author: MURDOCK, Judge. PITTMAN, Judge,

text:
    P.Y.W. v. G.U.W.
    2010609.
    Court of Civil Appeals of Alabama.
    March 21, 2003.

      Slade Watson, Mobile, for appellant.
    Submitted on appellant’s brief only.
   MURDOCK, Judge.

P.Y.W. (“the mother”) and G.U.W. (“the father”) were married in April 2000, and one child was born of the marriage on November 28, 2000. In January 2001, the parties separated, and in November 2001, the mother filed a petition in which she requested that the father be ordered to pay child support retroactive to the date of the child’s birth, as well as medical expenses related to the birth. Following an ore tenus hearing in February 2002, the trial court ordered the father to pay $648 per month in child support beginning in March 2002. The court denied the mother’s request for retroactive support and for the payment of medical expenses. The mother appeals from that portion of the trial court’s judgment denying her request for retroactive child support.

During the hearing, the mother testified that the father had provided only $65 in support since the child’s birth. The mother testified that she works at a medical facility as a phlebotomist earning a gross biweekly income of $1,449. She testified that the father is an electrician employed by a construction company and that he “bragged” in May or June 2001 that at that time he was earning $18 per hour. The mother also testified that, before the parties separated, the father was earning between $13 and $18 per hour, and that he normally worked 40 hours per week. Apparently referencing the parties’ separation shortly after their child was born, the mother testified, “[the father] left me in a really financial bind. [The father] has a cocaine habit and he is an alcoholic.” As previously noted, the father did not appear at the trial of this matter; he has not favored this court with a brief.

Initially, we note that when a trial court hears ore tenus evidence, its judgment is presumed to be correct and will not be disturbed on appeal unless it is unsupported by the evidence so as to be plainly and palpably wrong. Bishop v. Pierce, 726 So.2d 663, 664 (Ala.Civ.App.1998). The ore tenus rule, however, applies only to questions of fact, not to questions of law. Peacock v. Houston County Bd. of Educ., 653 So.2d 308, 309 (Ala.Civ.App.1994).

It is a basic principle of Alabama, law that a parent has a duty to support his or her minor child and that this duty of support is a fundamental right of all minor children. State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995); Ex parte University of South Alabama, 541 So.2d 535, 537 (Ala.1989). The Alabama Legislature, recognizing this duty, created a cause of action specifically for retroactive child support. See Ala.Code 1975, §§ 30-3-110 through -115.

Even before §§ 30-3-110 through -115 became effective in March 1994, the Alabama Legislature had made it clear that retroactive child support is favored in order to ensure that minor children receive the support that is their due. Section 26-17 — 9(d), Ala.Code 1975, provided, and still provides, in pertinent part, that a child’s mother may file “[a] complaint for nonsupport of [the] child ... alleging sufficient facts that the defendant owes a duty of support, provided, that support payments have not been ordered previously pursuant to a decree of divorce.” Moreover, 26-17-8, Ala.Code 1975, specifically provided before the enactment of §§ 30-3-110 through -115, and still provides, that a court may order a father to pay retroactive child support for a period of two years prior to the filing of a complaint, or the birth of the child, whichever is the shorter time period.

In Brown v. Brown, 719 So.2d 228 (Ala. Civ.App.1998), this court addressed the issue whether, apart from an action brought under §§ 30-3-110 through -115, Alabama law provided for the award of retroactive child support. In a case in which the complaint was filed “shortly after” the parties separated, 719 So.2d at 229, this court answered that question as follows:

“Given this state’s policy and law requiring a parent to support a minor child, ... a trial court may, in its discretion, award child support retroactive to the filing of the complaint for divorce where the trial court has failed to enter a pendente lite child support order for the period in which the parent had a duty to support the child but failed to provide that support.”

Brown, 719 So.2d at 232.

As noted, the claim for retroactive child support in Brown was not one brought pursuant to §§ 30-3-110 through -115. Moreover, we note that the trial court’s judgment in Brown was entered approximately two years after the parties’ separation and that the only issue in that case was whether retroactive child support was due for the one-year period immediately before trial, a period during which the husband paid no child support. During the first 12 months following the parties’ separation, the father had voluntarily paid substantial child support. Id. No issue was presented in Brown as to the possibility of a retroactive award of child support for any period before the filing of the complaint.

In the present case, the mother argues that §§ 80-3-110 through -115 “show an intent by the Legislature to bolster the rights of minors to [child] support which had previously been guaranteed by earlier statutes [such as §§ 26-17-8 and 26-17-9] and the common law.” We agree. Section 80-3-110 provides:

“There is hereby created a civil action to establish an order of retroactive support which may be brought against a non-supporting parent who has a duty to support as the legal parent of a child or children but has failed to provide support. The action may be brought by the parent or guardian with physical or legal custody who is providing the actual care and support for the child or may be brought by the Department of Human Resources pursuant to the provisions of [Ala.Code 1975,] Section 38-10-1 et seq. An action under this section can be brought only if support has not previously been ordered pursuant to a divorce or other action in this or any other jurisdiction.”

Section 30-3-114, Ala.Code 1975, provides:

“The order of retroactive support shall be a sum certain judgment and may cover all periods in which the nonsupporting parent failed to provide support. For all time periods in which support is requested, the court shall consider the needs of the child or children and the ability of the parents to respond to these needs, and shall determine the amount of support due for each period by application of the child support guidelines found in Rule 32 of the Alabama Rules of Judicial Administration based upon the circumstances during the time period for which support is sought. If the judgment for retroactive support includes support due for a period of time in which aid was paid by the Department of Human Resources and an assignment of support rights thereby exists under Section 38-10-4[, Ala.Code 1975,] and Section 38-10-5, [Ala.Code 1975,] the department shall be entitled to recover any support due the department under Section 38 — 10—6[, Ala.Code 1975].”

Given the record presented, including the facts discussed above, we see no basis for the trial court not to have made a retroactive child-support award in this case. There is no evidence in the record indicating that the mother ever gave the father reason to believe that she would have no need for the father’s financial assistance in rearing their child, or that the father ever relied on any such representation. The mother filed her complaint less than a year after the child’s birth and only about 10 months after the father left the mother and the child. There is no evidence explaining the father’s failure to pay child support or tending to indicate that it would be inequitable to require him to pay child support retroactively.

In K.H.L. v. K.G.M., 782 So.2d 804 (Ala. Civ.App.2000), we held that the trial court did not abuse its discretion in declining to award retroactive child support in a case in which the father had voluntarily paid the mother $500 per month since the child’s birth and $900 per month for several months before the entry of the trial court’s judgment. Unlike the father in K.H.L., the father in the present case has. paid virtually no child support since leaving the mother and the child. Based on the record before us, we conclude that the trial court abused its discretion in not awarding child support retroactive to the time of the parties’ separation.

The dissent notes that the proper amount of child support depends upon both the needs of the child and the ability of the parent to pay. The dissent concludes (1) that the record contains “scant” evidence of the needs of the parties’ child and (2) that, based on that scant evidence, the trial court could have concluded that its award of $648 per month was more than was necessary for the prospective needs of the child and therefore an additional award of retroactive support was unnecessary.

As to the latter conclusion, the trial court clearly indicated that it was making an award only for the prospective support of the child. As to the former conclusion, Rule 32, Ala. R. Jud. Admin., establishes by law the presumptive amount needed for the support of a child. Section 30-3-114 provides that the court “shall determine the amount of support due for each period by application of the child support guidelines found in Rule 32 of the Alabama Rules of Judicial Administration based upon the circumstances during the time period for which support is sought.” Therefore, no additional evidence of the child’s financial needs was required in this case.

On remand, the trial court is instructed to make an award of retroactive child support in accordance with the requirements of § 30-3-114, applying the child-support guidelines of Rule 32, Ala. R. Jud. Admin.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and THOMPSON, J., concur.

CRAWLEY, J., concurs in the result.

PITTMAN, J., dissents.

PITTMAN, Judge,

dissenting.

Assuming, without deciding, that the mother actually invoked Ala.Code 1975, § 30-3-110 et seq., merely by petitioning the juvenile court for a paternity judgment and an allied award of child support, I note that this court has not previously interpreted § 30-3-110 et seq. as requiring an award of retroactive child support upon the request of a petitioning party. Rather, in K.H.L. v. K.G.M., 782 So.2d 804 (Ala.Civ.App.2000), although we noted that the enactment of those statutes indicated a legislative recognition of a parental duty of support, we nevertheless affirmed the denial of retroactive support in that case, stating that “it is within the discretion of the trial court to award retroactive support back to the filing of the complaint.” 782 So.2d at 807. Although our affirmance in KH.L. was based upon the existence of voluntary payments made in that case by the child’s father to the child’s mother, we did not thereby limit the trial court’s discretion to consider other factors such as the needs of the child. See § 30-3-114, Ala.Code 1975 (mandating that for all periods in which support is requested, the court shall consider the needs of the child or children).

The trial transcript in this case contains a total of 10 pages of testimony, all of it from the mother. At the time of the trial court’s judgment, the child was only 15 months old. The record reveals that the mother had incurred child-care costs of $90 per week beginning in April 2001 and had provided health insurance for herself and the child for two months at a cost of $42.50 per week; the mother was paid $724.50 per week in gross wages, and she admitted having received $65 from the father on one occasion. There was no other evidence concerning the mother’s expenditures on behalf of the child, and there was no indication that the mother had been unable to timely pay those expenses.

This court has stated that although the proper amount of child support will depend upon both the needs of the child or children and the ability of the parent to pay, “the children’s needs [are] of primary concern.” McKinney v. McKinney, 428 So.2d 104, 105 (Ala.Civ.App.1983). In my view, given the scant evidence before the trial court concerning the needs of the parties’ 15-month-old child, the trial court could properly have concluded that a prospective award of $648 per month as support for a toddler (which is almost $100 more than the monthly expenses to which the mother testified) was adequate, and that an additional award of retroactive support would be unnecessary. Because I cannot agree that the trial court abused its discretion in this case, I respectfully dissent.

      . The petition also included a request for a declaration of paternity as to the father. At trial, however, the court, upon learning that the parties were married at the time of the child’s birth, concluded, and the mother agreed, that the only matter before it was "a support petition." See also § 26-17-5(a)(l), Ala.Code 1975. The father did not appear at trial.

      . We do not, as the dissent asserts, interpret §§ 30-3-110 through -115 as "requiring an award of retroactive child support upon the request of a petitioning party.” We do, however, interpret these sections as bolstering the already strong policy in our law in favor of child support and see no reason in the record that the mother should not receive retroactive child support in this particular case. The trial court was presented with no evidence and no argument against the award of retroactive child support.


source: Caselaw Access Project

author:
CRAWLEY, Judge. YATES, Presiding Judge,
      THOMPSON, Judge,

license: Public Domain

text:
    Jason BENJAMIN v. Alyson N. BENJAMIN.
    2010892.
    Court of Civil Appeals of Alabama.
    March 21, 2003.

      David G. Flack, Montgomery, for appellant.
    Floyd Minor of Minor & Olszewski, L.L.C., Montgomery; and James D. Ham-lett, Montgomery, for appellee.
   CRAWLEY, Judge.

Jason Benjamin (“the husband”) and Alyson N. Benjamin (“the wife”) were divorced in October 2001. Pursuant to the divorce judgment, the husband and the wife were each ordered to pay $200 per month to the wife’s father, who had loaned the couple $31,000. In addition, the husband was ordered to pay $608 per month in child support and $3,000 for the wife’s attorney fees. The judgment specifically reserved the issue of periodic alimony.

In March 2002, the wife filed a “Petition for Enforcement and Contempt and to Modify the Final [Judgment] of Divorce,” in which she alleged that the husband had failed to pay his $200 monthly payment to her father and the $3,000 in attorney fees to her former attorney. The wife requested that the husband be held in contempt for his failure to pay the moneys he was ordered to pay. She further requested that the trial court award her alimony because the husband had failed to make his payments on the debt to her father as required by the divorce judgment.

Also in March 2002, the husband filed for Chapter 7 bankruptcy protection. Pursuant to the automatic-stay provisions of the bankruptcy code, see 11 U.S.C. § 362, the husband’s creditors, including the wife’s father, could not seek payment of any amounts owed to them. The debt to the wife’s father was listed on the husband’s bankruptcy petition; however, at the time of the hearing on the wife’s petition, the bankruptcy court had not yet determined whether the husband’s debt to the wife’s father was dischargeable.

At trial, the husband represented himself. The only testimony was that of the husband and of the wife; each submitted an exhibit outlining their monthly expenses. The trial court, in its judgment, indicated that it had “stayed” the trial on the contempt issue because of the automatic-stay provisions of the bankruptcy code. However, it considered the wife’s request for alimony and awarded her $250 per month in periodic alimony. The trial court made the judgment final pursuant to Rule 54(b), Ala. R. Civ. P. The husband appeals, arguing that the trial court did not have jurisdiction to determine the dischargeability of the debt to the wife’s father and that the wife failed to show a change in circumstances sufficient to warrant an award of alimony, especially in light of his inability to pay. We reverse.

The husband first argues that the trial court did not have jurisdiction to determine the dischargeability of the debt owed to the wife’s father. The trial court, however, did not make such a determination. It simply determined — based on the fact that the husband had filed a petition in bankruptcy, the automatic stay preventing collection of the debt from the husband, and the husband’s failure to pay his portion of the debt — that the circumstances of the parties had changed. The husband admits that the trial court had the authority to award alimony even while the bankruptcy was pending. Hunter v. Hunter, 706 So.2d 753, 754 (Ala.Civ.App.1997); Frankel v. Frankel, 274 N.J.Super.585, 591, 644 A.2d 1132, 1135 (1994); In re Becker, 136 B.R. 113, 116 (Bankr.D.N.J.1992). Therefore, we do not agree that the trial court was without jurisdiction in this case when it awarded the wife alimony.

The husband also argues that the wife did not prove a change of circumstances warranting the award of alimony. See, generally, Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995) (stating that alimony may be modified if the petitioner proves that a material change of circumstances warranting a modification has occurred); see also Crenshaw v. Crenshaw, 816 So.2d 1046, 1047 (Ala.Civ.App.2001) (holding that a trial court’s award of alimony upon petition after an initial reservation of the issue of alimony in the original divorce judgment requires a showing of a material change in circumstances). The wife argues in response that the husband’s bankruptcy and the resulting stay created a change in circumstances because, she says, she became responsible for the entire $400 monthly repayment of the loan from her father. She testified that she had not made all the required payments to her father because she did not have sufficient funds with which to meet all of her expenses and repay the loan.

The wife correctly notes that this court has held that a husband’s discharge in bankruptcy of an alimony-in-gross award and the marital debts he was required to assume pursuant to the divorce judgment can be a material change of circumstances warranting a modification of periodic alimony. See Thornburg v. Thornburg, 628 So.2d 885, 887 (Ala.Civ.App.1993); see also Smith v. Smith, 741 So.2d 420, 422 (Ala. Civ.App.1999). The wife, according to a handwritten exhibit in the record, has a gross monthly income of $2,166. She also receives $608 per month in child support. She reported that her monthly expenses were $3,355. We agree that the wife has shown a material change in circumstances — the husband’s bankruptcy stay, which placed her in the position of having to attempt to pay $400 instead of $200 per month on the debt due to her father.

However, a trial court is not required to modify alimony because of a change in the circumstances of the parties. Kiefer, 671 So.2d at 711. The court should still consider the earning capacity of each spouse, the payee spouse’s need for alimony, the payor spouse’s ability to pay alimony, and each spouse’s estate. Id. Athough a trial court’s determination that a modification of alimony is warranted is presumed correct, this court can reverse a trial court’s award of alimony if the award is not supported by the evidence, if it is plainly and palpably wrong, or if, in entering the award, the trial court abused its discretion. Id.

Athough not specifically raised in the husband’s statement of his issues, the husband states in his brief that the trial court abused its discretion by awarding the wife $250 per month alimony when the evidence demonstrates that he cannot afford to pay. The wife responded to that argument in her brief. Accordingly, we will address the issue.

A careful examination of the evidence regarding the husband’s income and expenses reveals that the husband cannot possibly afford to pay the wife $250 per month in alimony. Although numerous mathematical errors were made in the computations at trial, by both the husband and the trial court, the evidence establishes that the husband’s monthly net income is $1,679. His monthly child-support obligation is $608. His monthly living expenses total $1,074.50. Once his $608 child-support obligation is deducted from his monthly net income, the husband has $1,071 remaining. That amount does not cover his monthly living expenses of $1,074.50.

Although we agree that the trial court had jurisdiction to award the wife periodic alimony and that the wife did prove that a material change in circumstances occurred by reason of the husband’s filing of a petition in bankruptcy, we cannot agree that the trial court had the discretion to award the wife $250 per month in alimony when the record reflects that the husband cannot afford to pay that amount. The award is not supported by the evidence; it amounts to an abuse of discretion. Therefore, we reverse the judgment awarding the wife alimony.

REVERSED AND REMANDED.

PITTMAN and MURDOCK, JJ., concur.

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

THOMPSON, J„ dissents.

YATES, Presiding Judge,

concurring in the result.

I concur in the result in this case. I believe that after an initial reservation of the alimony issue in the original divorce judgment, the facts of each particular case determine whether an award of alimony is based on the same factors the trial court would have considered if it had dealt with the issue in the original divorce proceeding or whether there must be a material change in circumstance. See my special writing in Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala.Civ.App.2001)(Yates, J., concurring in part and dissenting in part).

THOMPSON, Judge,

dissenting.

I must dissent from the majority’s opinion reversing the trial court’s award of periodic alimony based on the husband’s inability to pay. The husband raised only two issues on appeal: whether the trial court had jurisdiction to determine whether a debt would be discharged in bankruptcy proceedings and whether the husband’s bankruptcy amounted to a change in circumstances warranting an award of alimony. When an appellant fails to argue an issue in his brief on appeal, the issue is waived and is not properly before this court for review. See Ex parte Martin, 775 So.2d 202 (Ala.2000). Accordingly, I dissent.

      . Our "appellate rules place emphasis on reaching the merits of litigation.” Thoman

        Eng’rs Inc. v. McDonald, 57 Ala.App. 287, 289, 328 So.2d 293, 295 (Civ.App.1976). In McDonald this court stated its duty in respect to the review of an appellant’s brief under Rule 28, Ala. R.App. P.: “to determine ... whether an issue on the merits has been raised in a manner which is fair to all concerned.” McDonald, 57 Ala.App. at 290, 328 So.2d at 294. Despite finding that the appellant's brief did not fairly present a particular issue, the McDonald court stated:
      “We are thus not required to review this point. However, despite the apparent handicap, [the appellee] did respond to this issue in his brief, and, in these circumstances, [the appellee] suffering no actual hardship due to [the appellant's] omissions, we determine that it is in keeping with the spirit of the [Ala. R.App. P.] to decide this question on its merits.”

        McDonald, 57 Ala.App. at 290, 328 So.2d at 295. See also Kirksey v. Roberts, 613 So.2d 352, 353 (Ala. 1993) (stating that our supreme court will consider a case on the merits even if the appellant's brief fails to comply with Rule 28 and does not contain any authority in support of the appellant's claims if the court is able to adequately discern the issues presented); Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987)(stating that, if the ap-pellee adequately responds to the issues raised by the appellant in her brief, the court can consider the merits of the case despite the failure of the appellant to comply with Rule 28, in light of the preference that cases be decided on the merits).

      . The husband’s bankruptcy will certainly relieve him of certain debts; however, it does not appear that the husband’s monthly expenses, as reported on his trial exhibit, include any debt payments that would be discharged by the pending bankruptcy.


author: CRAWLEY, Judge.

text:
    J.D. v. CHEROKEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2011189.
    Court of Civil Appeals of Alabama.
    March 21, 2003.
    Jeffrey P. Montgomery, Gadsden, for appellant.
    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.
   CRAWLEY, Judge.

J.D. (“the mother”) appeals from a judgment terminating her parental rights to her two-year-old daughter, J.M.D. We affirm.

The mother gave birth to J.M.D. on December 11, 2000. At the time of the child’s birth, the mother and the child’s biological father were not married. The mother was living with another man, J.D., whom she subsequently married. When the child was two weeks old, the Department of Human Resources (“DHR”) received a report that the mother’s home had no utilities. A DHR social worker investigated this report and found that the mother, the child, and J.D. were living in a mobile home with no electricity, no running water, and no septic tank.

Before the child was two months old, she had been hospitalized three times and diagnosed as a “failure-to-thrive” baby. The child was removed from the home on February 2, 2001. Social workers who visited the mobile home stated that it was unclean and that it was unsafe for a child. During an unannounced visit, the caseworker noted that the kitchen ceiling was collapsing, that there was a loaded handgun on the table, that there were “drop cords” everywhere (extension cords that connected the trailer to the electrical power source in a nearby mobile home belonging to J.D.’s parents), and that the home, which had several dogs and puppies, smelled of animal waste. The caseworker observed that the mother was inattentive to the child’s needs.

The mother, who was 19 years old, told the caseworker that when she was pregnant with J.M.D. she was expecting twins, but, she said, the biological father had taken a knife and had “cut the other twin out of her.” She stated that she received 60 stitches on that occasion. In checking out that story, the caseworker consulted the mother’s obstetrician and the hospital in which J.M.D. had been born. The physician stated that there was no truth to the mother’s story. He referred to a sonogram that indicated that the mother had never been pregnant with twins, and he verified the fact that the mother had been hospitalized during her pregnancy only for complications from nausea. The mother also told the caseworker that she had had another child, who would be about six years old, and whom, she claimed, she had given to a relative to rear. When the caseworker checked this story, she learned that the “other child” was the mother’s four-year-old sister.

DHR developed an individualized service plan (“ISP”) for the mother. The goals listed for the mother were visiting the child, having the mother’s “emotional and mental needs met,” and having the child “live in a safe and secure home free from neglect.” DHR provided the mother with homemaker services, a psychological evaluation and mental health counseling, parenting classes, and anger-management classes. The mother made little or no progress in achieving the goals set for her at the ISP meeting. In February 2002, the mother moved to North Carolina to live with a relative. Before she left, she told the caseworker that she would give up her rights to J.M.D. so that the child could be adopted. On March 20, 2002, DHR moved to terminate the mother’s parental rights.

The mother returned from North Carolina in April 2002. She and J.D. made some improvements to their mobile home, installed a septic tank, and obtained electricity. She completed parenting and anger-management classes and attended counseling sessions. The mother’s counselor stated that she was “making an effort.” The mother visited the child every week.

The hearing on the petition to terminate the mother’s parental rights was conducted on June 19, 2002. The caseworker acknowledged that the mother, after returning from North Carolina, had completed many of the ISP requirements. She testified, however, that the mother was still inattentive to the child and displayed inappropriate behavior with the child. The caseworker explained that the mother was easily frustrated and that she disciplined the child roughly for behavior that was to be expected of a toddler. For example, the caseworker said that, if the child wiggled while the mother was trying to feed or diaper her, the mother would “yank” the child’s legs sharply. The caseworker also testified that, despite the improvements to the mother’s mobile home, the residence was still unsafe for a child. The caseworker said the floors were dirty, and there were dangerous substances, such as cigarettes, alcohol, and nail-polish remover, left in places the child could reach.

At the time of the termination hearing, J.D. was receiving Supplemental Security Income (“SSI”) benefits for a mental disability and the mother had just been fired from a job as a waitress that she had held for only two weeks. The family’s total monthly household income was $545. The mother stated that she had previously received SSI benefits for being “a slow learner,” and that she planned to reapply for SSI benefits.

DHR presented evidence about several relative resources it had considered and rejected as an alternative to terminating the mother’s parental rights. The mother did not dispute the fact that there were no relatives who would be suitable.

The juvenile court’s judgment states, in pertinent part:

“The Court finds from clear and convincing evidence that is competent, material and relevant in nature that [J.M.D.] is a dependent child and that [DHR] has made lengthy and reasonable efforts toward reunification of said child with her mother. There has been no progress in alleviating or mitigating circumstances which necessitated placement of said child in foster care.
“The Court also finds that:
“1. [The mother] has proved to be a very unstable young woman, both emotionally and mentally. [J.D.] is not a party to this action.
“2. In spite of last minute efforts to finally try to comply with ISP recommendation, [the mother] has not demonstrated any skill whatsoever to achieve a trust and honest bond with the said child.
“3. [The mother] has lied consistently to social workers and other professionals in their efforts to assist [her] in the reunification process.
“4. Other than being indigent, it is clear that [the mother] does not have the maturity or stability to care for this said child. This is compounded by the fact that her spouse is mentally deficient and not able to provide any reliable assistance to help insure the health and safety of said child.
“5. It appears convincing that [the mother] has a poor and distorted view of reality, judging by her total patterns of behavior since the inception of this action.
“The Court has great fear that the safety and well-being of [J.M.D.] would be seriously compromised by placement with the said mother.
“For the foregoing reasons and with other alternatives exhausted the Court finds that the petition to terminate parental rights is due to be granted.”

When the State is the petitioner in termination proceedings, the trial court must apply a two-pronged test in determining whether to terminate parental rights. First, the court must find from clear and convincing evidence that the child is dependent; second, the court must determine that there are no viable alternatives to the termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). A trial court’s decision in a proceeding to terminate parental rights, when based on ore tenus evidence, as here, is presumed correct and its decision will be set aside only if the record reveals that the decision is plainly and palpably wrong. M.J.G.L. v. State Dep’t of Human Res., 587 So.2d 1004 (Ala.Civ.App.1991).

Citing P.W. v. State Department of Human Resources, 822 So.2d 423 (Ala.Civ.App.2001); V.M. v. State Department of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998); and Bowman v. State Department of Human Resources, 584 So.2d 304 (Ala.Civ.App.1988), the mother argues that the trial court’s decision to terminate her parental rights was premature because the evidence indicated that the mother was making an effort to improve her living conditions and to comply with her ISP. In the three cases cited by the mother, the pivotal issues were: (1) whether DHR (and the trial court) had seriously considered the parent’s recent efforts to adjust his circumstances to meet the needs of the child, see Bowman; V.M.; and, if so, (2) whether the parent’s recent progress was substantial and consistent and, therefore, indicative of a willingness and ability to maintain that progress, or whether the parent’s efforts were late, incomplete and, therefore, unconvincing, measures taken only in anticipation of the termination-of-parental-rights hearing, see P.W. (a plurality opinion in which the members of this court were sharply divided on the issue).

This case is more like P.W. than it is like Bowman or V.M. Thus, in order to reverse the juvenile court’s judgment, we would have to conclude that the evidence was not clear and convincing that the mother’s recent efforts were late, incomplete, and therefore unconvincing measures taken only in anticipation of the termination-of-parental-rights hearing. In light of the juvenile court’s findings, which are entitled to a presumption of correctness, we cannot reach that conclusion.

Those findings indicate that the juvenile court determined that the mother’s progress toward achieving the goals for reunification was the result of “last-minute efforts” — efforts the court may have found unconvincing in light of its further finding that the mother “lied consistently to social workers and other professionals in their efforts to assist [her] in the reunification process.” Moreover, it is apparent that the trial court determined that the mother was unable, because of emotional or mental problems, to adjust her circumstances to meet the needs of the child. The court found that the mother was “a very unstable young woman, both emotionally and mentally,” that the mother “does not have the maturity or stability to care for th[e] child,” and that the mother “has a poor and distorted view of reality.”

The juvenile court’s findings are supported by clear and convincing evidence and its decision based on those findings is due to be upheld. The judgment is affirmed.

AFFIRMED.

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