text:
    PEDIATRICS BY THE BAY v. EMD SOLUTIONS, INC.
    2100697.
    Court of Civil Appeals of Alabama.
    Sept. 23, 2011.

      John R. Cox of JRC Legal, Daphne, for appellant.
    Bruce B. Stone of Duck, Calhoun <& Stone, Fairhope, for appellee.
   THOMAS, Judge.

Pediatries by the Bay (“PBB”) appeals from a judgment of the Baldwin Circuit Court (“the trial court”) in favor of EMD Solutions, Inc. (“EMD”). We dismiss the appeal in part and affirm the judgment in part.

On April 13, 2009, EMD filed a complaint in the Baldwin District Court (“the district court”) seeking to collect $7,269.64 from PBB on a past-due account for services it had rendered. PBB answered and counterclaimed, alleging breach of contract and fraud. EMD filed a motion to dismiss PBB’s counterclaims, alleging that the district court lacked jurisdiction over those claims. Additionally, on May 20, 2009, EMD filed an answer to PBB’s counterclaims denying liability and asserting affirmative defenses. PBB filed a motion to transfer the case to the trial court. On August 17, 2009, the district court granted the motion and transferred the case to the trial court.

Following a one-day bench trial, the trial court entered a judgment on February 10, 2011, in favor of EMD on EMD’s collection claim and on PBB’s counterclaims alleging breach of contract and fraud. Specifically, the trial court entered a judgment in favor of EMD for $8,432.78, including interest, and set a hearing on the issue of attorney fees for March 9, 2011.

Following the judgment in favor of EMD on EMD’s collection claim and PBB’s counterclaims, the trial court conducted a hearing regarding attorney fees on March 9, 2011. Only one witness testified at that hearing. Brian Britt of Kope-sky, Britt & Norton, L.L.C., testified on behalf of EMD, stating that the $13,703.76 in attorney fees requested by EMD was reasonable. PBB conceded that Britt was a qualified expert on the issue of reasonable attorney fees in Baldwin County. Britt testified that the 62.5 hours billed at the rate of $175 per hour in this case was reasonable based upon the fact that this case required discovery, mediation, a full trial on the merits of the collection claim, and the defense of the counterclaims. He also stated that the defense of the counterclaims was necessary for EMD to collect on the past-due account because the issues involved in the collection claim and the counterclaims were intertwined. Following the March 9, 2011, hearing, the trial court awarded EMD attorney fees in the amount of $13,703.76. On April 19, 2011, PBB appealed to this court.

In its appellate brief, PBB argues that the trial court erred in finding in favor of EMD on PBB’s breaeh-of-contract counterclaim and that the trial court exceeded its discretion in awarding attorney fees. We cannot address PBB’s first issue regarding the trial court’s February 10, 2011, judgment in favor of EMD on PBB’s counterclaim. The February 10, 2011, judgment determined all the claims before the trial court, leaving nothing for further adjudication except the issue of the amount of reasonable attorney fees. See Liberty Mut. Ins. Co. v. Greenway Enters., Inc., 23 So.3d 52, 55 (Ala.Civ.App.2009). “[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication.” State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002) (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)). Therefore, the failure of the trial court to ascertain the amount of attorney fees it should award did not affect the finality of the February 10, 2011, judgment. See Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala.2002) (holding a summary judgment to be final, although a motion to assess attorney fees remained pending, because award of attorney fees is collateral to judgment).

Pursuant to Rule 4(a)(1), Ala. R.App. P., PBB had 42 days from the date of the entry of the February 10, 2011, judgment to file its notice of appeal. PBB did not file any postjudgment motions, which would have tolled the time for filing an appeal. See Rule 4(a)(3), Ala. R.App. P. Accordingly, PBB’s April 19, 2011, notice of appeal regarding its counterclaim, which was filed more than 42 days after the entry of the February 10, 2011, judgment, was untimely. Therefore, we dismiss PBB’s appeal insofar as it is based on the trial court’s judgment in favor of EMD on PBB’s counterclaim.

PBB also argues that the trial court exceeded its discretion by awarding EMD attorney fees. PBB did timely file a notice of appeal from the trial court’s March 9, 2011, judgment awarding EMD attorney fees, and, thus, we will consider that issue on appeal. Specifically, PBB contends that the trial court erred in awarding $13,703.76 in attorney fees because, PBB says, the service agreement between EMD and PBB limited the award of attorney fees to those related to the cost of collection; the award of attorney fees to EMD, says PBB, improperly permits EMD to recoup attorney fees paid both to collect on the past-due account and to defend PBB’s counterclaims.

“The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and its determination on such an issue will not be disturbed on appeal unless in awarding the fee the trial court exceeded that discretion. State Bd. of Educ. v. Waldrop, 840 So.2d 893, 896 (Ala.2002); City of Birmingham, v. Horn, 810 So.2d 667, 681-82 (Ala.2001); Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992), citing Varner v. Century Fin. Co., 738 F.2d 1143 (11th Cir.1984).
“This Court has set forth 12 criteria a court might consider when determining the reasonableness of an attorney fee:
“ ‘(1) [T]he nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.’
“Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988). These criteria are for purposes of evaluating whether an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be met. Beal Bank v. Schilleci, 896 So.2d 395, 403 (Ala.2004), citing Graddick v. First Farmers & Merchants Nat’l Bank of Troy, 453 So.2d 1305, 1311 (Ala.1984).
“We defer to the trial court in an attorney-fee case because we recognize that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in an attorney-fee determination. Horn, 810 So.2d at 681-82, citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).”

Pharmacia Corp. v. McGowan, 915 So.2d 549, 552-53 (Ala.2004).

In asserting its argument, PBB relies upon paragraph 1.15 of the service agreement, which states:

“1.15 Default. [PBB] agrees to pay all cost of collection incurred by [EMD] with respect to any attempt by [EMD] to collect an amount due hereunder including, but not limited to, all Court costs, witness fees, deposition costs, and a reasonable attorneys fee.”

Although paragraph 1.15 is clear that the attorney fees that can be recovered by EMD are limited to those incurred in a collection attempt, the paragraph is also clear that PBB must pay “all cost of collection.” In this case, EMD argued that the defense of the counterclaims was necessary to prevail on its collection claim. Moreover, EMD presented expert testimony on the attorney-fee issue. Specifically, Britt testified that he is familiar with reasonable attorney fees charged in the Baldwin County area and that attorney fees in the amount of $13,703.76 in this case were reasonable. Britt stated that EMD had spent 62.5 hours over several years litigating this case, which required a substantial amount of discovery, mediation, a full trial on the merits of the collection claim, and the defense of the counterclaims. In regard to the necessity of defending the counterclaims in order to prevail on the collection claim, Britt stated:

“I familiarized myself enough with the facts of the case to recognize that both the original claim against [PBB] as well as the defense of the counterclaim revolved around rights and obligations under the contract between the parties. Defense of that counterclaim was part and parcel to [EMD’s attorneyj’s prosecution of the original collection matter. He could not have collected the fees and could not have adequately represented his client in that collection effort without effectively defending the counterclaim, which he did quite well.”

Additionally, PBB conceded that attorney fees in the amount of $13,703.76 were reasonable for the collection effort and the defense of the counterclaims. Because- of the substantial discretion afforded the trial court regarding an attorney-fee award and because of the expert testimony presented in this case, we cannot conclude the trial court exceeded its discretion in its award of attorney fees. Accordingly, we affirm the attorney-fee award.

Conclusion

We dismiss the appeal insofar as it pertains to the trial court’s judgment in favor of EMD on PBB’s counterclaim. We affirm the trial court’s judgment awarding EMD attorney fees.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. MOORE, Judge,

license: Public Domain

text:
    A.T. v. A.G.
    2100591 and 2100592.
    Court of Civil Appeals of Alabama.
    Sept. 23, 2011.

      July L. Dowling, Dothan, for appellant.
    Benjamin J. Freeman, Dothan, for ap-pellee.
   THOMPSON, Presiding Judge.

A.T. (“the mother”) appeals two judgments of the Houston Juvenile Court (“the juvenile court”) finding two of her children, An.J.T. (“the son”) and Am. J.T. (“the daughter”), dependent and transferring custody of the son and the daughter (hereinafter referred to collectively as “the children”) to their paternal grandmother, A.G. (“the paternal grandmother”).

The record on appeal indicates that the mother and the children’s father, C.T. (“the father”), have never married; the record does not clearly indicate if the parents have lived together as a couple. The mother has another child, As.T., from a previous relationship; that child was 10 years old at the time of the dependency hearing, and she lived with the mother. Pursuant to an agreement between the mother and the father, the son, who was eight years old at the time of the dependency hearing, has lived with the father since he was two years old. In 2009, the father and the son moved to Indiana. The paternal grandmother testified that the father had used illegal drugs in the past, and she stated that the father’s move to Indiana was prompted by his desire to remove himself from influences that encouraged him to use illegal drugs.

The mother testified that, until June 2010, she had maintained custody of the daughter since the child’s birth in 2004; the daughter was six years old at the time of the dependency hearing. In June 2010, the electricity at the mother’s residence was disconnected, and the mother took the daughter to the home of a paternal great-aunt; the great-aunt is the paternal grandmother’s sister. The mother testified that she intended that the daughter remain with the great-aunt on a temporary basis.

The paternal grandmother testified that the great-aunt asked her to take the daughter after the mother had left the child at the great-aunt’s home in June 2010. According to the paternal grandmother, the daughter was extremely dirty when the mother left the child with the great-aunt; the mother denied that allegation.

The paternal grandmother testified that the daughter lived with her until August 2010, when the father returned to Alabama from Indiana. The paternal grandmother testified that between June and August 2010 the mother telephoned only three or four times to check on the daughter and that the mother visited the daughter only one time. The mother testified, however, that the daughter lived with the great-aunt until August 2010.

It is undisputed that, when the father and the son returned to Alabama in August 2010, the daughter began living with the father and the son in the great-aunt’s house. The mother testified that she had allowed the daughter to live with the father because, she stated, the daughter had expressed a desire to do so. The paternal grandmother, however, testified that the daughter had been living with her and that she had allowed the daughter to live with the father.

The paternal grandmother testified that the father has a history of mental illness and that he was diagnosed with bipolar disorder when he was 16 years old. In November 2010, the father was admitted for approximately one week to the Behavioral Medicine Unit (“BMU”) at a local hospital because of an apparent overdose of illegal drugs. Shortly thereafter, the paternal grandmother filed her petitions alleging that the children were dependent and seeking custody of the children.

Since the paternal grandmother filed the dependency petitions on December 7, 2010, the father has continued to experience problems. The father was readmitted to the BMU around Christmas 2010, and again shortly before the March 10, 2011, dependency hearing. The paternal grandmother testified that the father does not have a home of his own but has stayed with friends and family members. The father did not testify at the dependency hearing, but his attorney represented to the court that the father wanted the children to live with the mother.

In her dependency petitions and in her testimony, the paternal grandmother alleged that the mother was not financially capable of meeting even the children’s most basic needs. The paternal grandmother testified that the mother did not work and had no means of supporting the children.

The mother testified that she last had employment in 2005. The mother stated that she becomes nervous around groups of people. According to the mother, her doctor had diagnosed her as having a “social anxiety,” for which she has been prescribed medication.

The mother lives in rent-free public housing with As.T., and she receives food stamps each month. The mother testified that she occasionally babysits or helps clean houses, for which she earns “maybe $250” per month. The mother acknowledged that she has no other income, and she stated that she relies upon her mother and other family members for support.

The mother was arrested at a December 2010 court hearing because of her failure to pay $100 monthly toward restitution for numerous bad-check charges dating back almost 10 years before the dependency hearing. The mother stated that her mother would pay the $100 court fines each month because, the mother said, her mother gives her anything she wants.

The mother acknowledged that she had not contributed to the support of the children during the times they had lived with or been in the custody of the paternal grandmother. The mother testified that, although the daughter was no longer living with her, she continued to receive food stamps for the daughter until December 2010. The mother stated that she had used some of the food stamps she received for the daughter to assist the father in providing food for the children after they began living with him in August 2010.

The mother does not have her own transportation. The paternal grandmother testified that the mother must telephone family members for assistance if she needs to take the children to visit the doctor or to obtain medications for them. The mother admitted that As.T. missed at least six days of school in January 2011 when the child missed the school bus; the mother had no other means of transporting the child to school. The mother stated that she was trying to move from her residence during that time and that “it was just hectic in January.” The mother admitted that she got a letter from the school concerning the number of As.T.’s absences in January 2011.

Hazel Wiggins, a Department of Human Resources (“DHR”) social worker who conducted home evaluations on the parents and the paternal grandmother, testified that when she met with the mother in February 2011 she advised the mother that she could apply for Social Security disability benefits and that she could explore certain job programs through DHR. The mother stated during the March 2011 dependency hearing that she planned to explore those options.

Wiggins also testified that the mother’s home was physically appropriate for the children and that there were no reports of abuse or neglect of the children by the mother. However, Wiggins stated that DHR had concerns about the mother’s ability to meet the needs of the children. Wiggins testified that she was concerned that adding two additional children to the mother’s home would place stressors on the mother. Wiggins also testified that it did not appear that the mother could financially afford two additional children in her home. For those reasons, Wiggins recommended against placing the children in the mother’s home.

In addition to the concerns about the mother’s financial ability to meet the basic needs of the children, the paternal grandmother presented evidence indicating that the children had been out of the mother’s custody for an extended period and that the mother had not kept in frequent contact with the children. The son has lived with the father since 2002, and the mother admitted that she had chosen for the daughter to live with family members between June and December 2010. The paternal grandmother testified that the mother had visited the daughter only once during the summer of 2010 and that she had telephoned the daughter only three or four times during that same period. The paternal grandmother also stated that the mother had expressed little interest in visiting the children. According to the paternal grandmother, after she received pendente lite custody of both children in December 2010, the mother visited the children once in February 2010 and attended both children’s birthday parties. The paternal grandmother also stated that she had telephoned the mother and had offered to allow her to take the children for some time at Christmas; she stated the mother had visited with the children from noon to 6:00 p.m. on Christmas day.

The mother explained her failure to visit the children more frequently by stating that her oldest child, As.T., became upset when the children had to leave after a visitation and that she did not like to hurt As.T. The children’s guardian ad litem expressed concern regarding the mother’s “nurturing ability,” given the fact that the mother “didn’t pay [the children] more attention when they weren’t with her.”

In each of its March 11, 2011, dependency judgments, the juvenile court stated, in pertinent part:

“Based upon clear and convincing evidence, the court finds that the child is dependent in that the parents are unable to provide for the child’s care, support, and education at this time. It is recommended that the parents participate and cooperate with individual and family counseling and parenting classes. The parents should look into pursuing disability [benefits]. The parents shall be provided reasonable visitation with the child.”

The mother argues on appeal that the evidence does not support the juvenile court’s determinations that the children are dependent. With regard to the standard this court applies in reviewing a dependency determination, this court has stated:

“A finding of dependency must be supported by clear and convincing evidence. [Former] § 12 — 15—65(f)[, Ala. Code 1975 (now codified at § 12-15-310, Ala.Code 1975)]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).”

J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004). “Moreover, ‘[b]ecause the trial court has the advantage of observing the witnesses’ demeanor and has a superior opportunity to assess their credibility, this Court cannot alter the trial court’s judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong.’ ” Ex parte Fann, 810 So.2d 631, 636 (Ala.2001) (quoting Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998)).

The mother argues that there is not clear and convincing evidence indicating that she lacks the financial resources to support the children. The mother characterizes the evidence indicating that she could not provide for two additional children in her home as “speculative.” Given the evidence in the record on appeal, we cannot agree with that characterization. The mother herself testified that she had not been employed since 2005 and that she occasionally earns $250 per month in income as a babysitter or a housecleaner. The mother acknowledged that she relies on family members for much of her support and to pay her court fines. The mother points out that she may qualify for Social Security disability benefits or for assistance through a jobs program; however, at the time of the dependency hearing, the mother had not explored those options. Therefore, those possible sources of income were not available to the mother at the time of the dependency determination. At the conclusion of the dependency hearing, the juvenile court indicated that it believed that the mother’s financial situation could improve such that the children could be placed in her home in the future but that, at that time, she was unable to meet the children’s needs. The mother has failed to demonstrate that the evidence in the record does not support that determination.

Further, the mother admitted that she elected to allow the children to live with other family members for extended periods. The mother also acknowledged that she had failed to regularly visit the children, citing the distress experienced by her oldest child when the children left as a reason not to visit the children. The children’s guardian ad litem expressed concern that the mother had failed to regularly visit the children. Given the presumption in favor of the juvenile court’s judgment, see Ex parte Fann, supra, we cannot say that the mother has demonstrated that the juvenile court erred in determining that the children were dependent.

The mother also argues that the juvenile court erred in failing to award her a set schedule of visitation with the children. We agree. This court has explained:

“ ‘[T]he 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 843 [ (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, such discretion is not unbounded. This court has previously held that it is reversible error for a juvenile court to leave the matter of a noncustodial parent’s visitation rights to the sole discretion of a 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 that placed the father in control of the mother’s visitation with the child), and TLB. v. Cleburne County Dep’t of Human Res., 897 So.2d 379 (Ala.Civ.App.2004) (reversing a juvenile court’s visitation award that essentially conditioned the mother’s right to visitation with her child upon the consent of the child’s aunt and uncle); see also D.B. v. Madison County Dep’t of Human Res., 937 So.2d 535, 541 (Ala.Civ.App.2006) (plurality opinion reversing a juvenile court’s judgment that made the mother’s visitation ‘ “subject to any conditions and limitations deemed to be necessary and appropriate” ’ by the child’s great aunt, who was awarded custody of the child).”

A.M.B. v. R.B.B., 4 So.3d 468, 471-72 (Ala.Civ.App.2007) (concluding that “the juvenile court in this case erred in failing to set forth a specific minimum visitation schedule,” id. at 472).

The juvenile court awarded the mother only “reasonable visitation” with the children; it failed to set forth a specific minimum visitation schedule. Accordingly, we reverse those portions of the March 11, 2011, dependency judgments pertaining to visitation, and we remand the causes for the juvenile court to enter orders setting forth a specific visitation schedule. A.M.B. v. R.B.B., supra.

2100591 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

2100592 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in part and concurs in the result in part, with writing.

MOORE, Judge,

concurring in part and concurring in the result in part.

I concur in the result in that part of the main opinion addressing the dependency of the children; as to the remainder of the opinion, I concur.

      . The great-aunt is referred to in the record simply as “Ms. [K.].”


author: MOORE, Judge.

text:
    C.M. v. TUSCALOOSA COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100464 and 2100465.
    Court of Civil Appeals of Alabama.
    Sept. 30, 2011.

      Shelly Standridge of Crownover & Standridge, Tuscaloosa, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

C.M. (“the mother”) appeals from judgments entered by the Tuscaloosa Juvenile Court terminating her parental rights to A.M. and Ch.M. (“the children”). We reverse.

Procedural History

On March 10, 2008, the Tuscaloosa County Department of Human Resources (“DHR”) filed petitions to terminate the parental rights of the mother to the children. On August 26, 2010, the juvenile court entered judgments terminating the mother’s parental rights and stating, in pertinent part:

“4. That the child[ren are] dependent as defined by statute, and the facts regarding dependency alleged in the petition[s] filed in [these] case[s] are determined to be true.
“5. That the conduct and condition of the mother is such as to render her unable to properly care for the child[ren] and that such conduct or condition is unlikely to change in the foreseeable future. Testimony of expert witness Dr. Kathy Ronan before this Court indicated the mother is mentally ill and not capable of caring for her children, and that rehabilitative efforts are not likely to succeed.
“6. That the mother lacked the ability to comply with all the terms and conditions of the Individualized Service Plan. DHR provided rehabilitative services, and expert testimony showed continued rehabilitative services would not improve the mother’s chronic mental health condition and would be unsuccessful if continued. The said chronic condition makes the mother unable to adjust her circumstances to meet the needs of the child[ren],
“7. That there is no suitable relative of the mother who is both fit and willing to serve as a relative placement resource for the child[ren].
“8. All viable alternatives to termination of parental rights have been considered and no such alternative exists.
“9. That the Court has also considered the environment into which the children] would be released if returned to the mother and finds that it is in the child[ren]’s best interests not to be released into that environment.
“10. That the child[ren are] adoptable and in need of and [are] entitled to the care and protection of the State of Alabama; the children’s morals, health and general welfare will be best served by granting permanent care, custody and control to ... DHR ..., and DHR is equipped to care for and is able and willing to assume custody of the children] if committed by final order of this Court to DHR.
“11. Although the Court is reluctant to enter this Order because of the bond between the mother and children], the testimony is clear and convincing that, regrettably, the mother is unable to properly care for the children] and that this condition is unlikely to change in the foreseeable future. The Court has specifically considered the mental illness of the mother under Section 12-15-319(a)(2), Code of Alabama 1975.”

On September 3, 2010, the mother filed a motion to alter, amend, or vacate the juvenile court’s judgments or, in the alternative, for a new trial. On September 14, 2010, the juvenile court set the post-judgment motion for a hearing on October 6, 2010. On October 6, 2010, the parties argued the postjudgment motion, and, on or about October 15, 2010, the juvenile court purported to enter an order amending the judgments to change a citation to the correct Code section and to state that it had considered the recommendation of the children’s guardian ad litem. On November 1, 2010, the mother filed notices of appeal from the judgments. The mother’s appeals were assigned appellate numbers 2100144 and 2100145 and were consolidated by this court ex meru moto.

On January 28, 2011, the mother filed in this court a motion for leave to file in the juvenile court a Rule 60, Ala. R. Civ. P., motion; this court granted that motion on that same day. Also on that same day, the mother filed her Rule 60 motion in the juvenile court; that motion alleged that, due to mistake, inadvertence, or excusable neglect, the parties had failed to realize that the mother’s postjudgment motion had been denied by operation of law before that motion was heard and ruled upon. She requested that the juvenile court grant her Rule 60(b) motion and either set her postjudgment motion for a hearing within 14 days or allow the motion to be denied by operation of law. On January 28, 2011, the juvenile court granted the mother’s Rule 60 motion, stating that the mother’s previously filed postjudgment motion would be heard within 14 days or would be denied by operation of law. On February 2, 2011, the juvenile court entered an order making the same changes to its previous judgments that it had previously purported to make on October 15, 2010, and stating that the previous judgments were otherwise unchanged. The mother again filed notices of appeal, and those appeals were assigned appellate numbers 2100464 and 2100465 and were consolidated by this court ex meru moto. On March 1, 2011, this court dismissed appeal numbers 2100144 and 2100145 as having been untimely filed.

In appeal numbers 2100464 and 2100465, the mother’s appellate counsel filed a “no-merit” brief and a motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with the procedure adopted by this court and set out in Anders and J.K. v. Lee County Department of Human Resources, 668 So.2d 813 (Ala.Civ.App.1995), that motion and brief were served upon the mother. The mother did not provide this court with a list of additional points or issues to be considered on appeal. On July 11, 2011, this court entered an order directing the mother’s counsel to file a supplemental brief addressing whether the best interests of the children would be served by terminating the mother’s parental rights in light of the beneficial emotional bond that exists between the mother and the children. See D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003) (plurality opinion). The mother’s counsel filed a supplemental brief, and DHR filed a response thereto.

Facts

The evidence at trial revealed that the children had been in foster care since 2000, when the mother suffered what was described by Dr. Kathleen Ronan, a clinical and forensic psychologist who had evaluated the mother, as an acute exacerbation or a complete breakdown. Dr. Ronan testified that the mother has schizoaffective disorder and is mildly mentally retarded. Dr. Ronan testified that the mother had tried to the best of her ability to get better but that her best efforts had not been enough for the mother to be capable of parenting the children. She testified that the mother’s handicaps from her mental illness and mild retardation prevent the mother from being able to gain the skills necessary to manage the children by herself. She testified that, although she had made recommendations regarding the mother’s treatment, she did not think that compliance with those recommendations would effectively restore the mother to the point of being able to parent the children.

Glenda Sims, a foster-care worker for DHR, also testified that the mother could not parent the children. She testified that the mother had done everything DHR had asked her to do. Sims testified that the mother receives counseling, therapy, and monitoring services through Indian Rivers, a program maintained through the Department of Mental Health. She testified that DHR had provided the mother with parenting-skills services through a behavior aide, as well as transportation and an aide for visits. Sims testified that before she began working for DHR, the mother was supposed to have received family counseling or parenting-skills services, but, she said, the mother had refused those services. She testified that DHR had attempted to locate a program that would enable the mother and the children to live in a community together but that it had been unable to find such a program. Sims testified that she does not know of any other local services for which the mother would qualify. Dr. Ronan also testified that she did not know of any other resource that would offer the mother any service that was not available through Indian Rivers.

Sims testified that DHR had attempted to terminate the mother’s parental rights previously but that the juvenile court had denied the petitions in July 2007 and had instructed DHR to consider the mother’s sister, K.C., as a resource for the children. Sims testified that DHR had subsequently conducted a home study on K.C.’s home and had begun having visits in K.C.’s home but that, at the end of 2007, K.C. had stated that she did not want to be considered as a resource for the children. She testified that DHR had pursued getting a home study on the home of the mother’s two other sisters in Michigan but that there was no electricity or water available in the home and the home study was not approved.

Sims testified that it is possible that the children could be adopted if DHR could find parents who can give the children a structured environment. She testified that previous foster parents had expressed interest in adopting A.M. and that certain persons had expressed interest in adopting Ch.M. She testified that DHR would hold permanent custody of the children until they were adopted and that DHR would commit to continuing contact between the children and the mother.

Michael Holtzhauer, an employee of Alabama Mentor, a therapeutic foster-care agency that contracts with DHR to provide therapeutic foster homes, testified that, at the time of the final hearing, A.M. was 13 years old and Ch.M. was 12. She testified that both children were in therapeutic foster homes. Holtzhauer testified that Ch.M. is bipolar and that A.M. has “psychothymic disorder,” which is a depressive disorder. She testified that typically parents who have children in therapeutic foster care are not involved with the children but that the mother is an exception. She testified that she maintains contact with the mother more than she does with other biological family members of children she works with. Holtzhauer also testified that the mother has always done everything she has asked her to do and that the mother tries to do her best parenting the children. She testified, however, that the mother is unable to supervise the children alone.

Holtzhauer testified that the children love the mother and that they have a bond. She testified that the mother talks to the children every day and that she will address any behavioral issues that the children have been having. She testified that A.M. has been disrespectful to the mother, which is stressful to the mother. She testified that she feels that A.M. sometimes uses the mother and is manipulative. She testified that it causes her concern that the mother gives money too freely to A.M., but she also testified that the mother had refused to give A.M. money to add minutes to her cellular-telephone account because A.M. had gotten in trouble. Holtzhauer testified that A.M. had stated that she was fine with being adopted but that she wanted to maintain contact with the mother and Ch.M. She testified that A.M. did not want the mother’s parental rights terminated if she was not assured that she could retain contact with the mother. She testified that A.M. was currently in her fourth foster home. She testified that A.M. had regressed in her behavior partially due to normal teenage issues and partially due to her most recent move from the home of a foster mother with whom she had been close. Holtzhauer testified that Ch.M. had made some improvements recently. She testified that she thought that the children would do well to maintain supervised contact with the mother. She also testified that the results of a recent psychiatric evaluation on A.M. resulted in a recommendation that she retain contact with the mother. Dr. Ronan testified that moving from one foster home to another affects children and that such moves would have a particularly negative affect on a child with bipolar disorder. Dr. Ronan also testified that Ch.M. and the mother have a strong bond and that Ch.M. is very protective of the mother.

The mother testified that, before her psychiatric breakdown, she had been employed by the Department of Veterans Affairs for 11 ½ years. She testified that she receives a monthly medical retirement check as well as a Social Security disability check. The mother testified that she lives in a one-bedroom apartment but that she is looking for a house. She testified that she does not drive but that she uses public transportation. The mother testified that she had not been in any psychiatric facility since 2002. She testified that she has been staying well for herself and the children. She testified that she sees her doctor and her psychiatrist, goes to therapy, and takes medication. She testified that she and the children have a strong bond. The mother testified that she can take care of the children full time. She testified that, if she could not get the children back, she would want them to be adopted if she could see them. She testified that she talks to the children at least once a day and visits with them twice a month. She testified that she does something special for the children for Christmas and birthdays. She testified that she planned on paying for A.M. to get her hair done before school started. She introduced into evidence a card that A.M. had given her for Mother’s Day and a present that Ch.M. had given her for Christmas. She read into the record what A.M. had written on the card: “Thanks for everything you have done for me. I watched myself become a nice young lady because of you. Love, your daughter. Boo.” She testified that she gives A.M. money to purchase cellular-telephone minutes when her behavior is good. She also testified that she takes Ch.M.’s Playstation video-game console away from him as punishment for poor behavior. She testified that she believes the children’s foster parents are doing a wonderful job, and that she and the foster mother discuss A.M.’s behavior together.

At the conclusion of the evidence, the children’s guardian ad litem recommended that the petitions for termination of parental rights be denied because of the bond between the mother and the children. DHR’s attorney responded that, although Alabama does not have “open adoptions,” DHR would recruit adoptive parents who would allow the mother to be a part of the children’s lives.

Standard of Review

“This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is ‘required to apply a presumption of correctness to the trial court’s finding[s]’ when the trial court bases its decision on conflicting ore tenus evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002) (emphasis added). Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007) (footnote omitted).

Discussion

The mother has argued in her supplemental brief to this court that the juvenile court exceeded its discretion in terminating the mother’s parental rights because, she says, termination was not in the best interests of the children. The mother also points out that retention of a child in foster care while allowing a parent to visit can be a viable alternative to termination of parental rights. See T.D.K. v. L.A.W., 78 So.3d 1006 (Ala.Civ.App.2011).

“Parents and their children share a fundamental right to family integrity that does not dissolve simply because the parents have not been model parents. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That due-process right requires states to use the most narrowly tailored means of achieving the state’s goal of protecting children from parental harm. Roe v. Conn, 417 F.Supp. 769, 779 (M.D.Ala.1976). Thus, if some less drastic alternative to termination of parental rights can be used that will simultaneously protect the children from parental harm and preserve the beneficial aspects of the family relationship, then a juvenile court must explore whether that alternative can be successfully employed instead of terminating parental rights. Id.”

T.D.K, 78 So.3d at 1011. In D.M.P, supra, a plurality of this court reasoned:

“[I]f, notwithstanding the unfitness of a parent, there remains a significant emotional bond between a child and an unfit parent, and it has been demonstrated that some alternative-placement resource would allow the child to visit periodically with the unfit parent so as to reap the benefit of partially preserving that relationship without incurring the harm of the child being raised on a day-to-day basis by an unfit parent, the court would be required to weigh the advantage of that arrangement against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child’s best interest.”

D.M.P., 871 So.2d at 95 n. 17. Citing D.M.P., this court stated in T.D.K:

“Our caselaw has recognized that removing the child from [an] abusive parent’s custody but allowing that parent restricted visitation rights can be a viable alternative to termination of parental rights when it appears that a wayward parent cannot be rehabilitated but still shares a deep and beneficial emotional relationship with his or her children. See, e.g., D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala. Civ.App.2003) (plurality opinion). In such cases, permanently depriving children of association with a parent by terminating parental rights could do more harm than good to the children. Id.”

T.D.K, 78 So.3d at 1011.

In the present case, the evidence indicates and the juvenile court found that a bond exists between the children and the mother. The evidence also indicates that the children love their mother and that she has been an active part of the children’s lives — for example, by making sure that A.M. had a hair cut before the start of the school year, by doing something special for the children for their birthdays and for Christmas, and by addressing behavioral issues with the children. It was undisputed that the mother talks to the children at least once a day and that she visits them twice a month. A psychiatric evaluation of A.M. resulted in a recommendation that she retain contact with the mother. Holt-zhauer testified that A.M. had stated that she did not want to be adopted unless she would be able to maintain contact with the mother. Even DHR appeared to recognize the beneficial relationship that existed between the mother and the children because Sims, the foster-care worker for DHR, testified that DHR would commit to continuing the mother’s visitation until the children were adopted. Based on the foregoing, it is clear that maintaining visitation with the mother is in the best interests of the children.

Because there was clear and convincing evidence indicating that the best interests of the children would be served by maintaining visitation with the mother, the juvenile court was required to “weigh the advantage of [maintaining visitation with the mother] against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of th[o]se alternatives would be in the child[ren]’s best interestfs].” D.M.P., 871 So.2d at 95 n. 17. In this case, there was some evidence tending to show that the children would benefit from permanency; however, there was no certain testimony regarding the children’s prospects for adoption. Both children have disorders that, according to Sims, require DHR to find adoptive parents who can maintain the children in a structured environment. Because of the uncertainty regarding the children’s prospects for adoption, we conclude that the record does not contain clear and convincing evidence indicating that the children would achieve permanency if the mother’s parental rights were terminated. Accordingly, the desire for permanency in this case cannot override the clear and convincing evidence indicating that maintaining visitation with the mother is in the children’s best interests.

Based on the foregoing, we conclude that, in this exceptional case, termination of the mother’s parental rights was not in the best interests of the children because of the beneficial relationship between the mother and the children. We, thus, reverse the juvenile court’s judgments terminating the mother’s parental rights and remand this cause for the entry of a judgment consistent with this opinion.

2100464 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2100465 — REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . The juvenile court entered a separate judgment in each case. Although the judgments have some very minor differences, those differences do not affect the substance of the judgments. Thus, we have included the language from the judgment in case no. JU-02-836.05, which is representative of the substance of both judgments.

      . Under Rule 1(B), Ala. R. Juv. P., the mother’s postjudgment motion was denied by operation of law on September 17, 2010.

      . The issue whether the Rule 60 motion was properly granted is not before this court.

      . We have incorporated the record from appeal numbers 2100144 and 2100145 into the present appeals.

      . The report noted that children fare better when they have contact with their birth parents.


author: WINDOM, Judge. KELLUM, Judge,

text:
    Robert GILL v. STATE of Alabama.
    CR-10-0051.
    Court of Criminal Appeals of Alabama.
    Feb. 4, 2011.
    Rehearing Denied April 22, 2011.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1100888.
    Robert Gill, pro se.
    Troy King and Luther Strange, attys. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   WINDOM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, P.J., concurs. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Robert Gill’s eighth Rule 32, Ala. R.Crim. P., petition challenging his 1996 conviction for first-degree robbery and his resulting sentence as a habitual felony offender to life imprisonment without the possibility of parole. I believe that allowing Gill to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Gill and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author:
WINDOM, Judge.
      WELCH, Presiding Judge, BURKE, Judge, JOINER, Judge,

text:
    C.D.B. v. STATE of Alabama.
    CR-10-0013.
    Court of Criminal Appeals of Alabama.
    April 29, 2011.
    Rehearing Denied Sept. 23, 2011.

      Valerie Goudie, Anniston, for appellant.
    Troy King, atty. gen., and James H. Rutter III, asst. atty. gen., for appellee.
   WINDOM, Judge.

C.D.B. appeals the juvenile court’s order adjudicating him delinquent based on a charge of first-degree rape, as defined in § 13A-6-61(a)(l), Ala.Code 1975. Specifically, C.D.B. was adjudicated delinquent for forcibly raping D.E.D. After adjudicating C.D.B. delinquent, the juvenile court committed him to the Department of Youth Services.

The State’s evidence tended to establish the following. On July 14, 2009, C.D.B. and his father, C.J., were visiting L.D., D.E.D.’s mother, at L.D.’s two-story apartment. At the time, L.D. and C.J. were dating. At some point during the visit, L.D. and C.J. went upstairs to iron clothes and take care of other laundry. While their parents were upstairs, C.D.B., who was then 14 years old, and D.E.D., who was then 9 years old, were downstairs watching television. C.D.B. was lying on the floor, and D.E.D. was on a couch.

While the two were watching television, C.D.B. told D.E.D. to come to him, to take her pants off, and to get on top of him. C.D.B. also took his pants off. D.E.D. then got on top of C.D.B., and the two engaged in sexual intercourse. After two to five minutes of intercourse, D.E.D. got up, and noticed that her vagina was bleeding. She then went to the bathroom to check herself.

Shortly after D.E.D. went to the bathroom, C.J. and C.D.B. left the apartment. After they left, D.E.D. told her mother, L.D., what had happened. L.D. telephoned C.J. and told him that he and C.D.B. needed to return to the apartment. When they returned, L.D. and D.E.D. informed C.J. of what had happened, and D.E.D. showed C.J. her bloody underwear. C.D.B. initially denied that anything had happened, but later admitted to engaging in sexual intercourse with D.E.D.

At trial, D.E.D. testified that she complied with C.D.B.’s request on the day of the incident because she was somewhat afraid of him. Specifically, D.E.D. said that she was afraid of C.D.B. because she had seen him argue with his father at some point in the past. D.E.D., however, also testified that C.D.B. did not threaten her or “do anything to make [her] feel like if [she] didn’t do [what he asked], he would hurt [her.]” (R. 34.)

On appeal, C.D.B. argues that the State failed to present sufficient evidence to sustain his delinquency adjudication based on the charge of first-degree rape. See § 13A-6-61 (a)(1), Ala.Code 1975. Specifically, C.D.B. asserts that the State failed to present any evidence indicating that he used forcible compulsion to engage in sexual intercourse with D.E.D. This Court agrees.

Section 13A-6-61(a)(l), Ala.Code 1975, provides that, “[a] person commits the crime of rape in the first degree if ... [h]e or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion....” Section 13A-6-60(8), Ala.Code 1975, defines forcible compulsion as, “[p]hysieal force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” Further, this Court has explained that, “Section 12-15-65(e), Ala.Code 1975, requires that an adjudication of delinquency be supported by ‘proof beyond a reasonable doubt, based on competent, material[,] and relevant evidence.’ ” A.A.G. v. State, 668 So.2d 122, 124 (Ala.Crim.App.1995). “ ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ ” C.M. v. State, 889 So.2d 57, 63 (Ala.Crim.App.2004) (quoting Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting in turn O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992)). “ ‘ “[I]n resolving questions of sufficiency of the evidence, this court must view the evidence in the light most favorable to the state.” ’ ” D.W. v. State, 3 So.3d 955, 957 (Ala.Crim.App.2008) (quoting C.M., 889 So.2d at 62-63, quoting in turn A.A.G., 668 So.2d at 124).

Viewing the evidence in a light most favorable to the State, this Court must conclude that the State failed to “present any evidence that [C.D.B.] used physical force that overcame [D.E.D.’s] earnest resistance.” D.W., 3 So.3d at 957. Nor did the State present any evidence indicating that C.D.B. made “a threat, express or implied, that place[d] [D.E.D.] in fear of immediate death or serious physical injury to [her]self or another person.” § 13A-6-60(8), Ala.Code 1975. See Ex parte J.A.P., 853 So.2d 280, 284 (Ala.2002) (holding that its decision in Powe v. State, 597 So.2d 721 (Ala.1991), under which an implied threat may be inferred, applies only in “cases involving the sexual assault of children by adults who exercised positions of domination and control- over the children” and does not apply in cases involving sexual relations between two children (emphasis in original)); D.W., 3 So.3d at 957 (same). In fact, D.E.D. testified that C.D.B. did not do anything to threaten her or to make her fear for her safety. Consequently, this Court is compelled, pursuant to Ex parte J.A.P., 853 So.2d at 284, and D.W., 3 So.3d at 957, to conclude that the State did not present sufficient evidence to establish that C.D.B. “engage[d] in sexual intercourse with [D.E.D.] by forcible compulsion.... ” § 13A-6-61(a)(1), Ala.Code 1975.

The dissent asserts that this Court’s opinion: 1) erroneously “suggests that Ex parte J.A.P. holds that the State may never prove the element of forcible compulsion by an implied threat when the accused is a juvenile,” 81 So.3d at 410; 2) mischar-acterizes the State’s argument as requesting that this Court infer a threat where none (express or implied) existed; and 3) erroneously held that the State failed to establish an implied threat based on the size and age discrepancy between the two children and based on the fact that the child-accuser saw the child-accused argue with his father and thus generally feared the child-accused.

First, nothing in this opinion suggests, much less holds, that an implied threat is insufficient to establish the forcible-compulsion element of first-degree rape when both the accuser and the accused are children. See §§ 13A-6-61(a)(1), and 13A-6-60(8), Ala.Code 1975. Instead, this Court faithfully applies the Alabama Supreme Court’s holding in Ex parte J.A.P. and declines to infer that C.D.B.—a child—impliedly threatened D.E.D.—another child—when there was no evidence indicating that C.D.B. explicitly or implicitly “communicated [an] intent to inflict harm on [D.E.D.].” Black’s Law Dictionary 1519 (8th ed.2004) (defining a threat).

Next, the dissent asserts that this Court mischaracterized the State’s argument and contends that the State presented sufficient evidence of an implied threat. Both the State and the dissent contend that the following factors are sufficient to establish an implied threat: 1) C.D.B. was older than D.E.D.; 2) C.D.B. was larger than D.E.D.; and 3) D.E.D. was, in general, afraid of C.D.B. because she had seen C.D.B. argue with his father and grab a belt out of his father’s hand. Contrary to the contentions of both the State and the dissent, none of these factors indicate, much less establish, that C.D.B. impliedly threatened D.E.D. A threat, whether explicit or implicit, is defined as “[a] communicated intent to inflict harm on another or on another’s property.” Black’s Law Dictionary 1519 (emphasis added). Thus, to establish a threat (implied or otherwise), the State must present some evidence indicating that the accused made some verbal or nonverbal communication indicating an intent to harm. In the present case, the State failed to present any evidence indicating that C.D.B. communicated an intent to harm. In fact, the State failed to present any evidence indicating that C.D.B. behaved in any threatening manner toward D.E.D. at any point in the past. Instead, D.E.D. testified that C.D.B. did not do anything to threaten her or to make her fear for her safety.

Despite the fact that C.D.B. did not do anything to threaten D.E.D. or to make her fear for her safety on the day of the incident, the State argues — and the dissent would hold — that an implied threat existed based on factors that do not establish any type of threatening communication, i.e., age discrepancy, size discrepancy, and a parent-child argument that did not involve the accuser. In other words, under the guise of an implied threat, the State and the dissent would infer a threat notwithstanding the fact that C.D.B. neither expressly or implicitly “communicated [an] intent to inflict harm ... on [D.E.D.].” Black’s Law Dictiona'ry 1519. The inference of a threat urged by the State and the dissent in this case, which involves two children, is precisely the type of inference prohibited under the Alabama Supreme Court’s opinion in Ex parte J.A.P.

Because the State failed to present any evidence of physical force or a threat of harm, it failed to establish an essential element of first-degree rape under § 13A-6-61(a)(l), Ala.Code 1975. Accordingly, C.D.B.’s adjudication of delinquency based on the charge of first-degree rape must be reversed and a judgment rendered in his favor.

REVERSED AND JUDGMENT RENDERED.

KELLUM, J., concurs. WELCH, P.J., and BURKE, J., concur specially, with opinion. JOINER, J., dissents, with opinion.

WELCH, Presiding Judge,

concurring specially.

I concur with the majority in this case that there was insufficient evidence to convict C.D.B. of first-degree rape; however, for the reasons that follow, I encourage the Alabama Legislature to amend § 13A-6-60, Ala.Code 1975, to eliminate “forcible compulsion” as an element of the sexual offenses in Article Four of the Criminal Code for child victims, the age of which should be determined by the legislature.

In this case, the majority correctly concludes that there was insufficient evidence tending to prove that C.D.B., who was then 14 years old, used physical force to overcome any earnest resistance by D.E.D., who was then nine years old. In addition, D.E.D. testified that C.D.B. did not threaten her or make her afraid for her safety when C.D.B. asked her to take her clothes off and get on top of him.

“Forcible compulsion” is defined as “[pjhysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” § 13A-6-60(8), Ala. Code 1975. Further, “forcible compulsion does not exist in a vacuum; rather it is viewed in light of the surrounding circumstances, such as the respective ages of the victim and the perpetrator, the relationship between them, the circumstances under which the act took place, and any injuries the victim suffered.” Ex parte Williford, 931 So.2d 10, 14 (Ala.2005).

Alabama’s first-degree-rape statute, Section 13A-6-61(a), Ala.Code 1975, states:

“(a) A person commits the crime of rape in the first-degree if:
“(1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion; or
“(2) He or she engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being physically helpless or mentally incapacitated; or
“(3) He or she, being 16 years or older, engages in sexual intercourse with a member of the opposite sex who is less than 12 years old.”

Here, the State was required to prove under § 13A-6-61(a)(l), Ala.Code 1975, that D.E.D., a nine-year-old, either earnestly resisted C.D.B.’s physical force or perceived that C.D.B. was threatening her life or threatening her with serious physical injury if she did not comply with his sexual advances. Because C.D.B. was 14 years old at the time of the offense, the State could not charge him under § 13A-6 — 61(a)(3), Ala.Code 1975, which does not require the State to prove forcible compulsion for victims less than 12 years of age. Under the Alabama Criminal Code, if the offender is 16 years of age or older it is unnecessary that a victim less than 12 years of age show resistance to the rapist or perceive a threat. However, the burden on the prosecution becomes much heavier if the defendant is less than 16 years of age because the prosecution must prove the element of forcible compulsion. When the offender is a juvenile, the child victim must exert more of a struggle or feel more threatened than if the offender had been an adult, which is counterintui-tive.

I acknowledge that juveniles of a certain age may not consent to sexual intercourse; however, situations where juveniles instigate crimes of sexual assault, rape, or sexual abuse against other juveniles represent a substantial proportion of sexual offenses committed.

“Although the numbers vary, studies report a growing number of juvenile sexual offenders. As recently as the 1980s, little attention was given to juvenile sexual offenders. However, this growing problem is finally attracting attention. In 2000, twenty-three percent of all sexual offenders were under the age of eighteen. Forty percent of those offenders victimized children under the age of six. In 2003, the Federal Bureau of Investigation (FBI) reported that of the 18,446 arrests made for forcible rapes, 1,108 of those arrested were under the age of fifteen and 2,966 were under the age of eighteen. Most disturbing is the report that of those 18,446 arrested, twenty-eight were under the age of ten, 266 were between the age of ten and twelve, and 814 were ages thirteen to fourteen. The report also showed that of the 63,759 arrests made for sexual offenses other than rape and prostitution, 6,531 of those arrested were under the age of fifteen and 12,747 were under the age of eighteen. Of those arrested under the age of fifteen, 420 were under age ten, 1,873 were ages ten to twelve, and 4,238 were ages thirteen to fourteen. Two commentators noted that ‘[t]he best available estimates claim that approximately twenty percent of all rapes and between thirty and fifty percent of all child molestations are perpetrated by adolescent males.’
“Some studies report that, overall, juvenile arrest rates have decreased since the 1980s. The FBI’s Violent Crime Index reports arrest rates for the most serious crimes, such as murder, forcible rape, robbery, and aggravated assault. In 2002, this report showed that, on average, juvenile arrests for these offenses had dropped by nineteen percent since 1998 to their lowest levels since 1980. While these numbers are encouraging, a closer look at the statistics reveals that there has not been a significant drop in juvenile sexual offenses. Forcible rape arrests dropped fourteen percent from 1998-2002, but arrests for sex offenses other than forcible rape and prostitution increased nine percent during that same period. In 2002, juveniles still made up twenty percent of arrests for sex offenses other than forcible rape and prostitution, and seventeen percent of arrests for forcible rapes.
“One study, by Howard Snyder of the National Center for Juvenile Justice, compiled data from the National Incident-Based Reporting System (NIBRS) to provide an interesting look at the age differences between juvenile offenders and juvenile victims. This data suggested that children nine-years-old and younger constituted seventy-eight percent of the victims of ten-year-old and under offenders, but only thirteen percent of the victims of seventeen-year-old offenders were nine or younger. Moreover, of all the victims under nine-years-old, sixty percent were victimized by offenders younger than fourteen and eighty-eight percent by offenders younger than fifteen.
“Not only are more and more juveniles committing sexual offenses, but their crimes are worsening in severity. For instance, in one [Texas] 2004 case, a fourteen-year-old juvenile was adjudicated delinquent on two counts of aggravated sexual assault for an attack on a nine-year-old girl. The victim’s head and genital region were bruised. Her injuries were severe enough to leave blood on her clothes and in her home. The examining counselor described the fourteen-year-old as a power rapist. In another case in Georgia, a sixteen-year-old was charged with raping two eight-year-olds, one of whom was his nephew. The youth was sentenced as a child molester because the rapes allegedly occurred on several occasions over an extended period of time.
“Illustrations of this trend can be seen in Alabama in the first few months of 2003. In January of 2003, an Alabama boy, only twelve-years-old, was accused of involvement in the raping of a nine-year-old girl. One month later, a fourteen-year-old Alabama boy was accused of raping a thirteen-year-old girl at their junior high school. In April, also at a school, a fifteen-year-old Alabama boy was accused of raping a fourteen-year-old girl.”

Jessica S. Varnon, Difficult Decisions: Should Alabama Laws Be Tougher on Juvenile Sexual Offenders? 57 Ala. L.Rev. 205, 205-08 (Fall 2005) (footnotes omitted).

It is well settled that whether there has been forcible compulsion is a question for the trier of fact. McGlocklin v. State, 910 So.2d 154 (Ala.Crim.App.2005). Yet, proving the element of forcible compulsion as to a child victim is a daunting task because children have a limited understanding of sexual relations. There is a plethora of caselaw in Alabama as to the difficulty of proving this element as to a child victim. In Williford, the Supreme Court stated:

“The force necessary to sustain a conviction for first-degree rape or first-degree sodomy is relative. Pittman v. State, 460 So.2d 232, 235 (Ala.Crim.App. 1984) (‘The force required to consummate the crime [of rape] against a mature female is not the standard for application in a ease in which the alleged victim is a child thirteen years of age.’), writ quashed, 466 So.2d 951 (Ala.1985). ‘[T]he “totality of the circumstances” should be considered in deciding whether there was sufficient evidence of forcible compulsion....’ Parrish v. State, 494 So.2d [705] at 713 [ (Ala.Crim.App. 1985) ].
“In concluding that the evidence was sufficient to support a finding of forcible compulsion, the Court of Criminal Appeals relied on Parrish v. State, supra. In Parrish the evidence showed that Parrish touched a 12-year-old girl’s ‘private parts’ while the child pretended to be asleep on a bed in Parrish’s house. 494 So.2d at 706-09. Parrish was the boyfriend of the child’s mother. The child testified that Parrish held her down by placing his foot over her leg and that Parrish left the bedroom when she pretended to wake up. 494 So.2d at 707. There was blood in the child’s panties, and the Court of Criminal Appeals concluded there was no evidence of any reason for the blood ‘other than the attack itself.’ 494 So.2d at 711.
“In affirming Parrish’s conviction, the Court of Criminal Appeals held that the fact that a 12-year-old girl makes no effort to resist a sexual confrontation beyond pretending to be asleep does not negate the inference that sufficient legal force was used to satisfy the element of forcible compulsion. 494 So.2d at 709. The Court of Criminal Appeals also held that when the issue of sufficiency of the evidence is raised in a sexual-abuse case, questions involving resistance and consent must be viewed ‘ “in the frame of the age of the assaulted girl.” ’ 494 So.2d at 710 (quoting Smith v. State, 36 Ala.App. 209, 213, 55 So.2d 202, 206 (1951)). There was no evidence suggesting ‘that the victim requested, encouraged, consented to or otherwise gave permission or sanction to, [Parrish’s] actions.’ 494 So.2d at 713. The record did not contain any indication that Parrish could have entertained, at any time, ‘ “any idea or expectation of permissive” sexual contact.’ 494 So.2d at 713. The Court of Criminal Appeals also concluded that there was no reason for there to be blood in the child’s panties, other than Parrish’s attack. Considering the totality of the circumstances, the Court of Criminal Appeals concluded that the record showed sufficient evidence of forcible compulsion to support a conviction of first-degree sexual abuse, [footnote omitted] 494 So.2d at 713. Therefore, forcible compulsion does not exist in a vacuum; rather, it is viewed in light of the surrounding circumstances, such as the respective ages of the victim and the perpetrator, the relationship between them, the circumstances under which the act took place, and any injuries the victim suffered.”

Ex parte Williford, 931 So.2d at 13-14.

In Powe v. State, 597 So.2d 721 (Ala. 1991), the Supreme Court stated:

“In Pittman \v. State, 460 So.2d 232, 235 (Ala.Crim.App.1984) ], the Court of Criminal Appeals held that ‘[i]t is clear that the force required to consummate rape in the first degree is necessarily relative. The force required to consummate the crime against a mature female is not the standard for application in a case in which the alleged victim is a child.’ 460 So.2d at 235. The Pittman court concluded that the evidence in that case was sufficient to satisfy the forcible compulsion element of rape in the first degree. Id. The evidence consisted mainly of the 13-year-old victim’s testimony that she initially refused to have intercourse with her stepfather, the defendant, but that she eventually cooperated after she was expressly threatened. 460 So.2d at 234-35.
“In Pamsh, the Court of Criminal Appeals addressed a sufficiency-of-the-evidence argument with regard to a first degree sexual abuse conviction. The first degree sexual abuse statute, like the first degree rape statute, requires a finding of forcible compulsion. See § 13A-6-66(a)(l), Ala.Code 1975.
“The evidence in Parrish showed that the defendant, who was the boyfriend of the victim’s mother, touched the 12-year-old victim’s private parts while the victim pretended to be asleep on a bed in the appellant’s house. 494 So.2d at 706-09. The victim in Parrish testified that the defendant held her down by putting his foot over her leg and that when she pretended to wake up, the defendant left the room. 494 So.2d at 707. In affirming the conviction, the Parrish court held that the mere fact that a 12-year-old girl makes no effort to resist a sexual confrontation does not negate the inference that sufficient legal force existed. 494 So.2d at 709. The court went on to hold that when a suffi-cieney-of-the-evidence issue is raised in cases stemming from an alleged sexual assault of minors, questions involving resistance and consent must be viewed in the context of the age of the assaulted minor. 494 So.2d at 710. Applying a totality-of-the-circumstances test, the court concluded that the record revealed a sufficient evidentiary showing on the forcible compulsion element of the crime charged. 494 So.2d at 713.
“Although the Parrish court ultimately held that the element of forcible compulsion was satisfied by the fact that the victim was held down by the defendant and by the fact that the victim stated that she had blood in her panties after the assault, other factors that the court considered significant were: (1) the victim’s age and the fact that the attack was perpetrated by the boyfriend of the victim’s mother; (2) that the defendant, who had been drinking and smoking marijuana, got into bed with the victim; (3) that the victim testified that the defendant had sexually molested her on another occasion but that her mother had ignored her when she tried to tell her about the assault; and (4) that the victim was in a particularly vulnerable situation because the assault took place at the defendant’s residence. 494 So.2d at 710. The court, in Parrish, further noted that the jury had the opportunity to consider factors such as the relative size of the parties, their ages, and their social differences. Id.
“A third Court of Criminal Appeals case cited by the parties is Rider v. State, 544 So.2d 994 (Ala.Crim.App.1989), [overruled by R.E.N. v. State, 944 So.2d 981 (Ala.Crim.App.2006),] which was relied on by the court below in its reversal of Powe’s conviction. In Rider, as in Pittman and in Parrish, the defendant’s primary argument was that the evidence was insufficient to support a finding of forcible compulsion. 544 So.2d at 994. The defendant in Rider, the 27-year-old stepfather of the alleged victim, a child, was convicted of sexual abuse in the first degree and sodomy in the first degree. Id. The child testified that the defendant forced her hand onto his penis and that the defendant touched her breasts and her vagina. Id. The child further testified that the defendant performed oral sex on her and asked her to perform oral sex on him. Id. She testified that the touching began sometime after her 9th birthday and continued until around her 12th birthday. 544 So.2d at 995. When the prosecutor asked the child if she ‘voluntarily’ performed oral sex acts on the defendant, she did not answer. Id. She testified that she tried to ‘mind’ her stepfather because she ‘liked the way he treated her, like she was his only child.’ Id. She further stated that the defendant had never done anything to make her afraid of him and that she was not afraid of him. Id. In reversing the defendant’s conviction, the Rider court concluded that there was no evidence that the child made any protest or complaint to the defendant sufficient to indicate that her earnest resistance was overcome. Id. Applying the totality-of-the-circumstances standard, the court found that the evidence was insufficient to support a finding of either physical force or a threat, express or implied. 544 So.2d at 996.
“After reviewing the Court of Criminal Appeals’ decisions in Pittman, Parrish, and Rider, we find the facts of each to be distinguishable from the facts presented in the instant case. In Pittman, there was evidence that the victim was expressly threatened, and that evidence was held to be sufficient on the element of forcible compulsion. In Parrish, there was evidence that physical force was used to restrain the victim, and that evidence was held to be sufficient evidence on the element of forcible compulsion. Finally, in Rider, there was neither a threat of any kind nor the use of any physical force. Furthermore, there was nothing in the record to show that the sex acts were anything other than voluntary.
“The record in this case reveals no evidence that physical force was used on the victim or that the victim was expressly threatened. Therefore, we find the Court of Criminal Appeals’ decisions in Pittman and Parrish, since those cases, respectively, concern evidence of physical force and evidence of an express threat, to be inapplicable under the facts of the present case. Furthermore, we distinguish the Rider case because we find that the evidence in the present case, unlike the evidence in Rider, merits an analysis of whether, viewing the totality of the circumstances, a jury could properly find that an implied threat was made against the victim sufficient to satisfy the element of forcible compulsion.”

Powe v. State, 597 So.2d at 725-26.

This Court has previously held that the element of forcible compulsion can be proved without evidence of physical force or evidence of an express threat if the defendant was in position of dominance or control over the victim, which is evidence of an implied threat. Powe v. State, 597 So.2d 721 (Ala.1991). In Ex parte J.A.P., 853 So.2d 280 (Ala.2002), a “delinquency petition was filed in the Jefferson Juvenile Court, charging J.A.P., a 14-year-old male, with the attempted first-degree rape of his 9-year-old half sister, L.P.” 858 So.2d at 281. J.A.P. argued on appeal that there was insufficient evidence of forcible compulsion to adjudicate him delinquent of the petition. The Court of Criminal Appeals held that there was sufficient evidence to adjudicate J.A.P. delinquent of attempted first-degree rape:

“The record indicates the following: The incident in question occurred when the appellant and the victim were alone at home. The appellant, who was approximately four and a half years older than the victim, made the victim watch a pornographic video, attempted to engage in sexual intercourse with her, and told the victim not to tell anyone. This was not the first incident of the sexual abuse of the victim. From the time that she was four or five years old, the victim had been the object of continued sexual abuse by older males, including C.P. (the appellant’s brother, who was five years older than the appellant), a friend of C.P.’s, an uncle, and the appellant. (R. 60-61, 72-73.) The appellant had shown the victim a pornographic video on at least one previous occasion; he had touched the victim in her genital area with his penis on at least one occasion before this incident; and he had touched the victim’s genital area with his fingers on numerous occasions. (R. 60, 62, 72, 79-81.) The evidence also indicated that the appellant and the victim were raised in a dysfunctional household, in the presence of a parent and a stepparent who abused alcohol and/or took illegal drugs, and that they were quite often left to fend for themselves, without parental supervision, and with ready access to pornographic videos. (R. 119-61.)
“With respect to the incident in question, the victim testified that the appellant ‘made’ her watch the pornographic video by telling her to ‘come on’ and'that she always knew when she was told to watch one of the pornographic videos with her older half brothers that sexual contact would follow. The victim also testified that she was ‘afraid’ of the appellant and that she knew that what he was doing was wrong. (R. 51-54, 57-59, 65-69, 79, 83-85, 90.) The evidence revealed a continuing pattern of sexual abuse by the victim’s older half brothers. The victim acknowledged a fear of any male who wanted to touch her. (R. 92-93.)
“The appellant testified that he had been sexually abused by his brother, C.P., on a number of occasions. (R. 172-75.) He also stated during the hearing that nothing had physically prevented him from engaging in sexual intercourse with the victim. He testified that he had aborted his attempt to penetrate the victim because she began to cry. The evidence also indicated, and the juvenile court noted, that the appellant had previously told a police investigator that he had stopped because he could not physically insert his penis into the victim’s vagina. (R. 202-06.)”

J.A.P. v. State, 853 So.2d 264, 266-67 (Ala.Crim.App.2001).

The Court of Criminal Appeals relied on B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000), which held that there was sufficient evidence of forcible compulsion where the juvenile offender was an older family member who exerted dominance and con-tool over the juvenile victim. However, the Alabama Supreme Court reversed the judgment of the Court of Criminal Appeals, overruling B.E. v. State, and limited Powe ⅛ holding to cases involving sexual assaults by adults on child victims.

Therefore, requiring that the State prove that a child victim “earnestly resisted” another juvenile’s physical force to perform sexual acts, in effect, requires the victim to understand the nature of sexual activity and appreciate why it is inappropriate or wrong, which the child victim may be incapable of doing. Certainly very young children do not understand the ramifications of sexual activity but can be emotionally scarred for life when victimized. Further, whether the offending juvenile exerted control or dominance over the juvenile victim may not be considered as sufficient evidence that there was forcible compulsion. However, younger children are often placed under the supervision of older, more mature children for shorter periods when adult supervision may not be available. Moreover, even if a younger child is not being supervised by another older child, the younger child often will imitate the older child or accede to the wishes of the older child either out of ignorance or peer pressure. Older children have an acute effect upon the behavior of a younger children, and there is a tendency among young children to imitate and accede to the demands of an older child, which may stem from a desire to act more like a “grown up.” Older children may use this willingness to take advantage of younger children, sometimes in ways that are harmless, but sometimes, as in this case, in an invidious manner to entice a younger child to do something harmful to themselves.

In addition, § 18A-6-70(c)(l), Ala.Code 1975, states that victims less than 16 years old are incapable of consent as a matter of law. I believe that child victims of young and tender years do not understand the nature and consequences of sexual relations; therefore, force and/or threats, whether express or implied, should not be an element of a juvenile sex offense if the victim is below a certain age, regardless of the age of the offender. The precise age at which forcible compulsion should continue to be an element of juvenile sex offenses is a matter to be determined by the legislature.

The Alabama Juvenile Justice Act, § 12-15-101, Ala.Code 1975, was enacted “to facilitate the care, protection, and discipline of children who come under the jurisdiction of the juvenile court, while acknowledging the responsibility of the juvenile court to preserve the public peace and security.” Under the provisions and mechanisms of this act, juvenile sex offenders may be appropriately disciplined and rehabilitated for the offenses which they commit. I respectfully request the Alabama Legislature to remove “forcible compulsion” as an element from sexual offenses committed against child victims of young and tender years who have been sexually assaulted by child offenders of young and tender years. Without this amendment, there is no adequate statute to bring these juvenile offenders within the jurisdiction of the juvenile court for punishment and treatment.

BURKE, Judge,

concurring specially.

I agree that the current law in Alabama allows some rape and sexual-abuse crimes against child victims to go unpunished, where the perpetrator was also a child. Judge Windom’s well written opinion states the law as applied to the facts of this case. In this matter, a 14-year-old boy who was more than 6 feet tall and who weighed approximately 300 pounds had sexual intercourse with a 9-year-old, 90-pound girl. These circumstances are greatly disturbing and demand justice for this little girl. However, because the rape statute requires a showing of forcible compulsion by the 14-year-old boy, he cannot be convicted of rape. Requiring the district attorneys of our State to prove forcible compulsion in these types of cases fails to take into account that children may believe that they must acquiesce to other children, especially when the perpetrator is older and bigger than the victim. In sex crimes involving two children, I believe that the element of forcible compulsion should be replaced with elements that reflect a child’s naivete and resultant acquiescence, even where the perpetrator is another child. I believe this should be done by modifying those statutes to consider the age differential between the victim and the perpetrator, as well as other circumstances surrounding the act and the parties, rather than adhering to the requirement of forcible compulsion. This would present a matter for the fact-finder’s consideration and weighing determination and ensure justice for victims like the little girl in this matter. Therefore, I respectfully ask the legislature to revisit this statute.

JOINER, Judge,

dissenting.

I respectfully dissent. The issue in this appeal is whether the State presented sufficient evidence of the forcible-compulsion element of first-degree rape. See § 13A-6-61(a)(l), Ala.Code 1975 (“A person commits the crime of rape in the first-degree if ... [h]e or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion_”). “Forcible compulsion” is defined as “[pjhysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” § 13A-6-60(8), Ala.Code 1975 (emphasis added).

The main opinion holds that there was insufficient evidence of forcible compulsion to support C.D.B.’s conviction for first-degree rape. As to whether the State presented sufficient evidence of forcible compulsion by an implied threat, the main opinion cites Ex parte J.A.P., 853 So.2d 280 (Ala.2002). The main opinion states that in Ex parte J.A.P. the Alabama Supreme Court held that “its decision in Powe v. State, 597 So.2d 721 (Ala.1991), under which an implied threat may be inferred, applies only in ‘cases involving the sexual assault of children by adults who exercised positions of domination and control over the children’ and does not apply in cases involving sexual relations between two children.” 81 So.3d at 401 (quoting Ex parte J.A.P., 853 So.2d at 284). The main opinion also cites D.W. v. State, 3 So.3d 955, 957 (Ala.Crim.App.2008), for the same proposition.

To the extent the main opinion suggests that Ex parte J.A.P. holds that the State may never prove the element of forcible compulsion by an implied threat when the accused is a juvenile, I respectfully disagree. If Ex parte J.A.P. indeed stands for the proposition that forcible compulsion may never be proved by an implied threat in a case involving two juveniles, the decision is in conflict with the plain meaning of the language in the statutory definition of “forcible compulsion” in § 13A-6-60(8), Ala.Code 1975, which does not exclude from its application cases involving two juveniles. The holding in Ex parte J.A.P., however, is clearly limited to those situations in which the State attempts to prove an implied threat solely by alleging that the threat may be inferred based upon the accused’s allegedly exercising a position of domination and control over the alleged victim. Ex parte J.A.P., 853 So.2d at 284 (“This Court [in Powe v. State, 597 So.2d 721 (Ala.1991),] made it quite clear that its holding would apply only to cases involving the sexual assault of children by adults who exercised positions of domination and control over the children.”).

In the present case, the State does not argue, as the main opinion suggests, that an implied threat may be inferred because C.D.B. allegedly exercised a position of domination and control over D.E.D. Rather, the State cites the size discrepancy between C.D.B. and D.E.D. — at the time of the incident, C.D.B. was 6 feet 1 inch tall and weighed 827 pounds, and D.E.D. was less than 4 feet 3 inches tall and weighed less than 85 pounds. The State also cites D.E.D.’s testimony that at some point before the incident in question she had seen C.D.B. “rip a belt away from his dad while he was being whipped.” (State’s brief, p. 9.) Specifically, D.E.D. testified:

“Q. ... [W]hat did you think would happen if you told [C.D.B.], no, I’m not going to sit down on top of you, I’m not going to do that? What did you think was going to happen?
“A. When Daddy was whooping [C.D.B.) when he did something before that, he snatched the belt away from Daddy, and when Daddy came out of the kitchen, his toe was bleeding. I didn’t want him to find anytMng around me that he could hit me with and hurt me.”

(R. 27 (emphasis added).) Under these particular circumstances, the State argues that it was reasonable for D.E.D. to think that C.D.B. would hurt her if she did not do what he told her to do. D.E.D.’s fear was not based on a generalized “implied threat of some sort of disciplinary action” as might exist in the context of a parent-child relationship. Instead, according to her testimony, her fear was based on a specific instance: having seen C.D.B. “snatch” a belt from his father while the father was disciplining him. Accordingly, I think the facts in this case distinguish it from Ex parte J.A.P., supra, as well as Powe, supra, on which Ex parte J.A.P. relied. In both Ex parte J.A.P. and Powe, there was no evidence indicating that the alleged victims claimed to have been afraid based on observing the actions of the accused in a specific past incident like that described by D.E.D. in the present case.

“[F]orcible compulsion does not exist in a vacuum; rather it is viewed in light of the surrounding circumstances, such as the respective ages of the victim and the perpetrator, the relationship between them, the circumstances under which the act took place, and any injuries the victim suffered.” Ex parte Williford, 931 So.2d 10, 14 (Ala.2005). In this case, the juvenile court had the “opportunity to observe the appellant’s physical characteristics, including his size and strength, as compared to [the victim’s] size and strength, during the delinquency hearing.” C.M. v. State, 889 So.2d 57, 63 (Ala.Crim.App.2004). Although D.E.D. testified that C.D.B. did not expressly threaten her or “do anything to make [her] feel like if [she] didn’t do [what he asked], he would hurt [her],” 81 So.3d at 400-01, the juvenile court also had before it D.E.D.’s testimony that because she had seen C.D.B. overpower his father before, she was afraid that C.D.B. would hurt her if she did not comply. Thus, the juvenile court had conflicting evidence as to whether C.D.B. implicitly threatened D.E.D. Consequently, I think there was sufficient evidence from which the juvenile court could conclude that the State proved the element of forcible compulsion based on an implied threat that C.D.B. would harm D.E.D. if she did not do what he told her to do. See Poole v. State, 650 So.2d 541, 543 (Ala.Crim.App.1994):

“ ‘... “[A] jury may believe part of the evidence of a witness and reject part.” Cochran v. State, 42 Ala.App. 144, 147, 155 So.2d 530, cert. denied, 275 Ala. 693, 155 So.2d 533 (1963). “In order to convict the defendant the jury was not required to accept as true every statement of the witnesses.” Freeman v. State, 37 Ala.App. 623, 630, 74 So.2d 513, cert. denied, 261 Ala. 697, 74 So.2d 520 (1954). “Conflicting evidence should be reconciled by the jury, if possible, and if they can not reconcile it, they may base their verdict on that part of the testimony which they consider worthy of credit, and reject that which they deem to be unworthy of belief. Inconsistencies and contradictions in the testimony of a witness do not make it inherently improbable.” Arnold v. State, 33 Ala.App. 146, 147, 30 So.2d 587 (1947). “It is not the law that mere contradicting statements or declarations of a witness are sufficient to raise a reasonable doubt in the minds of the jury as to the truth of the testimony of a witness.” Walters v. State, 24 Ala.App. 370, 373, 135 So. 600 (1931).
“ ‘ “The inconsistencies may impair the credibility of the witness and reduce the weight of the testimony, but they do not destroy the probative force of the testimony as a matter of law — the weight to be given such testimony is for the trier of fact to determine.” 30 Am.Jur.2d Evidence § 1082 (1967).’
“Jones v. State, 469 So.2d 713, 716-17 (Ala.Cr.App.1985). ‘The weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and the inferences to be drawn from the evidence, even where susceptible to more than one rational conclusion, are for the jury.’ Ward v. State, 356 So.2d 238, 240 (Ala.Cr.App.), cert. denied, 356 So.2d 242 (Ala.1978). The credibility of the 11-year-old victim was an issue for the jury. ‘It is not the business of this court to second-guess juries.’ Smith v. State, 604 So.2d 434, 436 (Ala.Cr.App.1992).”

In this case, this juvenile court was the trier of fact and was in the best position to weigh and evaluate the evidence, including the evidence going to the issue whether an implied threat existed. This Court should not reweigh the evidence or substitute its judgment for that of the juvenile court. I would therefore affirm the juvenile court’s adjudication of C.D.B. as delinquent.

      . According to the forensic report made following the incident, he weighed 360 pounds at that time. (C. 30.)

      . L.P., the alleged victim in Ex parte J.A.P., did testify that she was "afraid” of J.A.P. "and that she knew that what he was doing was wrong.” J.A.P. v. State, 853 So.2d 264, 267 (Ala.Crim.App.2001), rev'd, 853 So.2d 280 (Ala.2002). That fear, however, apparently was based on alleged previous instances of "sexual contact” between J.A.P. and L.P. There was no evidence indicating that L.P. claimed to be afraid of J.A.P. because she thought he would hurt her if she did not comply.


author: PER CURIAM.

text:
    David SPRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5181.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2011.
    Rehearing Denied Feb. 27, 2012.
    David Springer, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008).

MAY, C.J., GROSS and TAYLOR, JJ., concur.