author: PITTMAN, Judge.

text:
    P.H. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES C.C. v. Madison County Department of Human Resources.
    2040483 and 2040490.
    Court of Civil Appeals of Alabama.
    Feb. 17, 2006.

      Patrick 0. Miller of Dick & Miller, P.C., Huntsville, for appellant P.H.
    E. Patrick Hill, Huntsville, for appellant C.C.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

In these consolidated appeals, P.H. (“the mother”) and C.C. (“the father”) appeal from the juvenile court’s judgment terminating their parental rights to their nine-year-old daughter, C.L.C. (“the child”). We reverse the juvenile court’s judgment as to the mother (case no. 2040483) and remand the cause for further proceedings, and we affirm that court’s judgment as to the father (case no. 2040490).

The record indicates that in March 2001 the Madison County Department of Human Resources (“DHR”) filed a dependency petition as to the child and her two half brothers after her half brothers accused the father of physically and sexually abusing the boys. After DHR filed the petition, the half brothers were placed in the home of their maternal grandmother and the child soon began living in the home of her paternal grandmother. Although the record does not specifically indicate the ground for the child’s removal from the parents’ home, the juvenile court’s judgment terminating the mother’s and the father’s parental rights does disclose some limited information concerning the child’s removal. That judgment states, in pertinent part, the following:

“While the evidence is not clear and the facts not agreed upon by all, [the child] was removed when an allegation of physical abuse was investigated. The official version of the incident was that [the child] claimed that her parents had whipped her, and thus the physical abuse allegation coupled with the sexual abuse of the boys called for her removal. The report of the worker clearly stated that no marks were found on the child when the abuse allegations came to light.” '

In September 2001, after holding a hearing, the juvenile court adjudged the child and her half brothers to be dependent and placed them in DHR’s custody. In that order, the juvenile court' disapproved of the child’s placement in the paternal grandmother’s home and directed that the child be removed from • her home and placed in foster care. That court also prohibited the mother from allowing the father unsupervised contact with the child and her half brothers and directed that the mother not allow the father to be present during any time that the child and her half brothers were at the mother’s residence.

The record indicates that shortly after entering foster care the child began displaying significant behavioral problems^ including oppositional behavior and enuresis, 1.e., bed-wetting. Although there may have been other problems related to at least 2 of the child’s foster-care placements, the child’s behavioral problems in large part prompted the child’s placement in at least 5 different foster homes within 16 months. In the latter part of May 2003, DHR recommended that the child be reunited with her mother and provided for in-home parenting assistance by the Family Options organization. However, within two months of that placement, the child’s case was assigned to a different juvenile-court judge, who ordered that the child be removed from the mother’s home and placed in a therapeutic foster home.

After the child reentered foster care, the child had to be moved to at least two more foster-care placements. The child’s most recent move, which occurred after the child had remained in foster care for approximately three years, occurred just three days before the juvenile court held its first termination hearing in April 2004, one month after DHR had filed a petition to terminate the mother’s and the father’s parental rights. The juvenile court, after conducting hearings in April 2004 and October 2004, terminated the parental rights of the mother and the father in January 2005. Both parents filed postjudgment motions; those motions were denied by the juvenile court. Both parents appeal.

When a trial court’s decision to terminate parental rights is based on evidence presented ore tenus, this court 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, 375 (Ala.Civ.App.2000).

The statutory grounds upon which a court can order the termination of parental rights are set forth in Aia.Code 1975, § 26-18-7(a), which provides, in pertinent part, the following:

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

If a child is not in the physical custody of his or her parent, the trial court “shall also consider such circumstances as whether the parents have provided material needs for the [child], whether the parents have maintained regular, scheduled visits with the [child] and whether the parents have adjusted their circumstances to meet the needs of the [child] according to agreements reached administratively or judicially.” L.G. v. State Dep’t of Human Res., 603 So.2d 1100, 1101-02 (Ala.Civ.App.1992); see also Ala.Code 1975, § 26-18-7(b).

In cases such as this, where a nonparent is the petitioner, the trial court’s determination is governed by the principles set forth in Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990):

“The two-prong test that a court must apply in a parental rights termination case ... consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. (... [I]f a non-parent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)”

The best interests of the child lie “at the heart of every proceeding to terminate parental rights.” L.G., 603 So.2d at 1101.

The Mother (case no. 201i.0k.8S)

The mother contends that DHR failed to prove by clear and convincing evidence that no viable alternatives existed to the termination of her parental rights. Although we are aware of the presumption accorded a trial court’s judgment when it has heard evidence ore tenus, after reviewing the record in this case, we are compelled to conclude that the decision of the juvenile court to terminate the mother’s parental rights is not supported by clear and convincing evidence.

The record indicates that the mother, who is herself a former foster child, has been diagnosed as having a full-scale intelligence quotient (IQ) of 80 and is classified as being in the borderline range of intellectual functioning. Although the mother dropped out of high school in the eighth grade, it appears that she worked for quite some time at a pizzeria restaurant until March 2004, shortly after DHR filed its termination petition. At that time, the mother obtained employment as a lab technician making dentures at a dental laboratory. Although the mother previously had been required to work nights and weekends at the restaurant, the mother’s new employment allowed her to work during the weekdays. In addition, the mother received primary health-care benefits as a part of her compensation package. The record reflects that by October 2004 the mother had maintained her new employment as a lab technician for approximately seven months. In addition, she had purchased a vehicle for transportation and had continued visiting with the child on a weekly basis in her home.

Although the record indicates that the DHR caseworkers who had initially investigated this case did not testify, a subsequently assigned caseworker, Djuana Threatt (“the caseworker”), testified that she had been assigned to the child’s case in June 2001 and continued to be the assigned caseworker at the termination hearing. The caseworker testified that DHR’s primary concerns with respect to the mother were (1) the mother’s ability to maintain an independent life away from the father, and (2) the mother’s parenting capabilities.

With respect to DHR’s first concern, the caseworker admitted that the mother had obtained adequate housing in a subsidized apartment complex upon DHR’s request and that the mother had continued to live there for approximately four years. Although the caseworker testified that DHR had continuing concerns regarding possible contact between the mother and the father, the caseworker admitted that DHR had no evidence to justify that concern other than that the father had failed to supply the caseworker with a home address and that DHR had received a report on at least one occasion that the father had been seen driving an automobile near the mother’s residence.

With respect to DHR’s second concern, the caseworker stated that a Family Options parenting-assistance worker, who had spent approximately 60 hours in the mother’s home after the child had been temporarily reunited with the mother, had expressed concerns regarding the mother’s lack of receptivity to the parenting information supplied by the parenting-assistance worker and the mother’s apparent lack of discipline as to the child. When the parenting-assistance worker ended her services, she recommended that another worker be placed in the home on a long-term basis to help the mother implement the parenting skills that she had learned; however, the caseworker admitted that no other in-home parenting services were later offered to the mother.

The caseworker also testified that mental-health counseling had been provided to both the mother and the child after the child’s removal and that the mother appeared to have benefited from the therapy. The caseworker added that she was aware that the mother had attended and had successfully passed a DHR-approved parenting-skills program in the weeks before the trial. Although the caseworker opined that she believed that it was in the best interests of the child for the mother’s parental rights to be terminated, she admitted that the mother and the child appeared to have bonded, that the mother had consistently visited the child on a weekly basis, that the caseworker had no concerns about the adequacy of the mother’s home, and that the mother had complied with all of DHR’s requests.

Dr. Linda Mastromonieo, a licensed professional counselor who counseled both the mother and the child (“the counselor”), characterized the child as being a strong-willed and guarded child who displayed passive-aggressive behaviors in adapting to her environment. Although the counselor stated that the mother had expressed a great deal of negativity towards DHR in initial counseling sessions, the counselor stated that in later sessions the mother’s negativity had lessened and the mother had begun encouraging the child to “open up” and deal with her problems. The counselor testified that the child appeared to have a separation-anxiety disorder and that that disorder was due, at least in part, to the fact that the child was not living with her mother. The counselor testified that although she did have some concerns regarding the mother’s ability to protect and enforce rules, she believed that the mother had the tools to become an effective parent.

Dr. Lois Pope, a psychologist (“the psychologist”), testified in a deposition that the mother’s psychological evaluation had revealed that she had a depressive disorder with antisocial and schizoid traits. The psychologist testified that the testing conducted on the mother showed “definite areas of deficit” in her parenting skills, and the psychologist opined that the mother would likely continue to experience substantial difficulty in managing the child’s behavior. However, the psychologist admitted that the mother could be taught parenting skills and that the mother’s parenting deficits could be addressed by counseling and individual therapy.

The mother testified that she lived alone in an apartment that she had rented shortly after she had ended her relationship with the father at DHR’s request. She denied being in a current relationship with the father and denied that he had ever lived with her at her apartment. The mother asserted that she had changed jobs at DHR’s request in order to work more regular daytime hours. In addition, she stated that she earned approximately $7 per hour at her new job and that she had no difficulty paying her bills. The mother testified that if the child were to be reunited with her the mother’s new job would allow her to be off work by the time the child would get home from school. Additionally, the mother stated that she had checked with her employer and that she could provide dependent health-care coverage for the child through her employment. The mother testified that she had provided DHR, at its request, a “parenting plan” but that she had received no feedback from DHR about that plan. She also stated that she believed that she had benefited from the counseling sessions that she had attended, and she expressed a willingness to take any further classes required by DHR.

“This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that' termination of parental rights be based on clear and convincing evidence.” D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003); see also T.H. v. State Dep’t of Human Res., 740 So.2d 1089, 1092 (Ala.Civ.App.1998); and Bowman v. State Dep’t of Human Res., 534 So.2d 304, 306 (Ala.Civ.App.1988). Arguably, the mother’s concerted efforts in changing her circumstances could be characterized as being late; however, the fact that the mother, who is a former foster child of less-than-average intelligence and means and who has a limited education and almost no familial resources, has made significant progress in rehabilitating herself should not be ignored. We note that a court should terminate parental rights in only the most egregious circumstances because those rights, once terminated, cannot be reinstated. V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998); and S.M.W. v. J.M.C., 679 So.2d 256, 258 (Ala.Civ.App.1996).

Therefore, in light of the foregoing, we conclude that the termination of the mother’s parental rights was premature and is not supported by the evidence contained in the record on appeal. We therefore reverse the judgment of the juvenile court terminating the mother’s parental rights and remand the case for further proceedings consistent with this opinion.

The Father (case no. 20W90)

The -father argues three issues on appeal; we will address each in turn. The father first contends that DHR failed to present clear and convincing evidence that the child remained dependent after the juvenile court had removed the child from the mother’s home in August 2003 and returned the child to foster care. In order to adjudicate a child dependent, a juvenile court must determine that one or more of the circumstances set forth in Ala.Code 1975, § 12-15-1(10), which defines the term “dependent child,” has been met. Under that statute, the term “dependent child” includes a child:

“d. Whose home, by reason of neglect, cruelty, or depravity on the part of the parent, parents, guardian, or other person in whose care the child may be, is an unfit and improper place for the child; or
“f. Who is in a condition or surroundings or is under improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of a child; or
“m. Who for any other cause is in need of the care and protection of the state; and
“n. In any of the foregoing, is in need of care and supervision.”

As has been stated previously, before entering foster care, the child’s half brothers had accused the father of assaulting and sexually abusing them in 1999 while the boys and the child were living with the mother. After an investigation, the father was subsequently indicted on charges of having committed sexual abuse and physical abuse against the boys. As a result of the father’s plea bargain to two counts of domestic violence in the third degree, the father was sentenced to two consecutive terms of imprisonment of 180 days for each count and he was placed on 2 years’ probation 2 months before the first hearing in this case. In addition, he was ordered not to have further contact with the child victims.

Although we are unable to ascertain from the record whether the father had completed his prison sentence at the time of the entry of the juvenile court’s judgment, we note that even if the father had completed his prison sentence, he, nonetheless, would still be on probation. The father’s admitted physical misconduct toward others who were living in the same home as the child endangered the child’s health and safety and necessitated the child’s removal from that environment. In addition, there is no evidence in the record to suggest that the father’s significant behavioral faults, which prompted the child’s initial removal from the home, did not continue to exist at the time of the juvenile court’s January 2005 judgment terminating his parental rights.

The juvenile court’s judgment specifically determined that that court had found “by clear and convincing evidence, material and relevant in nature, that the child remain[ed] ... a dependent child.” After closely reviewing the record, we conclude that the documentary and testimonial evidence adduced at trial supports the juvenile court’s finding of dependency.

The father next argues that there was insufficient evidence to show that no viable alternatives existed to termination of his parental rights. Specifically, he argues that DHR failed to prove that there were no suitable relatives who were willing to provide a permanent placement for the child. The father argues that the home of the child’s paternal grandmother was a viable alternative resource for permanent placement. However, the record reveals that in September 2001 the juvenile court removed the child from the paternal grandmother’s home and placed her in foster care because it specifically disapproved of the child’s placement with the paternal grandmother. In rejecting that placement, the juvenile court’s order stated the following, in pertinent part:

“Based upon [the paternal grandmother’s] history with her own children and her present relationship with her husband, the court is of the opinion that the continued placement of [the child with the paternal grandmother] would not be in her best interest and that it, in fact, poses a real and present danger of harm to her.”

Although the father would not cooperate with DHR in providing an address for himself, he, nonetheless, apparently received mail sent to him at' the paternal grandmother’s address. If the father resided with the paternal grandmother (and we note that there is no evidence in the record to contradict that assumption), the juvenile court could have drawn the logical inference that placing the child with the paternal grandmother would, in essence, be the same as leaving the child with the father. “The trial court must consider the best interest of the child when looking at less drastic alternatives” to the termination of parental rights. Haag v. Cherokee County Dep’t of Pensions & Sec., 489 So.2d 586, 588 (Ala.Civ.App.1986). Moreover, there is no evidence in the record to indicate that the paternal grandmother ever offered her home as a permanent placement for the child. Thus, the juvenile court could have correctly concluded that placing the child in the home of the paternal grandmother was not a viable alternative.

Lastly, the father contends that the juvenile court’s judgment terminating his parental rights was not supported by clear and convincing evidence. The father argues that none of the conditions listed in Ala.Code 1975, § 26 — 18—7(b), which enumerates the factors that a trial court must consider in determining whether to terminate parental rights, were present in his case. Section 26-18-7(b) provides the following:

“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

First, we note that the considerations set forth in Ala.Code 1975, § 26-18-7(b), do not compose an exhaustive list. However, we are not persuaded on this record that the conditions set out in § 26-18-7(b) do not apply to the father, or that he has made substantial progress toward addressing the conditions set forth in that statute. Although it appears that the father did visit with the child, a previous court order had directed that those visits be supervised by DHR because of pending sexual- and-physical abuse charges against him. We note that the caseworker testified that during those supervised visits more interaction occurred between the child and the paternal grandmother than between the child and the father. Although the father contends in his appellate brief that he always provided for the material needs of the child, the caseworker testified that the father had not paid any child support during the time that the child had remained in foster care.

With respect to the father’s argument that he adjusted his circumstances to meet the needs of child, we find little evidence to support his argument. At the time of the termination hearing, the father had yet to supply the caseworker with a verifiable physical address despite numerous requests. The caseworker testified that she had experienced difficulty in contacting the father on several occasions. Although the caseworker had previously been able to contact the father when he worked with the mother at the pizzeria restaurant, the caseworker knew of no way to contact him after he switched jobs. In addition, the caseworker stated that she had no knowledge of a personal telephone number for the father and that she did not possess any knowledge concerning the father’s new employment.

The father’s psychological evaluation reveals a history of anger-management problems, domestic violence, and indications of substance abuse. Indeed, the father admitted to a psychologist who conducted an evaluation of him that he had engaged in verbal abuse of his family, with profanity, on a daily basis. Although the father may have attended some counseling sessions that had been provided by DHR to assist the father in dealing with his anger-management problems, the record does not contain any evidence indicating that the father was able to incorporate any of the strategies that he may have learned during those counseling sessions into his daily life.

Despite the father’s arguments to the contrary, the record does contain clear and convincing evidence in support of the juvenile court’s decision to terminate his parental rights. We note that the father failed to provide DHR with even the most rudimentary information that would have enabled that agency to make a reasonable evaluation as to his ability to assume custody for the child. Moreover, the fact that the father has pleaded guilty to having committed domestic violence in the third degree (a misdemeanor) in connection with the child’s half brothers is of grave concern. We note that the juvenile court’s judgment terminating the father’s parental rights specifically found that the father was unfit; that he was unwilling to change his habits; that he was non-rehabilitated; and that the “safety and welfare of any child would be threatened in his care.”

Based upon the record on appeal, we conclude that the juvenile court’s judgment terminating the parental rights of the father is supported by clear by convincing evidence and is not plainly and palpably wrong. Therefore, that portion of the juvenile court’s judgment terminating the parental rights of the father is affirmed.

2040483 —REVERSED AND REMANDED.

2040490 —AFFIRMED.

CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, JJ., concur.

      . A copy of the dependency petition does not appear in the record.

      . The record is unclear as to the specific reason for the juvenile court's removal of the child from the mother's home on this occasion.

      . The record indicates that at the time of the trial, the counselor had conducted more than 70 therapy sessions with the child over approximately 2 years.

      . Section 13A-6-132(a), Ala.Code 1975, provides that “[a] person commits domestic violence in the third degree if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22 ... and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.”

      . The father did not testify at trial.


source: Caselaw Access Project

author: PER CURIAM. THOMPSON, Judge, MURDOCK, Judge,

license: Public Domain

text:
    D.B. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2040919.
    Court of Civil Appeals of Alabama.
    Feb. 24, 2006.

      William G. Werdehoff of Werdehoff & Werdehoff, Huntsville, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   PER CURIAM.

D.B. (“the mother”) ..appeals from a judgment following a permanency hearing in a dependency case wherein the juvenile court awarded legal and physical custody of D.M.B., the mother’s six-year-old daughter, to the child’s maternal great aunt in Ohio.

The mother has limited cognitive ability as well as various mental and emotional disorders. She has an IQ of 68;' she suffers from bipolar disorder, attention deficit hyperactivity disorder (“ADHD”), adjustment disorder, and dependent personality .disorder. From the time of the child’s birth on May 6, 1999, until July 2, 2004, the mother and the child lived with the child’s maternal grandparents. In 2002, the maternal grandmother suffered two strokes and became partially disabled. In November 2003, the maternal grandfather was arrested for assaulting the mother. In February 2004, after committing another incident of domestic violence against the mother, the maternal grandfather was convicted of assault and incarcerated. While he was in jail, he suffered a stroke and was hospitalized. Upon his release from the hospital, he returned home and was bedridden.

On July 2, 2004, the maternal grandfather fell out of bed. When the mother and a home-health nurse were unable to move the maternal grandfather, they summoned emergency medical personnel. After the medical personnel arrived, the mother became belligerent and threatened the home-health nurse. 1 The nurse notified the Madison County Department of Human Resources (“DHR”) of the mother’s erratic behavior. The mother was subsequently admitted to the psychiatric ward at North AJabama Regional Hospital (“NARH”), and the child was placed in foster care.

Before the mother was released from NARH, the maternal grandparents were taken to Ohio, where the grandfather subsequently died and the grandmother was placed in a nursing home. After the mother was released from NARH, she spent a short time in a shelter and then rented a one-bedroom apartment. At trial, the mother acknowledged that she had been asked to leave that apartment because she was “having sex with Mexicans for money.”

The mother is 32 years old and unemployed; she receives Supplemental Security Income in the amount of $579 per month. That income is sent to a payee at Adult Rehabilitation Services; the payee makes the mother’s monthly rent and utilities payments and remits the balance, usually about $20 per month, to the mother. The mother testified that her telephone service had been cut off every month and that she had to beg the payee to pay the bill. The mother said that she receives food stamps and occasional meals from “people at the church.” The mother stated that she had attempted to cook for the child when they were living with the maternal grandparents. She testified that she had tried to make ramen noodles and “other things.” She stated that the child would not eat what she made for breakfast, so she would take the child to a McDonald’s fast-food restaurant on the way to school in the morning.

The mother rented another apartment and began receiving the following services from DHR: transportation; mental-health counseling; monitoring; and supervision. She underwent a psychological evaluation and began taking Depakote and Zoloft as prescribed by her psychiatrist. She completed a parenting course and had five hours’ weekly visitation with the child. The mother acknowledged that, during her visits with the child, the child seemed to be afraid of her, was reluctant to hug her, and would not call her “mother.”

As of November 2004, DHR’s permanency plan was to reunite the mother and the child because the mother was cooperating with DHR and complying with the goals outlined in her Individualized Service Plan (“ISP”). DHR’s permanency plan for the child gradually changed, however, and shortly after a February 8, 2005, ISP meeting DHR determined to place the child with relatives in Ohio.

Between November 2004 and February 2005, the mother had met a man, J., on the telephone and, after talking with him for 20 minutes, had invited him to move in with her. J., who had apparently been homeless, moved in with the mother and later asked his “girlfriend,” N., who was also apparently homeless, to join him in living at the mother’s apartment. The mother also took in a stray eat, three birds, and a hamster.

Alice Averette, the mother’s DHR social worker, testified that she had asked the mother to insist that J. and N. leave because, she said, the mother had barely enough income to cover her own needs without two additional people living with her. The mother acknowledged that J. was a “moocher” who ate her food, contributed nothing to the household, and stole things from her, but she refused to ask him to leave, stating that she was lonely and he was company for her. The mother also said that she liked N. because N. helped her cook, clean, and shop. She said that she liked to buy snack foods like chips and doughnuts and, she stated, without N.’s assistance at the grocery store, she would not have nourishing meals. The mother admitted that she had smoked marijuana with J. and N. and that she had failed a drug screen.

Averette testified that she had advised the mother that an unvaccinated stray cat could be dangerous but that the mother was unresponsive. When Averette commented to the mother that the apartment reeked of animal excrement, the mother said that she could not afford cat litter. Averette insisted that the mother get rid of the pets, but the mother refused, stating that she would be lonely without them.

Averette testified that between November 2004 and February 2005 she learned that the mother had stopped taking her medication and had discontinued her psychological counseling sessions. In response to Averette’s request that the mother have a physical examination, the mother learned that she had gonorrhea. The mother said she had contracted the disease from “Red,” a man with red hair whose last name she did not know. Aver-ette explained that the mother’s previously cooperative attitude had changed, and she concluded that DHR would no longer plan for reunification but would plan to have the child placed with relatives in Ohio.

Averette stated that she had attempted to locate relatives in Madison County but had found none. She contacted the child’s alleged father, who stated that he wanted nothing to do with the mother or the child. According to Averette, the alleged father explained that he was still undergoing counseling as a consequence of the sexual encounter between him and the mother, an encounter that he described as a “rape” by the mother when he was 14 or 15 years old and the mother was 26 years old. Aver-ette said that the child’s maternal great aunt, who was a licensed foster parent in Ohio with no other children in the home, was willing to assume custody of the child.

By the time of the permanency hearing on May 31, 2005, the mother had had the cat vaccinated, had demanded that J. and N. leave the apartment, had resumed taking her medication, had passed a drug screen, and was participating in an anger-management program. The psychiatrist who had treated the mother at NARH in July 2004 testified that she saw no reason why the mother’s bipolar disorder or ADHD would prevent her from being a good parent. The psychiatrist acknowledged, however, that she had not seen the mother since her hospitalization at NARH and that she had no idea how the mother was adapting to living on her own.

On June 4, 2005, the juvenile court entered a judgment that states, in pertinent part:

“The matter was originally before Juvenile Court of Madison County on the Petition of the Madison County [DHR], This cause came to be heard for a permanency hearing on May 13, 2005. The Madison County [DHR] recommended that the Court adopt Permanent Relative Placement with Transfer of Custody to a Relative as the permanent plan for the care and placement of the minor child [D.M.B.]. After consideration of the stated permanency plan, the mother objected and requested the matter be scheduled for an evidentiary hearing.
“Based on the testimony presented, the Court finds the following facts:
“1. The above-named child remains a dependent child.
“2. The best interests of the child require the entry of this order.
“3. The Court finds, in accordance with Code of Alabama 1975, § 12-15-65(g), that reasonable efforts have been made to prevent or eliminate the removal of the child from the child’s home, and that return of the child to the home would be contrary to and not in the child’s best interests.
“4. On recommendation of the Madison County [DHR], the Court adopts, as the permanent plan for the child, Permanent Relative Placement with Transfer of Custody to Relative. Efforts made by the [DHR] following the placement of the above-named child into foster care were reasonable to finalize the stated permanency plan of Permanent Relative Placement with Transfer of Custody to Relative.
“It is therefore ordered, adjudged, and decreed by the Court as follows:
“A. Physical and legal custody of the minor child [D.M.B.] (d.o.b. 5/6/99) is hereby vested with the maternal great aunt, [J.B.]
“B. The mother, [D.B.], is granted visitation subject to any conditions and limitations determined to be necessary and appropriate by [J.B.]
“C. The provision for child custody in this Order constitutes a ‘custody decree’ or ‘custody determination’ under Alabama enactment of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101, et seq., Code of Alabama (1975).
“D. This matter is closed to further Court intervention.”

In response to the mother’s post-judgment motion, the trial court amended its judgment to allow the child’s maternal great aunt “to determine if and when visits may be appropriate in Ohio with a two week advance notice by the mother. No phone contact.” The mother appeals, raising three issues: (1) that the juvenile court erred in determining that DHR had made reasonable efforts toward reunification of the mother and the child; (2) that the evidence was insufficient to demonstrate that a transfer of custody to the child’s maternal great aunt in Ohio was in the best interest of the child; and (3) that the juvenile court exceeded the limits of its discretion by leaving the issue of visitation solely to the determination of the maternal great aunt.

Applicable Law

The statutory authority for holding a “permanency hearing” is found in § 12-15 — 62(c), Ala.Code 1975. That section provides, in pertinent part:

“Within 12 months of any court order placing a child in foster care the court shall hold a permanency hearing. The Department of Human Resources shall present to the court at such hearing a permanent plan for said child. If a permanent plan is not presented to the court at this hearing there shall be a rebuttable presumption that the child should be returned to the family. This provision is intended to insure that a permanent plan is prepared by the Department of Human Resources and presented to the court within 12 months of the placement of any child in foster care. The purpose of the permanency hearing shall be to determine the permanency plan for the child which may include whether, and, if applicable, when, the child shall be (i) returned to the parent, (ii) placed for adoption wherein the Department of Human Resources shall file a petition for termination of parental rights, or (iii) referred for legal custody. The permanency hearing shall determine whether the plan will include placement in another planned permanent living arrangement in cases where the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative, or with a legal custodian.”

Section 12-15-65(g), Ala.Code 1975, provides:

“If the court enters an order ... continuing a child in a placement outside of his or her home pursuant to this title, the order shall contain as specific findings, if warranted by the evidence, all of the following:
“(1) That continuing the placement of a child in his or her home would be contrary to the best interests of the child.
“(2) That reasonable efforts have been made to prevent or eliminate the need for removal of the child from his or her home ....
“(3) That reasonable efforts have been made or will be made to reunite the child and his or her family, or that efforts to reunite the child and his or her family have failed.”

“Reasonable Efforts”

The mother argues that the juvenile court erred in concluding that DHR had made reasonable efforts to reunite the mother and the child but that those efforts had failed. Specifically, the mother contends that DHR made reunification efforts for only seven months — from July 2004 through February 2005 — and then abruptly discontinued those efforts simply because she would not ask two friends to leave her apartment or have a stray cat vaccinated. The mother claims that DHR’s decision was arbitrary and that its efforts were, therefore, unreasonable.

The juvenile court was authorized to conclude that DHR made the decision to change its permanency plan based upon factors in addition to those the mother enumerates, namely: information that the mother had used drugs, had discontinued taking her medication, and had stopped attending counseling sessions and information about the mother’s past and current behavior that implied more than momentary lapses in good judgment and suggested, instead, that the mother suffered either from a profound inability to appreciate the possible adverse consequences of her behavior or from an impulsiveness that prevented her — even if she appreciated the potential consequences of certain behavior — from adjusting her behavior to avoid those consequences.

The mother’s inability to appreciate the consequences of her behavior was demonstrated by her disregarding Averette’s warning that it might be dangerous to herself or to a six-year-old child to ask a man whom the mother had just met to move in with her or to take in a stray cat without having it vaccinated. The mother’s inability to adjust her behavior to appropriate norms despite an apparent appreciation of possible adverse consequences was demonstrated (1) by the mother’s refusal to demand that J. leave, despite her acknowledgment that J. was a “moocher” and stole from her, and (2) by the mother’s statement that she liked to buy snack foods like chips and doughnuts and that, without N.’s assistance at the grocery store, she would not have nourishing meals.

Based on the foregoing, we conclude that the juvenile court did not err in its conclusion “that reasonable efforts ha[d] been made to prevent or eliminate the removal of the child from the child’s home.”

“Best Interests”

The mother asserts that there was no evidence presented from which the juvenile court could have found that placement with the child’s maternal great aunt in Ohio was better for the child than leaving her in foster care in the same city as the mother. The mother points out that there was no evidence presented regarding the maternal great aunt other than evidence of the fact that she and her husband were “preapproved as licensed foster parents,” that they had seen the child in August 2004, that they had talked to the child on the telephone, and that they probably would not promote a relationship between the mother and the child if they were awarded custody.

The juvenile court was authorized to find that, having met the licensing requirements for foster parents, the maternal great aunt and her husband were fit to raise a child. Moreover, it was further authorized to find that, because the maternal great aunt and her husband were willing to assume permanent custody and had visited the child and talked to her on the telephone after she was placed in foster care, they had a commitment to the child arising either from affection or kinship. Finally, the juvenile court is presumed to be cognizant of the public policy expressed in § 12-15-62(c), Ala.Code 1975, that a child should not languish in foster care longer than 12 months without a plan for her permanent placement. See generally R.C. v. Nachman, 969 F.Supp. 682 (M.D.Ala.1997), affirmed, 145 F.3d 363 (11th Cir.1998).

In contrast, the mother’s past and present sexual conduct — including an apparently predatory sexual encounter -with a 14- or 15-year-old boy, “having sex with Mexicans for money,” and contracting gonorrhea from a man whose last name she did not know — presented not only a negative role model for the child but a real potential for harm to the child.

The evidence was sufficient for the juvenile court to find that the child’s best interests would be served by transferring custody to the child’s maternal great aunt in Ohio.

Visitation

The mother asserts that the juvenile court exceeded its discretion by making her visitation with the child “subject to any conditions and limitations determined to be necessary and appropriate by [the maternal great aunt].” The mother strenuously objects to the provision prohibiting her from telephone contact with the child, arguing that there was no evidence tending to support the prohibition of telephonic communication. In response, DHR argues (1) that the Alabama juvenile court would have no jurisdiction to enforce any visitation provisions regarding a child who is a resident of Ohio, (2) that, “given the mother’s display of impaired judgment, the child’s permanency, stability and best interest could be jeopardized by unfettered contact with the mother,” and (3) that the evidence supported the inference that, because the mother’s telephone service had been cut off every month, she must have had large telephone bills.

“ ‘The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed by an appellate court absent a showing of an abuse of discretion.’ Ex parte Bland, 796 So.2d [340] at 343 [ (Ala.2000) ]. ‘The primary consideration in setting visitation rights is the best interest of the child. Each child visitation case must be decided on its own facts and circumstances.’ DuBois v. DuBois, 714 So.2d 308, 309 (Ala.Civ.App.1998) (citation omitted).”

Williams v. Williams, 905 So.2d 820, 830 (Ala.Civ.App.2004).

Although this court recognizes that visitation is a matter left to the sound discretion of the trial court, it also recognizes that such discretion is not unfettered. This court has previously held that it is reversible error for a trial court to leave a noncustodial parent’s visitation rights with his or her child to the discretion of the custodial parent or other legal custodian of the child. See, e.g., L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005) (reversing a juvenile court’s visitation award, which placed the father in control of the mother’s visitation with the child); KB. v. Cleburne County Dep’t of Human Res., 897 So.2d 379 (Ala.Civ.App.2004) (reversing a juvenile court’s visitation award, which essentially left the mother’s right to visitation with the child to the discretion of the child’s aunt and uncle); K.L.U. v. M.C., 809 So.2d 837 (Ala.Civ.App.2001) (reversing a trial court’s visitation award, which allowed the mother, to determine the father’s visitation schedule); and Bryant v. Bryant, 739 So.2d 53 (Ala.Civ.App.1999) (reversing a trial court’s visitation award, which vested the mother with total discretion to determine the father’s visitation rights). Given the authority of L.L.M. v. S.F., supra; KB. v. Cleburne County Dep’t of Human Res., supra; KL.U. v. M.C., supra; and Bryant v. Bryant, supra, the juvenile court erred in failing to set forth a specific visitation schedule. Because the mother’s parental rights have not been terminated, she retains the following rights, designated as “residual parental rights” in § 12-15-1(24), Alu,Code 1975:

“Those rights and responsibilities remaining with the parent after the transfer of-legal custody or guardianship of the person, including, but not necessarily limited to, the right of visitation, the right to consent to adoption, the right to determine religious affiliation, and the responsibility for support.”

(Emphasis added.)

The mother is correct that there was no evidence to support the absolute prohibition of telephone contact with the child. Thus, we hold that the juvenile court exceeded the limits of its discretion in barring all telephonic communication between the mother and the child.

The judgment is affirmed in all respects except for the provisions regarding visitation. The cause is remanded with instructions to set forth a specific visitation schedule for the mother and to provide for reasonable telephone contact between the mother and the child.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

• CRAWLEY, P.J., and PITTMAN, J., concur.

THOMPSON, J., concurs in the result, with writing.

MURDOCK, J., dissents, with writing, which BRYAN, J., joins.

THOMPSON, Judge,

concurring in the result.

I concur in the result and write separately to note that, in light of the record before us, I would recommend that the juvenile court consider whether the visitation should be supervised and whether the telephone visitation should be monitored.

MURDOCK, Judge,

dissenting.

I would be inclined to concur in the main opinion were it not for my concern that the juvenile court had no evidence before it regarding the child’s maternal great aunt other than that she had been “preapproved as a licensed foster parent.” That bare fact would appear to be inadequate as a basis for a determination that the child’s interests would be best served by placement of the child in the custody of the maternal great aunt as opposed to some other alternative. While it may be true that a child should not languish in foster care, and while it may be true as well that the mother in this case should not be the custodian for this child, that does not authorize the juvenile court to award custody to any other party. In my opinion, the juvenile court erred to reversal in placing permanent custody of the child with an adult about whom the juvenile court had virtually no information. I therefore respectfully dissent; I would remand this case for further proceedings.

BRYAN, J., concurs.

      . Although the parties disagree as to whether the juvenile court’s “reasonable efforts” determination was governed by a "clear and convincing evidence” standard or a "preponderance of the evidence” standard, we do not find it necessary to decide this issue given the record before us, the posture in which this case is presented on appeal, and the fact that a decision on this issue would not affect the outcome of this appeal. The record contains evidence sufficient to support a determination that DHR had made "reasonable efforts” based on either standard. Further, the mother did not argue at trial and does not argue on appeal that the juvenile court applied the wrong standard so as to require a remand.

      . In fact, the only other evidence concerning the child’s Ohio relatives and the mother was that there was not a good relationship between them and that the Ohio relatives likely would not promote a relationship between the mother and the child if they had custody of the child. Indeed, the DHR social worker even told the mother that she would probably not see her child again until the child reached the age of majority and came looking for her mother. By comparison, the evidence showed that the child was doing well in her current placement. The child was performing well in kindergarten, getting along well with other students, and participating fully in all other aspects of the kindergarten program. The child has a good vocabulary. Further, she went to visits voluntarily and she and the mother were affectionate with one another.


author: BRYAN, Judge.

text:
    ALFA MUTUAL INSURANCE COMPANY v. Mona G. MERONEY.
    2030665.
    Court of Civil Appeals of Alabama.
    May 12, 2006.

      Stanley A. Martin, Opelika, for appellant.
    Sam E. Loftin of Loftin, Loftin & Hall, Phenix City, for appellee.
   On Application for Rehearing

BRYAN, Judge.

The- opinion of June 30, 2005, is withdrawn,- and the following is substituted therefor.

Afa Mutual Insurance Company (“Afa”) appeals a judgment: (1) denying Afa’s claim seeking a judgment declaring that it is not obligated to indemnify its insured, Willie Merle Morgan, against a $50,000 judgment obtained against her by Mona G. Meroney; and (2) declaring that Afa is obligated to indemnify Morgan against that judgment. We reverse and remand with instructions.

Shortly after buying a house from Morgan, Meroney discovered that termites had infested the house and had caused significant damage to it before she had bought it. Aleging that Morgan either knew or should have known about the termite infestation and damage before she sold the house to Meroney, Meroney sued Morgan for misrepresentation of a material fact and suppression. Morgan answered Me-roney’s complaint. Thereafter, Afa, pursuant to Rules 24(b), 42(b), and 49, Aa. R. Civ. P., and the case of Universal Underwriters Insurance Co. v. East Central Alabama Ford-Mercury, Inc., 574 So.2d 716 (Ala.1990), moved the trial court for leave to intervene to seek a judgment declaring that three insurance policies Afa had issued to Morgan did not obligate Afa to indemnify Morgan against any judgment entered against Morgan on Meroney’s claims. The trial court ordered the parties to file any objections to Afa’s motion within 21 days. When no objections were filed within the 21-day period, the trial court granted Afa leave to intervene, and Afa filed its complaint in intervention. Among other things, Afa alleged that each of its policies contained the following exclusion:

“1. [Liability coverage does] not apply to;
“1. bodily injury or property damage:
(1) which is either expected or intended by an insured .... ”

Alfa further alleged that it was not obligated to indemnify Morgan against any judgment obtained by Meroney because the exclusion excluded Meroney’s claims from coverage under the policies Alfa had issued to Morgan.

Subsequently, Meroney amended her complaint to add claims against Morgan for negligence, wantonness, and innocent fraud, and Morgan answered Meroney’s amended complaint. The case proceeded to trial. Before the case was submitted to the jury, Meroney voluntarily dismissed all of her claims against Morgan except her compensatory-damages claims of negligence, wantonness, and innocent fraud. At the close of the evidence, the trial court submitted Meroney’s compensatory-damages claims of negligence, wantonness, and innocent fraud to the jury. On January 14, 2004, the jury returned a general verdict in favor of Meroney and against Morgan and awarded Meroney compensatory damages in the amount of $50,000. Immediately after the jury returned its verdict on Meroney’s claims, the trial court, over Meroney’s objection, submitted this special interrogatory to the jury on January 14, 2004:

“Was the injury or damage to the Plaintiff Mona G. Meroney either expected or intended by the Defendant Merle Morgan?”

That same day, the jury answered the special interrogatory in the affirmative.

The trial court entered a judgment on the jury verdict in favor of Meroney and against Morgan in the amount of $50,000. Thereafter, Alfa moved the trial court to enter a judgment declaring that Alfa was not obligated to indemnify Morgan against Meroney’s judgment. The trial court heard Alfa’s motion and, on March 17, 2004, entered a judgment that stated, in pertinent part:

“3- [Alfa’s] Renewed Motion for Declaratory Judgment Upon Jury Verdict seeking to be relieved of indemnification to Defendant, Merle Morgan, is denied.
“4.... [T]he court finds that the [special] interrogatory at trial was improper and further that Alfa has a duty to indemnify the Defendant, Merle Morgan, as to the judgment returned against her.”

Alfa timely appealed the March 17, 2004, judgment to this court.

On appeal, Alfa first argues that the trial court erred in holding that the special interrogatory was improper. Although the trial court did not state its rationale for that holding, Meroney had argued to the trial court that the special interrogatory was improper because the jury verdict in favor of Meroney on her claims for unintentional torts foreclosed Alfa from litigating the insurance-coverage issue of whether Meroney’s injury or damage was either expected or intended by Morgan. Alfa argues on appeal that the jury’s verdict on Meroney’s claims does not control the adjudication of the insurance-coverage issue. We agree.

In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Moore, 349 So.2d 1113 (Ala.1977), Ludie Moore, an insured of Alabama Farm Bureau Mutual Casualty Insurance Co. (“Farm Bureau”), sued Farm Bureau seeking a judgment declaring that Farm Bureau was obligated to indemnify Moore against a $25,000 judgment obtained against Moore in a personal-injury lawsuit brought by Iva Nell Strickland. Strickland had been injured when Moore knocked her into a plate-glass window during an argument. In her personal-injury lawsuit, Strickland had originally sued Moore for both • assault and battery and negligence. On the day of trial, however, Strickland dismissed her claim for assault and battery and withdrew her jury demand. The case proceeded to trial before the trial judge on Strickland’s negligence claim only. After the trial, the trial judge entered a judgment against Moore and in favor of Strickland in the amount of $25,000 on Strickland’s negligence claim. Declining to indemnify Moore against Strickland’s judgment, Farm Bureau asserted that the policy it had issued to Moore did not cover the judgment because: (1) the policy did not cover “ ‘bodily injury or property damage which is either expected or intended from the standpoint of the insured,’ ” 349 So.2d at 1114 (emphasis omitted); and (2) Moore had intentionally knocked Strickland into the plate-glass window.

In the subsequent declaratory-judgment action brought against Farm Bureau by Moore, Strickland, who' had also been made a party, moved for a summary judgment against Farm Bureau. When Farm Bureau opposed the summary judgment with an affidavit tending to prove that Moore had intentionally knocked Strickland into the plate-glass window, Strickland argued that the judgment against Moore on Strickland’s negligence claim collaterally estopped Farm Bureau from litigating the issue whether Strickland’s injuries were intended by Moore. The trial court agreed and entered a summary judgment against Farm Bureau. Farm Bureau then appealed to the supreme court. The supreme court held that the judgment against Moore on Strickland’s negligence claim did not collaterally estop Farm Bureau from litigating the insurance-coverage issue, and it reversed the summary judgment entered against Farm Bureau by the trial court. The supreme court explained:

“For the doctrine of collateral estop-pel to apply, ... the identical point must have been in issue, and the judgment must have been rendered on that point..:. The question of whether the injury was expected or intended was not the issue in Strickland v. Moore and the judgment was not rendered on that point....”

349 So.2d at 1116 (emphasis added; citations omitted).

Thus, in the case now before us, we conclude that the jury verdict against Morgan and in favor of Meroney on her claims for unintentional torts did not adjudicate the issue of whether Meroney’s injury or damage was either expected or intended by Morgan, and, therefore, the jury verdict did not foreclose the submission- of the special interrogatory to the jury. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Moore. Moreover, because the issues were different, the jury’s answer to the special interrogatory was not inconsistent with its verdict on Meroney’s claims. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Moore.

Meroney argues that we should affirm the trial court’s holding that the special interrogatory was improper on the ground that the trial court did not properly instruct the jury before submitting the special interrogatory. We note that, although Meroney objécted to the trial court’s submitting the special interrogatory to the jury, she did not timely object to the instructions the trial court gave the jury regarding the special interrogatory because the trial transcript indicates that she did not object until after the jury had retired to consider its answer to the special interrogatory. See Rule 51, Ala. R. Civ. P. (stating that objections to jury instructions must be made “before the jury retires to consider its verdict”).

Meroney also argues that we should affirm the trial court’s holding that the special interrogatory was improper on the ground that the jury’s answer to the special interrogatory was unsupported by the evidence. However, we find that the jury’s answer to the special interrogatory was supported by substantial evidence.

Alfa argues that the jury’s answer to the special interrogatory entitled Alfa to a judgment declaring that Alfa was not obligated to indemnify Morgan against the $50,000 judgment obtained by Meroney. We agree. Because the special interrogatory was proper, the trial court erred in not giving effect to the jury’s answer to the special interrogatory. The jury’s affirmative answer to the special interrogatory entitled Alfa to a judgment declaring that Alfa was not obligated to indemnify Morgan against the $50,000 judgment obtained by Meroney. Consequently, the trial court erred in denying Alfa’s motion for such a judgment and in entering a judgment declaring that Alfa is obligated to indemnify Morgan.

We reverse the trial court’s judgment holding the special interrogatory to be improper, denying Alfa a judgment declaring that it is not obligated to indemnify Morgan against the $50,000 judgment obtained by Meroney, and declaring that Alfa is obligated to indemnify Morgan against that judgment. We remand the case to the trial court with instructions to enter a judgment declaring that Alfa is not obligated to indemnify Morgan against Mero-ney’s $50,000 judgment.

APPLICATION OVERRULED; OPINION OF JUNE 30, 2005, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

CRAWLEY, P.J., concurs in the result, without writing.

      . Meroney also sued a party who had performed a home inspection for her before she bought the house from Morgan. However, Meroney’s claims against the home inspector are not before this court.

      . The supreme court has treated "either expected or intended by the insured,” the language of the exclusion at issue in the case now before us, as the equivalent of " ' "either expected or intended from the standpoint of the insured.” ' ” Watson v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So.2d 394, 396 (Ala.1985).

      . When the trial court sent the jury out of the courtroom after the trial court had given the jury instructions regarding the special interrogatory and before the trial court entertained the parties' objections to those instructions, the trial court did not instruct the jury to refrain from beginning its deliberations until the trial court had finished hearing the parties’ objections and either notified the jury to begin its deliberations or gave the jury additional instructions. Meroney neither objected to the trial court's failure to give such an instruction nor requested that the trial court give such an instruction. Accordingly, when the jury retired after the trial court had given it instructions regarding the special interrogatory, it was retiring to consider its answer to the special interrogatory. Thus, the jury had retired to consider its answer to the special interrogatory before Meroney objected to the instructions the trial court had given the jury regarding the special interrogatory. Rule 51, Ala. R. Civ. P., in pertinent part, requires that objections to jury instructions be made "before the jury retires to consider its verdict.” Therefore, Meroney’s objections to the trial court's jury instructions regarding the special interrogatory were untimely.


author: WISE, Judge.

text:
    William GILMORE, Jr. v. STATE of Alabama.
    CR-04-1363.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.

      William Gilmore, Jr., pro se.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, William Gilmore, Jr., appeals from the circuit court’s summary dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim.P., in which he challenged his February 2004 guilty-plea conviction for first-degree robbery and the resulting sentence of 21 years’ imprisonment. No direct appeal was taken from this conviction.

On February 9, 2005, Gilmore filed a Rule 32 petition, alleging (1) that the indictment returned against him was defective, vague, ambiguous, and unconstitutional; (2) that his trial counsel was ineffective because, he claimed, counsel negotiated “a plea agreement that was not carried out in the way it was prescribed,” because, Gilmore said, under the plea agreement Gilmore was to receive either a split sentence or probation; (3) that the trial court was without jurisdiction to render judgment or to impose sentence because the indictment charging him with first-degree robbery omitted a material element of the offense — intent; and (4) that his conviction was obtained by a plea of guilty that was “unlawfully induced or not made voluntarily” because, Gilmore said, he had been told that if he pleaded guilty he would receive a split sentence or probation.

On March 9, 2005, the State filed a response to Gilmore’s petition, in which it denied the allegations in Gilmore’s petition. Additionally, the State moved for a summary dismissal of Gilmore’s Rule 32 petition on the grounds that the claims were precluded from review as a result of various procedural bars set out in Rule 32.2, Ala.R.Crim.P. On March 14, 2005, the trial court summarily dismissed Gilmore’s Rule 32 petition. The court’s order stated that Gilmore’s petition was without merit and failed to state a claim for which relief could be granted. This appeal followed.

Gilmore contends that the trial court erred in denying his Rule 32 petition without first conducting an evidentiary hearing. Specifically, he claims that he presented sufficient facts that, if true, entitle him to relief.

I.

Two of Gilmore’s claims for relief purport to attack the validity of the indictment returned against him, thus affecting the jurisdiction of the trial court to accept Gilmore’s guilty plea. Gilmore’s first challenge to his indictment — that the indictment returned against him was unconstitutionally vague and ambiguous — appears to be predicated on the fact that § 13A-8-41, Ala.Code 1975, defines first-degree robbery as the commission of § 13A-8-43, Ala.Code 1975 — third-degree robbery— while the defendant is either armed with a deadly weapon or dangerous instrument or as a result of which the defendant causes serious physical injury to another. Gilmore contends that the reference to § 13A-8-43 in the body of § 13A-8-41 violates Art. IV, § 45, of the Alabama Constitution of 1901, which provides that “[e]ach law shall contain but one subject, which shall be clearly expressed in its title.” Gilmore’s claim is without merit. We note that both § 13A-8-41 and § 13A-8-43 are part of Act No. 607, Ala. Acts 1977, which enacted the Alabama Criminal Code, and thus fall within the exception in Art. IV, § 56, for bills adopting a code. See generally Gibson v. State, 214 Ala. 38, 106 So. 231 (1925). Moreover, as this Court noted in Dickerson v. State, 414 So.2d 998, 1007 (Ala.Crim.App.1982): “[T]he one subject requirement is met when the separate provisions of a bill are germane to the bill’s general purpose and have a mutual connection with the subject proper.” Thus, the fact that first-degree robbery is defined in terms of third-degree robbery coupled with aggravating circumstances does not run afoul of § 45.

Gilmore’s claim that his indictment is void because it failed to allege a material element — intent—is likewise without merit. Although the element of intent is not specifically referenced in § 13A-8-41, the element of intent is encompassed in § 13A-8-41 by virtue of the inclusion in that statute of § 13A-8-43, which specifically references the element of intent. Thus, there is no merit to Gilmore’s claim that his indictment was void because it failed to include a material element of the charged offense. Because neither of Gilmore’s claims concerning the validity of his indictment warrant relief, the trial court correctly denied relief based on these grounds.

II.

Gilmore’s remaining claims challenge the voluntariness of his guilty plea and the competency of his trial counsel.

A challenge to the voluntariness of a guilty plea may be presented for the first time in a timely filed Rule 32 petition. See Cantu v. State, 660 So.2d 1026, 1027 (Ala.1994); Faulkner v. State, 741 So.2d 462 (Ala.Crim.App.1999); Boykin v. State, 708 So.2d 210 (Ala.Crim.App.1997). Gilmore pleaded guilty to first-degree robbery on February 10, 2004. Therefore, his Rule 32 petition — filed on February 9, 2005 — was timely. See Rule 32.2(c), Ala.R.Crim.P.

This Court has held that

“at the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala. R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”

Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001).

Here, Gilmore claimed that his plea was involuntary because, he says, his counsel told him that if he pleaded guilty he would receive either a split sentence or probation. Alternatively, Gilmore claimed that his counsel was ineffective for failing to enforce the terms of his plea agreement, which he says called for him to receive either a split sentence or probation. “[A] misrepresentation by a defendant’s counsel, if material, may render a guilty plea involuntary.” Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999). See also Minor v. State, 627 So.2d 1071 (Ala.Crim.App.1992). In Ford v. State, we held that a petitioner’s claim that his plea was involuntary because of his counsel’s alleged misrepresentation that he would receive a split sentence if he pleaded guilty was sufficiently pleaded to warrant an eviden-tiary hearing. 831 So.2d at 644. Although the State’s answer and motion for summary dismissal contend that Gilmore’s plea agreement did not support his claim regarding a split sentence or probation, the State offers no proof in support of this contention. See Baker v. State, 717 So.2d 859, 861 n. 2 (Ala.Crim.App.1996) (“District attorneys would be well advised when answering Rule 32 petitions presenting ‘voluntariness’ claims to take steps to generate transcripts of the guilty plea proceedings under attack when transcripts of those proceedings do not already exist.”). Likewise, the trial court’s order makes no specific findings of fact regarding the merits of this claim. Thus, it is necessary to remand this case for further findings as to the merits of Gilmore’s claim.

Given that Gilmore filed his petition within the one-year limitations period set out in Rule 32.2(c), Ala.R.Crim.P., the ineffective-assistance-of-counsel claim raised in the petition is not procedurally barred. Moreover, because Gilmore’s claim of ineffective counsel also involves his counsel’s conduct as it relates to the alleged errors during the plea proceeding, we are unable to say, at this time, that Gilmore failed to plead any facts that would entitle him :to relief.

This case is remanded to the trial court with instructions that the court enter a new order addressing Gilmore’s claims challenging the voluntariness of his guilty plea and the competence of his trial counsel. In remanding this case, we encourage the trial court to order that a transcript of Gilmore’s guilty-plea hearing be prepared and that a copy of that transcript be included in the court’s return to remand. Should the circuit court deem it necessary to hold an evidentiary hearing addressing Gilmore’s claims, the court’s return to remand shall include a transcript of those proceedings. Rule 32.9(d), Ala.R.Crim.P., requires the trial court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Crim.App.1994). However,

“if the court finds that a particular allegation fails to meet the requirements of specificity of Rule 32.6(b), we encourage the court to so note with particularity in its written findings. It is to do likewise if it finds that a particular allegation fails to state a claim or to present any material issue of fact or law that would entitle [the petitioner] to relief. In other words, the court’s written findings are to address individually each claim not precluded by Rule 32.2.”

Harper v. State, 676 So.2d 949, 950 (Ala.Crim.App.1995), aff'd, 698 So.2d 796 (Ala.Crim.App.1996) (table). Finally, if the court’s findings are based on its personal knowledge of Gilmore’s guilty-plea proceedings, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989).

The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and ■ BASCHAB, JJ., concur. SHAW, J., concurs in the result.

      . See Rule 32.9(a), Ala.R.Crim.P.

       Note from the reporter of decisions: On January 27, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On February 17, 2006, that court denied rehearing, without opinion.


author: BAlSCHAB, Judge.

text:
    Michael CANNADY v. STATE of Alabama.
    CR-05-0312.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.

      Michael Cannady, pro se.
    Kim T. Thomas, gen. counsel and deputy atty. gen., and Greg Biggs, asst. gen. counsel and asst. atty. gen., Department of Corrections, for appellee.
   BAlSCHAB, Judge.

In a prison disciplinary proceeding, the appellant, Michael Cannady, was found guilty of assault on another inmate, a violation of Rule # 31, Regulation # 403. He was sanctioned with the loss of six months of good time and referral to classification for possible reclassification. The appellant filed a petition for a writ of habeas corpus, alleging that prison officials violated his due process rights under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), during the disciplinary proceeding. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

The appellant argues that prison officials violated his due process rights under Wolff during the disciplinary proceeding. Specifically, he contends that the hearing officer’s findings were based solely on hearsay and that the hearing officer did not “make an independent determination as to the reliability of the reliable source witnesses.” (Appellant’s brief at p. 4.) Because the appellant lost good time, we must determine whether the disciplinary proceeding satisfied the due process requirements set forth in Wolff.

The record indicates that the following evidence was presented during the disciplinary hearing:

“Officer J. Smith did a[n] investigation and had several witnesses write a statement identifying [the appellant] as one of the inmates that assaulted Inmate Salter. Question from hearing officer to COI Smith, 1. Did any of the inmates who witnessed this assault have firsthand knowledge of this incident? Answer: Yes.”

(C.R. 10-12.) During the hearing, the appellant submitted a written statement in which he stated that he “did not attack, assault or lay the first finger on Timothy Salter at the Holman Tag Plant.” (C.R. 20.) The hearing officer found that the appellant assaulted Salter. He indicated that he based his finding

“on the fact that COI Smith did a complete investigation and had statements from several witnesses who had first hand knowledge of this incident. All of [the appellant’s] witnesses chose not to appear on their own free will.”

(C.R. 11.)

We addressed a similar situation in McFadden v. State, 854 So.2d 160, 161-62 (Ala.Crim.App.2002), as follows:

“Under Wolff v. McDonnell, [supra,] an inmate facing a disciplinary proceeding is entitled to notice of the claimed violation and has the right to call witnesses and present documentary evidence in his behalf and receive a written statement by the fact-finders as to the evidence relied on and the reasons for the disciplinary action. 418 U.S. at 563, 94 S.Ct. 2963; Brown v. State, 592 So.2d 621, 623 (Ala.1991); Hearin v. State, 741 So.2d [1122,] 1123 [ (Ala.Crim.App.1999) ]; Young v. State, 584 So.2d 553, 554 (Ala.Crim.App.1991)....
“However, in order for the requirements of due process to be satisfied, the record must also show that there is ‘some evidence’ to support the decision to revoke [the appellant’s] good-time credits. See Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). See also Headley v. State, 720 So.2d 996, 997 (Ala.Crim.App.1998). As this Court has recognized on numerous occasions, hearsay evidence alone is insufficient to satisfy the ‘some evidence’ standard. See, e.g., Griffin v. State, 636 So.2d 1285, 1286 (Ala.Crim.App.1994).
“Here, the sole evidence upon which the finding of guilt was based was the hearsay testimony of Sgt. James A. Kennedy, the arresting officer, regarding what a person who was not incarcerated told him about the incident. As this Court noted in Bridges v. State, 636 So.2d 696 (Ala.Crim.App.1993):
“ ‘Due process requires that the decision of the state disciplinary board or a hearing officer not be made arbitrarily or capriciously, but be based upon some evidence. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Heidelburg v. State[, 522 So.2d 337 (Ala.Crim.App.1988) ]. Hearsay testimony may be admissible in prison disciplinary hearings; however, it may not alone be sufficient to support a finding of guilt. Pearsall v. State, 564 So.2d 1014 (Ala.Cr.App.1989), rev’d in part on other grounds, 564 So.2d 1017 (Ala.1990). See also Ex parte Floyd, 457 So.2d 961 (Ala.1984). Situations arise where findings of guilt based entirely on hearsay are proper and necessary; however, in those cases certain measures must be taken to ensure minimum due process. Pearsall v. State.’
“636 So.2d at 697.
“Taking into consideration all the circumstances, we do not find that the hearsay testimony of Sgt. Kennedy constitutes ‘some evidence’ so as to satisfy the requirements of due process. No reason was given for the State’s failure to produce the unidentified ‘free-world person’ who had direct knowledge of the incident. The State presented nothing to indicate the reliability of the hearsay testimony, other than a ‘body chart’ indicating that McFadden suffered no injuries as a result of the fight. Although the State argues that the body chart detailing the injuries of inmate Steve Orr, with whom McFadden had been fighting, supplied sufficient nonhearsay evidence to support the hearing officer’s finding, our examination of the record reveals otherwise. Orr’s chart reads simply, T got in a fight at work’ and does not indicate that that fight was with McFadden; we cannot say that this constitutes ‘some evidence’ so as to satisfy the requirements of due process.
“Based on the foregoing, we hold that the hearing officer’s finding of guilt was not supported by some evidence and that the officer’s finding was, therefore, arbitrary and capricious. See Oliver v. State, 770 So.2d 1116, 1118 (Ala.Crim. App.2000); Bridges v. State, supra, 636 So.2d at 697.”

In this case, the hearing officer relied upon Smith’s hearsay testimony that other witnesses had made statements that the appellant had assaulted Salter. However, the record does not indicate why the witnesses who made those statements were not called during the disciplinary proceeding. Also, the record from the disciplinary proceeding does not include any indication regarding the reliability of those written statements. Further, although the State asserts that “the hearing officer heard from Smith who gave his own observations and findings,” the record from the disciplinary proceeding does not indicate that Smith testified as to his personal observations and findings or that the hearing officer relied on any such observations and findings. (State’s brief at p. 8.) Thus, the record indicates that the hearing officer’s finding of guilt was not supported by some evidence and was arbitrary and capricious. See McFadden, supra. Therefore, the circuit court erred when it summarily dismissed the appellant’s petition for a writ of habeas corpus. Accordingly, we reverse the circuit court’s judgment and remand this case to that court for further proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

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