author: MURDOCK, Judge.

text:
    D.M.P. v. STATE DEPARTMENT OF HUMAN RESOURCES. M.M. v. State Department of Human Resources.
    2010535 and 2010536.
    Court of Civil Appeals of Alabama.
    July 25, 2003.

      Nicholas C. Laster, Birmingham, for appellant D.M.P.
    Brent L. Callihan, Pelham, for appellant M.M.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources.
   MURDOCK, Judge.

D.M.P. (“the mother”) and M.M. (“the father”) appeal from separate judgments of the Shelby Juvenile Court terminating their parental rights to their daughter, M.F.M. The cases were tried together and are based on substantially the same record.

The mother and the father were married in July 1999; the mother gave birth to M.F.M. in March 2000. The mother has an I.Q. of between 57 and 65 and suffers from seizures that, according to her, cause her to lose her memory on occasion. The father has an I.Q. of 69. Expert testimony established that both the mother and father’s I.Q. scores are extremely low and correlate with mental retardation.

A few months after M.F.M.’s birth, the father accepted a job driving a truck and moved to Montgomery to accommodate his employment. The mother remained in Shelby County with M.F.M. The mother also had custody of C.M., her 14-month-old son from a previous marriage. During the father’s employment in Montgomery, he visited the mother and children on most weekends and called them on occasion during the week.

At about the same time that the father accepted the Montgomery job, the Department of Human Resources (“DHR”) received a report from the mother’s neighbor indicating that the children were not being properly fed. DHR contacted a “wraparound team” to assist the mother with parenting services and to provide her with food for the children. In June 2000, a member of the wrap-around team reported that she had provided the mother with 21 cans of infant formula for M.F.M. and that when she had visited the mother 2 weeks later only 2 or 3 cans of infant formula had been used.

During its investigation into M.F.M.’s care, DHR determined that M.F.M. should have gained one pound to one and one-half pounds during the month of June. Instead, M.F.M. had gained only four ounces. DHR also discovered that the mother failed to take M.F.M. to a scheduled weigh-in and that both M.F.M.’s and C.M.’s weights were in the tenth percentile for their respective ages. Further, C.M. was unable to properly chew his food because the mother had not been feeding him age-appropriate foods. The father admitted that when he accepted his new employment in Montgomery he was aware that the mother had not been properly feeding M.F.M. However, the father stated that his mother had agreed to assist with M.F.M.’s care.

Partly as the result of a family conflict, the mother executed a foster-care agreement in July 2000, pursuant to which she granted DHR temporary custody of M.F.M. and C.M. According to the father, the mother and his stepfather had been having an affair. Shortly after the father discovered the affair, the father and mother separated, the paternal step-grandfather ordered the paternal grandmother to leave their home, and the mother began living with the paternal step-grandfather. The mother lived with the paternal step-grandfather for several months, although she denied having an affair with him.

In August 2000, DHR filed a dependency petition as to M.F.M. Subsequently, M.F.M. was adjudicated to be a “dependent child” as defined in Ala.Code 1975, § 12-15-1(10); the trial court ordered that M.F.M. remain in foster care. In October 2001, DHR filed a petition to terminate the mother’s and the father’s parental rights as to M.F.M. Before DHR filed its termination petition, the mother and the father had divorced and the mother had married another man, M.P., even though DHR had informed the mother that M.P. was the subject of a child sex-abuse investigation and that her marriage to M.P. would jeopardize DHR’s efforts to reunite her with M.F.M.

The trial court conducted a four-day trial in December 2001, at which it received ore tenus testimony. A few weeks after the trial, the trial court issued a final judgment terminating the parents’ parental rights to M.F.M. and granting permanent custody of M.F.M. to DHR. The parents filed postjudgment motions, and the trial court denied those motions.

The mother and the father have appealed, arguing that DHR failed to present clear and convincing evidence that it made reasonable efforts to rehabilitate them. They also argue that placement of the child with the paternal grandmother was a “viable alternative” to termination of their parental rights. Finally, they argue that the trial court did not properly consider whether two other individuals were “viable alternatives” to termination because, they argue, the trial court failed to require DHR to perform home studies on those individuals.

When a trial court’s decision to terminate parental rights is based on evidence presented ore tenus, we will presume that the judgment is factually correct, and we will reverse the trial court only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. M.H.J. v. State Dep’t of Human Res., 785 So.2d 372 (Ala.Civ.App.2000).

In Ex parte Beasley, 564 So.2d 950 (Ala.1990), our Supreme Court identified a two-pronged test that must be applied in parental rights termination cases:

“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....
“Once the court has complied with this two-prong test — that is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child — it can order the termination of parental rights. Such a construction of the Uniform 1984 Child Protection Act clearly comports with the stated purpose for the Act.”

564 So.2d at 954-55 (emphasis added). See also Ala.Code 1975, § 12-15-71(a); Ex parte State Dep’t of Human Res., 624 So.2d 589 at 592-93 (applying Ex parte Beasley).

The 1984 Child Protection Act, Ala.Code 1975, § 26-18-1 et seq. (“the CPA”), provides, in part, that a court may terminate parental rights

“[i]f 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.”

Ala.Code 1975, § 26-18-7(a).

In determining whether the grounds for termination described in the above-quoted portion of § 26-18-7(a) exist, the CPA provides, in part, that

“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 ... of such duration or nature as to render the parent unable to care for needs of the child.
“(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.”

Ala.Code 1975, § 26-18-7(a) (emphasis added).

When a child is not in the physical custody of a parent, the trial court must also consider 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 ... and agreed to by the parent.
“(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 , in an administrative review or a judicial review.”

Ala.Code 1975, § 26-18-7(b).

Subsections (a) and (b) of § 26-18-7 further provide that the trial court may consider factors other than those set forth in those subsections in determining whether to terminate a parent’s parental rights. See, e.g., Brown v. Alabama Dep’t of Pensions & Sec., 473 So.2d 533, 535 (Ala.Civ. App.1985) (stating that the CPA “enumerates only some of the many factors this court has long taken into consideration in making determinations concerning the termination of parental rights”).

I.

The father and the mother argue that DHR did not make sufficient efforts to rehabilitate them and to reunify them with M.F.M. In regard to the mother, the trial court, with good reason, characterized the mother’s testimony as confusing and conflicting; the court specifically determined that the mother “was either confused or misrepresenting to the Court events that transpired.” The mother has a tenth-grade education and became pregnant with her first child (not C.M. or M.F.M.) after she was allegedly raped by her uncle. Custody of the mother’s first child was awarded to a third party in 1994, and the mother has never regained custody of that child. The mother married C.M.’s father in 1995, but she separated from him a few years later. C.M. was born soon after the mother separated from C.M.’s father. The mother alleged that C.M.’s father had physically abused her and that he had used illegal drugs. The mother and C.M.’s father were divorced in January 1999.

A few months after her divorce from C.M.’s father, the mother married the father; she gave birth to M.F.M. approximately nine months later. As noted, a few months after M.F.M.’s birth, the mother began living with her father-in-law, causing substantial family conflict and physical violence between her and her mother-in-law. Several months later, the mother divorced the father and married M.P., despite DHR’s warning that her relationship with M.P. could jeopardize her reunification with M.F.M. because M.P. had allegedly sexually abused one of his children. M.P. also had threatened to kill the mother and to harm M.F.M. When asked whether it was in M.F.M.’s best interest to live with M.P. in light of his threat to harm M.F.M., the mother responded, “I hadn’t thought about that.”

DHR’s initial efforts to assist the mother failed because the mother had failed to provide M.F.M. with adequate daily nutrition. After the mother had relinquished custody of M.F.M. to DHR, she failed to complete parenting-skills classes. A wraparound team that attempted to help the mother eventually concluded that she had not progressed in her parenting skills. The mother also missed 12 scheduled weekly visits with M.F.M. in the 7 months before the trial. She also failed to attend a scheduled psychiatric evaluation.

Based on the foregoing, we conclude that the record before us is such that the trial court could reasonably have found by clear and convincing evidence that DHR had made reasonable efforts to rehabilitate the mother and to reunify her with M.F.M. For various reasons, including the mother’s mental deficiencies and her poor decision-making, those efforts simply were unsuccessful.

The father also argues that DHR failed to make reasonable efforts to rehabilitate him and to reunify him with M.F.M. Specifically, he argues that DHR did not provide him with wrap-around team services. However, the wrap-around team service provider had requested that the father have an approved home evaluation before it agreed to provide services. Although the father knew that M.F.M. had been placed in foster care in July 2000, his initial home evaluation was not completed until March 2001 because of his failure to cooperate with DHR. Upon evaluating the father’s home in March 2001, DHR noted that the home had uncovered light switches, exposed wiring, no fire extinguishers, and no smoke detectors. The father had agreed to address those deficiencies and to contact DHR for a reevaluation of the home. Thereafter, DHR repeatedly asked the father to contact it to schedule a reevaluation of his home. However, he failed to contact DHR for a reevaluation of his home until July 2001, a few days before a scheduled court hearing regarding M.F.M.’s status.

A reevaluation of the father’s home was eventually scheduled for August 2001. The father informed DHR that either he or his mother would be at the home for the evaluation. However, when the DHR representative arrived to conduct the evaluation, neither the father nor his mother were at the home. Thereafter, the father failed to schedule another evaluation, despite DHR’s request that he do so.

A clinical psychologist testified that the father had extremely low recall abilities, social judgment, common sense, and social maturity. The father had failed to consistently visit M.F.M., missing 8 scheduled visits in the 7 months preceding the trial and being 25 to 40 minutes late for 5 other visits. In regard to the father’s move to Montgomery after M.F.M. was born, the trial court found as follows:

“Illogically, [the father] took a job an hour away and incurred expenses to stay out of town overnight, rather than keeping a job locally earning $1.00 an hour less. He explained that he thought the out-of-town job might be a better career move; however, he made such a move at his daughter’s peril. [DHR] records reflect, and [the father] admits, that he knew his newborn daughter was fragile and underweight and he himself had concerns about [the mother’s] failure to properly feed [M.F.M.], yet he took a job out of town, returning only on weekends.”

Also, the father failed to complete parenting-skills classes and later told DHR that he did not have time for parenting-skills classes. We also note that, despite having income of approximate $2,000 per month, the father failed to contribute financially to M.F.M.’s care after DHR had obtained temporary custody of the child. Based on the foregoing, we also conclude that the record contains ample evidence from which the trial court could reasonably have found that DHR met its burden of presenting clear and convincing evidence that it had made reasonable efforts to rehabilitate the father and to reunify him with M.F.M. As with the mother, those efforts failed.

II.

The father and the mother next argue that placing M.F.M. in the custody of the paternal grandmother was a viable alternative to the termination of them parental rights. The paternal grandmother has an I.Q. of 64. She admitted that the father had asked her to assist the mother with feeding M.F.M. in June 2000 because the father had been concerned about M.F.M.’s weight. The paternal grandmother testified that she had worked every other week in June 2000, but that she had stayed with the mother and M.F.M. for several hours every day during her weeks off. She stated that she had not suspected that M.F.M. had not been properly fed in June 2000, even though the father testified that it was obvious that M.F.M. had not gained weight as she should have and DHR’s investigation revealed that M.F.M. had not received proper nutrition during the period when the paternal grandmother was allegedly assisting the mother.

In addition, DHR performed a home study on the paternal grandmother’s home in January 2001. It had requested that she obtain a smoke detector and a fire extinguisher and that she move cleaning supplies so that they were not within the reach of children. DHR had informed the paternal grandmother that after she had done those few things she should contact DHR so that it could perform a follow-up evaluation to approve her home for wraparound services. Thereafter, DHR requested that the paternal grandmother schedule a time for reevaluation of her home on several occasions, but she failed to schedule the reevaluation and she admitted that she never addressed the issues that DHR had raised during the first'home evaluation.

In March 2001, the paternal grandmother moved to a new home with a paramour. She failed to inform DHR of the move until August 2001, and, thereafter, she failed to schedule a home evaluation for her new home, even though DHR had repeatedly requested that she do so. Further, the paternal grandmother admitted that M.F.M. could not have been placed in her custody at the new home because it only had one bedroom. She also admitted that she had made no plans to obtain a suitable home for receiving custody of M.F.M. Based on the foregoing, we conclude that DHR demonstrated that the paternal grandmother was not a viable alternative-placement resource for M.F.M.

III.

Finally, the father and the mother argue that the trial court failed to adequately consider whether two individuals — M.D., identified in a trial court order as a “maternal aunt,” and F.P., a third party about whom no other information is included in the record — were viable alternatives for the custodial placement of M.F.M. The father and mother complain that the trial court terminated their parental rights without requiring DHR to conduct home studies of M.D. and F.P.

The events made the basis of the father and mother’s argument that the trial court failed to adequately consider M.D. and F.P. as viable alternatives to termination began in March 2001, when, following a hearing, the trial court entered an order requiring DHR to conduct home investigations on M.D. and F.P. The only mention in the record of M.D. and F.P. occurs in this trial court order; there is no indication in the record as to how the names of those two individuals came to the attention of the trial court. Nor is there any other information concerning those individuals in the record.

At the trial on its petition, DHR admitted that it had not conducted the home investigations on M.D. and F.P. that had been ordered by the trial court. Casey Sanders, the DHR social worker who had managed the parents’ case, did testify, however, that she had requested that both the mother and the father provide her with the names of possible relative-resource placements and that the mother and the father had provided her with no names.

At trial, the parents argued that the paternal grandmother was a viable alternative placement. The trial court elected to conduct a separate hearing on the issue of the viability of the paternal grandmother as a custodial resource. It was at the end of this subsequent hearing at which we find the first indication in the record that the parents urged the trial court to consider placement with M.D. or F.P. as a viable alternative to termination of their parental rights. The record contains no evidence that either M.D. or F.P. had ever visited or seen M.F.M., or that they had any relationship of any nature with M.F.M. The record also contains no evidence indicating that either M.D. or F.P. had ever requested that they be considered as an alternative-placement resource or that they had any desire or willingness to serve in that capacity. The record also contains no evidence indicating that either M.D. or F.P. had ever provided any assistance to the mother, the father, or M.F.M.

The issue presented, therefore, is the true nature and extent of the trial court’s obligation to consider “viable alternatives” where DHR has demonstrated that the parents are unfit. Put differently, this case calls on us to address the question of “to what end” must an “alternative” be “viable.” Our review of the cases decided by our courts reveals that our articulation of the law with respect to “viable alternatives” has varied from one case to another. The resolution of the issue presented thus requires a review of the history and purpose of our courts’ consideration of this issue.

A.

The requirement that our courts consider “viable alternatives” to termination is not now and never has been, per se, included in our child-welfare statutes. The discussion of viable alternatives in our cases can be traced to the discussion of federal constitutional concerns in Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976).

In Roe, Roe’s alleged father “contacted the Montgomery Police Department and reported that [the mother] might be neglecting ... Roe, that [the mother] had been evicted from her former residence because she was keeping company with black males, and that she had moved to Highland Village (a black neighborhood) where she was living with a black man.” Roe, 417 F.Supp. at 774. The alleged father also contacted the Montgomery County Youth Facility regarding Roe’s circumstances and the Youth Facility requested that the police department investigate the mother’s living circumstances, particularly whether she was living with someone to whom she was not married. The mother permitted a police officer

“to enter and inspect her dwelling, which the officer found was a two-bedroom apartment, where [the mother] and [Roe] were living with a black man to whom she was not married.... Roe was clothed, clean, and in ‘fairly good’ physical condition with no signs of physical abuse. The home was ‘relatively clean’ and stocked with ‘adequate food.’ Upon completing this inspection, [the officer] left the home and called [the Youth Facility] and reported his findings. He was then instructed ... to go to the Youth Facility to get a pick-up order. The only facts about [the mother] known to [the Montgomery Family Court Judge] before he issued the pickup order were that she was unemployed and that she and her child are white and were living with a black man in a black neighborhood_ [The judge] concluded that ... habitation in a black neighborhood could be dangerous for a child because it was his belief that ‘it was not a healthy thing for a white child to be the only [white] child in a black neighborhood.’ ”

Roe, 417 F.Supp. at 774-75.

Based upon the police officer’s investigation, the Montgomery Family Court issued a pick-up order for Roe and the officer summarily seized Roe as an alleged “neglected child” and took him to a shelter home licensed by the Department of Pensions and Security. In accordance with Title 13, §§ 350(2) and 352(4), Ala.Code 1940 (Recomp.1958), the mother was not provided with prior notice and a hearing before the child was seized from her. Roe, 417 F.Supp. at 773.

One month after Roe was seized, the Montgomery Family Court held a hearing and awarded the alleged father temporary custody of Roe and informed the mother that she had “ ‘the right to petition the court for custody of [Roe] at any future date.’ ” Id. at 775. The mother filed two petitions for custody of Roe, but both of her petitions were denied and her parental rights were apparently terminated based upon Roe’s status as a “neglected child.” The alleged father also obtained an ex parte order from the Montgomery Probate Court declaring himself to be Roe’s father and changing Roe’s last name to the father’s last name.

Based upon the Montgomery Family Court’s decisions, the mother and Roe each filed a class action in the federal district court challenging the constitutionality of Alabama’s child-neglect law ^because it allowed the State to deprive a parent of the custody of a child “without a prior hearing where there was no showing of immediate or threatened harm” and because it allowed the State to deprive a parent of custody “because they are living with men (other than relatives or boarders) to whom they are not married.” Id. at 773.

Relying on the reasoning employed in Alsager v. District Court of Polk County, 406 F.Supp. 10 (S.D.Iowa 1975), aff'd, 545 F.2d 1137 (8th Cir.1976), and on a “long line of [United States] Supreme Court cases addressed to the constitutional interests at stake where various aspects of family life are threatened,” the district court stated that “the Constitution recognizes as fundamental the right of family integrity. This means that in our present case the state’s severance of [the mother’s] parent-child relationship and [Roe’s] child-parent relationship will receive strict judicial scrutiny.” Roe, 417 F.Supp. at 777 (citing, in pertinent part, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)).

The district court first determined that the summary-seizure provision in the 1940 Code (Recomp.1958) violated the mother’s right to procedural due process under the United States Constitution. Roe, 417 F.Supp. at 777. It then addressed the statutory language that permitted a child to be removed from parental custody upon a finding that a child was a “neglected child.” Applying a strict-scrutiny analysis, the district court stated, in pertinent part:

“As discussed supra, the Constitution includes the right to family integrity among the fundamental rights secured to all persons. This right is applied to the States through the Fourteenth Amendment and is accorded strong protection from state interference. States, in the exercise of their inherent police powers, may abrogate such rights only to advance a compelling state interest and pursuant to a narrowly-drawn statute restricted to achieve only the legitimate objective. ... It is not disputed that the State of Alabama has a legitimate interest in the welfare of children. Minor intrusions into the affairs of the family may be permitted when the State has reason to believe that a child’s best interest is at stake. In such cases, various options and alternatives are available to the State to achieve its objective of child protection. One possibility might be a requirement that the parents attend seminars and weekly counselling sessions on child care and the responsibilities of parenthood. Another situation might warrant supervision of the parents by a welfare counselor or the placing of a neutral person — such as an aunt — in the home to serve as a bridge between the parents and the child. The State’s interest, hoivever, would become ‘compelling’ enough to sever entirely the parent-child relationship only when the child is subjected to real physical or emotional harm and less drastic measures would be unavailing.
“Here, the State offered no assistance to [the mother], who was faced with the troubling predicament of raising a young child without the aid of a husband, nor did it explore the possibility of accomplishing its objective of protecting ... Roe’s welfare by use of alternatives other than termination of custody.
“The Alabama statute defining ‘neglected’ children sweeps far past the constitutionally permissible range of interference into the sanctity of the family unit. The fact that a home is ‘improper’ in the eyes of the state officials does not necessarily mean that a child in that home is subject to physical or emotional harm.[]
“... [T]he state’s burden is not only to show that the child is being disadvantaged but also to show that the child is being harmed in a real and substantial way. Accordingly, this Court declares Alabama Code [1940 (Recomp.1958) ], Title 13, §§ 350 and 352 unconstitutional.
It must be emphasized that this standard does not apply to all custody proceedings but only those where the State seeks to assume custody. In proceedings where the parties have an arguably equal right to custody, such as pursuant to a divorce, a ‘best interest of the child’ standard is entirely appropriate.”

Roe, 417 F.Supp. at 779-80 (emphasis added).

In several cases decided after Roe, the Alabama Court of Civil Appeals attempted to distance itself in some respects from the Roe decision. In Smith v. State Department of Pensions & Security, 340 So.2d 34 (Ala.Civ.App.1976), the court stated that Roe addressed only “neglected” children and did not touch upon “dependent” children and that, even if Roe applied to dependent children, this court was not bound by the Roe decision. Smith, 340 So.2d at 37; see also Lovell v. Dep’t of Pensions & Sec., 356 So.2d 188 (Ala.Civ.App.1978).

However, in Hunley v. Houston County Department of Pensions & Security, 365 So.2d 81 (Ala.Civ.App.1978), this court stated that “Title 13, § 350 et seq., Code of Ala.1940, has been rewritten and is now codified as § 12-15-1 et seq., Code of Ala. 1975 [ (the ‘Alabama Juvenile Justice Act’) ]. The revised code incorporates the suggestions set out in [Roe ] with respect to its constitutional validity.” Hunley, 365 So.2d at 84 n. I.

Among other things, the Alabama Juvenile Justice Act, § 12-15-1 et seq., Ala.Code 1975 (“the AJJA”), merged the definitions of “neglected child” and “dependent child” from the 1940 Code (Re-comp. 1958) into the definition of “dependent child” in the AJJA. Compare Ala. Code 1975, § 12-15-l(10)d. through i., m., and n., with Ala.Code 1940 (Re-comp.1958), Tit. 13, § 350(1) and (2). However, unlike its predecessor, the AJJA included a provision that expressly authorized a trial court, upon a finding of dependency, to terminate parental lights, but only “[i]n appropriate cases.” See Ala.Code 1975, § 12-15-71(a)(5).

In Miller v. Alabama Department of Pensions & Security, 374 So.2d 1370 (Ala. Civ.App.1979), this court, attempting on the one hand to distance itself from Roe, stated:

“[T]he mother argues the constitutional standard to be applied when a parent-child relationship is terminated is a ‘harm standard’ rather than the ‘best interests and welfare’ standard ordinarily used in child custody cases. For this proposition the mother relies on [Roe ].
“We have held that Roe applies only to ‘neglected’ children and not to ‘dependent’ children.... We have also said that should Roe be construed to apply to ‘dependent’ children, we would not be bound by that decision.”

374 So.2d at 1373-74.

On the other hand, Roe’s strict-scrutiny analysis, requiring the use of “less drastic measures” to address the “compelling state interest” in alleviating the “real and substantial harm” of a child remaining in the custody of an unfit parent, did manage to find its way into the analysis employed by the Miller court:

“In deciding what is in the best interests of a child who is the subject of a custody dispute, the courts of this state consider many factors, among which would be conduct of the parents toward the child, family environment, health of the child, physical and emotional abuse of the child, abandonment of the child, love of and interest in the child by the parents, and activities of the parents that would be detrimental to the safety and welfare of the child. Foremost among the listed factors, especially in a situation where the state is seeking a temination of parental rights, would be less drastic measures than permanent removal of parental custody. For example, a court would certainly consider returning the child to parental custody on a trial basis subject to certain definite conditions being met and subject to supervision by DPS [Department of Pensions and Security] workers or other trained personnel; or temporary custody in a foster home with specific visitation with the child and conduct requirements to be met by parents; or that the parents are to be deprived of custody temporarily pending a correction of deficiencies in the home environment that icere having or ivould have a harmful effect on the child should the child be placed back in the family relationship.
“In the case at bar it is quite obvious from the record that the use of less drastic measures than permanent deprivation of custody was tried on many occasions and absolutely no cooperation was obtained from the parents. And, this effort by the juvenile court and DPS went on for almost four years.
“It cannot be seriously contended by the appellant in this case that every effort was not made by the state to rehabilitate her family so that it could again exercise familial rights and responsibilities toward the child in question.”

Miller, 374 So.2d at 1374 (citations omitted; emphasis added).

It is important to note that each of the three examples of “less drastic means” outlined in Miller as alternatives to termination were to the end of reunifying the child with its parents — that is, they were alternatives that would allow the parent an opportunity to rehabilitate in the hope of “again exercis[ing] familial rights and responsibilities.” Further, despite the court’s initial protest that Roe did not govern its decision, it is apparent from the foregoing passage that the court in Miller based its decision to affirm the termination on the fact that the State had pursued alternatives less drastic than termination until it had been demonstrated that further attempts to rehabilitate the parents would be futile. In this regard, it is also important to note that, at the time this court decided Miller, there was (1) no statutory requirement that the State employ the “le[ast] drastic measures” available to remedy a child’s dependency and (2) no statutory requirement that DHR make reasonable efforts to reunify a dependent child with its parents before attempting to terminate parental rights.

As noted above, § 12-15-71(a)(5), the only statute at the time Miller was decided that expressly authorized the termination of parental rights, restricted that authority to “dependent children” in “appropriate case[s].” After making the above-quoted statements, the Miller court made it even clearer, consistent with Roe, that a case in which a child is dependent, see § 12-15-1(10), due to the present unfitness of his parents, ultimately may not be an “appropriate case” for termination. The State must demonstrate that it has first pursued alternatives to termination that are “viable” in the sense that they will provide the child with a fit custodian while foreseeable rehabilitation of, and reunification with, the parents is attempted:

“The phrase ‘in appropriate cases’ [in § 12-15-71(a)(5) ] is found within the context of a statute which sets forth numerous alternatives for the disposition of a dependent child. We think the presence of these less drastic measures serves to limit and define those instances where the severance of the parent-child relationship may be deemed ‘appropriate. ’ As pointed out above, a four year attempt to implement one or more of these less drastic measures in the instant case proved futile.”

Miller, 374 So.2d at 1376 (emphasis added).

A case in which it is demonstrated, as it was in Miller, that reunification is not likely within the foreseeable future now falls within the “grounds for termination” prescribed in § 26-18-7(a). Consistent with the constitutional concerns expressed by Roe, § 26-18-7(a) now provides that the court may terminate parental rights,

“[i]f the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or umoilling 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.”

(Emphasis added.)

While Miller involved a case where it may not have been apparent at the outset that reunification would ultimately prove futile, there obviously are dependency cases where it is clear early on that the parents are unfit and cannot be made fit within the “foreseeable future,” or where reunification is otherwise not an appropriate goal. In the latter category are those cases that now fall within statutory provisions adopted since Miller that make reunification unnecessary in certain circumstances. See Ala.Code 1975, § 12-15-65(m) (“Reasonable efforts shall not be required ... where the parental rights to a sibling have been involuntarily terminated or where a court ... has determined that a parent has ... (1) Subjected the child to an aggravated circumstance, including, but not limited to, abandonment, torture, chronic abuse, substance abuse, or sexual abuse. (2) Committed murder or voluntary manslaughter of another child of such parent. (3) Aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of such parent. (4) Committed a felony assault which resulted in the serious bodily injury to the child or another child of such parent.”); Ala.Code 1975, § 26-18-7(a)(l) (if parents have abandoned the child “proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents”).

The need to explore the prospects for returning the child to a normal custodial relationship with his parents necessarily entails an examination of temporary custodial alternatives that will allow for necessary rehabilitation and reunification. In other words, if there is a custodial arrangement that is viable — that is, a custodial arrangement involving a fit custodian who can provide a stable environment meeting the child’s physical, financial, and emotional needs pending the rehabilitation/reunification process — the teaching of Roe and Miller is that this alternative must be pursued. This result is dictated by and consistent with the application of the two prongs of strict-scrutiny analysis (“compelling state interest” and “less drastic measures”) and with the State’s ultimate concern for the best interests of the child. It is consistent with the latter because of the legal presumption that a child’s best interest and welfare are served by remaining in the custody of a fit parent. Also, this result is consistent with the scheme contemplated by Ala.Code 1975, § 12-15-65, § 12-15-71, and § 26-18-7 and with many of our caselaw pronouncements concerning so-called “viable alternatives.” See, e.g., Ex parte State Dep’t of Human Res., 624 So.2d 589, 592-93 (Ala.1993) (“[W]hen the State is petitioning to terminate parental rights, the trial court must find from clear and convincing evidence that the child is dependent and ... the court must determine whether all viable alternatives to termination have been explored.” (emphasis added)); Ex parte Ogle, 516 So.2d 243, 244 (Ala.1987) (noting that a schizophrenic parent was making progress towards rehabilitation, but was not yet capable of assuming custody of the child, and explaining that “[b]efore parental rights may be terminated, all viable alternatives to termination of those rights must be examined to ensure that there is no less drastic measure available”); Moore v. State Dep’t of Pensions & Sec., 470 So.2d 1269, 1270 (Ala.Civ.App. 1985) (“If dependency is found, the court must then find that there exists no viable alternative to termination of the parent’s custodial rights.” (citing Glover v. Alabama Dep’t of Pensions & Sec., 401 So.2d 786 (Ala.Civ.App.1981) (emphasis added))); see also M.H. v. Calhoun County Dep’t of Human Res., 848 So.2d 1011, 1013 (Ala. Civ.App.2002) (the trial court must “determine that there exists no alternative to termination” (emphasis added)); M.H.J. v. State Dep’t of Human Res., 785 So.2d 372 (Ala.Civ.App.2000) (same); W.F. v. State Dep’t of Human Res., 704 So.2d 483 (Ala. Civ.App.1997) (same); L.A.G. v. State Dep’t of Human Res., 681 So.2d 596, 598 (Ala.Civ.App.1996) (“the court must consider and reject all alternatives to termination of parental rights”).

Conversely, where it is demonstrated that the parents are not capable of being rehabilitated or that the “conduct or condition” of the parents that makes them unfit to retain custody of their children “is unlikely to change in the foreseeable future” or where, as explained above, reunification is otherwise not an appropriate goal, obviously no alternative can be considered viable to the end of returning the child to a normal custodial relationship with his or her parent. The State’s failure, therefore, to pursue some alternative to termination that might exist in such a ease would not necessarily be fatal to its petition for termination of a parent’s rights. This understanding of viable alternatives likewise has been well recognized in our cases. For example, in Handley v. State Department of Pensions & Security, 455 So.2d 887 (Ala.Civ.App.1984), this court stated:

“[The Department of Pensions and Security] has diligently sought to aid the mother toward rehabilitation and establishment of a home and environment suitable for the children. Except for a brief period of four months, all effort was fruitless. The end result of the four months was the return to filth and depravity. It seems evident that there is no viable alternative but to terminate parental rights so that permanent planning may be made to serve the best interest of the children.”

Handley, 455 So.2d at 888; see also, e.g., J.B. v. Jefferson County Dep’t of Human Res., 869 So.2d 475, 483 (Ala.Civ.App.2003) (plurality opinion) (holding that attempts to rehabilitate the parents were unnecessary because the mother had been convicted of voluntary manslaughter in the death of the child’s sibling and the father had abandoned the child); In re Shivers, 440 So.2d 1081, 1083-84 (Ala.Civ.App.1983) (“The parents ... assert that the trial court erred in not requiring [the Department of Pensions and Security] to provide evidence of alternative custody plans for the three children. Such evidence is not required. ... Although we are not bound by the decision in Roe ..., the record clearly shows that the due process requirements enumerated there have been met. Several alternatives including counseling, temporary custody and assistance were attempted before the Shiverses’ rights were terminated.”); In re Redmon, 460 So.2d 1317, 1320 (Ala.Civ.App.1984) (based on two years of failed attempts to implement less drastic measures, the parent was considered “permanently] incompetent”).

As previously noted, in Ex parte Beasley, the Alabama Supreme Court expressly adopted a “two-prong” state-law test for use in termination-of-parental-rights cases. The first of those prongs require that, before termination can occur, there must be “grounds for termination,” as discussed above. As stated in Ex parte Beasley, “[f]irst, 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.” 564 So.2d at 954.

By referencing § 26-18-7, the Ex parte Beasley Court made it clear that the “grounds-for-termination” prong is satisfied when the parents are irremediably “unable or unwilling” to serve as fit parents or where the parents’ disqualifying “conduct or condition is unlikely to change in the foreseeable future” (or when circumstances exist so that reunification is not an appropriate goal, as discussed above). This encompasses, therefore, those cases discussed above where the State has already satisfied the requirement of pursuing viable alternatives to termination but, because rehabilitation and reunification are not likely within the foreseeable future, such alternatives have proven to be futile. Once one of those “grounds for termination” have been proven by clear and convincing evidence, the State is in compliance with the constitutional due-process requirements discussed in Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and the custodial presumption in favor of the parent no longer is applicable:

“Victory by the State [in a termination-of-parental-rights case] not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children.
“... After the state has established parental unfitness ... the court may assume ... that the interests of the child and the natural parents do diverge. See Fam Ct. Act § 631 (judge shall make his order ‘solely on the basis of the best interests of the child,’ and thus has no obligation to consider the natural parents’ rights in selecting dis-positional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.”

Santosky, 455 U.S. at 760, 102 S.Ct. 1388 (emphasis added; footnote omitted).

In other words, once “the interests of the child and the natural parents ... diverge” because of irremediable parental unfitness, the rationale for the legal presumption that custody in the natural parent is in the best interest of the child no longer exists. At that juncture, the State may proceed, unaffected by a parental presumption, to determine simply what disposition of the child would then be in his or her best interest. The possibility of some custodial arrangement that would be a suitable alternative to the termination of parental rights no longer constitutes an absolute bar to termination. As discussed below, however, the State may still consider such alternatives in determining what disposition is in the best interest of the child.

In short, so long as reunification with the parents is a foreseeable likelihood, the State has no choice but to consider and pursue all viable alternatives to such termination. Once “grounds for termination” exist, however, reunification by definition is no longer a “foreseeable” alternative, the constitutional and state-law presumption in favor of the natural parents is lost, the “interests of the child and the natural parents ... diverge,” and the only remaining consideration is the direct question, unencumbered by a parental presumption, of what is in the child’s “best interest.”

Consistent with this understanding, we note that the statutes at issue in Santosky provided that a determination of unfitness was to be made only after the State had made efforts to reunify the child with the parents, where appropriate. See N.Y. Fam. Ct. Act, § 614.1 and § 632(a). The statutes also provided that, after a parent had been determined to be unfit, the trial court could terminate the parent’s parental rights, or it could enter a suspended judgment giving the parent up to one year to meet additional court imposed conditions. See N.Y. Fam. Ct. Act, § 631, § 633, and § 634. However, the choice of remedy was to he based solely on the best interest of the child. See N.Y. Fam. Ct. Act, § 631.

Not unlike the New York statutory scheme, Alabama’s statutes nowhere include any requirement that, upon a finding that the parents are irremediably unfit (or that for other reasons reunification is not appropriate), the State must terminate parental rights. In such circumstances, the ultimate question will remain: What is in the best interest of the child? Accordingly, the first sentence of § 26-18-7(a) provides only that when the conditions outlined therein are satisfied, the court “may” terminate the parental rights of the parents. Similarly, § 12-15-71(a) provides that if a child is found to be “dependent” the court “may” choose any one of a number of listed alternatives, reserving for “appropriate eases” the alternative of termination. See § 12 — 15—71(a)(5). At this juncture, a case would still not be an “appropriate case” for termination if, after considering its alternatives, the court determines that termination is not in fact in the best interest of the child. This is consistent with the manner in which the Ex patte Beasley Court articulated a second “prong” of this State’s termination-of-parental-rights law:

“[AJfter the court has fotmd 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. ...
“... [TJhat is, once [the court] has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child — [the court] can order the termination of parental rights.”

Ex parte Beasley, 564 So.2d at 954-55 (emphasis added).

This understanding of the second prong in Ex parte Beasley is consistent with the pronouncements of our courts in numerous cases. See, e.g., In re Sanders, 420 So.2d 790, 791 (Ala.Civ.App.1982) (“[I]n seeking permanent termination of a parent’s right, the existence of [no] viable alternative to better serve the future welfare of the children should be established.” (emphasis added)); In re Shivers, 440 So.2d 1081, 1083-84 (Ala.Civ.App.1983) (noting that several alternatives to termination were attempted unsuccessfully, and holding that, therefore, “[a]ll that [the Department of Pensions and Security] was required to show was that terminating the parents’ rights was in the children’s best interest” (emphasis added)); M.H. v. E.F.E., 630 So.2d 452, 454-55 (Ala.Civ.App.1992) (“no viable alternative existed that would better serve the best interests of the child” (emphasis added)); Glover; 401 So.2d at 788 (“We consider important that the State, in seeking permanent termination of parental rights, as compared to temporary custody of a dependent child, establish not only the permanent incompetency and unsuitability of the parent by clear and convincing evidence, but that it present a viable alternative to better serve the future welfare of the children.” (emphasis added)); see also M.H.S. v. State Dep’t of Human Res., 636 So.2d 419, 421 (Ala.Civ.App.1994) (“the court must consider and reject all other viable alternatives to termination of parental rights so that it can conclude that the termination is in the child’s best interest”); H.M.W. v. Mobile County Dep’t of Human Resources, 631 So.2d 1049, 1050 (Ala.Civ. App.1993) (same).

B.

Applying the foregoing understanding of our precedents and statutes to the present case, we must conclude that the record supports the trial court’s conclusion that the parents are unable or unwilling to serve as fit custodians for M.F.M. and that reunification for purposes of a normal parent-child custodial arrangement is not “foreseeable.” An alternative custodial arrangement no longer need be pursued in order to allow the parents to rehabilitate; rehabilitation has been shown to be not “foreseeable.” The fact that the record contains two names of possible placement alternatives therefore is irrelevant with respect to the “grounds-for-termination” phase of this case. Accordingly, we turn our attention to the second prong of Ex parte Beasley and the question, in the context of a direct inquiry into the child’s best interests, whether the trial court adequately “considered” M.D. and F.P. as permanent placements.

In this case, the trial court held a review hearing in March 2001 and issued an order that required DHR to conduct home investigations on two individuals identified only by their names and the fact that one of them was an aunt of the child. Approximately seven months later, DHR filed the petition to terminate the parents’ parental rights. At the trial on that petition, DHR admitted that it had not conducted home investigations on M.D. and F.P. However, the DHR social worker who had managed the parents’ cases also testified that she had requested that both the mother and the father provide her with the names of relatives who might be alternative placements, but that neither had provided her with any names.

At trial, the parents focused their argument as to viable alternatives on the paternal grandmother. The court specially set a separate hearing regarding whether the paternal grandmother was a viable alternative. It was at the end of that hearing, after the court had taken testimony from the paternal grandmother, that the record first reflects a contention by the mother and the father that DHR should conduct home studies on M.D. and F.P. The trial court, however, proceeded to determine, without the benefit of such home studies, that termination of parental rights was in M.F.M.’s best interests.

Importantly, there is no indication in the record regarding how the names of M.D. and F.P. came to the trial court’s attention or why the trial court decided to order DHR to investigate those individuals in March 2001. Nor is there any evidence indicating that either M.D. or F.P. ever visited M.F.M. or that they had any relationship whatsoever with M.F.M. There was no evidence indicating that M.D. or F.P. had requested that they be considered as alternative-placement resources, no evidence that the parents had brought M.D. or F.P. to the trial court’s attention as alternative-placement resources, and no evidence that M.D. or F.P. had ever assisted the mother, the father, or M.F.M. in any way. Moreover, there was no showing whatsoever that either M.D. or F.P. would be a fit custodian for the child, much less that such a placement would be in the child’s best interest.

Ultimately, therefore, the argument in favor of reversing the trial court’s judgment terminating parental rights comes down to the fact that the record contains the names of two individuals who may or may not be fit custodians for the child. We are provided essentially no information about those individuals. We have an admission by DHR that it did not perform home studies on those two individuals, followed by an order for the termination of parental rights entered by the same trial court that, for reasons known to that trial court but not to this court, ordered those home studies in the first place. Given the deference to be accorded to a trial court’s judgment in a termination-of-parental-rights case such as this, we cannot say that the trial court was plainly and palpably wrong to conclude that termination of the parties’ parental rights was in M.F.M.’s best interest based on the record presented.

The judgment of the trial court is therefore due to be affirmed.

AFFIRMED.

CRAWLEY, J., concurs.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur in the result.

      . The record indicates that DHR attempted to reunify C.M. with his father, but it does not disclose the ultimate disposition of C.M.

      . Ex parte Beasley involved a petition by one parent to terminate the parental rights of the other parent. The Supreme Court stated in Ex parte Beasley, however, that when a non-parent is the petitioner, there also must be a threshold showing of dependency. 564 So.2d at 954.

      . Roe addressed the application of Ala.Code 1940 (Recomp.1958), Tit. 13, § 350 et seq., the predecessor to Ala.Code 1975, § 12-15-1 et seq. While the 1940 Code (Recomp.1958) did not expressly state that a juvenile court could "terminate” a parent’s parental rights, it provided that the juvenile court could award "permanent custody” of a "neglected child” or "dependent child” to the Department of Pensions and Security, see Ala.Code 1940 (Recomp.1958), Tit. 13, §§ 350, 351, and 361. In Smith v. State Dep’t of Pensions & Security, 340 So.2d 34 (Ala.Civ.App.1976), this court construed the authority to award "permanent custody” as the authority to terminate parental rights.

      . Like a "dependent child” in our current child-welfare statutes, see Ala.Code 1975, § 12-15-1(10), the concept of a "neglected child” in the 1940 Code (Recomp.1958) did not necessarily entail an irremediable or permanent unfitness on the part of the parent. In pertinent part, Tit. 13, § 350(2), Ala.Code 1940 (Recomp.1958), defined a "neglected child" as "any child, who, while under sixteen years of age ... whose home, by reason of neglect, cruelty, or depravity, on the part of his parent or parents, ... is an unfit and improper place for such child.” Compare Ala.Code 1975, § 12 — 15—l(10)d. (defining a "dependent child,” in pertinent part, as one "[w]hose home, by reason of neglect, cruelty, or depravity on the part of the parent [or] parents ... is an unfit and improper place for the child”). Title 13, § 350(4), Ala.Code 1940 (Recomp.1958), further provided, in pertinent part, that a "neglected child” "shall be subject to the guardianship of the state and entitled to its care and protection.”

      . See generally L.B.S. v. L.M.S., 826 So.2d 178, 188 (Ala.Civ.App.2002) (Murdock, J., concurring in the judgment of reversal only) (discussing dual requirements under strict-scrutiny analysis that, in order to justify government interference with the fundamental right of parents to the care, custody, and control of their children, the State must have a "compelling state interest'’ and the State’s interference must be "narrowly tailored to the protection of the compelling state interest”).

      .It may be noted that the language which the Roe court found constitutionally offensive did not appear in the 1940 Code (Recomp.1958), and does not appear in our current statutes, in isolation. See note 4, supra (discussing both the definition of a "neglected child” under Ala.Code 1940 (Recomp.1958), Tit. 13, § 350(2), and the definition of a "dependent child” in § 12-15-l(10)d„ Ala.Code 1975). Based upon the facts discussed in Roe, it is rather obvious that there was not sufficient evidence for the Montgomery Family Court to have concluded that Roe was a "neglected child” as that term was defined in the 1940 Code (Recomp. 1958). The evidence certainly falls short of what is now required in termination cases under the CPA and the Alabama Juvenile Justice Act. See Ala.Code 1975, § 12-15-65, § 26-18-7.

      . Smith incorrectly cites the name of the Roe case as "Wombles v. Cohn.” See Smith, 340 So.2d at 37.

      . Hunley actually involved the application of Title 13, Ala.Code 1940 (Recomp.1958), rather than the Alabama Juvenile Justice Act ("the AJJA”). The AJJA formed part of the Judicial Article Implementation Act, which was approved on October 10, 1975. The effective date of the AJJA, however, was the subject of some confusion. See Ex parte Ward, 540 So.2d 1350 (Ala.1988).

      . Section 12— 15 — 71 (a) was the only part of the AJJA that specifically referenced termination of parental rights, and it was the only statute referencing termination of parental rights before the enactment of the CPA in 1984. As originally enacted, § 12 — 15—65(f), Ala.Code 1975, did not contain a specific reference to the "termination of parental rights”; that language was added in 1990. See Ala. Acts 1990, Act No. 90-674.

      . See also J.B. v. Jefferson County Dep't of Human Res., 869 So.2d 475 (Ala.Civ.App. 2003) (plurality opinion with two judges agreeing with the opinion and three judges concurring in the result). To allow a reasonable time for the rehabilitation/reunification process to proceed, there must of course be a viable custodial alternative for the care of the child in the interim. If there is such a viable custodial alternative — that is, a viable arrangement whereby the child will receive the care he or she needs while the parents attempt to rehabilitate themselves — Roe held that such alternative must be pursued in place of the termination of parental rights, as a less drastic means of preventing the child from remaining in the custody of unfit parents. Not only are Miller and subsequent state cases (discussed infra) consistent with this requirement, the CPA, which was adopted in 1984, now contemplates that a child will eventually be reunited with parents whose "conduct or condition ... is such as to render them unable to properly care for the child” at the present time, but whose conduct or condition is likely "to change in the foreseeable future.” Ala.Code 1975, § 26-18-7(a).

      . The CPA, with its reference to "reasonable efforts ... toward the rehabilitation of the parents,” see Ala.Code 1975, § 26-18-7(a)(6), was enacted in 1984, well after Miller was decided. As originally enacted, Ala.Code 1975, § 12-15-65 did not contain the current subsections (g) and (m), which discuss DHR's obligation to make reasonable efforts to preserve and reunify families under most circumstances. Subsection (g) was added in 1995, see Ala. Acts 1995, Act No. 95-545, and subsection (m) was added in 1998. See Ala. Acts 1998, Act No. 98-372.

      . Obviously, in most cases where reunification is a reasonable prospect within the "foreseeable future” there will be a viable placement alternative that will allow the necessary time for the rehabilitation/reunification process to be accomplished.

      . “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 (Ala. 1994)).

      . See discussion, infra, of the "second prong” in Ex parte Beasley and the obligation of trial courts to "consider” alternatives to termination that might be in the "best interests” of a child.

      . If this understanding were not correct (that is, if a termination could not occur whenever there exists some family resource or other alternative custodial arrangement, irrespective of the irremediability of an unfit parent), a fit custodial parent could never successfully seek the termination of the other parent's parental rights. See generally Ala. Code 1975, § 26-18-5(a); Ex parte Johnson, 474 So.2d 715 (Ala. 1985) (concluding that a parent could petition to terminate the other parent’s parental rights under the AJJA, even before the enactment of the CPA).

      . In Santosky, the Supreme Court held that due process required the use of at least a "clear and convincing” evidence standard at the "factfinding stage” of a termination proceeding, in part because, until the State proves parental unfitness, "the interests of the child and his natural parents coincide to favor use of error-reducing procedures.” Santosky, 455 U.S. at 761, 102 S.Ct. 1388. The Supreme Court also stated:
      "The State’s interest in finding the child an alternative permanent home arises only ‘when it is clear that the natural parent cannot or will not provide a normal family home for the child.’ Soc. Serv. Law § 384-b.l.(a)(iv) (emphasis added). At the fact-finding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.”
      455 U.S. at 767, 102 S.Ct 1388.

      . For example, if, notwithstanding the unfitness of a parent, there remains a significant emotional bond between a child and an unfit parent, and it has been demonstrated that some alternative-placement resource would allow the child to visit periodically with the unfit parent so as to reap the benefit of partially preserving that relationship without incurring the harm of the child being raised on a day-to-day basis by an unfit parent, the court would be required to weigh the advantage of that arrangement against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child’s best interest. See also, e.g., Ex parte Brooks, 513 So.2d 614, 617 (Ala.1987), overruled on other grounds by Ex parte Beasley, 564 So.2d 950 (Ala. 1990) (refusing to terminate a father’s parental rights because it would not have been 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).

      . "It is the appellant's responsibility to ensure that the record on appeal contains sufficient evidence to justify a reversal.” J.E.J. v. W.I., 851 So.2d 76, 81 (Ala.Civ.App.2002).

      . In this regard, we also note that a trial court has the inherent authority to "interpret, implement, [and] enforce” its judgments. E.g., Holley v. Holley, 829 So.2d 759, 761 (Ala.Civ.App.2002).


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    HARBAR CONSTRUCTION COMPANY et al. v. Robert Marion WILLIS and Catherine Willis.
    2020372.
    Court of Civil Appeals of Alabama.
    July 25, 2003.

      A. Joe Peddy and Clarence Rivers IV of Smith, Spires & Peddy, P.C., Birmingham, for appellants Harbar Construction Company and Denney Barrow.
    Don L. Hall of Moore, Tucker & Hall, LLP, Bessemer, for appellees.
   YATES, Presiding Judge.

The defendants, Harbar Construction Company and Denney Barrow, appeal from the trial court’s denial of their motion to compel arbitration. The issue presented for review is whether the parties’ sales contract and limited warranty agreements were contracts “evidencing a transaction involving commerce” within the meaning of 9 U.S.C. § 2, a part of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”).

On July 23, 2001, Robert Marion Willis and Catherine Willis signed a contract with Harbar Construction to purchase a house located in Shelby County. At the time of the purchase, construction of the house was not complete. Barrow is an agent for Harbar Construction. The sales contract contained an arbitration clause, which provided:

“14. Arbitration The Seller and the Buyer acknowledge that this Agreement necessarily involves interstate commerce by virtue of the materials and components contained in the Dwelling. Each of the undersigned hereby agrees that any dispute, controversy or claim arising out of, or relating to, this Agreement or the breach thereof shall be submitted to final and binding arbitration under the Arbitration rules (Binding) of the Better Business Bureau, Inc. The decision of the Arbitrator appointed thereunder shall be final and binding and judgment on the Award may be entered in any Court of competent jurisdiction. The fees and expenses incurred shall be shared equally by both parties. Payment of arbitration fees may be required in advance of any proceedings.”

On that same day, the Willises signed a limited warranty agreement. That agreement contained, as an attachment, a separate “Arbitration/Alternative Dispute Resolution (ADR)” agreement, which the Willises signed. On September 14, 2001, the Willises signed another limited warranty agreement, which contained a separate agreement to arbitrate identical to the one attached to the first limited warranty agreement. The arbitration agreements attached to the limited warranty agreements provided, in pertinent part:

“a. The Buyer and Seller agree that should an impasse between the Buyer and Seller arise as to the Seller’s obligations under this Limited Warranty Agreement to repair, replace or pay to the Buyer the reasonable cost of repairing or replacing any Latent Defect covered hereunder, both parties will submit to the Alternative Dispute Resolution (ADR) program offered by the Master Builder/Master Remodelers of the Greater Birmingham Association of Home Builders to negotiate a settlement. If this Procedure is not deemed satisfactory for either party, the next step is mediation or arbitration by the Better Business Bureau of Central Alabama.
“b. Any Controversy or claim arising from or relating to this Agreement, or the breach thereof, or any and all claims arising between the Seller and the Buyer, their successors, or assigns shall be settled by arbitration in accordance with the arbitration rules (Binding) of the Better Business Bureau, Inc., except as such rules may be modified herein.... The parties acknowledge and agree that the transactions contemplated by this Agreement, which include the use of materials and components from out of state in the Dwelling, involve interstate commerce as that term is used in the Federal Arbitration Act, 9 U.S.C. [§] 1 et seq.”

On April 18, 2002, the Willises sued Har-bar Construction, Barrow, and fictitiously named defendants involved in constructing the home, alleging breach of contract, breach of warranty, negligence, and wantonness. Specifically, they claimed that the defendants had failed to repair certain items, including the roof, that the Willises discovered were in need -of repair during the preoccupancy inspection.

On September 20, 2002, Harbar Construction and Barrow filed a motion to compel arbitration, arguing that the parties had agreed to arbitration and that the parties had agreed that their transaction involved interstate commerce. Following a hearing on November 7, 2002, the trial court denied the motion. On November 18, 2002, Harbar Construction and Barrow filed a “motion to reconsider” the trial court’s denial of their motion to compel arbitration. Attached to that motion were invoices, letters from suppliers, and bills of lading that, Harbar Construction and Barrow argued, showed that the underlying transaction affected interstate commerce because supplies used to construct the home came from out of state. The trial court denied the motion to reconsider. Harbar Construction and Barrow filed a notice of appeal with the supreme court. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

In Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), our supreme court determined that a contract between two Alabama parties for the remodeling of a chapel did not substantially affect interstate commerce so as to invoke the FAA. The court concluded that five factors are pertinent in determining whether a transaction affects interstate commerce: (1) the citizenship of the parties; (2) the source of the “tools and equipment” necessary to consummate the transaction; (3) the “allocation of cost of services and materials”; (4) the subsequent movement, if any, of the “object of the services” across state lines; and (5) the “degree of separability from other contracts” involved in the transaction. 775 So.2d at 765-67.

While this appeal was pending, the United States Supreme Court decided Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). In Citizens Bank, the Court held that the Alabama Supreme Court’s “improperly cramped” view of Congress’s Commerce Clause power, first announced in Sisters of the Visitation, rested on a misreading of the Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). 539 U.S. at 58, 123 S.Ct. at 2041. The Supreme Court held:

“Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948).”

539 U.S. at 56-57, 123 S.Ct. at 2040.

The FAA “embodies Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause.” Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987). A review of the record in the present case indicates that the house was built in Alabama by Harbar Construction, an Alabama corporation, for the Willises, who reside in Alabama. However, the majority of the materials used to construct the house were shipped into Alabama from out of state. The lighting purchased for the house was shipped from Arkansas, California, and Georgia. The drywall board supplied for the house came from Georgia and Arkansas. Two turbines installed in the house were manufactured in Arkansas. The brick used on the house was manufactured in Georgia. The vinyl flooring installed in the house was manufactured in New Jersey, and the wood flooring installed in the house was manufactured in Texas. Bath fixtures were purchased from Moen, Inc., located in North Carolina, and the shower door was shipped from Georgia. The appliances installed in the house were shipped from Georgia. The carpet installed in the house was manufactured in Georgia. The lumber used was from Mississippi and Canada. The shelving was purchased from Rubbermaid in Illinois, and the garage-door openers were purchased from Aluminum Manufacturing in Ohio. The fiberglass insulation used was manufactured in either Georgia, Kansas, or California.

In Wolff Motor Co. v. White, 869 So.2d 1129 (Ala.2003), the defendants appealed from the trial court’s denial of their motion to compel arbitration of the claims filed against them by the plaintiffs. The trial court denied the motion on the grounds that the plaintiffs’ purchase of a car-hauler used to transport automobiles did not substantially affect interstate commerce. Our supreme court, based on the holding in Citizens Bank, reversed the judgment, holding that the transaction sufficiently involved interstate commerce to fall within the scope of the FAA because the defendants engaged in business throughout the southeastern United States. Another reason the supreme court held that the transaction in Wolff Motor Co. involved interstate commerce was that the defendants purchased substantial quantities of goods that had moved in interstate commerce. The court also held that a third reason the transaction involved interstate commerce was that the “ ‘general practice’ of the transaction at issue was of the sort subject to Congress’s Commerce Clause power.” 869 So.2d at 1134. The court also held that a car-hauler is an instrumentality of commerce and, therefore, that the transaction involved interstate commerce. The court held that any one of those reasons standing alone would be sufficient to demonstrate that the transaction involved interstate commerce and, thus, fell within the ambit of the FAA.

In the present case, the transaction involved interstate commerce because Harbar Construction purchased substantial quantities of goods used in the construction of the house that have moved in interstate commerce. “[T]he Commerce Clause gives Congress the power to regulate local business establishments purchasing substantial quantities of goods that have moved in interstate commerce.” Citizens Bank, 539 U.S. at 57, 123 S.Ct. at 2040, citing Katzenbach v. McClung, 379 U.S. 294, 304-05, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964).

The trial court, in denying the motion to compel arbitration, did not have the benefit of the United States Supreme Court’s recent pronouncement in Citizens Bank. However, we must reverse the trial court’s order denying the motion to compel arbitration and remand the case for the trial court to enter an order staying the proceedings and compelling the Willises to arbitrate them dispute with Harbar Construction and Barrow.

REVERSED AND REMANDED.

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


author: COBB, Judge.

text:
    Raymond PRUITT v. STATE of Alabama.
    CR-01-2127.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.

      Daniel Gary Hamm, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   COBB, Judge.

Raymond Pruitt was indicted for and convicted of robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975. He was sentenced to 50 years’ imprisonment and ordered to pay a victims eom-pensation assessment in the amount of $50, court costs, and restitution. This appeal followed.

Pruitt has submitted two issues for our consideration. Pruitt first argues that the trial court erred when it denied his Batson motion. Pruitt challenges the exercise of strikes against black venire-members who were affiliated with the military. Pruitt’s father, a military officer, was expected to testify for the defense at trial. Pruitt contends the reason for excusing these veniremembers — that they were affiliated with the military- — was pretextual.

The prosecutor exercised 10 of 11 peremptory strikes against black venire-members. Pruitt made a Batson motion. Without ruling that Pruitt had established a prima facie case of discrimination, the trial court ordered the prosecutor to give reasons for his strikes. The prosecutor stated that he struck all active and retired military personnel because Pruitt’s father, a career military officer, was present in uniform and was expected to testify; three black veniremembers were struck for this reason. Another black veniremember was struck because she was the wife of a military retiree. Of the remaining strikes against black veniremembers, the prosecutor stated that two of the veniremembers had family members who had been convicted of a crime, two jurors had not completed their juror questionnaires, one juror questioned the validity of eyewitness testimony and expressed the view that the justice system favored people with money, and one was a correctional officer who had previously been a police officer. The court found the reasons to be race-neutral and valid except for the strike against the correctional officer. The court placed this veniremember on the jury.

The court then required Pruitt’s counsel to state his reasons for the use of all but one of his peremptory strikes against white veniremembers. Finding that both the State and Pruitt had given valid reasons for their peremptory strikes, the court noted that the jury was selected and ready to proceed. At this time, Pruitt stated that one of the members of the jury was married to a military retiree. The trial court stated that its duty was to see if both parties had valid race-neutral reasons for the use of their peremptory strikes. The trial court stated that it was satisfied with the reasons given and with the jury selected.

Pruitt argues that the strikes based on veniremembers’ military affiliation were pretextual. He claims that because Pruitt’s father testified only that his son was left-handed, that he never wore his hair in dreadlocks, and that his son was the person in a photograph, his military status had no bearing on the ease. He also argues that because the State left a white spouse of a military retiree on the jury when it struck a similarly situated black veniremember ostensibly because she was married to a military retiree, this disparate treatment proves the strikes were pretextual.

“A trial court’s ruling on a Batson objection is entitled to great deference, and we will not reverse the trial court’s ruling unless it is clearly erroneous.” Giles v. State, 815 So.2d 585, 586 (Ala. Crim.App.2000). This Court has written:

“A defendant is required to make a ‘prima facie’ showing of racial discrimination before the trial court will review the prosecutor’s reasons for its strikes of black veniremembers. Batson, 476 U.S. at 93-94, 106 S.Ct. at 1721. ‘[Wjhere a trial court has made no express finding that a prima facie case of discrimination has been established but nonetheless requires a prosecutor to explain its peremptory challenges, this court will consider such a finding to be implied and will proceed directly to evaluate the prosecution’s explanations.’ Sims v. State, 587 So.2d 1271, 1276 (Ala. Cr.App.1991), cert. denied, [502] U.S. [1098], 112 S.Ct. 1179, 117 L.Ed.2d 423 (1992); Williams v. State, 548 So.2d 501 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989).
“ ‘When explaining the basis for its peremptory strikes of blacks, the prosecution must offer a clear, specific, and legitimately race-neutral reason for each strike.’ Sims v. State, 587 So.2d 1271 (Ala.Cr.App.1991), cert. denied, [502] U.S. [1098], 112 S.Ct. 1179, 117 L.Ed.2d 423 (1992). See also Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (‘the prosecutor must articulate a neutral explanation related to the particular case’). ‘[T]he removal of even one juror for a discriminatory reason is a violation of the equal protection rights of both the excluded juror and the minority defendant. Moreover, this is true even though blacks may be seated on the petit jury and there were valid race-neutral reasons for striking other blacks from the jury.’ ”

Carter v. State, 603 So.2d 1137, 1138-39 (Ala.Crim.App.1992).

The trial court properly found this reason to be valid. Pruitt’s father was present in uniform and was expected to testify. The case against Pruitt turned on the jury’s determination of the credibility of the victim’s eyewitness testimony. It is reasonable that the prosecutor would prefer jurors who would be less likely to accord deference to a defense witness’s testimony because of his military affiliation. The prosecutor’s explanation related

to this particular case, and, therefore, was race-neutral.

“ ‘ “Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons for explanations are merely a sham or pretext. [People v.] Wheeler, 22 Cal.3d [258] at 282, 583 P.2d [748] at 763-64, 148 Cal.Rptr. [890] at 906 [1978], Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:
“ ‘ “3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck. Slappy [v. State], 503 So.2d [350] at 354 [Fla.Dist.Ct.App.1987]; [People v.] Turner, 42 Cal.3d [711] at 725, 726 P.2d [102] at 110, 230 Cal.Rptr. [656] at 664 [1986]; Wheeler, 22 Cal.3d 282, 283 [583] P.2d at 760, 148 Cal.Rptr. at 906.” ’ ”

Carrick v. State, 580 So.2d 31, 32 (Ala. Crim.App.1990).

Pruitt also argues that the State engaged in disparate treatment because it left a white spouse of a military retiree on the jury when it struck a similarly situated black veniremember because she was married to a military retiree. However, the record does not contain any evidence to support Pruitt’s assertion that the State left a white spouse of a military retiree on the jury. It is not clear how defense counsel or the prosecutor knew of the veniremembers’ military affiliation. This information may have been obtained from the jury questionnaires, which are not part of the record, or it may have been provided during proceedings conducted off the record. The trial court should have investigated the matter after defense counsel made the allegation that the State had engaged in disparate treatment. Instead the trial court stated:

“Well, Mr. Turner, I don’t — there might be some other people that someone missed or didn’t get or whatever. I mean, we’re not going to sit and pick through every one of the jurors. That’s not what we’re going to do. I’ve already gone through and ruled on it, so let’s go get the jury.”

(R. 61.) Thus, the trial court precluded Pruitt from offering proof to support his allegation. Therefore, we remand this cause to the trial court for an evidentiary hearing to determine if the State left a white spouse of a military retiree on the jury when it struck a similarly situated veniremember, thereby engaging in disparate treatment. If the trial court finds that the State engaged in disparate treatment, the only remedy it has is to set aside Pruitt’s judgment of conviction and order a new trial. The trial court is directed to file a return to this Court within 60 days, and to include in that return any testimony taken, as well as the court’s written findings and conclusions. We pretermit discussion of Pruitt’s other allegation of error until we hear from the trial court on remand.

REMANDED WITH DIRECTIONS.

MeMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

       Note from the reporter of decisions: On August 15, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


author: McMILLAN, Presiding Judge.

text:
    James Mitchell KING v. STATE.
    CR-01-2251.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Wilson Myers, Sr., Gulf Shores, for appellant.
    William H. Pryor, Jr., atty. gen., and Beth Slate Poe, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, James Mitchell King, filed a Rule 32, Ala. R.Crim. P., petition, attacking his 1982 murder conviction. King was sentenced, as a habitual offender with three prior felony convictions, to life imprisonment without parole.

In his petition, King argued that the indictment against him was void because, he says, it failed to allege all elements of the offense of murder and that his sentence of life imprisonment without parole exceeded the maximum authorized by law. During a hearing conducted by the trial court, King argued, through retained counsel, that he had been improperly sentenced as a habitual offender with three prior felony convictions. He contended that the State was able to produce certified copies of only two prior convictions and that, therefore, he should properly have been sentenced to life imprisonment. The trial court summarily denied King’s petition; this appeal followed.

On appeal, King argues only that the trial court improperly sentenced him to life imprisonment without parole. He is therefore deemed to have abandoned the issue concerning his indictment, and this Court will not address it. Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995).

However, it appears from the record that King’s argument that he was improperly sentenced as a habitual offender with three prior felony convictions may have merit. Defense counsel contended that King’s sentence was improper because he had only two prior convictions, and during the hearing, the State was only able to produce evidence of two prior convictions. The prosecutor argued that the third conviction must have been from another circuit, and because she did not know that King planned on raising this specific ground, she was not prepared to produce evidence of all three prior convictions. Defense counsel argued that the issue was jurisdictional and therefore could be raised at any time. The trial court then ordered King to amend his petition to include this ground, and that the trial court would then rule on the petition. However, nothing further appears in the record concerning this matter. Accordingly, this ease is remanded to the Baldwin Circuit Court for that court to determine whether King had two or three prior felony convictions at the time of his sentencing. See McClintock v. State, 773 So.2d 1057 (Ala.Crim.App.2000) (claim of illegal sentence due to improper number of prior convictions considered for Habitual Felony Offender Act was not procedurally barred). See also Dobbins v. State, 716 So.2d 231 (Ala.Crim.App.1997). If King’s contention that he was improperly sentenced is correct, the circuit court is directed to resentence him within the proper guidelines. Due return shall be made to this Court within 49 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

       Note from the reporter of decisions: On August 22, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.