents’ inability to adjust their circumstances and to meet the responsibility involved with raising special-needs children. The trial court determined that the father’s minimal income and the mother’s inability to work resulted in a financial strain making it difficult to meet the children’s medical requirements, which include the son’s breathing machine and five doctor’s appointments per month.

The trial court also determined that the parents lacked the emotional stability and mental capacity to provide for their special-needs children. Channel, Lane, Bonner, Lumpkin, and Terry, all qualified experts in child care, testified that the parents were not ready to care for their special-needs children and that they would not be ready in the foreseeable future. DHR personnel agreed that the parents had not made any long-term progress as a result of the parenting classes or the personal counseling. The fact that the parents thought that the weekly visitations with the children were too frequent was an indication to the DHR personnel that the parents were unprepared to have the children return to their home. The testimony established that the parents often lacked the proper concern for the children and had, on occasion, questioned their own ability to raise the children. Given the foregoing evidence, we cannot say that the trial court erred in determining that the parents had not adjusted their circumstances to meet the special needs of the children and in determining that the parents are “unable to properly care for the childfren] and that such conduct or condition is unlikely to change in the foreseeable future.” § 26-18-7(a), Ala.Code 1975; A.R.E. v. E.S.W., supra.

The parents also argue that the trial court erred when it determined that there were no viable alternatives to termination. See P.W. v. Alabama Dep’t of Human Res., 822 So.2d 423 (Ala.Civ.App. 2001). The parents contend that the grandparents were not considered by DHR as a viable alternative.

The parents argue that DHR’s one inspection of the grandparents’ home and its alleged disregard of the grandfather’s petition for custody is indicative of DHR’s failure to consider the grandparents as a viable alternative to parental termination. However, the trial court received testimony from the grandfather and the grandmother, as well as DHR personnel. The evidence indicates that the DHR personnel did not provide the grandparents with any specific training courses; however, the undisputed testimony established that the grandparents were invited to and did participate in the parents’ training courses. DHR personnel evaluated the grandparents during those meetings. DHR’s findings also indicated that the grandmother’s care of the daughter may have contributed to the daughter’s attachment disorder. Further, DHR requested that the grandmother attend an alcohol-abuse program, which she failed to do. Finally, the trial court was presented evidence of the grandparents’ minimal income and inadequate housing and of the grandfather’s poor health. Based on the facts presented to the trial court and the applicable standard of review, this court cannot say that the trial court improperly determined that the grandparents were not a viable alternative for the two special-needs children. See Ex parte Beasley, 564 So.2d 950 (Ala.1990).

Given our standard of review and the evidence presented to the trial court, this court cannot say the trial court’s determination was plainly and palpably wrong and, therefore, its determination must be presumed correct. M.H.S. v. State Dep’t of Human Res., 636 So.2d 419 (Ala.Civ.App. 1994). Further, it is clear that the trial court’s paramount consideration was the best interest of the children. See A.R.E. v. E.S.W., supra. The trial court’s order terminating the parents’ parental rights is affirmed.

AFFIRMED.

YATES, P.J., and CRAWLEY, PITTMAN, and MURDOCK, JJ., concur.

      . Strickland testified that she has a degree in "human environmental sciences with a major in child development and a concentration in child life.”

      . It appears the grandmother intended to assist the grandfather if his petition for custody was granted.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Hershell KING v. STATE of Alabama.
    CR-02-0701.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.

      Hershell King, pro se.
    William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   SHAW, Judge.

Hershell King appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim.P., petition for postconviction relief.

On January 5, 2001, pursuant to a plea agreement with the State, King pleaded guilty to assault in the second degree. He was sentenced, in accordance with the plea agreement, to 20 years’ imprisonment. He was also ordered to pay restitution. As part of the plea agreement, King waived his right to appeal and his right to collaterally attack his conviction on any ground except jurisdictional grounds; he signed a detailed written waiver entitled “Notice and Waiver of Right to Appeal and Right to Seek Post-Conviction Relief,” which is included in the record before this Court. (C. 29.) King did not appeal. However, on July 31, 2002, he filed a Rule 32 petition. In his petition, King alleged that the trial court lacked jurisdiction to order him to pay restitution without conducting a restitution hearing and receiving evidence as to the loss suffered by the victim. After receiving a response from the State, the circuit court summarily denied King’s petition on December 10, 2002.

Contrary to King’s contention, his claim with respect to a restitution hearing and evidence of the loss suffered- by the victim is not a jurisdictional claim. See, e.g., Ex parte Shelton, 851 So.2d 96 (Ala. 2000), aff'd, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002)(holding that issue that the defendant was denied his right to a restitution hearing was not preserved for review where no objection was made in the trial court); D.W.L. v. State, 821 So.2d 246 (Ala.Crim.App.2001)(holding that issue of amount of restitution was not preserved for review where no objection was made in the trial court); and Strickland v. State, 771 So.2d 1123, 1125 (Ala.Crim.App. 1999)(“Claims that can be waived are not jurisdictional.”).

Moreover, as part of his plea agreement with the State, King waived his right to seek postconviction relief. In Boglin v. State, 840 So.2d 926 (Ala.Crim. App.2002), this Court held that “although a waiver of the right to seek posteonviction relief given as part of a plea agreement is generally enforceable, it cannot operate to preclude a defendant from filing a Rule 32 petition challenging the voluntariness of the guilty plea, the voluntariness of the waiver, or counsel’s effectiveness.” 840 So.2d at 931. See also Yarbrough v. State, 841 So.2d 306 (Ala.Crim.App.2002). In this case, however, King does not challenge the voluntariness of his plea, the voluntariness of the waiver, or counsel’s effectiveness. In addition, his claim is not jurisdictional. Therefore, because King waived his right to seek postconviction relief as part of his plea agreement, and because King’s claim is not jurisdictional and does not concern the voluntariness of his plea, the voluntariness of his waiver, or counsel’s effectiveness, there is nothing for this Court to review, and King’s appeal is due to be dismissed. See, e.g., Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001).

APPEAL DISMISSED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.


author: PER CURIAM.

text:
    James E. KING v. STATE of Alabama.
    CR-02-1066.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Sheila F. Morgan, Tuscumbia, for appellant.
    Submitted on appellant’s brief only.
   Application for Rehearing

PER CURIAM.

The appellant, James E. King, appeals his conviction for the unlawful distribution of a controlled substance and his sentence of 15 years in the state penitentiary. We previously dismissed this appeal by an unpublished order because the notice of appeal was filed more than 42 days after King was sentenced. See Rule 4, Ala. R.App.P. We noted in the order of dismissal that King’s motion for a new trial was not timely; therefore, it failed to toll the time for filing a notice of appeal. See King v. State, [Ms. CR-02-1066, March 12, 2003] — So.2d-(Ala.Crim.App.2003) (table). This case is now before this Court on King’s motion to reinstate his appeal. We have treated King’s motion as an application for rehearing.

King was sentenced in open court on December 10, 2002; he filed a motion for a new trial on January 10, 2003 — more than 30 days after his sentence was pronounced. King then filed a notice of appeal on March 6, 2003 — more than 42 days after he was sentenced. King argues that his motion for a new trial was timely and operated to toll the time for filing notice of appeal because the order of the trial court fixing his sentence was not filed in the Colbert County circuit clerk’s office until December 12, 2002. He argues that we must calculate the date for filing the motion for a new trial from the later date and not the date that his sentence was pronounced in open court. Based on the clear wording of the rule addressing this issue, we must disagree.

Rule 24.1(b), Ala.R.Crim.P., states:

“(b) Timeliness. A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced. After a denial of a motion for a new trial, the previously filed notice of appeal shall be deemed to have been filed as of the date of the denial of the motion and shall include an appeal from the denial of the motion.”

(Emphasis added.)

This court has previously addressed the meaning of “pronouncement of sentence” as that term is used in Rule 26, Ala. R.Crim.P. See Hill v. State, 733 So.2d 937 (Ala.Crim.App.1998). In Hill, we stated:

“Rule 26.1(a)(2), [Ala.]R.Crim.P., defines ‘sentence’ as ‘the pronouncement by the court of the penalty imposed upon the defendant after a judgement of guilty.’ ‘Pronounce’ is ‘to utter officially or ceremoniously.’ Webster’s Third New International Dictionary, G. & C. Merriam Co.1971. ‘Utter’ is defined as ‘to send forth as a sound: give out in an audible voice.’ Id.”

733 So.2d at 939.

Rule 24.1, clearly states that the time period for filing a motion for a new trial runs from the date that the sentence is pronounced by the trial court. A sentence is pronounced when it is uttered in open court. Therefore, the time for filing the motion for a new trial began to run on December 10, 2002, the date that King was sentenced in open court.

Because King’s motion for a new trial was not timely it failed to toll the time for filing a notice of appeal. Therefore, King’s notice of appeal was untimely, and our dismissal of this appeal was proper.

The appellant’s relief, if any, is to file a petition for postconviction relief according to Rule 32.1(f), Ala.R.Crim.P.

APPLICATION OVERRULED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Rule 4(b)(1), Ala.R.App.P., states, in part:
      "(1) Circuit Court. In a criminal case a notice of appeal by the defendant shall be filed with the clerk of the trial court within 42 days (6 weeks) after pronouncement of the sentence, provided that the notice of appeal may be oral, as provided in Rule 3(a)(2). A notice of appeal filed after the announcement of a decision or order, but before pronouncement of the sentence, shall be treated as having been filed after pronouncement of the sentence and on the day thereof. If a motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal has been filed, within 30 days from pronouncement of the sentence, an appeal may be taken within 42 days (6 weeks) after the denial or overruling of the motion.”


author: PER CURIAM. ANSTEAD, C.J.,

text:
    John Ruthell HENRY, Appellant, v. STATE of Florida, Appellee.
    No. SC02-804.
    Supreme Court of Florida.
    Oct. 9, 2003.
    Rehearing Denied Dec. 19, 2003.

      Baya Harrison, Monticello, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Candance M. Sabella, Senior Assistant Attorney General, Chief, Capital Appeals, Tampa, FL, for Appellee.
   PER CURIAM.

John Ruthell Henry appeals a circuit court order denying, after an evidentiary hearing, his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Having considered the issues raised in the briefs and having heard oral argument in this case, we affirm the order.

I. Facts

In 1985, during a dispute over Christmas presents for his wife’s son, Henry stabbed his estranged wife in the throat thirteen times. He was tried, convicted, and sentenced to death. This Court reversed and remanded for new trial. Henry v. State, 574 So.2d 73 (Fla.1991). Upon retrial, Henry was again convicted of first-degree murder and sentenced to death. On appeal, this Court affirmed. Henry v. State, 649 So.2d 1366 (Fla.1994), cert. denied, 515 U.S. 1148, 115 S.Ct. 2591, 132 L.Ed.2d 839 (1995).

In his postconviction motion, Henry alleged that his retrial counsel was ineffective during the guilt phase of trial for failing to present evidence of Henry’s mental state at the time of the offense, and particularly for relying on the theories of self-defense and diminished capacity and not presenting the defenses of insanity or voluntary intoxication. He also contended that counsel was ineffective during the penalty phase for failing to present available mental health mitigating evidence. Several months after the evidentiary hearing, appellant filed a motion requesting the court either to take judicial notice that the United States Supreme Court had accepted jurisdiction in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001), rev’d, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), or permit amendment of the post-conviction motion with a claim that the Florida death penalty statute is unconstitutional. The court denied that motion and later denied Henry’s postconviction motion. The lower court found retrial defense counsel’s conduct was “reasonable and within the wide range of professional assistance required in a capital case.”

On appeal Henry raises five issues: (1) and (2) that retrial counsel was ineffective during the guilt phase of trial and that appellant was prejudiced thereby; (3) and (4) that retrial counsel was ineffective during the penalty phase of trial and appellant was prejudiced thereby; and (5) that Florida’s death penalty statute is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We address each of these claims below.

II. Ineffective Assistance During the Guilt Phase

To prevail on a claim that defense counsel provided ineffective assistance, a defendant must demonstrate specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant also must demonstrate prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims present mixed questions of law and fact subject to plenary review, and this Court independently reviews the trial court’s legal conclusions, while giving deference to the trial court’s factual findings. Occhicone v. State, 768 So.2d 1037, 1045 (FIa.2000).

Henry contends that retrial counsel was ineffective for relying on the theories of self-defense and diminished capacity, which were not viable, and that he was prejudiced because another viable defense was available. Each aspect of this claim fails.

A.The Self-Defense Theory

Henry first argues that no evidence supported the theory of self-defense used at trial. The record conclusively rebuts this argument. In his statement to police, Henry said he went to his estranged wife’s house to discuss Christmas presents for her son. They argued, and she attacked him, cutting him three times with a kitchen knife. Henry then struggled with her and took the knife away. He “freaked out” and stabbed her thirteen times. An officer took pictures of Henry’s wounds, but threw them away because they were unclear.

Henry contends that self-defense was not an available defense because he stabbed his wife many times and the police presented evidence contradicting that theory, such as the officer’s testimony that the scratches on Henry’s arm appeared to be made by thorns, not knives. Retrial counsel testified, and the record shows, however, that during trial he elicited evidence of the victim’s violent nature and that the victim attacked Henry first. Thus, self-defense was consistent with Henry’s version of events, and evidence existed to support it. In fact, counsel presented enough evidence of self-defense to justify a jury instruction on it.

Further, at the evidentiary hearing retrial counsel admitted that self-defense was an imperfect defense because of the repeated stabbing, but he stated that his defense strategy was twofold. See Lusk v. State, 498 So.2d 902, 905 (Fla.1986) (holding “trial counsel’s decision to rely on self-defense here was a strategic choice which did not fall outside the acceptable range of competent choices” and stating that “[c]on-sidering all the circumstances ... self-defense was arguably the only viable choice”). Counsel also argued for a depraved mind, second-degree murder conviction by emphasizing Henry’s response to his wife’s attack as a blinding rage. Accordingly, Henry has failed to meet the first prong of Strickland as to this part of the claim.

B.The Diminished Capacity Theory

Henry next argues that retrial counsel erroneously relied on a “diminished capacity” defense, which Florida law does not recognize. See State v. Bias, 653 So.2d 380, 382 (Fla.1995); Chestnut v. State, 538 So.2d 820, 821-25 (Fla.1989). The record conclusively rebuts this claim as well. In closing argument, retrial counsel emphasized that when Henry’s wife cut him with a knife Henry “freaked out,” and counsel argued that Henry was “blinded of what happened next.” He told the jury the judge would instruct on manslaughter “and second-degree murder talking about the depraved mind, not requiring premeditation.” At the evidentiary hearing below, retrial counsel explained that he sought to show the offense to be a “mindless, non-premeditated killing,” to obtain a “depraved mind,” second-degree murder conviction. Henry’s claim is based on retrial counsel’s apparent misuse of the term “diminished capacity” in a written response to an inquiry from Henry’s postconviction counsel. Both the trial transcript and the testimony of retrial counsel at the evidentiary hearing, however, demonstrate that counsel used a depraved mind, not a diminished capacity, defense at retrial.

C.The Lack of Premeditation Theory

Finally, Henry urges that retrial counsel failed to present the defense that Henry was incapable of forming the premeditated intent to kill Suzanne because of his abuse of crack cocaine before the murder, which exacerbated his underlying psychotic mental condition. Henry claims that such a defense was available under Gurganus v. State, 451 So.2d 817 (Fla. 1984). However, we have explained that “Gurganus simply reaffirmed the longstanding rule in Florida that evidence of voluntary intoxication is admissible in cases involving specific intent.” Chestnut, 538 So.2d at 822. As we said in State v. Bias, Gurganus stands for the principle that “it is proper for an expert to testify ‘as to the effect of a given quantity of intoxicants’ on the mind of the accused when there is sufficient evidence in the record to show or support an inference of the consumption of intoxicants.” 653 So.2d at 383. Thus an expert “may need to explain why a certain quantity of intoxicants causes intoxication in the defendant whereas it would not in other individuals.” Id.

To the extent that Henry’s claim can be construed as alleging that retrial counsel should have used a voluntary intoxication defense, he fails to demonstrate error. Henry failed to present any evidence that he was actually intoxicated at the time of the offense. See Rivera v. State, 717 So.2d 477, 485 n. 12 (Fla.1998); see also Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985) (“We emphasize that voluntary intoxication is an affirmative defense and that the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the crime charged.”). In fact, retrial counsel testified that a defense mental health expert advised him that the defense case was weak on the issue of specific intent, and Henry did not present any evidence that the mental health experts retrial counsel contacted- — or anyone else — -would have testified that Henry was intoxicated at the time of the offense with or without regard to any underlying mental condition.

We note, however, that we are unable to discern any difference between Henry’s claim and the defense asserted in Easley v. State, 629 So.2d 1046 (Fla. 2d DCA 1993), of which we disapproved in Bias, 653 So.2d at 383. We held in Bias that a psychiatrist’s testimony that it “was the combination of Easley’s use of alcohol and drugs superimposed on her long-standing depression that rendered her incapable of formulating a specific intent to kill on the night in question,” id. (quoting Easley, 629 So.2d at 1050), was inadmissible because it “constituted evidence of the defendant’s diminished capacity.” Id. Therefore, to the extent Henry argues that the inadmissible defense of diminished capacity was available, the claim fails.

The record shows that the defenses presented by retrial counsel were valid and supported by the evidence. Henry’s proposed alternative theory of defense is either unsupported by the evidence - (voluntary intoxication) or inadmissible (diminished capacity). Thus, Henry’s entire claim amounts to no more than disagreement with retrial counsel’s strategy, without offering a valid theory of his own. See Occhicone, 768 So.2d at 1048 (noting that “[cjounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions”). Because Henry has failed to establish the first prong of the Strickland standard (deficient performance of counsel), we need not address the second prong (prejudice). See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.”).

III. Ineffective Assistance in the Penalty Phase

Henry argues that trial counsel was ineffective for failing to present available mental health mitigation evidence during the penalty phase and that, had counsel presented such evidence, the result probably would have been different. To put this claim in context, we first review the facts in the record.

During the penalty phase of Henry’s first trial for the murder of his estranged wife, a forensic psychologist and a psychiatrist (Drs. Berland and Afield) testified on Henry’s behalf after conducting psychological testing, interviewing Henry and at least one family member, reading depositions, examining hospital records, and reviewing police reports. Dr. Berland testified that Henry had a low IQ (78) and was “actively psychotic” at the time of the murder. Dr. Afield testified that Henry had a severe problem with alcohol and drug abuse and suffered from long-term, very severe, chronic paranoia. He agreed that Henry was psychotic at the time of the murder, but also said that Henry could distinguish right from wrong. Both doctors testified that two statutory mitigating factors applied: Henry was substantially impaired in his ability to conform his behavior to the requirements of law, and at the time of the offense he was under the influence of an extreme emotional disturbance. Both doctors, however, testified that the cocaine and alcohol use of which Henry had told them was not the basis for their conclusions and that such drug use would only have worsened his psychotic condition.

Despite this testimony, the jury in the first trial unanimously recommended death. The court sentenced Henry to death, finding three aggravators — previous conviction of a violent felony (Henry also had stabbed his first wife to death); the murder was heinous, atrocious, and cruel (HAC); and it was cold, calculated, and premeditated (CCP). Despite the defense experts’ testimony, the trial court found no mitigating factors. This Court reversed because unfairly prejudicial evidence of Henry’s murder of his wife’s son was admitted at trial. We noted for retrial purposes that the evidence did not support the trial court’s finding of the CCP aggravator. Henry v. State, 574 So.2d 73, 74-75 (Fla. 1991).

Upon retrial, Henry’s new defense counsel did not present the mental health experts during the penalty phase. Instead, he presented Henry’s girlfriend (Rosa Mae Thomas), with whom he was living at the time of the murder, and her daughter. Henry’s girlfriend testified that Henry’s estranged wife came to her home on several occasions and argued with Henry. On one occasion, she physically attacked Henry. Police officers arrested her after first having to pull her off him. Thomas was aware of Henry’s problems with drugs and .alcohol, but said that he was a loving man and a good provider and that they never argued. Thomas’s daughter testified that life was pleasant while Henry lived with them, and she was never afraid of him, even though she knew he had killed his first wife. .She also described the arguments between Henry and his wife when she came to their home and his wife’s violence, to which Henry never responded. She was also aware that Henry smoked crack cocaine while he lived with them.

The jury in the second trial unanimously recommended death, and- the court sentenced Henry to death. Henry v. State, 649 So.2d 1366, 1367 (Fla.1994). The court found two aggravating factors — a previous violent felony conviction (killing his first wife) and HAC — and no mitigating circumstances. Id. at 1367 n. 2.

At the evidentiary hearing on Henry’s claim, Dr. Mosman, a forensic psychologist, testified to the mitigating evidence he said was available at thé time of trial from his review of the records of the previous mental health experts and other records and from his conversation with Dr. Berland. He opined that the mental health experts should have testified at retrial. Retrial counsel then testified that when he undertook Henry’s representation, he obtained and familiarized himself with all the files from the previous trial, including the mental health examinations, reports, depositions, and trial transcripts. He also spoke with the mental health experts. He was aware of the mental health evidence presented in both the prior Pas-co County trial and in the prior Hillsbor-ough County trial (for the child’s murder), and the result in that case. He was aware of Henry’s difficult childhood, his long-time substance abuse, and the problems and violence in his marriage. Counsel specifically chose not to present mental health mitigation through experts because he believed their testimony at the first trial was more devastating than helpful, especially Dr. Afield’s testimony that Henry was a very dangerous man. He found that the prosecutor succeeded in essentially turning these witnesses against Henry and said that their testimony was a two-edged sword. He decided instead to present evidence that Henry was a nonviolent, peaceful individual through testimony of people who actually lived in a home with Henry and did not feel threatened by him, and to try to establish some mental-health mitigation through these witnesses and cross-examination.

We have stated that defense counsel’s reasonable, strategic decisions do not constitute ineffective assistance if alternative courses have been considered and rejected. State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987). A reasonable, strategic decision is based on informed judgment. See Wiggins v. Smith, — U.S. ---,-, 123 S.Ct. 2527, 2538, 156 L.Ed.2d 471 (2003) (finding counsel’s decision “to abandon their [mitigation] investigation at an unreasonable juncture ma[de] a fully informed decision with respect to sentencing strategy impossible”). Accordingly, we determine not whether counsel should have presented mental health mitigation but whether counsel’s decision not to present such evidence was a reasonably informed, professional judgment. See id. at 2536 (where petitioner claimed counsel were constitutionally ineffective for failing to investigate and present mitigating evidence, stating “our principal concern ... is not whether counsel should have presented a mitigation case” but “whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable.”). The evidence from the evidentiary hearing demonstrates that retrial counsel knew about the mental health testimony available through Drs. Berland and Afield, but concluded that their testimony was likely to do more harm than good. He decided instead to try to humanize Henry through testimony that Henry was a peaceful man through people who actually knew and lived with Henry. Retrial counsel’s decision was a reasonable strategy after full consideration of the alternative. See Rutherford v. State, 727 So.2d 216, 223 (Fla.1998) (finding no error where retrial counsel was aware of mental mitigation “but made a strategic decision under the circumstances ... to instead focus on the ‘humanization’ of Rutherford through lay testimony”); Haliburton v. Singletary, 691 So.2d 466, 471 (Fla.1997) (finding no deficient performance in counsel’s decision to humanize the defendant rather than use mental health testimony because the expert would say that the defendant was “dangerous” and likely would kill again); Bryan v. Dugger, 641 So.2d 61, 64 (Fla.1994) (finding counsel not ineffective for choosing a mitigation strategy of “humanization” and not calling a mental health expert).

In addition, retrial counsel had the advantage of knowing that the strategy Henry proposes failed at the first trial, where despite the mental health mitigation testimony of the two defense experts, the trial court found no mitigation, and the jury unanimously recommended death. Even considering that the first jury had received a prejudicial amount of information about the murder of the child in the guilt phase and that this Court found the CCP aggra-vator inapplicable for purposes of retrial, retrial counsel felt that the fact that the first trial court did not find any mitigating factors was telling.

Contrary to Henry’s claim, this case is not like Ragsdale v. State, 798 So.2d 713 (Fla.2001), in which we reversed for a new penalty phase upon finding that the defendant’s counsel was ineffective for failing to conduct a reasonable investigation into mitigation and thus did not make a strategic decision. Here, counsel neither failed to investigate nor unreasonably limited the investigation of the available mental health mitigation. See Wiggins, 123 S.Ct. at 2543 (concluding counsel could not make a reasonable, strategic choice “because the investigation supporting their choice was unreasonable”). In this case, retrial counsel chose another strategy after investigating and carefully considering the failed alternative. Further, in Ragsdale we held that counsel’s failure prejudiced the defendant, stating that “when the evidence which was available is measured against the evidence presented at the penalty phase, there is a reasonable probability of a different result.” 798 So.2d at 720. In this case, retrial counsel’s decision not to present mental health experts did not prejudice Henry. Despite the presentation of this expert testimony during the penalty phase of the original trial, the trial court did not find one mitigating factor, but it did find two valid statutory aggravators, the same two found upon retrial. See Haliburton, 691 So.2d at 471 (“In light of the substantial, compelling aggravation found by the trial court, there is no reasonable probability that had the mental health expert testified, the outcome would have been different.”).

III. The Ring Claim

Finally, Henry argues that this Court should declare the death penalty unconstitutional based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). As stated previously, the lower court did not permit the late amendment of Henry’s postconviction motion; thus, this issue is not properly before us. We note, however, that we have denied relief on similar claims in postconviction motions in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Furthermore, we have previously rejected this argument in cases involving the aggravating factor of a previous violent felony conviction. See Doorbal v. State, 837 So.2d 940, 963 (Fla.) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”), cert. denied, — U.S.-, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Lugo v. State, 845 So.2d 74, 119 n. 79 (Fla.2003) (noting rejection of Ring claims in postconviction appeals, unanimous guilty verdict on other felonies, and “existence of prior violent felonies”), cert. denied, —U.S.-, 124 S.Ct. 320, 157 L.Ed.2d 216 (2003); accord Duest v. State, 855 So.2d 33 (Fla. 2003); Blackwelder v. State, 851 So.2d 650 (Fla. July 3, 2003). For the foregoing reasons, we affirm the order denying Henry’s motion for postconviction relief.

It is so ordered.

WELLS, PARIENTE, LEWIS, CANTERO, and BELL, JJ., concur.

ANSTEAD, C.J., concurs specially with an opinion.

QUINCE, J., recused.

ANSTEAD, C.J.,

specially concurring.

I concur in the majority opinion in all respects except for its discussion of the issues arising out of the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). I also acknowledge, however, as stated in the majority opinion, that this Court has previously rejected claims similar to the ones advanced here.

      . After killing his wife, Henry took her five-year old son from her Pasco County home to Hillsborough County, where he killed the child by stabbing him in the throat. On appeal, this Court reversed for new trial. Henry v. State, 574 So.2d 66 (Fla.1991). Henry was again convicted and sentenced to death on retrial, and this Court affirmed on direct appeal. Henry v. State, 649 So.2d 1361 (Fla. 1994), cert. denied, 516 U.S. 830, 116 S.Ct. 101, 133 L.Ed.2d 55 (1995). That case is not part of this appeal from denial of postconviction relief from the Pasco County murder conviction.

      . Appellant also claimed that counsel was ineffective for failing to seek a change of venue, but later abandoned that claim.

      . In the first trial in the Hillsborough County Case, the jury recommended death by a vote of 10-2, and the court sentenced Henry accordingly. 574 So.2d at 69. The court found four aggravating factors: (1) previous second-degree murder conviction (Henry’s murder of his first wife); (2) the killing was committed in the course of a kidnaping; (3) the killing was committed to avoid or prevent arrest or escape custody; and (4) CCP. Based on Drs. Berland and Afield's testimony, the trial court found two statutory mitigating factors: that Henry was under the influence of extreme mental or emotional disturbance and his capacity to appreciate the criminality of his conduct or conform it to the requirements of law was substantially impaired.

      . In Wiggins, the Court emphasized that “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing”; neither does it “require defense counsel to present mitigating evidence at sentencing in every case.” Wiggins, 123 S.Ct. at 2541.

      . Counsel was further aware that the mental-health mitigation was presented during the penalty phase of Henry’s first Hillsborough County trial, and even though the trial court found some mitigating factors, the jury recommended, and the trial court sentenced Henry to, death. 574 So.2d at 67, 69.