text:
    DILLARD’S, INC. v. Kenneth GALLUPS.
    2090994.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.

      James L. Sanders II and Timothy M. Allen of Estes, Sanders & Williams, LLC, Birmingham, for appellant.
    Matthew W. White of Adams, Umbach, Davidson & White, LLP, Opelika, for ap-pellee.
   THOMAS, Judge.

On February 15, 2009, Kenneth Gallups sued Dillard’s, Inc., seeking workers’ compensation benefits (“the workers’ compensation claim”) and alleging that Dillard’s had discharged him from his employment in violation of Ala.Code 1975, § 25-5-11.1, solely because he had made a claim for workers’ compensation benefits (“the retaliatory-discharge claim”); that action was assigned case number CV-09-900091. Dillard’s moved to sever the workers’ compensation claim from the retaliatory-discharge claim, filed separate answers to both claims, and moved to compel arbitration as to the retaliatory-discharge claim. Gallups opposed Dillard’s motion to compel arbitration.

The trial court severed the retaliatory-discharge claim from the worker’s compensation claim, assigned the retaliatory-discharge claim case number CV-09-900091.01 (“the retaliatory-discharge case”), stayed discovery in the retaliatory-discharge case, and set a hearing on the motion to compel arbitration for July 31, 2009. However, although the retaliatory-discharge case was assigned case number CV-09-900091.01, the parties and the trial court continued to file all motions, responses, and orders relating to the retaliatory-discharge case in case number CV-09-900091. After the hearing on the motion to compel arbitration, the trial court denied that motion. Dillard’s appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

“ ‘A direct appeal is the proper procedure by which to seek review of a trial court’s order denying a motion to compel arbitration.’ Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala. 2000); Rule 4(d), Ala. R.App. P. We review the trial court’s grant or denial of a motion to compel arbitration de novo. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala.2003). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala. 2003). The moving party ‘ “ ‘must produce some evidence which tends to establish its claim.’ ” ’ Wolff Motor Co. v. White 869 So.2d 1129, 1131 (Ala.2003) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995), quoting in turn In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). Once the moving party meets this initial burden, the nonmovant then has the burden to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case. Polaris, 879 So.2d at 1132.”

Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052-53 (Ala.2007).

The contract governing the arbitration of disputes between Dillard’s and its employees is entitled “Rules of Arbitration” (“the Rules”). According to the Rules, the following types of claims, among others not relevant here, are required to be arbitrated:

“Personal injuries except those covered by workers’ compensation or those covered by an employee welfare benefit plan, pension plan or retirement plan which are subject to the Employee Retirement Income Security Act of 1974 (ERISA) other than claims for breach of fiduciary duty (which shall be arbitra-ble).
“Retaliation for filing a protected claim for benefits (such as workers’ compensation) or exercising your protected rights under any statute.”

Based on the above-quoted provisions, Dillard’s argued that, although Gallups’s workers’ compensation claim was specifically excluded under the Rules, his retaliatory-discharge claim was specifically included as an arbitrable claim. Gallups argued, however, that the above-quoted provisions created an ambiguity because, he contended, his retaliatory-discharge claim arose under the Alabama Workers’ Compensation Act, codified at Ala. Code 1975, § 25-5-1 et seq., and would therefore be exempted from the agreement by the first-quoted provision above (“the first provision”) while being included as a arbitrable claim by the second-quoted provision above (“the second provision”). Gallups further argued that a retaliatory-discharge claim was not arbitrable under the Rules because, he asserted, the Rules required that he have filed a protected claim like his workers’ compensation claim and he had not actually filed a claim for benefits before he was discharged. Finally, Gallups argued that the language of the second provision is vague, ambiguous, and confusing and that, by its language, it does not apply to his retaliatory-discharge claim.

The trial court determined in its order denying Dillard’s motion that Gallups’s retaliatory-discharge claim arose under the Alabama Workers’ Compensation Act and that, therefore, it was not subject to arbitration under the Rules. In its detailed order, the trial court relied in large part on federal district court cases holding that retaliatory-discharge claims arise under the Alabama Workers’ Compensation Act for purposes of determining whether actions containing such claims can be removed to federal court pursuant to 28 U.S.C. § 1445(c), which prohibits removal to the federal courts of “[a] civil action in any State court arising under the workmen’s compensation laws of such State.” See, e.g., Reed v. Heil Co., 206 F.3d 1055 (11th Cir.2000); Brooks v. Wireless One, Inc., 48 F.Supp.2d 1294 (M.D.Ala.1999); and Subra v. CMS Therapies, Inc., 900 F.Supp. 407 (M.D.Ala.1995). The trial court also relied on cases involving releases signed in workers’ compensation actions, which releases have been construed to preclude a subsequent retaliatory-discharge action arising out of the workers’ compensation claim giving rise to the release. Sanders v. Southern Risk Servs., 603 So.2d 994 (Ala.1992); Gates Rubber Co. v. Cantrell, 678 So.2d 754 (Ala.1996); and Walton v. Beverly Enters.-Alabama, Inc., 4 So.3d 537, 545 (Ala.Civ.App.2008). Based on those cases, the trial court concluded that Gallups’s retaliatory-discharge claim arose out of the Alabama Workers’ Compensation Act and was therefore a claim for “[pjersonal injuries ... covered by workers compensation” which is not arbitrable under the Rules.

Dillard’s argues on appeal that the language of the Rules clearly requires arbitration of Gallups’s retaliatory-discharge claim. According to Dillard’s, the trial court’s reliance on federal case-law applying § 1445 and Alabama case-law governing releases is misplaced because the Alabama Supreme Court has held that a retaliatory-discharge action does not arise under the Alabama Workers’ Compensation Act. See Jackson County Hosp. v. Alabama Hosp. Ass’n Trust, 619 So.2d 1369, 1371 (Ala.1993). Finally, Dillard’s relies on the presumption in favor of arbitration that arises under the Federal Arbitration Act, codified at 9 U.S.C. § 1 et seq., which, it contends, requires that any questions regarding arbitrability should be resolved in favor of arbitration. See Title Max of Birmingham, Inc. v. Edwards, Inc., 973 So.2d 1050, 1054 (Ala.2007) (quoting Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745 (Ala.2000) (quoting in turn Volt Info. Scis., Inc. v. Board of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989))) (‘““[D]ue regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” ’ ”).

It is well settled that “ ‘ “[a]rbi-tration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ ” Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002) (quoting AT & T Techns., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960))). A court should apply state-law contract principles when considering whether the parties intended to arbitrate a particular dispute. McCollough, 776 So.2d at 745 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985, (1995)). However, “ ‘in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [Federal Arbitration] Act, due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.’ ” McCollough, 776 So.2d at 745 (quoting Volt Info. Scis., 489 U.S. at 475-76, 109 S.Ct. 1248). “ ‘[A]s with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.’ ” McCollough, 776 So.2d at 746 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). “Thus, a motion to compel arbitration should not be denied ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001) (quoting United Steelworkers of America, 363 U.S. at 582-83, 80 S.Ct. 1347).

Alabama law provides that “the intent of the contracting parties is discerned from the whole of the contract.” McCollough, 776 So.2d at 746. In addition, the terms used in the contract are to be given their plain, ordinary, and natural meaning, except in cases where its is apparent that the terms have special or technical meanings. Id. Because Gallups argues that the terms of the two relevant provisions are ambiguous, we note that,

“[i]f the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written. On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity.”

Id. (internal citations omitted). Finally, we note the rule of construction providing that “where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that -will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms.” Id.

The language of the provisions at issue provide clearly that a workers’ compensation claim is not arbitrable. Gallups argued, and the trial court concluded, that the second provision subjecting retaliatory-discharge claims to arbitration was made ambiguous by the fact that, under Alabama law, whether a retaliatory-discharge claim is considered to arise out of the Alabama Workers’ Compensation Act is somewhat unclear. Thus, the trial court turned to federal caselaw construing § 1445(c), which prohibits removal to the federal courts of “[a] civil action in any State court arising under the workmen’s compensation laws of such State,” to assist it in determining whether a retaliatory-discharge claim arises under the Alabama Workers’ Compensation Act and therefore whether the Rules excluded Gallups’s claim from arbitration because of the language of the first provision. Although we understand that the federal cases relied upon by the trial court are persuasive authority indicating that a retaliatory-discharge claim arises under the Alabama Workers’ Compensation Act, that authority is not binding on this court. See, e.g., Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165,167 n. 2 (Ala.1991). Notably, in determining that retaliatory-discharge claims arise under the Aabama Workers’ Compensation Act, the United States Court of Appeals for the Eleventh Circuit stated that “the Alabama courts and legislature, however, cannot decide for us whether the retaliatory discharge provision arises under the workers’ compensation laws within the meaning of section 1445(c),” because § 1445(c) is a federal jurisdiction statute, the interpretation of which is governed by federal and not state law. Reed, 206 F.3d at 1059. We also find reliance on federal caselaw construing a federal jurisdiction statute unnecessary because, in our opinion, the Alabama Supreme Court has spoken on the issue.

Our supreme court has determined that, although a retaliatory-discharge action “operates to protect an employee who files a traditional workers’ compensation claim ..., [it] does not itself become a ‘workers’ compensation’ action.” Jackson County Hosp., 619 So.2d at 1371. The issue in Jackson County Hospital was whether the Alabama Hospital Association Trust (“the Trust”) was required to defend Jackson County Hospital (“the Hospital”) against a retaliatory-discharge claim brought against the Hospital. Id. at 1370. Although the opinion does not make it clear, the agreement between the Trust and the Hospital must have excluded workers’ compensation claims from those claims the Trust was required to defend. Id. at 1370-71. After considering Minnesota law on the subject, the court determined that, because the Minnesota workers’ compensation statutes tied the claim for damages to the amount of the claim for compensation benefits and Alabama law does not, Minnesota law was not persuasive. Id. at 1371. Instead, the court said, because retaliatory-discharge claims entitle a claimant to damages proven under the general law of torts and may be submitted to a jury for decision, a retaliatory-discharge claim in Alabama is not like a similar claim in Minnesota, which does arise under that state’s workers’ compensation statutes. Id. After pointing out “that claims that do ‘arise under’ workers’ compensation laws are generally for occupational diseases and accidental injuries resulting from one’s employment,” the court held that “the retaliatory discharge claim is in the nature of a traditional tort, albeit one that is applied in the specialized circumstances of a worker’s compensation claim, and thus does not arise ‘under’ our workers’ compensation law for purposes of the general liability insurance provision in this case.” Id.

Although the federal courts have indicated that Jackson County Hospital is limited by its own language to only those cases involving an issue of insurance coverage arising from the construction of a general liability provision in an insurance contract, see, e.g., Brooks, 43 F.Supp.2d at 1296-97, and Subra, 900 F.Supp. at 410, we cannot agree that such a limitation, even if our supreme court had so limited its holding, would prevent the application of the holding in Jackson County Hospital to this particular case, which also involves the interpretation of a contract. As noted above, the Eleventh Circuit Court of Appeals has explained that Alabama’s own view of whether a retaliatory-discharge claim arose under the Alabama Workers’ Compensation Act was of little interest to the federal court because federal law governs the interpretation of § 1445(c). Reed, 206 F.3d at 1059; see also Subra, 900 F.Supp. at - 410-11 (quoting Spearman v. Exxon Coal USA, Inc., 16 F.3d 722, 724 (7th Cir.1994)) (“In [the] context [of construing and applying § 1445], ‘[t]hat federal law supplies the definition of “workmen’s compensation laws” is beyond doubt.’”). As our supreme court determined in Jackson County Hospital, under Alabama law, a retaliatory-discharge case is not a workers’ compensation action and is instead a traditional tort action. Jackson County Hosp., 619 So.2d at 1371.

The trial court’s reliance on Sanders and Cantrell as authority for determining that a retaliatory-discharge claim arises under the Alabama Workers’ Compensation Act is also misplaced. In both Sanders and Cantrell, our supreme court considered whether certain language contained in releases executed by employees in the settlement of their workers’ compensation actions also released any claim alleging retaliatory discharge that the employee might have. The language of the release in Sanders was quite broad, releasing both “ ‘any and all claims for compensation benefits due and rehabilitation or retraining benefits due under the Workmen’s Compensation Act’ ” and “ ‘all claims on account of said injury, under [the Workmen’s Compensation] Act or otherwise.’ Sanders, 603 So.2d at 995 (emphasis added). Our supreme court determined that the release in Sanders “on its face releases [the employer] of all other obligations to [the employee].” Id. at 996.

The release in Cantrell was not nearly as broad, however, indicating that the employer was released from “‘any and all liability now accrued or hereafter to accrue for compensation and vocational rehabilitation benefits under the workmen’s compensation laws of the State of Alabama, or otherwise.’” Cantrell, 678 So.2d at 754 (emphasis omitted). Nevertheless, based on the decision in Sanders, the Cantrell court held that the release did bar the employee’s retaliatory-discharge claim. Id. at 756.

The trial court also relied on Walton, 4 So.3d at 545, in which this court, applying the holdings of both Sanders and Cantrell, determined that a release executed in conjunction with an employee’s workers’ compensation action did bar her from pursuing a retaliatory-discharge action. The language in the release under consideration in Walton was extremely broad, releasing

‘any and all claims, demands, causes of action, suits, and losses of every kind or nature, whether liquidated or contingent, which the undersigned may have or may have had at any time heretofore or may have at any time hereafter pertaining or relating to any matters or things occurring or failing to occur or in any manner connected with or growing out of the incident described in [the employee’s workers’ compensation action] and including, without limitation, all claims resulting from or arising out of the alleged incidents forming the basis of the Lawsuit that the undersigned has alleged against the Released Parties.’ ”

Walton, 4 So.3d at 538-39 (emphasis added).

As we explained in Jones v. Ruth, 31 So.3d 115, 119 (Ala.Civ.App.2009), our supreme court has more recently considered release language similar to that used in Cantrell to have been insufficient to release tort claims against the employer asserted under Ala.Code 1975, § 25-5-11(c)(2). In Dudley v. Mesa Industries, 770 So.2d 1082, 1084 (Ala.2000), our supreme court determined, based in part on the characterization of actions under § 25-5-11 as tort claims for damages and not as workers’ compensation claims, that “the language used by the trial court in its [order approving the settlement agreement] releasing [the employer] from all claims for ‘compensation and vocational rehabilitation benefits’ arising under the Workers’ Compensation Act applied only to [the employee’s] claim for workers’ compensation and vocational benefits.” Based on Dudley and Jackson County Hospital, this court determined in Jones that claims made under § 25-5-11 did not arise under the Workers’ Compensation Act because they were tort claims seeking damages and not traditional workers’ compensation claims seeking payment of benefits as a result of an accidental workplace injury or the contraction of an occupational disease. Jones, 31 So.3d at 121.

Thus, based on the development of the law since Cantrell, we cannot conclude that a retaliatory-discharge claim arises under the Workers’ Compensation Act merely because in Cantrell our supreme court read release language that appears to have applied only to claims made for compensation and vocational benefits under the Workers’ Compensation Act expansively to preclude a retaliatory-discharge claim. Our supreme court has classified a retaliatory-discharge claim as a tort claim that does not arise under the Workers’ Compensation Act for the purposes of a general liability provision contained in an insurance contract, Jackson County Hosp., 619 So.2d at 1371, and has determined that release language pertaining to claims for compensation and vocational-rehabilitation benefits due under the Workers’ Compensation Act does not encompass claims under § 25-5-11, in part because those claims are considered to be tort claims and not workers’ compensation claims. Dudley, 770 So.2d at 1084-85. Based on Dudley and Jackson County Hospital, therefore, we hold that the trial court erred in concluding that Gallups’s retaliatory-discharge claim could not be arbitrated because it fell under the first of the two relevant above-quoted provisions in the Rules. A retaliatory-discharge claim does not arise under the Workers’ Compensation Act such that it falls within the exclusion stated in the Rules for “[p]ersonal injuries ... covered by workers’ compensation.”

As a further basis for affirming the trial court’s judgment and as further support for the conclusion that his retaliatory-discharge claim should not be considered subject to arbitration under the Rules, Gallups relies on other language in the second provision that, he says, either creates ambiguities that should be construed against Dillard’s or that prevent the application of the second provision to his retaliatory-discharge claim. Gallups first argues that the use of the term “filing” in the second provision prevents its application to his retaliatory-discharge claim because he had not yet filed a workers’ compensation claim at the time he was discharged from his employment. Secondly, Gallups asserts that the second provision, which contains the word “retaliation,” is vague and ambiguous because it fails to use words like “discharge” or “termination” or to refer to a “retaliatory-discharge claim.” Neither of Gallups’s arguments are convincing.

As Dillard’s points out, Gallups’s interpretation of the word “filing” as requiring the formal institution of a legal action is a rigid view of that term. Notably, the terminology used in the provision is “filing a protected claim for benefits,” which negates the implication that a legal action must be instituted. A “claim” is “a demand for something due or believed to be due.” Meriam-Webster’s Collegiate Dictionary 227 (11th ed. 2003). Thus, ascribing the plain and common meaning to the word “claim,” we cannot agree that the provision required that Gallups institute a legal action for workers’ compensation benefits before his employment was terminated in order for the second provision to apply to Gallups’s retaliatory-discharge claim. Our conclusion is further supported by Alabama retaliatory-discharge caselaw, which makes it clear that the formal initiation of an action for workers’ compensation benefits is not required before an employee whose employment is allegedly terminated in violation of § 25-5-11.1 may bring a retaliatory-discharge action. Hexcel Decatur, Inc. v. Vickers, 908 So.2d 237, 242 (Ala.2005) (“Section 25-5-11.1 ... does not require the formal commencement of a specific form of civil action, i.e., one seeking the recovery of workers’ compensation benefits, as a prerequisite to recovery for retaliatory discharge.”); McClain v. Birmingham Coca-Cola Bottling Co., 578 So.2d 1299, 1300 (Ala.1991) (rejecting the argument that the language in § 25-5-11.1 required that an employee have filed a legal action before his or her discharge in order for the employee to have a cause of action under § 25-5-11.1); Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988) (“We hold that an employee may establish a prima facie case of retaliatory discharge by proving that he was ‘terminated’ because he sought to recover worker’s compensation benefits, which would be an impermissible reason.” (emphasis added)).

We are similarly unconvinced that the failure of Dillard’s to draft its provision to use the specific term “retaliatory discharge” or to include words like “termination” or “discharge” instead of the broader term “retaliation” results in vagueness or creates any ambiguity that requires us to construe the provision against Dillard’s. As Dillard’s explains, the Rules are used in several states, and the language used in the provision covers all actions claiming that one was retaliated against for seeking benefits or for exercising a right protected by statute and not only claims for retaliatory discharge under § 25-5-11.1. “Retaliate” is defined as “to return like for like; esp: to get revenge.” Merriamr-Webster’s Collegiate Dictionary 1063 (11th ed. 2003). Although in Gal-lups’s case the alleged retaliation took the form of a termination of his employment, thus giving rise to an action under § 25-5-11.1, not every retaliation for seeking benefits or for exercising a right will take that form. The fact that the provision would encompass other forms of retaliation besides a termination or a discharge does not make the provision vague or ambiguous. In fact, the fact that the provision has a broader scope, encompassing other forms of retaliation based on an employee’s seeking benefits or exercising rights protected by statute further strengthens the conclusion that the provision does apply to require arbitration of Gallups’s retaliatory-discharge claim. See SouthTrust Bank v. Bowen, 959 So.2d 624, 632 (Ala.2006) (concluding that, based upon the combination of the “broad language of the arbitration provisions” and “the strong policy requiring this Court to interpret the scope of an arbitration provision in favor of embracing arbitration,” the arbitration provisions at issue covered a disputed claim). We cannot agree that the provision is vague or that an ambiguity is created by the use of the word “retaliation.” The meaning of the provision is clear, and Gallups’s retaliatory-discharge claim falls within its scope.

Because Alabama law supports the conclusion that a retaliatory-discharge claim does not arise under the Alabama Workers’ Compensation Act, the trial court’s conclusion to the contrary is incorrect and will not support the order denying Dillard’s motion to compel arbitration. In addition, Gallups’s arguments regarding alleged vagueness and ambiguities in the relevant provisions are unpersuasive. The language used in the relevant provisions in the Rules require that Gallups’s retaliatory-discharge claim be submitted to arbitration, and none of Gallups’s arguments have convinced us that “ ‘it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala.2001) (quoting United Steelworkers of America, 363 U.S. at 582-83, 80 S.Ct. 1347). The judgment of the trial court denying Dillard’s motion to compel arbitration is reversed, and the trial court is instructed upon remand to enter an order compelling arbitration of Gallups’s retaliatory-discharge claim.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Dillard's established that Gallups had entered into a contract requiring arbitration of certain claims when Gallups entered Dillard’s employ and that " ' “the contract [between it and Gallups] evidence[d] a transaction substantially affecting interstate commerce,” ’ " see Gayfer Montgomery Fair Co. v. Austin, 870 So.2d 683, 685 (Ala.2003), and Gallups did not challenge that Dillard’s had failed to establish either requirement.

      . Dillard's also argues that the Rules provide that any dispute regarding the scope of the arbitration agreement is to be submitted to the arbitrator and not to a court. However, Dillard’s did not assert this argument in the trial court. It is well settled that an appellant may not secure a reversal of a trial court’s judgment based on an argument that was not presented to nor decided by it. See Lee v. YES of Russellville, Inc., 858 So.2d 250, 257 (Ala.2003) ("The trial court will not be placed in error on the basis of issues never presented to it.”), and Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983) (noting the "longstanding, well-established rule that [in order to secure a reversal] the appellant has an affirmative duty of showing error upon the record”).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    A.F. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090571 and 2090572.
    Court of Civil Appeals of Alabama.
    Sept. 17, 2010.

      Charles Harry Brasher, Jr., Huntsville, for appellant.

      Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.
   THOMAS, Judge.

In March 2006, the Madison County Department of Human Resources (“DHR”) received information that De.H. and Da.H. were being subjected to domestic violence and drug use in the home of A.F. (“the mother”) and C.H. (“the father”). Pursuant to a safety plan, DHR placed the children with P.K. (“the paternal grandmother”) and began offering services to the mother and the father. The children were briefly reunited with the mother in August 2007, but they were again left with the paternal grandmother when the mother was incarcerated. The children were ultimately removed from the care of the paternal grandmother in February 2009, and DHR sought termination of the parents’ parental rights in a petition filed in October 2009. After a trial on February 5, 2010, the juvenile court entered a judgment terminating the parents’ parental rights to the children. The mother timely appeals.

The record reflects the following facts. After the initial contact with the mother in March 2006, DHR provided the mother with a drug assessment, and, pursuant to the recommendation resulting from the drug assessment, routine drug screens. The mother tested positive for marijuana on her May 2006 drug screen; her June 2006 drug screen indicated that it might be diluted, and her October 2006 drug screen was positive for opiates and marijuana. The mother apparently fell out of contact with DHR for a short time, but she contacted DHR again in December 2006 and requested further assistance. DHR again required the mother to undergo drug screens, and the mother tested positive for opiates in June 2007 and positive for opiates and benzodiazepine in July and August 2007. The mother was arrested in July 2007. However, despite the positive drug screens and the mother’s arrest, DHR returned the children to the mother’s custody briefly in July or August 2007.

The mother had married at some point in 2007 and had stable housing with her husband, D.F. The mother’s stability was short-lived, however, because her husband died in August 2007 after being diagnosed with leukemia. The mother was incarcerated at some point after D.F.’s death, but she was released in November 2007, when she gave birth to D.F., Jr. Because the mother had arranged for the children to be placed in the custody of the paternal grandmother during her incarceration, DHR did not seek custody of the children at that time.

In November 2007, DHR again began to offer the mother services. The mother underwent another drug assessment, after which she was referred to New Horizons for outpatient drug treatment. Although the mother began attending the New Horizons program, she was terminated from the program for excessive absences in June 2008. The mother’s December 2007 drug screen was negative for all substances; however, her January 2008 drug screen indicated that it was diluted, her May 2008 drug screen was positive for opiates, benzodiazepine, and marijuana, and her July 2008 drug screen was positive for opiates and benzodiazepine.

In July 2008, the mother underwent a psychological evaluation by Lois W. Petrel-la. Petrella diagnosed the mother with adjustment disorder with mixed anxiety and depressed mood, dependent personality disorder, and borderline intellectual functioning. According to Petrella, the mother’s prognosis was “guarded due to personality disorder, history of substance abuse, and lack of insight into her problems.” Petrella opined that the mother’s mental state needed improvement before the children could be returned to her care and recommended psychological counseling to address adjustment, emotional dependence, and bereavement issues and a psychiatric evaluation to assess whether the mother might need antidepressant medication. Petrella also recommended that the mother be encouraged to complete a GED diploma, that she take parenting classes, and that she continue to be subject to random drug screens if the children were returned to her custody. The mother was not provided counseling or a psychiatric evaluation; however, DHR attempted to arrange parenting classes for the mother in July 2008, but the mother’s telephone had been disconnected and she could not be contacted.

The record contains no evidence regarding the mother’s whereabouts or whether she was offered any services between August 2008 and March 2009. The record of the mother’s drug screens indicates that she took no drug screens between July 2008 and March 2009. Although the record is not entirely clear on this point, it appears that the children continued to reside with the paternal grandmother until February 2009, when the paternal grandmother indicated that she could no longer care for the children because of her husband’s failing health. The record also indicates, although not clearly, that the mother was arrested three more times after her July 2007 arrest — in July 2009, in August or September 2009, and in October 2009.

Jamonica England, the family’s caseworker, testified that she sought and considered other relatives for custody after the paternal grandmother relinquished custody of the children. A maternal cousin of the children, T.J., was considered for placement; however, during the home-study process, T.J. lost her job, was relocating from Michigan to Florida, and requested that she be given time to settle before being considered further. England testified that she had considered a paternal uncle of the children, A.W., and his wife, B.T.; however, England said, A.W. tested positive for marijuana. According to England, two other relatives, J.S. and L.P., declined to be considered, and the mother’s sister, A.S., was not an appropriate placement because of DHR’s involvement with her family.

England testified that R.W. and S.W., the father’s half brother and his wife, had contacted DHR in September 2009, seeking to be potential resources for the children. England testified that she had requested a home study on R.W. and S.W. She also testified that both had taken a drug screen in September 2009 and that, although S.W. had had a negative screen, R.W.’s screen had indicated that it was diluted.

The home-study process was initiated by Amina Lattimore, a DHR caseworker in the home-study unit. Lattimore testified that she has begun the home-study process on R.W. and S.W. on October 20, 2009, with her initial contact with them occurring on December 14, 2009. Latti-more said that she visited the home of R.W. and S.W. on December 18, 2009, and that, at that time, she and the family completed necessary paperwork. R.W. and S.W. were required to take fingerprint cards to a local law-enforcement agency so that they could be fingerprinted for a background check. Although R.W. and S.W. did as instructed, the fingerprint technician failed to sign the necessary paperwork, necessitating a return of the fingerprint cards to R.W. and S.W. The background-check process was delayed by this problem, and, ultimately, Lattimore was unable to send the necessary paperwork to institute the background-check process until January 26, 2010. The background check had not been completed at the time of the termination trial on February 5, 2010.

Lattimore also had R.W. and S.W. submit to drug screens as a part of the home-study process. S.W.’s drug screen was negative for all substances. R.W.’s first drug screen, taken on January 26, 2010, came back indicating that it was diluted. Lattimore noted in her preliminary home-study report that the technician had indicated that the result could be “a fluke.” Lattimore requested that R.W. take a second drug screen, which he did on February 1, 2010. R.W.’s second drug screen was negative for all substances. The trial court ordered that R.W. and S.W. take a drug screen on the day of trial; both screens were negative for all substances.

In her preliminary report, Lattimore noted that R.W. and S.W. were “appropriate resources” for the children and that she had no concern regarding the safety or well being of the children were they to be placed with R.W. and S.W. However, Lat-timore testified that she could not give a definitive recommendation on the home study until the background checks were returned. Lattimore’s preliminary report noted that R.W. and S.W. had three children of their own and that they had a mentally challenged adult relative living in their home. In addition, the report stated that R.W. and S.W. had provided care for a nephew under a safety plan administered by the Morgan County Department of Human Resources. Lattimore said that the indication that two drug screens might have been diluted caused her concern; she said that she would like to have R.W. undergo additional drug screens to rule out any possible drug use.

Panda Smith, who counseled the children from August 18, 2009, until the time of trial, testified that she was employed to counsel the children to address their defiant behaviors, their sibling interaction, and their exposure to drug use and domestic violence. Smith testified that the children had made progress in counseling and in their foster home. According to Smith, the children needed a lot of “hands-on parenting” with nurturing, discipline, boundaries, consequences, and rewards. She noted that both children needed significant attention and assistance with school work. She noted specifically that De.H. had a difficult time with transition, competition, bossiness, and sibling rivalry.

Smith had recommended in August 2009 that the children no longer have visitation with their parents because such exposure could cause regression. She noted that the children had come from an unstable home and that they had developed an attachment to their foster parents and to her, as their counselor. Smith opined that placement with R.W. and S.W. would not be in the best interest of the children because the children had no real bond with R.W. and S.W. and because the children were attached to the foster parents. Smith also stated that the placement of the children into a home with other children and a mentally challenged adult was not ideal for the children because of their need for significant attention and hands-on parenting.

R.W. and S.W. testified at trial regarding their desire to be placement resources for the children. R.W. testified that he was regularly employed and that he earned between $1,600 and $1,700 per month. R.W. also testified that he was subject to random drug screens in connection with his employment and that he had not tested positive on any workplace drug screen. S.W. explained that she and R.W. had three children, aged 16, 13, and 9, and that a mentally challenged adult relative, J.J., lived with the family. R.W. explained that he and S.W. took J.J. in after J.J.’s father died and he had no one else to look after him. S.W. testified that J.J. was not a threat to her children. S.W. admitted that she and R.W. had not seen the children often before their placement into foster care, noting that most of the time they had seen the children on holidays during family gatherings. Both R.W. and S.W. testified that they could provide for the children and that they desired to take the children into their home and provide a permanent home for them.

The mother testified that she was currently incarcerated awaiting sentencing for four felonies and one misdemeanor to which she had pleaded guilty on the same day as the termination trial. The mother admitted that she had a substance-abuse problem and that she had not been able to provide a safe and stable home for her children. She testified that she had given the paternal grandmother money at times to assist with the children’s expenses; however, she admitted that she had not paid child support to DHR or to the foster parents.

The mother further testified that she had been sexually abused at age 8 by her mother’s stepbrother and that a man named “M” had attempted to sexually abuse her at age 11. According to the mother, she deliberately got pregnant at age 13 or 14 in order to get out of her mother’s house; the mother reported that her own mother had done drugs and that there were different men in and out of the house. After she left home at age 13, the mother moved in with the father, who was at that time 18 years old, and the paternal grandmother. The mother gave birth to De.H. when she was 14 and to Da.H. when she was 15. She and the father had never married, but they had lived together both as a couple and as roommates. In fact, the mother and her boyfriend and the father and his girlfriend were living in the same home when it was raided by the police in August 2009.

The mother admitted that she was terminated from the New Horizons drug-treatment program for excessive absences. She said that she had applied to and had been accepted into an inpatient drug program known as The Foundry. However, the mother admitted that she was not sure that she would be able to attend the program at The Foundry; apparently, she had requested that she be allowed to do so as a condition of her sentencing on the felony convictions, and she was awaiting the approval of the judge on her criminal cases. According to the mother, she wanted R.W. and S.W. to have custody of the children so that she could “have a chance” with her children. She said that she loves and wants her children despite her past actions having been not in their best interests.

At the close of the testimony, the juvenile court announced in open court that it would terminate the mother’s rights. During its instructions regarding the written order to be prepared by DHR’s attorney, the juvenile court remarked:

“I am, however, going to take under advisement the permanency requested by [DHR] at this point in time. I’m not going to make a permanency determination. I have read the case law and I believe that I can terminate parental rights even with a relative resource and place children with a relative after termination. This Court is at least considering that. I want everybody to understand that.”

As noted above, the mother appeals the judgment terminating her parental rights.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “Clear and convincing evidence” is “ ‘[e]vi-dence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20(b)(4)). The juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. D.P. v. Madison County Dep’t of Human Res., 23 So.3d 1156, 1158 (Ala.Civ.App.2009).

The termination of parental rights is governed by Ala.Code 1975, § 12-15-319. That statute reads, in part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(1) That the parents have abandoned the child, provided that in these cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by the treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Commission by the parents of any of the following:
“a. Murder or manslaughter of another child of that parent.
“b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or manslaughter of another child of that parent.
“c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term serious bodily injury shall mean bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
“(6) Unexplained serious physical injury to the child under those circumstances as would indicate that the injuries resulted from the intentional conduct or willful neglect of the parent.
“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(10) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources, or any public or licensed private child care agency, and agreed to by the parent.
“(11) Failure by the parents to maintain consistent contact or communication with the child.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

On appeal, the mother argues that the juvenile court’s judgment terminating her parental rights is not supported by clear and convincing evidence. She specifically argues that the juvenile court’s finding that DHR made reasonable efforts to rehabilitate her is not supported by the evidence because, she contends, DHR offered her no services other than drug assessments, drug screens, and outpatient drug treatment despite the recommendation of the psychologist that the mother be given counseling to address bereavement and other issues and that she be evaluated regarding a possible need for antidepressant medication. The mother also challenges the juvenile court’s finding that she had not substantially provided for her children. Secondly, the mother argues that the juvenile court erroneously applied the law to the facts to determine that no viable alternative to termination of her parental rights existed because, she says, R.W. and S.W. were appropriate and viable relative resources that should have been considered by the juvenile court. The mother further argues throughout her brief that DHR violated her procedural-due-process rights.

DHR argues that it did attempt to rehabilitate the mother by providing her with drug assessments and drug treatment but that the mother continued her abuse of drugs, as evidenced by repeated positive drug screens throughout the entire four-year period that DHR worked with the mother. DHR further explains that it could not offer rehabilitative services to the mother once she was incarcerated in September 2009. Regarding the mother’s argument that R.W. and S.W. are a viable alternative to the termination of her parental rights, DHR argues that the juvenile court, as the fact-finder in a termination-of-parental-rights case, could have weighed the evidence and determined that R.W. and S.W. were not a viable alternative because of RW.’s diluted drug screens, the lack of a relationship between R.W. and S.W. and the children, and evidence that placement with R.W. and S.W. would not be in the best interest of the children. Finally, DHR argues that the mother failed to raise any issue regarding procedural due process in the juvenile court and that she is thus precluded from relying on that argument on appeal.

The mother does not specifically challenge the establishment of grounds to terminate her parental rights. The mother admitted that she had a substance-abuse problem. See § 12-15-S19(a)(2) (listing as one factor to be considered by the juvenile court “excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child”). She readily admitted that she could not provide a stable home for her children at the time of the termination hearing. She admitted that she had not provided support for the children. Although she is correct that poverty alone is not a proper basis for the termination of parental rights, see C.B. v. State Dep’t of Human Res., 782 So.2d 781, 784 (Ala.Civ.App.1998), and In re Hickman, 489 So.2d 601, 602-03 (Ala.Civ.App.1986), the record is replete with evidence indicating that the mother continued to abuse drugs throughout the four-year period of DHR’s involvement with her family, that she had been arrested at least four times, that she was facing sentencing on four felony convictions at the time of the termination trial, and that she had not taken responsibility for her children since they were first removed from her care in March 2006, other than for a brief period in July or August 2007.

The mother does argue that the record does not contain clear and convincing evidence that DHR used reasonable efforts to rehabilitate her and to reunify her with her children. She takes issue with the fact that DHR failed to provide her with counseling and a psychiatric evaluation recommended by Petrella in August 2008. However, the record reflects that when England attempted to contact the mother in July 2008 to arrange parenting classes, which were also recommended by Petrella, the mother’s telephone was disconnected and England could not contact the mother. The record further reflects that the mother took no drug screens between August 2008 and March 2009. England testified that the mother disappeared at times and that she was sometimes incarcerated; England did not specify the dates that the mother disappeared or that she was incarcerated, but the record appears to support a conclusion that the mother’s whereabouts were unknown to DHR between August 2008, when England was first unable to contact the mother, and March 2009, when the mother took another drug screen. DHR could not provide additional services to the mother when the mother’s whereabouts were unknown to DHR or when the mother was incarcerated.

DHR did provide the mother with two drug assessments, drug screens, and an outpatient drug-treatment program, from which the mother was terminated for excessive absences. The mother focuses on the fact that she was not terminated from the drug-treatment program for failing drug screens. However, the mother was required to meet attendance standards in order to complete the program, and her failure to do so, for any reason, is a basis for concluding that the mother is either unable or unwilling to make the necessary changes to her life to become a proper parent for the children. We conclude, therefore, that DHR made reasonable efforts to rehabilitate the mother, that the mother did not avail herself of the offered resources, and that the mother’s lack of effort to adjust her circumstances support the juvenile court’s conclusion that DHR established, by clear and convincing evidence, grounds to terminate the mother’s parental rights.

The mother next argues that the juvenile court should not have terminated her parental rights in light of the availability of R.W. and S.W. as a potential relative placement alternative. The juvenile court’s comments at the close of the termination trial indicated that it intended to consider placement with or an award of custody to R.W. and S.W. as a possible permanency plan for the children at a later hearing on the matter. Such a statement, in conjunction with the evidence regarding R.W. and S.W. in the record, says the mother, conflicts with a determination that no viable alternative to the termination of her parental rights exist.

The mother’s argument is based on the premise that, if any viable placement alternative exists, a juvenile court may not terminate parental rights. We have recently rejected that premise in a case involving a termination of parental rights under former Ala.Code 1975, § 26-18-7. A.E.T. v. Limestone County Dep’t of Human Res., 49 So.3d 1212, 1216 (Ala.Civ.App.2010). In A.E.T., we adopted the rationale expressed by then Judge Murdock in the main opinion in D.M.P. v. State Department of Human Resources, 871 So.2d 77, 94 (Ala.Civ.App.2003) (plurality opinion), that “the existence of a viable alternative was not an absolute bar to termination of parental rights in cases in which the parent was shown to be ‘irremediably unfit.’” A.E.T., 49 So.3d at 1217. We explained that “the existence of [a relative] as a potentially viable placement alternative would not, in and of itself, prevent the juvenile court from terminating [a parent’s] parental rights, if reunification of the [parent] and the child were no longer a foreseeable alternative.” Id. at 1217.

Relying on the explanation of the purpose of a viable alternative by then Judge Murdock in D.M.P., we held that a viable placement alternative is to be considered under circumstances where continued efforts are to be made to rehabilitate the parent and to reunite the family. Id. at 82. However, we further held that the duty to consider those alternatives cannot bar termination of parental rights once it is determined that rehabilitation of the parent and reunification of the family is not likely in the foreseeable future. Id. at 94. We quoted from then Judge Mur-dock’s explanation in D.M.P.:

‘[W]here it is demonstrated that the parents are not capable of being rehabilitated or that the “conduct or condition” of the parents that makes them unfit to retain custody of their children “is unlikely to change in the foreseeable future” or where ... reunification is otherwise not an appropriate goal, obviously no alternative can be considered viable to the end of returning the child to a normal custodial relationship with his or her parent. The State’s failure, therefore, to pursue some alternative to termination that might exist in such a case would not necessarily be fatal to its petition for termination of a parent’s rights.’ ”

A.E.T., 49 So.3d at 1218 (quoting D.M.P., 871 So.2d at 92-93 (footnotes omitted)).

The situation presented in A.E.T., where the father was serving a 99-year prison sentence, was more extreme than the situation here, where the mother has failed to adjust her circumstances and resolve her substance-abuse problem over a four-year period. However, the juvenile courts in both cases had before them sufficient evidence to determine that the parent in question was “unable or unwilling to discharge [his or her] responsibilities to and for the child [or children in question],” that the “condition of the parent[] renders them unable to properly care for the child [or children in question],” and that “the conduct or condition [of the parent] [was] unlikely to change in the foreseeable future” such that termination of that parent’s rights was warranted. See § 12-15-319(a). Once the juvenile court in the present case reached that conclusion, it was no longer required to consider whether a viable placement alternative existed before terminating the mother’s parental rights. A.E.T., 49 So.3d at 1217.

Finally, we reject the mother’s arguments regarding any denial of due process based on DHR’s carrying out its duty to rehabilitate the mother and reunify the family. As we have explained in our discussion regarding whether clear and convincing evidence supported the juvenile court’s conclusion that termination of the mother’s parental rights was warranted, DHR made attempts to rehabilitate the mother that were unavailing because of the mother’s inability to overcome her substance-abuse problems or the mother’s instability, incarceration, and failure to keep in contact with DHR. More importantly, however, the mother never advanced any due-process arguments in the juvenile court, and we may not consider arguments made for the first time on appeal. Ex parte Dixon, 841 So.2d 1273, 1278 (Ala.Civ.App.2002) (declining to consider due-process arguments raised for the first time on appeal).

Because the evidence presented at trial clearly and convincingly established grounds for termination, because the existence of R.W. and S.W. as a potential placement alternative is not a stumbling block to termination where the evidence establishes that reunification of the family is unlikely in the foreseeable future, and because the mother’s due-process arguments were not preserved for appeal, we affirm the termination of the mother’s parental rights.

AFFIRMED.

PITTMAN and BRYAN, JJ„ concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

      . The father does not appeal.

      . The mother's parental rights to D.F., Jr., are not at issue in this appeal.