author: MOORE, Judge.

text:
    Mark Ruben FERMIN v. Lorelei Hundley LEWIS.
    2100338.
    Court of Civil Appeals of Alabama.
    Aug. 5, 2011.

      Beverlye Brady of Beverlye Brady & Associates, Auburn, for appellant.
    Philip A. Thompson of Haygood, Cleveland, Pierce, Mattson & Thompson, LLP, Auburn, for appellee.
   MOORE, Judge.

Mark Ruben Fermín (“the father”) appeals from a judgment of the Lee Circuit Court (“the trial court”) denying his motion to modify physical custody of his two children from his marriage to Lorelei Hundley Lewis (“the mother”).

Procedural History

The procedural facts pertinent to this appeal show that the mother obtained physical custody of the parties’ children when the parties divorced in January 2005. In February 2009, the trial court entered a judgment adopting an agreement of the parties, pursuant to which the mother was allowed to move with the children to West Point, New York. In February or March 2009, the father moved to Pittsburgh, Pennsylvania. On May 6, 2009, the father filed a petition to modify custody of the children, a daughter and a son who, at the time of the final hearing in this matter, were nine and seven years old, respectively. The mother responded on June 10, 2009. The trial court conducted ore tenus hearings regarding the father’s modification petition on February 18 and March 9, 2010. On August 4, 2010, the trial court entered a judgment denying the father’s petition. The father timely filed a post-judgment motion and requested a hearing on that motion. The trial court denied the request for a hearing, and the father’s postjudgment motion was subsequently denied by operation of law on December 1, 2010. See Rule 59.1, Ala. R. Civ. P. The father appealed to this court on January 11, 2011.

The Evidence

The parties’ 2005 divorce judgment awarded the parties joint legal custody of the children, with the mother receiving physical custody and the father receiving certain specified visitation. Following the divorce, the mother and the children resided in Lee County, in the home of the children’s maternal grandparents. The father remarried not long after the parties’ divorce, and the mother remarried in May 2008. The record indicates that, around the time of her remarriage, the mother successfully petitioned the trial court to suspend the father’s visitation. Several months later, the trial court also divested the father of his right to joint legal custody of the children. As stated above, in February 2009, the trial court entered a judgment based on an agreement of the parties that allowed the mother to move with the children into the home of her new husband on a military base in West Point. The judgment awarded the father supervised visitation with the children unless and until the father submitted a positive psychological evaluation, at which time his visitation would become unsupervised, although the father would continue to be subject to random drug testing.

The record indicates that, at the time of the February 2009 judgment, the mother had not disclosed to the father or to the trial court that she and her new husband had engaged in several episodes of domestic violence, which, according to the mother, were fueled in part by her husband’s excessive alcohol consumption. The mother also had not disclosed that, in November 2008, she had had a “mental breakdown” because of the stress relating to the ongoing child-custody litigation with the father. The mother testified that during that breakdown she had become intoxicated, had damaged an interior wall in her home with the butt of her husband’s pistol, had vomited- on her clothes, and had passed out naked on the bathroom floor. The mother’s husband testified that the mother had stated that she wanted to commit suicide at that time.

By her own admission, the mother’s domestic violence, alcohol abuse, and mental-health problems continued in West Point. In March 2009, the mother “scratched” both of her wrists with a steak knife, prompting a weeklong stay in a psychiatric hospital, followed by intensive mental-health counseling and the prescription of anti-anxiety medications. The mother also testified that, on May 11, 2009, following her receipt of the father’s petition to modify custody, she became intoxicated and “out of control,” that she threatened the father in a telephone call with never seeing the children again, and that she threw a glass container and other objects through an upstairs window within earshot of the daughter. The mother testified that, because of that incident, she had been arrested by the military police, had again been hospitalized for a mental evaluation, and had been sentenced to eight hours of community service for disorderly conduct. The mother further testified that she had another domestic altercation with her husband on June 4, 2009, which again required the intervention of the military police. Karen Kozykowski, a senior caseworker for the Orange County Department of Social Services, Child Protective Services Division in New York (“CPS”), testified that, following those incidents, the mother was placed on the New York State Central Registry of Child Abuse and Maltreatment because of alcohol misuse, lack of supervision, and inadequate guardianship and that her appeal from that listing had been denied.

From his testimony, it appears that the father was, at first, totally unaware of the mother’s problems. The father testified that he had filed for a change of custody in May 2009 solely because the mother was interfering with his relationship with the children. The father testified that, although he had fully complied with all the conditions set out in the February 2009 judgment, the mother originally would not agree to his exercising unsupervised visitation. The mother relented, allowing the children to visit with the father for one week in late March 2009, but the mother later claimed that the father had mistreated the children and had smoked around them during that visitation, which the father denied. The mother asserted that the daughter had developed a constant cough, which the mother described as a nervous tick, following that visitation. The father, however, attributed the cough to an aller-gie reaction. Thereafter, the father experienced difficulty arranging visitation and reaching the children by telephone. When he was able to contact the children by telephone, the mother would monitor their telephone calls and would interrupt those calls when she deemed the conversation to be inappropriate. In addition, the mother had informed the father in early May 2009 that she intended to have the children’s names changed. Immediately after the filing of the modification petition, the mother threatened to bar any further contact between the father and the children, and she actually petitioned the trial court to terminate the father’s parental rights in June 2009 as part of her answer and counterclaim. Additionally, the mother told the daughter that the father was trying to “take her away” from the mother.

The father testified that he eventually learned of the mother’s marital and other problems. At some point in June 2009 he again contacted the mother to arrange visitation with the children. The mother informed the father that she had sent the children to stay in the home of their maternal grandparents in Lee County, but she did not state why. The father subsequently received a telephone call from Ko-zykowski informing him of the results of the CPS investigation and inquiring as to his custody petition, which was then pending in the trial court. By that point, the mother had separated from her husband and was undergoing mental-health therapy. The parties subsequently consented to a court order holding that the children should remain in the physical custody of the maternal grandparents, subject to the father’s visitation rights, until the custody-modification petition could be decided.

The mother moved in with the maternal grandparents and the children in July 2009. The mother testified that she had been diagnosed with general anxiety disorder and that she was following her psychiatrist’s recommendations for care. The mother also testified that she had learned a great deal about coping skills and dealing with stress and anxiety and that she had put those skills into practice. Ronnie Hundley, the children’s maternal grandfather, testified that he had not observed any problems with the mother’s husband since the mother moved back to Alabama. The record also contains no evidence of any further breakdowns or other mental-health problems affecting the ability of the mother to care for the children.

The father testified that, after the mother returned to Alabama, she continued to try to alienate him from the children. According to the father, while the mother remained in New York, he was able to communicate with the children through the maternal grandparents in a normal manner, but, he testified, after the mother moved back to Alabama, the children became much more reserved and less open. The father also testified that the mother had used various names for the son when enrolling him in schools. The mother testified that she had never actually changed the name of either child. The father testified that, in September 2009, the mother falsely told the children’s teachers that the son was devising ways to protect himself in the event the father tried to kill him and that the mother instructed the teachers that they did not have any legal obligation to communicate with the father regarding the children. In November 2009, the mother reported to authorities that the father’s wife and his eight-year-old stepdaughter were sexually abusing the son. The mother said that the children had been forced to bathe naked together with the father’s stepdaughter and that the stepdaughter had improperly touched the son. The mother informed the children’s teachers in a November 2009 e-mail that the father, his wife, and his stepdaughter were under investigation for abuse and instructed them not to have any contact with the father. The mother also withheld holiday visitation from the father in December 2009 based on the allegations of sexual abuse.

For her part, the mother testified essentially that she was only acting to protect the children. According to the mother, following visitations, the children would report beatings that the father’s wife would give the stepdaughter and sexual abuse that the stepdaughter would perpetrate on the son. The mother testified that, before visitations with the father, the children would get very upset, resulting in stomach aches, nausea, and crying, and that, right after visitations, the children would have temperament problems, becoming very clingy and not letting her out of their sight. The .children would indicate to the mother that they did not want to go back for visitation. According to the mother, those problems did not arise when the children visited solely with the father and that she did not have any problems with the father’s exercising his overnight visitation or telephone contact with the children by himself. The maternal grandfather testified that both he and the mother actually encouraged the children to visit with the father.

Pursuant to a court order entered in July 2009, the children began seeing Dr. Glen Vollenweider, a clinical psychologist, on a weekly basis. Dr. Vollenweider testified that he had counseled the children regarding the daughter’s anxiety and the son’s behavioral problems, which, he said, stemmed in part from visitations with the father. Dr. Vollenweider opined that the children are stable in their present home environment and that they are safe and comfortable. He testified that he thinks the children are doing well, adjusting pretty well at school, and that they seem to be doing considerably better than they were when they began therapy. The maternal grandfather also testified that the children seem well adjusted and happy but that they experience anxiety regarding their visits with the father and his family in Pittsburgh.

Although generally acknowledging that the children seemed to be doing well, the father noted that the children had accumulated an excessive number of absences at school in addition to arriving tardy repeatedly. The mother stated that the children visit Dr. Vollenweider on Wednesdays from 9:30 a.m. to 11:00 a.m. and that they do not attend school on those days because they would have only two hours of school remaining by the time they arrived, but, she testified, the children always brought home their schoolwork. The mother admitted that she had never attempted to change the counseling schedule in order to better accommodate the children’s school schedules.

The father testified that he has stable employment and a home in Pittsburgh. He testified that he had researched schools and counseling services in his area. He testified that he was willing to work with the mother so that they could both enjoy a healthy relationship with the children and that he would be willing to assist with the cost of transportation for the mother to visit the children in Pittsburgh. The father testified that he had not had a positive drug screen since September 2008. Dr. Vollenweider opined that there would be serious adjustment for the children if the father obtained custody, that the children have significant concerns and fears about being back in the father’s home, and that the children are attached to the mother.

Analysis

The father initially argues on appeal that the trial court erred in allowing the testimony of Dr. Vollenweider because the mother did not seasonably supplement her discovery responses to disclose that she would use Dr. Vollenweider as an expert witness. The record indicates that, in September 2009, the father requested information regarding any expert witnesses the mother expected to call at trial, but the mother did not formally reveal before trial that she would be calling Dr. Vollenweider. The father evidently learned that the mother would call Dr. Vollenweider when the mother’s attorney issued a subpoena for his trial attendance on February 11, 2010. At the outset of the trial, the father objected to Dr. Vollenweider’s testifying based on the mother’s failure to earlier supplement her discovery responses to identify Dr. Vollenweider as an expert witness and to disclose the substance of his expected testimony. The trial court did not immediately rule on the objection. On March 5, 2010, the mother formally notified the father that she would be calling Dr. Vollenweider as part of her case, but she did not disclose the substance of his expected testimony. When the trial continued on March 9, 2010, the father renewed his objection, but the trial court overruled that objection.

Rule 26(e)(1), Ala. R. Civ. P., provides, in pertinent part:

“A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
“(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the witness’s testimony.”

Neither the text of Rule 26(e)(1) nor cases construing the rule have held that a trial court may not allow the testimony of an expert witness for a party who has failed to comply with the rule. See Alabama Power Co. v. Courtney, 539 So.2d 170 (Ala.1988) (upholding trial court’s decision to allow testimony of an expert disclosed only six days prior to trial). Alabama caselaw has consistently held that whether to allow or to refuse testimony of an expert witness who has not been previously designated through discovery is within the sound discretion of the trial court. CSX Transp., Inc. v. Battiste, 578 So.2d 1065, 1067 (Ala.1991) (citing Electrolux Motor AB v. Chancellor, 486 So.2d 414 (Ala.1986); and Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987), overruled on other grounds by Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250 (Ala.1998)). Hence, on appeal, we must determine whether the trial court exceeded its discretion in allowing Dr. Vol-lenweider to testify.

The record reveals that, before the trial, the father was aware that Dr. Vollenweider had long been counseling the children, having twice personally met with Dr. Vol-lenweider and having several times talked with Dr. Vollenweider over the telephone. Furthermore, the mother’s attorney indicated to the trial court that the mother had listed Dr. Vollenweider as a treating mental-health-care professional in her discovery responses and that certain reports issued by Dr. Vollenweider had been provided to the father. When the father learned that Dr. Vollenweider would testify at trial, the father did not ask for a continuance in order to obtain further information regarding his expected testimony. Additionally, the record does not reveal any efforts undertaken by the father to depose Dr. Vollenweider or to otherwise obtain a summary of his expected testimony during the recess of the trial. See Erwin v. Sanders, 294 Ala. 649, 652, 320 So.2d 662, 664 (1975) (taking into account a party’s failure to take ameliorative measures as a factor in holding that lower court did not exceed its discretion in allowing previously undisclosed expert testimony). Furthermore, the father does not argue that he was surprised by the content of Dr. Vollenweider’s testimony or explain how more timely discovery would have allowed him to conduct a more effective cross-examination of Dr. Vollenweider.

More fundamentally, this case involves the central question of whether two children should be removed from the physical custody of their mother and transferred to the physical custody of their father. In deciding that issue, a trial court must determine the effects of the proposed change on the children at issue. See Ex parte McLendon, 455 So.2d 863, 865 (Ala.1984). Because trial courts are entrusted to protect the interests of children “with scrupulous care,” Vaughn v. Vaughn, 473 So.2d 1090, 1091 (Ala.Civ.App.1985), a trial court should be inclined to admit expert testimony as to the psychological implications of a change of custody as an aid in reaching its decision. See 1 Judith S. Crit-tenden & Charles P. Kindregan, Jr., Alabama Family Law § 10:8 (Thomson Reuters/West 2008) (“Expert testimony, for example, that children’s best psychological interests would be served by being in custody of one parent or other, can be of great assistance to trial courts attempting to discern a child’s best interests and parents’ abilities to discern and properly address those interests.” (footnote omitted)). Such expert testimony should be disclosed in a timely manner, but a trial court may properly determine that its primary concern for ascertaining and protecting the best interests of the children overrides any competing considerations, such as technical noncompliance with Rule 26(e)(1), especially in a case in which the opposing party cannot articulate any real prejudice to his or her case or the judicial process.

Given the circumstances, and the context, we decline to hold that the trial court exceeded its discretion in allowing the testimony of Dr. Vollenweider despite the fact that the mother violated Rule 26(e)(1).

The father next argues that the trial court erred in denying his petition for a change of custody. The father acknowledges that he had to meet a very high burden of proof in order to prevail on his petition.

“A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon [, 455 So.2d 863 (Ala.1984) ]. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra.

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009). The father argues, however, that he more than satisfied that standard by proving the mental instability and irrational decision-making of the mother, as well as her repeated attempts to interfere with his relationship with the children, and that the trial court exceeded its discretion in failing to award him physical custody of the children. We disagree.

From the evidence, the trial court could have determined that, at the time of trial, the children were happy, well adjusted, and thriving in the physical custody of the mother and their extended maternal family in Lee County. By all accounts, the children were also doing well academically. The record contains no evidence indicating that the children exhibited any residual emotional or mental-health issues because of the incidents that occurred in 2008 and 2009 while the mother was living with her current husband. To the contrary, Dr. Vollenweider testified that the children actually have a close emotional attachment to the mother. From that evidence, the trial court could have concluded that removing the children from the physical custody of the mother would only harm the children psychologically, as Dr. Vollenweider testified. Moreover, the father presented very little evidence as to how the change of custody would benefit the children other than to offer them an alternative stable environment.

We do not excuse the misconduct of the mother in exposing the children to domestic violence and alcohol abuse. However, the law recognizes that a parent may make errors in child-rearing, yet it also recognizes that a parent can rehabilitate himself or herself in order to assume proper custody and care of a child. See Ex parte Phillips, 266 Ala. 198, 200, 95 So.2d 77, 79 (1957) (“ A finding of unfitness may be superseded by changed and improved conduct.’ ” (quoting Lockard v. Lockard, 102 N.E.2d 747, 748, 63 Ohio Law Abs. 549 (Ct. of Common Pleas 1951))); Edwards v. Sessions, 254 Ala. 522, 524, 48 So.2d 771, 772 (1950) (“The mother has made mistakes, grievous mistakes, but this should not be sufficient to take the child from the mother if the mother shows indications of becoming a good mother and is presently able reasonably to care for the child.”); and Borsdorf v. Mills, 49 Ala.App. 658, 661-62, 275 So.2d 338, 340-41 (Civ.App.1973). Based on the evidence, the trial court could have determined that the mother’s problems were in the past and that she, with the aid of the children’s extended maternal family, see Sessions, 48 So.2d at 772 (citing recently extended family assistance as a factor in favor of restoring custody to formerly wayward parent), could best provide for the children. Our standard of review does not allow us to overturn that factual determination. See Ladden v. Ladden, 49 So.3d 702, 718 (Ala.Civ.App.2010) (“[TJhis court is forbidden from substituting its judgment for the judgment of the trial court when the trial court’s judgment is supported by evidence in the record.”).

This court further does not condone any effort by a custodial parent to alienate a child from a noncustodial parent. It is the public policy of this state that children should have frequent and meaningful contact with both fit parents, regardless of the custodial situation following a divorce. See Ala.Code 1975, § 30-3-150. However, in this case, it appears that the trial court instituted measures designed to effectively preserve the father’s role in the lives of the children despite the physical distance between them. The judgment restores the father’s joint-legal-custody rights so that the father now has equal authority to make decisions with the mother regarding the children. See Ala.Code 1975, § 30-3-151(2). The judgment further provides the father with specific and liberal visitation rights and removes all restrictions on his visitation. In addition, the judgment awards the father telephone access to the children three times per week. Based on the evidence, the trial court reasonably could have concluded that those provisions, rather than a traumatic change of physical custody, would best secure the relationship between the father and the children.

Finally, the father argues that the trial court erred in failing to hold a hearing on his postjudgment motion. Rule 59(g), Ala. R. Civ.App., provides that post-judgment motions “shall not be ruled upon until the parties have had opportunity to be heard thereon.” In Knight v. Knight, 53 So.3d 942, 957 (Ala.Civ.App.2010), this court stated:

“The father last argues that the trial court erred in failing to conduct a hearing on his postjudgment motion. Such a hearing is required when it is requested. Rule 59(g), Ala. R. Civ. P. However, the failure to conduct a hearing on a postjudgment motion is not necessarily reversible error. Kitchens v. Maye, 623 So.2d 1082, 1089 (Ala.1993).
“ ‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989). In this case, we have already determined that the father has failed to demonstrate error with regard to those issues that were presented to the trial court in his postjudgment motion. Accordingly, we decline to reverse the trial court’s judgment based on its failure to conduct a hearing on the father’s postjudgment motion. Kitchens v. Maye, supra; Greene v. Thompson, supra.

In the present case, the father asserted in his postjudgment motion that the trial court had failed to properly weigh the evidence and had erred by awarding the mother primary physical custody of the children. As discussed above, we have already determined that the trial court’s judgment was supported by the evidence. As in Knight, we conclude that the trial court’s failure to conduct a hearing on the father’s postjudgment motion was harmless error, and we decline to reverse based on that failure.

AFFIRMED.

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

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

      . The trial court did modify the previous custody judgment in many respects that will be discussed later, but the trial court did not transfer physical custody of the children from the mother to the father.

      . That order does not appear in the record on appeal; however, it is referenced in the father’s petition that initiated the present action.

      . The mother also testified to other incidences of domestic violence between herself and her husband preceding that altercation.

      . The trial court did not have jurisdiction over the petition, and the mother eventually withdrew it.

      . The parties agreed that the father would visit with the children for two consecutive weeks in July 2009. The trial court again conditioned the father's visitation on passing drag tests and further ordered that the children were to be enrolled in counseling upon returning from visitation with the father.

      .Upon learning that the children would be residing with the maternal grandparents in Alabama, CPS closed its case on July 2, 2009.

      . The father testified that, to his knowledge, the sexual-abuse allegations were unfounded but that he had not received any final reports or anything in writing. He testified that the Pennsylvania youth-services agency had indicated that it was closing its investigation. The father testified that Lori Terrell from the Lee County Department of Human Resources had telephoned him to let him know that the department had not had any indications that there had been any wrongdoing.


source: Caselaw Access Project

author: PER CURIAM. KELLUM, Judge,

license: Public Domain

text:
    Jerry Dale BENNETT v. STATE of Alabama.
    CR-10-0498.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.
    Rehearing Denied June 17, 2011.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1101128.
    Jerry Dale Bennett, pro se.
    Troy King and Luther Strange, attys. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Jerry Dale Bennett’s seventh Rule 32, Ala. R.Crim. P., petition challenging his 1995 guilty-plea conviction for capital murder. I believe that allowing Bennett to file multiple petitions for post-conviction 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, 581 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 Bennett and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: PER CURIAM.

text:
    Gary Wayne SEARCY v. STATE of Alabama.
    CR-10-0950.
    Court of Criminal Appeals of Alabama.
    July 8, 2011.

      Gary Wayne Searcy, pro se.
   PER CURIAM.

The appellant, Gary Wayne Searcy, appeals the circuit court’s denial of his § 15-18-200, Ala.Code 1975, motion for postcon-viction DNA testing. In February 1998, Searcy was convicted of capital murder for murdering Rory Lynn Kirkland during the course of a burglary. He was sentenced to life imprisonment without the possibility of parole. Searcy appealed his conviction. We dismissed the appeal because the notice of appeal was not timely filed. See Searcy v. State (CR-97-2224, August 21, 1998), 741 So.2d 496 (Ala.Crim.App.1998) (table). In December 1999, Searcy filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., requesting, in part, an out-of-time appeal. We affirmed the circuit court’s denial of that Rule 32 petition after the postconviction court found that Searcy “repeatedly refused to appeal his case when advised to do so by counsel.” See Searcy v. State (CR-99-1977, February 9, 2001), 821 So.2d 1032 (Ala.Crim.App.2001) (table). In March 2006, Searcy filed a second Rule 32 petition seeking an out-of-time appeal, which the trial court denied. We affirmed the circuit court’s denial of that petition. See Searcy v. State (CR-05-1255, September 22, 2006), 988 So.2d 1082 (Ala.Crim.App.2006) (table). In August 2009, Searcy filed a third Rule 32 petition. We dismissed that appeal after Searcy failed to file a brief with this Court. See Searcy v. State (CR-09-0053, January 28, 2010), 75 So.3d 1233 (Ala.Crim.App.2010) (table).

In July 2010, Searcy filed a motion in the Henry Circuit Court requesting that DNA testing be conducted on the biological evidence that had been collected from the murder scene. The circuit court denied the motion in March 2011. Searcy filed a written notice of appeal to this Court.

The question presented in this case is whether a circuit court’s ruling denying a § 15-18-200, Ala.Code 1975, motion is appealable. Section 15-18-200, effective August 1, 2009, provides:

“(a) An individual convicted of a capital offense who is serving a term of imprisonment or awaiting execution of a sentence of death, through written motion to the circuit court that entered the judgment of sentence, may apply for the performance of forensic deoxyribonu-cleic acid (DNA) testing on specific evidence, if that evidence was secured in relation to the investigation or prosecution that resulted in the conviction of the applicant, is still available for testing as of the date of the motion, forensic DNA testing was not performed on the case at the time of the initial trial, and the results of the forensic DNA testing, on its face, would demonstrate the convicted individual’s factual innocence of the offense convicted. The filing of a motion as provided in this subsection shall not automatically stay an execution.
“(b) Upon receipt of a motion for DNA testing, the circuit court shall notify the state and shall afford the state an opportunity to respond to the motion.
“(c) After notice to the state and an opportunity to respond, the circuit court may order forensic DNA testing and analysis if the court finds that all of the following apply:
“(1) The specific evidence which the petitioner has requested be subject to forensic DNA testing and analysis is still in existence and is in a condition that allows forensic DNA testing and analysis to be conducted which would yield accurate and reliable results.
“(2) The evidence was not previously subjected to nuclear forensic DNA testing or was not subjected to another forensic DNA technology, and which may resolve an issue not previously resolved by any prior forensic DNA testing and analysis. The type of forensic DNA testing requested must be generally accepted in the forensic community with the results eligible for inclusion in the National DNA Index System of the Federal Bureau of Investigation (FBI).
“(d) Upon receipt of a motion for DNA testing or notice of a motion for DNA testing, the state and the circuit court shall take any steps reasonably necessary to ensure that any remaining biological material in the possession of either the state or the court is preserved pending the completion of proceedings under this section. In the event biological material is not available or that reliable testing is not possible due to the condition or absence of the biological material, the court shall dismiss the application without prejudice.
(2) If the DNA testing conducted under this section produces conclusive evidence of the petitioner’s factual innocence of the offense convicted, the petitioner, during a 60-day period beginning on the date on which the petitioner is notified of the test results, may file a petition to the circuit court that ordered the testing for post-conviction relief pursuant to Rule 32.1 of the Alabama Rules of Criminal Procedure. Upon receipt of a petition, the circuit court that ordered the testing shall consider the petition pursuant to Rule 32, et seq. of the Alabama Rules of Criminal Procedure.”

Section 12-3-9, Ala.Code 1975, addresses the jurisdiction of this Court and states:

“The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post-conviction writs in criminal cases.”

Amend. No. 328, § 6.03(a), Ala. Const.1901 (now § 141(a), Ala. Const. 1901 (Off.Re-comp.)), further provides:

“The court of criminal appeals ... shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.”

“In Alabama, there is no constitutional right to appeal a conviction. .That right is provided ... by statute in § 12-22-130, Ala.Code 1975.” Dixon v. City of Mobile, 859 So.2d 462, 463 (Ala.Crim.App.2003). See also Dawson v. State, 37 Ala. App. 16, 66 So.2d 567 (1952). Section 12-22-130, Ala. Code 1975, provides:

“A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court.”

In a criminal case, an appeal lies after a defendant has been convicted and sentenced. See Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). However, “[a]n appeal cannot be taken from an order subsequent to the judgment of conviction unless authorized by statute.” Harris v. State, 44 Ala.App. 632, 632, 218 So.2d 285, 286 (1969). See also Hart v. State, 939 So.2d 948 (Ala.Crim.App.2005) (no right to appeal a circuit court’s ruling vacating a death sentence and imposing a sentence of life imprisonment without the possibility of parole based on the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), barring a death sentence for anyone under the age of 18 at the time of the offense); Weeks v. State, 663 So.2d 1045 (Ala.Crim.App.1995) (death-row inmate could not appeal a § 15-16-23, Ala.Code 1975, finding that the inmate/defendant is not insane); Hughes v. State, 45 Ala.App. 250, 251, 228 So.2d 862, 863 (Ala.Crim.App.1969) (order denying probation is not ap-pealable).

Absent from § 15-18-200, Ala.Code 1975, is any provision authorizing an appeal from the denial of a postconviction motion for DNA testing. Neither can we find any statute or rule authorizing such an appeal. Accordingly, this Court has no jurisdiction to consider this appeal, and it is hereby dismissed.

APPEAL DISMISSED.

WELCH, P.J., and WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.

      .The circuit court’s sentencing order stated the following facts:
      "On the night of March 12, 1996, units of the Henry County Sheriff's Department were dispatched to the Englewood Subdivision in northern Henry County, Alabama. They found the body of Rory Lynn Kirkland, a white female, lying at the foot of a bed in a pool of blood. She had been stabbed ten times, mostly in the area of the chest. A large butcher knife was embedded up to the hilt underneath the victim’s arm. She died from multiple stab wounds to the chest and abdomen."

      . It appears that Searcy believed that if his appeal was successful he would face a possible death sentence on a retrial.

      . We have taken judicial notice of our records related to Searcy’s previous proceedings in this Court. See Hull v. State, 607 So.2d 369 (Ala.Crim.App.1992).

      . Searcy asserted that the following items could be tested: a knife, two swabs collected from a stain on the victim’s foot, toenail clippings, the victim's nightgown, a sheet, a towel, and a swab collected from a stain on a lavatory in the victim's house.

      . "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

      . We have held that motions filed pursuant § 13A-5-9.1, Ala.Code 1975, and § 15-22-54.1, Ala.Code 1975, are appealable to this Court because those motions are a continuation of the underlying case for resentencing based on newly enacted legislation. See Prestwood v. State, 915 So.2d 580 (Ala.Crim.App.2005) (the denial of a Kirby v. State, 899 So.2d 968 (Ala.2004), motion is appealable to this Court); Ex parte Jones, 61 So.3d 1104 (Ala. Crim.App.2010) (the denial of a motion for treatment as a technical probation violator is appealable to this Court). However, a motion for DNA testing is not a continuation of a case but a new action in the lower court. The statute provides that if the DNA testing renders favorable results the defendant should file a postconviction petition under Rule 32, Ala. R.Crim. P. See § 15-18-200(h)(2), Ala. Code 1975.


author: KELLUM, Judge.

text:
    Kevin SAFFOLD v. STATE of Alabama.
    CR-10-0403.
    Court of Criminal Appeals of Alabama.
    July 8, 2011.
    Kevin Saffold, pro se.
    Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Kevin Saffold, appeals from the circuit court’s revocation of his probation. The record indicates that in September 2009 Saffold was convicted of theft of property in the first degree. The circuit court sentenced Saffold to 20 years’ imprisonment; the sentence was split, and he was ordered to serve 3 years’ imprisonment, with the balance suspended, and was placed on supervised probation for 3 years. The court ordered Saffold to pay a total of $19,155.64 in various court-ordered moneys.

On August 18, 2010, the State filed a motion seeking to revoke Saffold’s probation based on the ground that Saffold had been charged with new criminal offense, namely, three counts of possession of a forged instrument in the second degree and one count of possession of a forgery device. The State also sought to revoke Saffold’s probation based on his failure to pay court-ordered moneys. On October 28, 2010, the circuit court conducted a brief hearing at which Saffold, defense counsel, and the State were present. At the conclusion of that hearing, the circuit court entered an order revoking Saffold’s probation. This appeal followed.

On appeal, Saffold contends (1) that the circuit court erroneously revoked his probation without first conducting a revocation hearing, and (2) that the circuit court’s order revoking his probation is deficient because, Saffold says, it did not adequately set forth the specific evidence relied on or the specific reasons for revoking his probation as required by Rule 27.6(b), Ala. R.Crim. P.

“ ‘The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 988 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App.1992). This Court “has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.” Puckett, 680 So.2d at 983.’ ”

Bauer v. State, 891 So.2d 1004, 1006 (Ala.Crim.App.2004) (quoting Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998)). This court has also recognized a third exception that a defendant can raise for the first time on appeal — the requirement that the court advise the defendant of his or her right to request an attorney to represent the defendant during probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000). A fourth exception to the preservation rule recently announced by our Supreme Court also allows a defendant to raise for the first time on appeal the allegation that the circuit court erred in failing to appoint counsel to represent the defendant during probation-revocation proceedings. See Dean v. State, 57 So.3d 169 (Ala.2010).

Saffold challenged the sufficiency of the probation-revocation hearing and the adequacy of the circuit court’s probation-revocation order for the first time on appeal. However, the issues fall within one of the four exceptions to the general-preservation requirement; they are, therefore, properly before this court for review.

Regarding his contention that the circuit court failed to conduct a probation-revocation hearing, Saffold specifically argues that the hearing conducted on October 28, 2010, at which the State presented no witnesses and Saffold was not allowed an opportunity to be heard on the alleged violations, was not sufficient to constitute a probation-revocation hearing as required by § 15-22-24, Ala.Code 1975.

In Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), this court held:

“Section 15-22-54, Ala.Code 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional. Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). Additionally, the appellant was denied his constitutional right to due process by the revocation of his probation without a hearing. The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfin-der as to the evidence relied on and the reasons for revoking probation. Rule 27.5 and 27.6, Ala. R.Crim. P. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Hernandez v. State, 673 So.2d 477 (Ala.Cr.App.1995).”

At the October 28, 2010, hearing, the following discussion occurred:

“[DEFENSE COUNSEL]: Your Honor, this is Mr. Saffold. I believe the key reason for filing to revoke his probation was new charges in Dale County. Your Honor, it is my understanding he has not even been indicted on those charges. And he asserts his innocence on those charges.
“THE COURT: Position of the State?
“[PROSECUTOR]: Judge, the position of the State is that the defendant going back to 1985 has been in one manner or another for the offenses he’s been charged with new offenses. If the Court is not going to revoke him today, I would ask he be held pending revocation on disposition of those cases. We would certainly ask that he not be released.
“Certainly, if he’s been charged with those — I don’t know the status of them as to whether or not there is an indictment yet or not. But on the presumption that he is going to be prosecuted on those — this is just another saga in a twenty-five year history of Mr. Saffold being before this Court. He’s obviously not getting the message by probation. The State would ask that it be revoked.
“[DEFENSE COUNSEL]: Well, Your Honor, [Saffold] does have a history. And the legal system has taken charge or he has paid his debt to society through whatever orders that the legal system prior to this has initiated or has ordered. They are asking that his probation be revoked. Judge, on charges that he has not even been indicted on. And I honestly don’t know what the speed — and [the prosecutor] would probably know better than I do how quickly cases move in Dale County. I don’t think he should be held hostage to that type of speed. He made bond. Your Honor, on those other cases. He’s not going to run anywhere.
“THE COURT: He’s not paid any court-ordered monies, has he?
“[DEFENSE COUNSEL]: Sir?
“THE COURT: He’s not paid any Court-ordered monies. Able to pay bond, but not pay any court-ordered monies.
“[SAFFOLD]: May I Speak, Judge?
“THE COURT: You can consult with your counsel. If you desire to speak, you may.
“[SAFFOLD]: I was released on March 30, 2010. And I reported these months since I have been out, and ever since I’ve been re-sentenced by the Court. I was paying thirty dollars a month on the restitution. The fine was set at one hundred dollars a month.
“Now, I couldn’t necessarily afford to pay the one hundred dollars a month. And I didn’t pay for the bonding fee. My family came together and made the arrangements with the bonding company. And they are paying payments as we speak.
“I’ve been on bond many times. Even though I’ve been in trouble many times, I’ve never failed to do what the Court has asked me to do on bond. I’ve bonded out for a half million dollars and came back and went to trial on the case. So there is nothing in my court to say I won’t conform with the Court’s condition.
“And, again, this charge I’m being held for, I’ve made bond on it. And I intend to go to court and prove my innocence.
“THE COURT: So you made bond on the charges in Dale County?
“[SAFFOLD]: Yes, sir.
“[DEFENSE COUNSEL]: Your Honor, if the Court remembers, he served a three-year split.
“THE COURT: He’s made bond on charges in Dale County. Did you hear that, [counsel for the defense]?
“[DEFENSE COUNSEL]: Yes, Sir, I’m aware of that.
“THE COURT: Does that change your position before the Court?
“[DEFENSE COUNSEL]: Judge, as his attorney, it does not change my position.
THE COURT: It doesn’t. Well, you said he hasn’t been indicted.
“[DEFENSE COUNSEL]: He’s not been indicted.
“[SAFFOLD]: I was arrested on the charges, Judge, and I posted bond in order to come down here and have this case resolved. I could have stayed in Dale County Jail. But I wanted to come down here and address the issue.
“THE COURT: You were in Dale County jail until you posted the bond and then you wanted to come here and answer this?
“[SAFFOLD]: Yes, sir, that is correct. But the Court there also took into consideration my previous history. They took into consideration I had this probation. And that is probably why he lowered the bond from sixty thousand down to ten thousand, so I would be able to make bond. But all these things was addressed in the bond hearing in Dale County about my previous history.
“All I’m asking for is the presumption of innocence until proven guilty is what I am asking. And I have personal dealings with the Probate Court, things that I am required to tend to on the outside. In other words, I have a plan that I need to pursue.
“THE COURT: I know something about probate procedures, and it is not necessary for you to be present at the hearing for the Probate Judge to adjudicate your property interest in [an estate].
“[SAFFOLD]: Well, I mean, I’ve been served notice. And I responded saying I wanted to be there to protect my interest, because I have people trying to get me to forfeit that.
“THE COURT: I’m not going to consider that. It is not necessary. Judge Cooley is going to protect your interest if your interest is valid subject to any the claims of the estate. That is not acceptable.
“[SAFFOLD]: I just mentioned that to say I have ties in the community and I intend to be here for the duration of the proceedings.
“THE COURT: Well, you will be, because I’m going to keep you in the Houston County jail pending formal notification from Dale County as to whether or not you are going to be indicted on those charges. As soon as we hear from that, if you are indicted on those charges, then, you’ll be released to Dale County and they can bond you out if they choose.
“[SAFFOLD]: Excuse me, Judge, if you don’t mind. I wanted to—
“THE COURT: No. Step back. Officer, put him in the box.”

(R. 3-9.)

“ ‘A hearing ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue (in person or by counsel) as to the inferences flowing from the evidence.’ Fiorella v. State, 40 Ala.App. 587, 590, 121 So.2d 875, 878 (1960).” Ex parte Anderson, 999 So.2d 575, 578 (Ala.2008).

In D.L.B. v. State, 941 So.2d 324 (Ala.Crim.App.2006), this court addressed a similar issue in which the defendant challenged whether he had received a probation-revocation hearing. In D.L.B., the defendant, while on probation, was arrested on new criminal charges. The circuit court conducted a brief hearing at which it heard arguments from both defense counsel and the prosecutor. At the conclusion of the hearing, the circuit court revoked the defendant’s probation based on the argument presented by the State. D.L.B., 941 So.2d at 325. The defendant appealed, arguing that the circuit court erroneously revoked his probation without first conducting a probation-revocation hearing that complied with § 15-22-54, Ala.Code 1975. This court agreed and reversed the judgment of the circuit court, holding:

“Although the July 13, 2005, hearing purported to be a probation-revocation hearing, the court announced that it was revoking D.L.B.’s probation without hearing testimony from any State’s witnesses and without allowing D.L.B. an opportunity to be heard. Because the circuit court revoked D.L.B.’s probation based on the representations of the prosecutor, rather than on evidence presented to the court in the form of witness testimony or other legal evidence, D.L.B. was denied the right to a hearing where he could be heard and present witnesses and documentary evidence and where he could confront and cross-examine adverse witnesses.”

D.L.B., 941 So.2d at 326.

In the instant case, as in D.L.B., we cannot say that the proceeding held on October 28, 2010, constituted a probation-revocation hearing. The prosecutor represented that Saffold had been arrested on new charges but called no witnesses to testify and presented no other evidence regarding the new charges against Saffold. Saffold was not afforded an opportunity to confront and to cross-examine adverse witnesses after he denied committing the new offenses because the State presented none. Although, unlike the defendant in D.L.B., Saffold was in fact afforded an opportunity to be heard, we question whether Saffold was fully afforded an opportunity to adduce proof by way of witness testimony and documentary evidence that he did not commit the new charges and had not violated the terms and conditions of his probation. The transcript of the proceedings indicates that Saffold’s opportunity to be heard was cut short when the circuit court interrupted him and ordered an officer in the court to “put [Saffold] in the box.” The record indicates that the proceedings ended at that point. Therefore, we must conclude that Saffold was denied his right to a probation-revocation hearing. Accordingly, we reverse the circuit court’s revocation of Saffold’s probation and remand this case for the circuit court to conduct a probation-revocation hearing in accordance with § 15-22-54, Ala.Code 1975, and Rule 27.6, Ala. R.Crim. P.

Because we are reversing the circuit court’s revocation of Saffold’s probation on the basis that the court failed to conduct a probation-revocation hearing in compliance with § 15-22-54, Ala.Code 1975, and Rule 27.6, we need not address Saffold’s second contention pertaining to the adequacy of the circuit court’s order revoking Saffold’s probation. However, we remind the circuit court that Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, “[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.”

REVERSED AND REMANDED.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur.


author: WARNER, J.

text:
    D.G., The Father and S.M., The Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D10-4124, 4D10-4187.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Frank A. Kreidler, Lake Worth, for appellant D.G., the father.
    Moria Rozenson of Pickett, Marshall & Rozenson P.A., West Palm Beach, for appellant S.M., the mother.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   WARNER, J.

Both the father and mother appeal the termination of their parental rights to their child. The trial court terminated their rights based upon its findings that they failed to substantially comply with their case plans; that their conduct demonstrates that their continuing involvement in their child’s life threatens her life and safety, regardless of the provision of services; and that they materially breached their case plans by failing to substantially complete them prior to their expiration. Primarily, the court found that over the three years that the child has been in foster care the parents have failed to provide support to the child, have made no meaningful effort do so, have continued to test positive for drugs contrary to their case plans, and, in the case of the mother, materially breached the plan by continuing to have contact with the man who abused her other child and committed acts of domestic violence against her. Although these parents have made some attempt to comply with their case plans and engage with their child, we cannot say that the trial court abused its discretion in terminating their rights.

D.O. was born in October 2005 to S.M. In July 2006, S.M. married J.P., who was not the father of D.O., and they had a son in 2006, J.A.P. The family lived with S.M.’s mother in her small three bedroom home. Neither S.M. nor J.P. worked, and S.M.’s mother was their main source of support. In October 6, 2006, D.O., and her seven-week-old brother, J.A.P., were removed from the mother, S.M. and father, J.P. The seven-week-old son had suffered egregious abuse, and his injuries indicated the child had shaken baby syndrome, including bilateral subdural hematomas, retinal hemorrhages and possible blindness, old bone fractures, bilateral breaks of the wrist bones, bilateral breaks of the pelvic bones and other injuries. Both children were sheltered, and D.O. was placed with her alleged paternal grandparents, the parents of the man whom S.M. believed was the father.

The Department of Children and Families commenced an expedited termination of parental rights, proceeding as to both children based upon the abuse to J.A.P. DCF did not offer services to either parent because of its determination that termination for both children was the appropriate remedy. With respect to D.O., the department alleged in its petition not only the egregious abuse of her sibling but also the mother’s substance abuse, excessive smoking around the child, failure to take the child to necessary medical appointments, and leaving her with inappropriate caregivers.

Neither S.M. nor J.P. admitted causing the injuries to J.A.P. During the termination trial, J.P. voluntarily gave up his rights to J.A.P. The evidence at trial showed that S.M. was the victim of domestic violence from J.P. The court terminated S.M.’s rights to J.A.P. because she failed to protect J.A.P. from abuse. However, as to D.O., the court found that the child had not been abused and that the grounds for termination as to D.O. had not been proved. The court adjudicated D.O. dependent and ordered that DCF develop a case plan for reunification or adoption for S.M. Both S.M. and her mother were allowed visitation with D.O., which they both exercised regularly. S.M. was also ordered to have no further contact with J.P. or his family.

S.M. appealed the order terminating her rights to J.A.P., and DCF appealed the order denying the termination of her parental rights to D.O. See D.O. v. S.M., 981 So.2d 11 (Fla. 4th DCA 2007). This court’s opinion contains a lengthy description of the facts of the proceeding. We affirmed the denial of termination of S.M.’s parental rights as to D.O. Our decision was final in December 2007.

In the order of dependency, the trial court required that a case plan address the following issues: the mother’s lack of parenting skills; the mother’s lack of education; the mother’s lack of employment; the mother’s lack of housing; the mother’s continued acceptance of domestic violence; and the mother’s drug and alcohol use. It ordered domestic violence counseling, drug and alcohol evaluations, psychiatric evaluation, parenting classes, and anger management classes. It also required her to follow all recommendations as well as any other recommendations by the department. The court warned the mother in the order that if she violated the terms of the case plan, the Department “will file an additional Termination of Parental Rights Petition based on the mother’s non-compliance.”

The court ordered a psychological evaluation of the mother, and it was performed by Dr. Francis Crosby in May 2007, just after the termination proceedings but before the issuance of the final judgment. He interviewed the mother for about an hour and a half. Based upon that interview, he concluded that regardless of services she could not be rehabilitated, and D.O. would be in danger if she were returned to her mother at that time. He based this conclusion on the near-fatal abuse of J.A.P.; his diagnosis that the mother suffered from a mood disorder; the mother’s substance abuse; and her non-compliance with treatment. Nevertheless, he also provided a list of areas where the mother should be offered services through a case plan, and it appears that his list was incorporated in the final judgment of the trial court.

After a case plan was prepared for S.M., she immediately began working on the tasks assigned. She completed the recommended courses in parenting, anger management, domestic violence, and substance abuse in the summer of 2007. Although one of the providers recommended additional therapy to her, she declined the additional treatment. She had not improved in her education, but she did obtain a job working at Pizza Hut, and she paid child support to the family having custody of D.O.

S.M. had been charged in connection with the abuse to J.A.P. As a condition of pretrial release, she was ordered to have no contact with J.P. In violation of this condition and even after her training in domestic violence, she contacted him several times while he was in jail and after-wards. In January of 2008 she was re-incarcerated because she had been seen with J.P. She remained incarcerated until October 2008, when she entered a plea and was convicted of culpable negligence in connection with the injuries to J.A.P. She was sentenced to time served.

While she was incarcerated, she was seen by another psychologist, Dr. Sheehan. Dr. Sheehan found that the mother was at high risk for continuing the behaviors because of her continued contact with J.P., who abused both her and J.A.P. Although she had completed all of the required courses on her case plan, her inability to comply with the court order by seeing J.P. showed that she had very poor judgment and insight. The mother had not benefit-ted from the services provided to her. As to substance abuse, S.M. described herself as a functional addict but contended that she did not use drugs around her children. She had, however, tested positive for drugs while under supervision, which was of concern to Dr. Sheehan that she would be using drugs even where there was external supervision.

S.M. told Dr. Sheehan that she intended to divorce J.P. and eventually did so in February 2009. She has not seen J.P. since January of 2008. In addition, she received her G.E.D. sometime after her incarceration.

We now digress from the mother’s story to weave in the evidence regarding the father, D.G. The father was born in Germany to an American father and a German mother and moved to the United States when he was young. During his teenage years, he began a relationship with S.M. which she terminated when she met J.P. The father did not know that the mother was pregnant with his child at the time. The mother reported to DCF that another man was the father of D.O. When that man questioned his paternity, DNA tests proved that he was not the father. D.G. was then identified as the child’s father, and DNA tests proved his paternity. D.G. did not learn that D.O. was his child until August 2007.

A petition for dependency was filed against the father, and an order adjudicating D.O. dependent as to him was entered. The father was given a case plan in October 2007 with a goal of reunification or adoption.

D.G. was seen by Dr. Rojas, a psychologist, soon after D.G.’s fatherhood of D.O. was established. Dr. Rojas found D.G. to be of average intelligence with no history of abuse and from a stable family. His opinion was that “overall findings are consistent with mild risk for future maltreatment. ...” While he recommended reunification between father and daughter, his recommendation required D.G. to complete certain tasks. “[I]t is suggested that reunification take place between six to twelve months of appropriate social behavior, absent from any substance use ... [and he should] be considered for full reunification ... only after completing all core requirements for reunification. He should obtain stable housing, employment, and meet with his daughter in a consistent manner.”

D.G. proceeded to enroll and complete all classes required in his ease plan. This included a substance abuse referral, but no treatment or other counseling was recommended for him, as he was considered not to be an abuser of drugs. He began visiting with D.O. For the most part, these visits were very positive.

One of the goals included child support which was due when D.G. became employable. Although he was a United States citizen, he did not have the proper paperwork to become employed due to his German birth, and his only previous employment had been with his father in construction. He did not resolve the citizenship issues until the beginning of 2010. The record does not explain the reason for the delay in receiving the “paperwork” for him to obtain employment.

Dr. Michaelanne Marie, a court psychologist, evaluated the father in August of 2008, after he had completed many of his case plan tasks. She interviewed him, administered various tests, and observed him with D.O. She found him to have a borderline IQ and low parenting skills, posing challenges to his ability to carry out daily tasks. He was still being taken care of by his own parents. Although he admitted to smoking marijuana, she did not find that he was at risk of substance abuse. She was of the opinion, however, that he seemed to “lack the resources necessary to parent,” suggesting that he had limited capacity to take care of himself, let alone a child. She thought that he presented as a person who would have a hard time holding down a job or performing the daily tasks of living, such as paying bills. She did not recommend reunification.

In the fall of 2008, D.G. and S.M. resumed their relationship and began seeing D.O. together for visitation, which they did twice a week. Both the case manager and the guardian who observed many of the visits stated that the visits went very well with the child obviously enjoying the time she spent with her parents, and the parents acting appropriately with the child. The father did not interact with the child as much as the mother, mainly coloring with D.O. during each visit.

In June 2009, the family with whom D.O. had been residing for nearly three and a half years informed DCF that it could no longer take care of the little girl, and D.O. was removed from the home and placed with a licensed foster care custodian who had already adopted two children and was taking care of two others. At first, D.O. was quite reserved in the placement but subsequently warmed up to it. DCF did not consider the parents as suitable for custody of D.O.

The parents moved for reunification with their daughter several times without success. They had completed most of their tasks, but because neither of them were employed and they lived in a townhouse owned by S.M.’s mother, the court refused to reunite them. The court found that they did not demonstrate an ability to care for the child as all support came from the grandmother.

DCF finally filed its petition to terminate the rights of both parents in October 2009. It alleged that both parents had failed to substantially complete their case plans.

After the petition for termination was filed, D.G. and S.M. married in March 2010, and D.G. continued to live with S.M. in the townhouse. During the period from her release from incarceration in 2008 and the final hearing, S.M. completed her G.E.D. and started taking vocational photography courses online. She did not obtain a job. D.G. also completed the requirements for his G.E.D. but did not have his certificate of completion, which cost $200. It was pointed out at the termination hearing that D.G. could not muster the money to obtain his G.E.D. certificate even though the he and the mother spent about $70 per week on cigarettes.

At the hearing in August 2010 on the petition to terminate rights, Dr. Crosby, Dr. Sheehan, and Dr. Marie all testified, although none had performed follow-up examinations or investigations to determine the current situation of either parent. When asked in hypothetical questions about their opinions given the present circumstances of the parents, none of the experts changed their opinion about the very poor prognosis these parents faced. In particular as to the mother, even though the mother had left the abusive husband, married the father of the child, and completed most of her case plan requirements, these positive changes did not overcome the mother’s failure to have steady employment and her lack of judgment. Similarly, Dr. Marie stood by her opinion that the father lacked the skills and ability to parent.

The case manager testified that she had tried to assist the parties in obtaining employment by doing an internet search for them and printing out applications. They told her that they had applied to those jobs, and they did not have the proper qualifications. While they had completed many of the tasks, they did not have stable housing and employment. Both she and the guardian ad litem recommended termination of the parents’ rights.

Both parents testified at the final hearing, and both claimed that their relationship was a good one. The mother did not explain her lack of employment. The father said he had applied to several employers within walking distance of his residence. He couldn’t remember exactly where they were, nor could he name but a few, and the addresses he gave were questionable. He said he had more documentation of his job search on his computer but did not know that he should have brought it to the final hearing.

Several drug test results were admitted which showed positive results for each parent within the year prior to the termination. In addition, the case manager had instructed both parents to report for random drug screening twice in the three months prior to the termination hearing, and they did not show up for either testing. At trial they claimed that they had not received the case manager’s message on their cell phone.

The trial court ordered termination of the parental rights of both parents. As to the mother, the court relied on the mother’s contact with J.P. after she was declared dependent and ordered not to contact J.P. Consistent with the opinions of the psychologists, the court determined that this demonstrated a severe lack of judgment. It noted that Dr. Sheehan had testified that her continued involvement with J.P. after having secured the counseling under her case plan indicated that she would continue to be a danger to her child regardless of the provision of services. The mother also tested positive for drugs two times in 2010 and failed to appear for drug tests on two occasions just prior to the final hearing, not only violating the terms of the case plan but again showing very poor judgment. The court found that the father’s inability to secure employment and provide for even himself showed that his continuing involvement in the child’s life threatened her health and well-being. “The parents do not have the ability nor disposition to provide the child with food, clothing, medical care or other remedial care recognized and permitted under state law ..., and other material needs of the child; neither parent is employed, and neither appear motivated to seek employment, despite the Department’s efforts to assist both parents in this regard.” The court also found that the manifest best interests of the child required termination because the likelihood was great that she would remain in long term care if parental rights were not terminated, yet she had the capacity to form a significant relationship with a parental substitute. The court also relied on the fact that both the guardian and the case manager recommended termination of parental rights. From this order both parents appeal.

The adjudication of a case involving termination of parental rights involves a two-step process. First, the court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes, has been proven. Second, the court must determine what outcome is in the manifest best interest of the children. C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777, 779-80 (Fla. 4th DCA 2003). Furthermore, the petitioning party must establish that termination of parental rights is the least restrictive means of protecting the child from harm. In re D.A., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003). On appeal, the appellate court’s task:

is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute [its] judgment for that of the trier of fact. Instead, [it] will uphold the trial court’s finding “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.”

In re Baby E.A.W., 658 So.2d 961, 967 (Fla.1995) (quoting Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993)). Where the trial court’s finding that there is clear and convincing evidence to terminate parental rights is supported by competent, substantial evidence, the appellate court has no choice but to affirm. Id. This standard of review dictates the result in this case.

The trial court terminated both parents’ rights for failure to substantially comply with their case plans and material breaches of the plan. Section 39.806(1), Florida Statutes (2010), provides:

Grounds for termination of parental rights may be established under any of the following circumstances:
(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 9 months after an adjudication constitutes evidence of continuing abuse, neglect or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources
2. The parent or parents have materially breached the case plan. Time is of the essence for permanency of children in the dependency system. In order to prove the parent or parents have materially breached the case plan, the court must find by clear and convincing evidence that the parent or parents are unlikely or unable to substantially comply with the case plan before time to comply with the case plan expires.

The mother contends that she offered clear and convincing evidence that she substantially complied with the case plan. Of course, as noted above, our standard of review dictates that we look at the evidence presented, not in the light most favorable to the parents, but in a neutral manner in which we must assess whether competent substantial evidence supports the trial court’s conclusion that the parents failed to substantially comply with their respective plans.

We start with the trial court’s conclusions regarding the mother. When the trial court declared the child dependent, it ordered a case plan for the mother to address the issues of lack of parenting skills, employment, housing, drug abuse, and mental health issues. The trial court found that the mother had not substantially completed her tasks. Although she had attended the necessary programs, including those on domestic violence, she continued her relationship with J.P. Dr. Sheehan found that this demonstrated very poor judgment and showed that she did not benefit from the services offered. Her opinion on the mother’s poor judgment was reinforced by the mother’s positive drug tests.

The mother asserts that her drug tests should be ignored, because “substantial compliance” is defined in section 39.01(73) to mean that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the child will not be endangered if she remains with the parent. As she maintains her drug use was not the cause of the removal of the child in the first place, the positive drug tests should not be a reason to terminate her parental rights. The original petition for termination filed in 2006, however, did allege as a ground for termination the mother’s drug history and drug use. The order of adjudication of dependency also established this as an issue to be addressed through the case plan. Therefore, we disagree that the tests should be ignored.

The trial court gave credence to the psychologist’s opinion that the mother would not benefit from additional services and still remained at high risk for abuse and neglect of her child. In addition, the trial court found that neither parent had obtained employment in the multiple years since their case plans were executed. The evidence indicated that both the mother and father appeared to have little incentive to find employment.

Although the immediate cause of removal of D.O. from the home was the egregious abuse of little J.A.P., both the original petition for removal and the order adjudicating her dependent were based not only on the physical abuse of J.A.P., but also on the mother’s drug use and lack of resources to care for the child. Thus, while a significant circumstance which caused the adjudication of dependency and case plan has been resolved by the divorce from J.P., this was not the only issue which caused the dependency. The mother still has issues with drugs, lack of employment, and overriding all of these is a lack of judgment which has not been resolved by the provision of services.

The mother entered into the case plan in May 2007. By the time of the final hearing more than three years had passed, and the mother had still not complied with its terms. She had violated its terms on several occasions. For nearly six months she continued to contact her abusive husband, causing her incarceration; she continued to use drugs; and except for a few months in 2007, she has failed to support her child at all. The court’s conclusions that she continued to neglect her child by failing to complete her case plan and that she materially breached her case plan were supported by competent substantial evidence.

As to the father, Dr. Marie testified that even after receiving services the father lacked parenting skills and could not take care of himself, let alone his child. The court concluded:

The father has not benefited from the services offered in his case plan. He has been unable to provide a home for himself during this case plan or at any time in his life. He resides in a home provided by the maternal grandmother and prior to that resided in his parent’s home. He was previously scheduled to be evicted from the current home by the maternal grandmother if he did not obtain a job. He has not obtained employment or provided any means of support for the child. The psychologist’s opinion is supported by the father’s history. He has not demonstrated an ability to provide for or care for his child which is the reason this child has never been returned to him. He has not remedied the reasons for the child’s removal and has failed to substantially comply with his case plan. On this record it is impossible to find otherwise.

While the father finished his G.E.D., he did not obtain the certificate of completion because he did not have the money to obtain it, even though he and the mother were spending $70 a week on cigarettes, money which he did not earn himself. This alone shows a lack of judgment or settled purpose to substantially comply with the case plan, knowing of the importance of a G.E.D. in obtaining gainful employment.

The father argues that the court cannot terminate his rights where his inability to complete his case plan is due to his lack of financial resources or matters over which he has no control. He points to his inability to obtain legal employment until his visa issues were resolved and the fact that he has looked but has not found employment. The court, however, was not impressed with his efforts. Even if the delay in securing employment status was out of his control, since he secured the proper papers and received his G.E.D. he did not engage in a substantial job search. The trial court found that his efforts were less than sincere. Instead, both he and S.M. chose to sit at home, where they would play on the computer and occasionally smoke marijuana.

We do not agree with the trial court that, in and of itself, the fact that the grandmother allowed the parents to reside in her townhome shows that they lack stable housing. Indeed, particularly in these very difficult economic times, adult children are frequently living with their parents. But the trial court could appropriately consider the stability of that arrangement, because earlier the grandmother expected them to pay rent or to move at some point. While the grandmother testified at the hearing that the parents could stay as long as they wanted with her grandchild, the court could conclude that the arrangement was not entirely stable and that they were not taking any steps to show that they could be financially responsible for their child.

Contrary to D.G.’s assertions, it is not his lack of financial resources that caused the trial court to find abandonment by failing to complete his case plan, it was his own casual approach to his obligations. As the Third District noted in M.M. v. Department of Children and Family Services, 867 So.2d 573, 575 n. 1 (Fla. 3d DCA 2004):

In this case, the issue really is not the failure to have adequate employment or housing, for neither are legally required, per se, to be an adequate parent. In the Interest of J.R.C., 480 So.2d 198 (Fla. 5th DCA 1985). The Depression Era alone proves that families can successfully weather the storms of unemployment and poverty. Rather, the issue in this case is whether M.M’s lackadaisical approach to completing her case reunification plan evidences an unwillingness on her part to organize her life in such a fashion as to care for her children.

Just as in M.M., the issue in this case is whether D.G.’s approach to completing his case plan evidences an unwillingness on his part to organize his life in such a fashion as to care for his child. D.G. did complete parts of his case plan. He attended parenting courses. He completed his G.E.D. But, he did not fulfill even the requirements set down by Dr. Rojas for reunification, namely six to twelve months of appropriate social behavior and absence of substance abuse, and finding stable housing and employment. He did faithfully visit with his child, although frequently both he and the mother would be late, to the consternation of their child. But coloring pictures with a child does not show that the parent has developed the capability to care for that child. What it takes is a desire to take on that responsibility, knowing that the nurturing of a child is one of the most important endeavors of humanity.

The trial court found that D.G. had not substantially completed his case plan within the time for its completion. Nearly three years had elapsed since its creation, more than enough time to complete its tasks and show an ability to take on the responsibilities of parenthood. The time for compliance has passed. We cannot find that the trial court abused its discretion in terminating their rights to the child. While the parents have a right to raise their child, it is a right they may forfeit by their conduct. The child, too, has a right to achieve stability in her life with parents who will properly care for her. We must affirm.

POLEN and CONNER, JJ., concur.

      . The trial court’s findings that termination was in the manifest best interest of the child and the least restrictive means have not been challenged by the parties. We therefore do not address them other than to note that these findings were supported by competent substantial evidence.


author: HAZOURI, J.

text:
    Jane GASSMAN, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D11-360.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Rehearing Denied Dec. 29, 2011.
    Joshua A. Blacksten of Stabinski & Funt, P.A., West Palm Beach, for appellant.
    Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   HAZOURI, J.

Jane Gassman insured her house under a residential property insurance policy written by State Farm Florida Insurance Company. Gassman filed suit against State Farm for damages sustained as a result of Hurricane Wilma, which hit central Palm Beach County in October of 2005, after Gassman and State Farm could not agree on the extent of damage caused by the hurricane and the cost of repairs. State Farm filed a motion to stay the lawsuit pending the completion of the appraisal process which the trial court granted. That order is the subject of this appeal. We reverse the trial court’s order staying the lawsuit pending the completion of the appraisal process.

Gassman argues that the trial court erred in granting the stay because State Farm failed to comply with the requirement in section 627.7015, Florida Statutes (2007), of notifying her of her right to participate in mediation when an insured files a first party claim for the property damage. State Farm argues that it did not violate section 627.7015 because there was never a “dispute between an insurer and an insured relating to a material issue of fact.” § 627.7015(9), Fla. Stat. (2007). We agree with Gassman.

This court reviews de novo a trial court’s order compelling an appraisal under an insurance policy. Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 130 (Fla. 4th DCA 2010).

Section 627.7015 provides for an alternative procedure for resolution of disputed property insurance claims. The statute states as to its purpose that “[t]here is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowner’s and commercial residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation.” § 627.7015(1), Fla. Stat. (2007). Subsection (2) provides:

At the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section. The department shall prepare a consumer information pamphlet for distribution to persons participating in mediation under this section.

§ 627.7015(2), Fla. Stat. (2007). With respect to the appraisal process, subsection (7) provides:

If the insurer fails to comply with subsection (2) by failing to notify a first-party claimant of its right to participate in the mediation program under this section or if the insurer requests the mediation, and the mediation results are rejected by either party, the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.

§ 627.7015(7), Fla. Stat. (2007).

In Universal Property and Casualty Insurance Co. v. Colosimo, 61 So.3d 1241 (Fla. 3d DCA 2011), the insureds reported a claim for water damage to their kitchen to their insurer. The insurer first wrote to the insureds that the claim was not covered under the policy but then advised the insureds two months after the claim that it was covered. After the insureds sent in a sworn proof of loss, the insurer sent them another proof of loss form for execution and notarization. The insureds sent a copy of the previously filed form and a request to commence the appraisal process. The insureds selected their appraiser and the insurer selected its appraiser. Thereafter disputes arose between the appraisers and the neutral umpire was not selected. The insureds filed suit for breach of contract and breach of implied covenant of good faith and fair dealing. The insurer answered and filed its affirmative defenses. Thereafter, the insurer filed a motion for stay and a motion for appointment of a neutral umpire as set forth in the policy. After a hearing, the trial court denied the motion because the insurer failed to comply with section 627.7015.

On appeal, the district court cites to the subsections of section 627.7015 set out above and Florida Administrative Code Rule 69J-166.03K1) & (4)(a). The rule implements section 627.7015 and specifies that:

1. Within five days of the insured filing a first-party claim which falls within the scope of this rule, the insurer shall notify the insured of their right to participate in this program.

Fla. Admin. Code R. 69J-166.031(4)(a)l. The Third District concluded:

The plain language of section 627.7015, as well as that of rule 69-166.031, clearly provide that if an insurer fails to supply written notice of the right to mediate, the insured shall not be required to engage in a contractual loss appraisal process as a prerequisite to litigation.

61 So.Sd at 1243. The Third District affirmed the denial of the motion to appoint the neutral umpire and the motion for stay because the insurer did not comply with the statute and the rule. See also Fla. Ins. Guar. Ass’n, Inc. v. Shadow Wood Condo. Ass’n, 26 So.3d 610 (Fla. 4th DCA 2009) (insurer’s failure to notify condominium association of its right to participate in presuit mediation relieved association of the obligation to participate in appraisal process).

Section 627.7015(9), Florida Statutes, provides:

(9) For purposes of this section, the term “claim” refers to any dispute between an insurer and an insured relating to a material issue of fact other than a dispute:
(a) With respect to which the insurer has a reasonable basis to suspect fraud;
(b) Where, based on agreed-upon facts as to the cause of loss, there is no coverage under the policy;
(c) With respect to which the insurer has a reasonable basis to believe that the claimant has intentionally made a material misrepresentation of fact which is relevant to the claim, and the entire request for payment of a loss has been denied on the basis of the material misrepresentation; or
(d) With respect to which the amount in controversy is less than $500, unless the parties agree to mediate a dispute involving a lesser amount.

§ 627.7015(9), Fla. Stat. (2007). The claim herein does not fit under any of the exceptions. Therefore, Gassman was not required to submit to the appraisal process and the trial court erred in granting State Farm’s motion to stay.

Reversed and Remanded for further proceedings consistent with this opinion.

TAYLOR and LEVINE, JJ., concur.


text:
    Willie J. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4067.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Willie J. Brooks, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal from the denial of a motion for post conviction relief after evidentiary hearing was dismissed when appellant failed to respond to an order to show cause concerning the timeliness of the notice of appeal. We conclude that appellant’s motion for rehearing or reconsideration establishes good cause for his failure to respond, and therefore withdraw our prior order of dismissal.

However, upon consideration of appellant’s response to the order to show cause, we conclude that the notice of appeal was not timely filed, and the appeal is therefore dismissed for lack of jurisdiction. This disposition is without prejudice to appellant’s right to seek a belated appeal by proper petition complying with the requirements of Florida Rule of Appellate Procedure 9.141(c).

WOLF, LEWIS, and WETHERELL, JJ., concur.


text:
    William MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5865.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2011.
    Rehearing Denied Jan. 19, 2012.
    William Miller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, CLARK, and LEWIS, JJ., concur.


text:
    Carlos Jerome WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5903.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2011.
    Rehearing Denied Jan. 19, 2012.

      Carlos Jerome Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, LEWIS, and CLARK, JJ., concur.