author: MOORE, Judge.

text:
    S.M.M. v. R.S.M.
    2100646.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2011.
    Krystal G. Padula of Padula Law Firm, P.C., Rainbow City, for appellant.

      Shaun Malone of The Malone Law Firm, Gadsden, for appellee.
   MOORE, Judge.

S.M.M. (“the mother”) appeals from a judgment of the Etowah Juvenile Court (“the juvenile court”) terminating her parental rights to J.R.M. (“the child”). We reverse.

Background

On January 27, 2011, R.S.M. (“the father”) petitioned the juvenile court to terminate the mother’s parental rights to the child. The father sought to terminate the mother’s parental rights because, he alleged, the mother had failed to provide for the material needs of the child, to pay a reasonable portion of the child’s support, and to maintain substantial contact with the child.

The mother, appearing pro se, denied the allegations of the father’s petition. On March 23, 2011, the juvenile court conducted a hearing on the father’s petition to terminate the mother’s parental rights; ore tenus evidence was received at that hearing. On March 28, 2011, the juvenile court entered its judgment terminating the mother’s parental rights. The mother timely filed her notice of appeal.

Analysis

The purpose of the statute authorizing termination of parental rights is to protect children from harm emanating from an adverse parental relationship. See generally Ex parte A.S., 73 So.3d 1223 (Ala.2011). A juvenile court may terminate parental rights in order to protect a child from harm, but the law demands that a juvenile court use less drastic measures than termination of parental rights if those measures would adequately protect the child from harm. See Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990). Hence, before entering a judgment terminating parental rights, a juvenile court must consider all alternatives, and, if the evidence shows that a viable alternative to termination of parental rights exists, the juvenile court cannot terminate parental rights. Id. In this case, the mother argues primarily that the juvenile court erroneously terminated her parental rights when a less drastic and viable alternative existed that would adequately protect the child from harm. We agree.

The facts relevant to the disposition of the appeal are as follows. The child was born of the marriage between the parties in 2002. The parties divorced in 2009, with the father receiving sole physical custody of the child subject to the right of the mother to visit with the child under the supervision of the father and at his discretion. At the time of the divorce, the mother was attending an inpatient drug-rehabilitation program, so she did not exercise much visitation with the child. The mother later was jailed from June 2009 through July 2010. During her incarceration, the mother contacted the father several times per week seeking visitation with the child, to which the father agreed on two or three occasions. The father also allowed the mother to visit with the child at a halfway house upon her release from jail. The mother also visited with the child four or five times after she had left the halfway house in December 2010 and after the father had filed his petition to terminate her parental rights. The father complained that, during one of the visits, the mother had allowed the child to walk around without shoes on a gravel playground and had allowed the child to sit on the bank of a “ditch [while] throwing rocks in the water.” However, the father presented no evidence indicating that the mother’s supervised visits had endangered the child physically or emotionally.

The father testified that he thought it would be best for the child if the mother’s parental rights were terminated so that he and the child could move to Florida to be nearer to the child’s paternal relatives. The father also testified that he wanted to end his association with the mother because, he stated, she had falsely accused him of domestic violence in the past and “[fit’s an ongoing argument.” The father further complained that the mother had not fully complied with the child-support provisions of the divorce judgment. The father also stated that the child was aware of the mother’s drug problem and her criminal problems — in fact, one of her criminal charges related to the theft of the child’s identity — and that he did not want the child to be involved with the mother. Finally, the father complained that the mother had provided the child several books on wrestling, a topic the child enjoyed, but that the child had found two pornographic pictures in those books.

When asked how termination of the mother’s parental rights would benefit the child, the father responded:

“Q: Well, it’s lack of support. The fraudulent charges. The restless nights I get. I hear noises, I get up, I check. I mean, that’s normal. But when, you know—
“A: But terminating parental rights wouldn’t stop that, would it? You already have full control, I guess is what I’m saying.
“A: I understand. But at least if the rights are taken, then the — her, herself, the way she is, with the lying, the stealing, the drugs, the company that she keeps, the lack of a steady house, the lack of support, the lack of medical support for my son, it’s like he is just something for her to hold on to. And it’s not right.”

The mother testified that she was 31 years old at the time of the termination hearing. She continued to insist that the father had committed domestic violence against her, and she denied that she had falsely accused him on any occasion. She admitted, however, that, in 2008, when the Etowah County Department of Human Resources (“DHR”) was involved with the family, she had falsely claimed to have cancer and had falsely claimed to have a broken arm; the mother testified that, at that time, she had been depressed and was seeking attention. The mother admitted that she had used drugs in the past, but, she testified, she had not used drugs since early 2009.

The mother also admitted that she had been convicted of identity theft involving the child and that she had been convicted of theft involving her former roommate. The mother did not dispute the findings in her psychological assessment indicating that she suffers from mental-health conditions; she testified that she had received psychological treatment and that she had been prescribed medication to treat depression and sleep-related issues.

According to the mother, she was jailed in February 2009 and, shortly thereafter, was ordered to drug rehabilitation at the “W.A.D.E. Freedom House.” The mother testified that she was dismissed from that program on July 15, 2009, for attempting to telephone the child during her work hours, which was against the rules. The mother testified that the father picked her up in Jacksonville on that day and drove her to his house, where he had law-enforcement officers waiting to arrest her for identity theft. According to the mother, she remained in jail from July 2009 until June 14, 2010, when she began the drug-rehabilitation program at “Rainbow of Hope,” which, she testified, she successfully completed on January 9, 2011. The mother testified that, since her completion of the Rainbow of Hope program, she had been teaching “Christians Against Substance Abuse” class and that, at the time of the termination hearing, she was still attending 12-step meetings.

The mother denied that she had placed any pornographic photographs in the wrestling books that she had given to the child. She testified that she had purchased those books at a yard sale as a gift for the child and that she had had no knowledge that the photographs were in the books. The mother acknowledged that she had not paid child support to the father until January 2011 and that, at that time, she had paid $500 to the father; the mother testified that she had earned that money providing care as a live-in aide to a man with Parkinson’s disease. The mother testified that she had provided the child a video game and a shirt at Christmas in 2010 but that, until that time, she had been unable to provide support or more substantial gifts for the child because she had been in jail or in drug rehabilitation.

The mother testified that she and the child typically talked on the telephone two or three times a week, but, she explained, she attempted to talk to the child more frequently. According to the mother, the father sometimes accommodated her requests, and sometimes refused her requests, to visit with the child. The mother also testified that the father had mentioned to her that he wanted to move to Florida. According to the mother, she had responded: “I’ll sign a paper that says you can move to Florida as long as you just let me see [the child].” The mother testified that the father filed his petition seeking to terminate her parental rights the same day they discussed his desire to move to Florida.

The burden is on the custodial parent seeking termination of the parental rights of the noncustodial parent to prove that no viable alternative to termination exists. See Beasley, supra. In this case, the father failed to prove that maintenance of the status quo would not adequately protect the child from the harmful conduct of the mother.

In Ex parte A.S., supra, a child’s maternal grandmother petitioned a juvenile court to terminate the parental rights of A.S., the mother, to that child. 73 So.3d at 1224. The juvenile court in that case granted that petition so that the grandmother could adopt the child; the mother appealed. Id. at 1227. This court affirmed the juvenile court’s judgment, without an opinion, and the mother petitioned our supreme court for certiorari review. Id. at 1227-28.

Although recognizing that the child was dependent because the mother was incarcerated at the time of the termination hearing, 73 So.3d at 1227, the supreme court reversed the juvenile court’s termination of the mother’s parental rights. Id. at 1229. The supreme court concluded that a viable alternative to termination existed, i.e., that “[t]he grandmother’s maintaining custody of the child and having the ability to determine and supervise the mother’s visitation with the child is a viable alternative to termination of the mother’s parental rights while the mother is making progress towards rehabilitation.” Id. at 1229-30.

The supreme court stated:

“When determining whether to terminate an individual’s parental rights, ‘the primary focus of a court ... is to protect the welfare of children and at the same time to protect the rights of their parents.’ Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). Therefore, ‘a court should terminate parental rights only in the most egregious of circumstances.’ Id. ...
“ ‘ “[T]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in [this] case[ ] ‘does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.’ ” ’ ”

Ex parte A.S., 73 So.3d at 1228-30 (quoting D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 445 (Ala.Civ.App.2003), quoting in turn V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998)).

We find several parallels between this case and Ex parte A.S., supra, but we note that the existence of a viable alternative to termination is more strongly established by the facts of this case than it was in Ex parte A.S. The mother in this case was no longer in jail at the time of the termination hearing, and she had demonstrated significant progress toward rehabilitating herself. She had been involved in parenting the child before being incarcerated, and she had continued to maintain frequent communication and visitation with the child while she was in jail and during her drug rehabilitation. Although the mother admitted that she had used illegal drugs in the past, by the time of the termination hearing she had successfully completed a drug-rehabilitation program, had been released from a halfway house, was participating in a 12-step program, and was teaching a class to help others deal with substance abuse. No evidence was offered to suggest that the mother was using illegal drugs or that she was likely to relapse.

Although the evidence indicates that the mother suffers from mental-health conditions, no evidence was offered to suggest that she posed a physical threat to the child or that the mother’s treatment and medication were insufficient to address her mental-health conditions. Additionally, she has been awarded only supervised visitation with the child. The father has sole custody of the child, and he has complete discretion over the mother’s visitation. Thus, in addition to the evidence offered by the mother indicating her improved stability and her improved emotional health, the father is in a position to ensure the child’s safety during the mother’s visitations. Maintenance of the status quo and allowing the mother continued supervised visitation with the child adequately protects the welfare of the child while allowing for a beneficial relationship with both parents.

Based on the foregoing, we conclude that a viable alternative to termination of the mother’s parental rights exists. We therefore reverse the juvenile court’s judgment, and we remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

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

BRYAN, J., concur in the result only, without writing.

      . The mother also argues that the juvenile court did not have sufficient grounds to terminate her parental rights. In light of our disposition, we need not address that argument.

      . The father acknowledged that he took the child to the halfway house "a few times” to visit with the mother, but, in his testimony, he identified only one visit at the halfway house. Thus, from the context of the father's testimony, we conclude that the father did not specifically identify all the visits that had occurred between the mother and the child since the parties’ divorce.

      . The father testified that, until the termination hearing, he had been unaware that he could move to Florida with the child without having the mother's parental rights terminated.

      . Although the father testified that the mother had not paid child support during her incarceration, he acknowledged that she had begun paying child support in January 2011, immediately upon her release from the halfway house. The father also admitted that the mother had provided the child a video game for Christmas and that she had provided the child with small gifts from time to time.

      . According to Sandra Bumgardner, a DHR caseworker who had worked with the family in 2008, the mother had submitted to a psychological assessment and was determined to have "a personality disorder with schizoid and avoidance."


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    H.A.M. v. STATE of Alabama.
    CR-09-1517.
    Court of Criminal Appeals of Alabama.
    April 29, 2011.
    Rehearing Denied Aug. 12, 2011.
    Certiorari Denied Oct. 7, 2011 Alabama Supreme Court 1101392.

      Robin C. Clem, Huntsville; and Bruce A. Gardner, Huntsville, for appellant.
    Troy King and Luther Strange, attys. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   BURKE, Judge.

The appellant, H.A.M., appeals the transfer of his case from the Madison Juvenile Court to the Madison Circuit Court where he would be prosecuted as an adult. H.A.M. is charged with murder, pursuant to § 13A-6-2(a)(l), Ala.Code 1975.

During the probable-cause phase of H.A.M.’s transfer hearing, Detective Michael Shaneyfelt of the Madison Police Department testified that, on the afternoon of February 5, 2010, he responded to a shooting that had taken place at a middle school in Huntsville. Detective Shaneyfelt interviewed H.A.M., who was a 14-year-old student at the school, as well as a number of -witnesses to the shooting. H.A.M. made spontaneous statements, admitting his guilt immediately following the shooting. Witnesses stated that he walked into the bathroom following the shooting and laid the gun and some bullets down next to the sink.

H.A.M. was taken into custody and was informed of his juvenile Miranda rights. H.A.M. gave both oral and written statements indicating that he had taken a .22 caliber Beretta handgun weeks earlier from the house of a friend. He admitted that he brought the gun and two boxes of shells to school that day. H.A.M. stated that he had been standing in the hall, talking to a friend when he saw the victim and started walking behind him. He pulled the gun from his pocket and shot the victim in the back of his head. The victim died as a result of the gunshot wound.

Surveillance videotape from the school’s security camera confirmed H.A.M.’s version of the events. The video recording was played for the court.

Detective Shaneyfelt testified that he spoke with H.A.M.’s English teacher, who told him that she had a closer relationship with H.A.M. than he had with the other teachers. She testified that he was highly intelligent, “so intelligent that he is off the charts.... He is a very intelligent writer. He’s very creative. And he can read something and comprehend it and tell you ... in terms what he has read almost verbatim.” (R. 42.) She further stated that H.A.M. could be a loner but that he also interacted with other students. H.A.M. and the victim had both been students in the same English class, and she had never been aware of any difficulties between them.

Psychiatric assessments were performed to determine the intelligence, mental maturity, and emotional status of H.A.M. before the hearing on the State’s motion to transfer the 14-year-old juvenile to circuit court to stand trial as an adult. The results of those findings were admitted into evidence with no rebuttal or objection from the State. At the conclusion of the hearing, the juvenile court transferred H.A.M. to the circuit court for criminal prosecution as an adult. H.A.M. appealed from the transfer order. • We affirm.

On appeal, H.A.M. argues that the juvenile court erred when it transferred the case to the circuit court. Specifically, he argues that the order certifying H.A.M. to be tried as an adult was improper under § 12-15-203(c), Ala.Code 1975, because H.A.M. was committable to an institution for the mentally ill.

This Court has long held that the final determination of whether to transfer a minor for criminal prosecution must be made by the juvenile judge and not by the State’s attorney, the child’s probation officer, experts, or a parent. Palmer v. State, 485 So.2d 1247, 1248 (Ala.Crim.App.1986).

In the present case, Dr. Philip J. Lazarus, a psychologist, testified for the defense that, in his opinion, based on intelligence tests, personality profiles, and various reports, H.A.M. would benefit from being committed to an institution for mentally ill offenders rather than standing trial as an adult. He diagnosed H.A.M. as suffering from extreme depression and having suicidal tendencies. He also diagnosed H.A.M. as suffering from attention-deficit/hyperactivity disorder and anxiety disorder.

On cross-examination of Dr. Lazarus, the prosecutor pointed out that the majority of Dr. Lazarus’s findings were based on self-reporting by H.A.M. and on reports from his parents. She further elicited testimony concerning a number of inconsistencies in the parents’ statements and assessments of H.A.M.’s behavior. The prosecutor noted that the statements indicating that H.A.M. might suffer from a mental illness were made to the psychologist rather than to the police following the offense. The prosecutor also questioned Dr. Lazarus about H.A.M.’s intelligence. Moreover, although he determined that H.A.M. had.suicidal tendencies, this finding was based on statements by H.A.M., including his indication to Dr. Lazarus that he had planned on shooting himself after killing the victim but that the gun had jammed. However, it was within the juvenile court’s discretion to disregard this unrebutted evidence and make an informed determination based on the remaining statutory criteria.

Although the fact that this testimony by Dr. Lazarus was unrebutted is concerning, the amount of weight to be accorded such expert testimony is a matter for the juvenile judge. A.W.M. v. State, 627 So.2d 1148, 1154-55 (Ala.Crim.App.1993) (“The juvenile judge was authorized to discount that report — and its conclusion that ‘[A.W.M.] is an excellent candidate for treatment and rehabilitation’ — in light of evidence that the appellant deliberately planned and willingly participated in the hostile and anti-social act of armed robbery. Compare Lackey v. State, 615 So.2d 145 (Ala.Cr.App.1992) (when the factfinder has an objective reason to doubt the validity of an expert’s conclusion, it may give the expert’s testimony little or no weight).”).

“Despite the fact that this is a close case and that the decision of the juvenile court is not necessarily one this Court would have reached, we cannot say that the juvenile court’s transfer order was based solely on the nature of the offense or was unsupported by clear and convincing evidence. In our opinion, the decision of the juvenile court was based on the facts underlying the offense and the circumstances surrounding [H.A.M.’s] participation in the offense, in conjunction with the other relevant statutory factors.”

A.W.M. v. State, 627 So.2d at 1154.

After considering the facts underlying the offense, the circumstances surrounding the juvenile’s participation in that offense, and the other relevant statutory factors, a juvenile court may properly order the transfer of the juvenile even when there is evidence indicating that the juvenile would be “ ‘an excellent candidate for treatment and rehabilitation.’ ” B.L.S. v. State, 628 So.2d 1034, 1036 (Ala.Crim.App.1993), quoting A.W.M. v. State, 627 So.2d at 1154.

Section 12-15-203(b), Ala.Code 1975 provides:

“The juvenile court judge shall conduct a hearing on all motions for the purpose of determining whether it is in the best interests of the child or the public to grant the [transfer] motion. Only if there are no reasonable grounds to believe the child is committable to an institution, department, or agency for individuals with an intellectual disability or mental illness, may the juvenile court judge order the case transferred for criminal prosecution.”

Here, the juvenile court determined that there were no “reasonable grounds to believe [H.A.M. was] committable to an institution, department, or agency for individuals with an intellectual disability or mental illness.” Thus, she went on to consider the factors in § 12-15-203(d).

Section 12-15-203(d), Ala.Code 1975, outlines the terms of transfer of cases from juvenile court to criminal court, including the relevant factors the trial court may consider in determining whether a motion to transfer should be granted. Those factors include:

“(1) The nature of the present alleged offense.
“(2) The extent and nature of the prior delinquency record of the child.
“(3) The nature of past treatment efforts and the nature of the response of the child to the efforts.
“(4) Demeanor.
“(5) The extent and nature of the physical and mental maturity of the child.
“(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.”

The juvenile court need not make a specific finding as to each of the six factors to be considered under § 12-15-203(d), Ala. Code 1975. If the transferring court states that all six factors of § 12-15-203(d) have been considered, then its order is sufficient. In the present case, the order by the juvenile judge states, and thereby reveals, that she considered all of these factors. C.C. v. State, 586 So.2d 1018, 1020 (Ala.Crim.App.1991) (“If a transferring court states that all six factors of § 12-15-34(d) have been considered, then its order complies with the rules. See Ex parte Anonymous, 466 So.2d 81 (Ala.1984); Gulledge v. State, 419 So.2d 219 (Ala.1982).”). See also J.S.A. v. State, 615 So.2d 1288, 1291 (Ala.Crim.App.1993) (“The juvenile [judge] need not make a specific finding as to each of the six factors to be considered under § 12-15-34(d) [now § 12-15-203(d) ], but his order must contain some statement that all the factors were considered, in order that the appellate courts can make a determination that the statutory requirements have been met. Taylor v. State, 507 So.2d 1034 (Ala.Cr.App.1987). If the transferring court states that all six factors of § 12-15-34(d) [now § 12-15-203(d) ] have been considered, then its order complies with the law.”). Here, the juvenile court’s ordered stated that she considered all the statutory factors, listing each. (C. 72-73.)

The record reveals that H.A.M. had been adjudicated delinquent on a prior occasion for third-degree criminal mischief committed at the middle school. For this offense, he was placed on probation and, for a time, transferred to an alternative school. Although his prior adjudication may not have been of a nature to be weighed heavily toward a transfer to circuit court, it nonetheless may be considered by the juvenile court in determining whether to transfer a case to circuit court.

The record also contains detailed evidence about the nature of the alleged offense. Defense counsel conceded that the offense was a heinous act. Oral testimony and material exhibits revealed that H.A.M. shot the victim with a .22 Beretta handgun, causing a fatal wound on the back of the head. Thus, the nature of the present alleged offense adequately supports the juvenile court’s transfer of the instant case to the circuit court under § 12-15-203(d)(1), Ala.Code 1975.

This court, in B.L.S. v. State, 628 So.2d 1034 (Ala.Crim.App.1993), stated that although the nature of the offense alone may not support a transfer order, the “ ‘juvenile court should examine the facts underlying the alleged offense and the circumstances surrounding the juvenile’s participation in that offense, along with the other five factors of Ala.Code 1975, § 12-15-34(d) [now § 12-15-203(d) ]. N.D.T. v. State, 592 So.2d 647, 650 (Ala.Cr.App.1991); J.S.A. v. State, 615 So.2d 1288 (Ala.Cr.App.1993).’ ” 628 So.2d at 1036, quoting A.W.M., 627 So.2d at 1154.

Similarly, in Ex parte Farrell, 591 So.2d 444 (Ala.1991), the Alabama Supreme Court stated that the criminal charge alone can not support a judicial ruling denying youthful-offender status. The same rationale applies to the present case. The Court explained:

“We are not saying that the nature of the fact situation on which a charge is based cannot be, in itself, a sufficient reason for denying youthful offender status; to the contrary, we hold that the nature of the fact situation on which a charge is based may, alone, be a sufficient reason for denying youthful offender status. For example, if a minor is charged with first degree assault for beating an elderly person nearly to death with a baseball bat, then the nature of the fact situation on which the first degree assault charge is based could be, in itself, a sufficient reason for properly denying a petition for youthful offender status, although the first degree assault charge in and of itself could not be the basis for denying that petition. If, in this case, Janet had had the pistol, the nature of the fact situation on which the charge was based might have been in itself a sufficient reason for denying her youthful offender petition, although the first degree robbery charge in and of itself could not be the basis for denying that petition.”

591 So.2d at 449.

Additionally, the juvenile court’s order suggests that it considered, as it had the discretion to do, the “best interests of the community” in determining that this matter should be treated as murder rather than as an act of juvenile delinquency, fulfilling § 12-15-203(d)(6), Ala.Code 1975. The record supports this finding.

The weight to be accorded to each statutory factor and other considerations in determining whether a juvenile should be transferred from the juvenile court to the circuit court for prosecution does not involve the mere tallying of the circumstances for numerical comparison; rather it is a balancing and weighing process, and one statutory factor may outweigh the remaining five statutory factors. N.D.T. v. State, 592 So.2d 647 (Ala.Crim.App.1991).

In this case, the juvenile court’s order stated that it considered all six statutory factors and was particularly compelled to make its ruling based on the severity of the crime and taking into account the best interests of the community, as well as H.A.M.’s personal safety. Taylor v. State, 507 So.2d 1034 (Ala.Crim.App.1987). It made findings of fact as to the reasoning behind transferring the case to the circuit court. We find no merit to H.A.M.’s claim that the juvenile court did not consider all the statutory factors, as required by law, before ordering the transfer from juvenile court to circuit court for criminal prosecution.

Thus, the child’s maturity, both physical and mental, is but one of the factors that the transferring court must consider in determining whether to grant the motion to transfer. Here, the record included testimony by the licensed psychologist who had evaluated H.A.M. for the juvenile court’s determination of whether H.A.M.’s demeanor and level of mental maturity precluded transfer of his case to the circuit court. He found that H.A.M. was competent, emotionally and intellectually, to stand trial as an adult. This evidence supported the juvenile court’s transfer order.

In reaching its determination on a motion to transfer a child to the circuit court for prosecution as an adult, the transferring court decides how much weight to give each factor. Furthermore, the transferring court may rely solely on its independent determination of the juve-' nile’s mental state. C.C. v. State, 586 So.2d 1018 (Ala.Crim.App.), on return to remand, 591 So.2d 156 (Ala.Crim.App.1991). Even if one or more of the statuto ry factors supports keeping the child in the juvenile system, the juvenile court may transfer the child for prosecution as an adult if the remaining factors provide clear and convincing evidence supporting the transfer. See O.M. v. State, 595 So.2d 514, 526 (Ala.Crim.App.1991) (holding that the “clear and convincing evidence” standard of proof applies to the dispositional phase of a juvenile-transfer proceeding).

For the foregoing reasons, the judgment of the juvenile court is due to be affirmed.

AFFIRMED.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and § 12-15-202, Ala.Code 1975 (rights of the juvenile).

      . This statute was formerly codified as § 12-15-34(c), Ala.Code 1975.

      . For instance, the parents indicated in their police report that there was no history of attempted suicide by a family member; that H.A.M. had not exhibited any aggressive behavior, difficulty sleeping or eating; and that no family member had ever been diagnosed with a mental illness. However, their answers in Dr. Lazarus’s report were to the opposite. (R. 134-35.)

      . H.A.M. had a full I.Q. score of 119, but Dr. Lazarus conceded that it could be higher.

      . The record includes a document indicating that H.A.M. had once attempted suicide by ingesting pills while staying with his family at a hotel. However, he telephoned for help and received medical treatment. Moreover, Dr. Lazarus testified that he did not have an opinion as to whether H.A.M. would have followed through with his threat had the gun not jammed. (R. 147.)


author: JOINER, Judge.

text:
    Julio MANTEZ v. STATE of Alabama.
    CR-10-0621.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.
    Gabrielle Nicole Helix, Huntsville, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   JOINER, Judge.

On April 29, 2010, Julio Mantez was adjudicated guilty of unlawful possession of controlled substances, a violation of § 13A-12-212(a)(l), Ala.Code 1975 (C. 7); the Madison Circuit Court sentenced Man-tez to, among other things, a two-year term of imprisonment, which it suspended, and two years’ supervised probation. (C. 5.) On December 8, 2010, an “Order of Probation and Parole Officer Authorizing Arrest of Probation Violator” was issued and, on this same date, Mantez was arrested. (C. 4.) In a “Supervisor’s Report of Delinquent Probationer,” dated December 28, 2010 (“the supervisor’s report”), Man-tez was charged with violating the terms of his probation in three ways: (1) failing to avoid injurious or vicious habits; (2) failing to pay supervision fees, and; (3) failing to pay court-ordered moneys. (C. 5.)

With respect to the first charge — that Mantez failed to avoid injurious or vicious habits — the facts provided in the supervisor’s report indicate the following:

“On 05-05-2010 Mr. Mantez admitted to and signed a drug use form stating that he illegally used Marijuana on 04-06-2010 and Cocaine on 04-26-2010. On 6-30-2010 Mr. Mantez admitted to and signed a drug use form stating that he illegally used [Lortab] pills on 06-27-2010. On 08-31-2010 Mr. Mantez admitted to and signed a drug use form stating that he illegally used [Lorcet] pills on 08-10-2010. On 12-08-2010 Mr. Mantez admitted to and signed a drug use form stating that he illegally used Valium pills on 11-19-2010.”

(C. 5.) Regarding the second charge— that Mantez failed to pay supervision fees — the facts provided in the supervisor’s report indicate that “Mr. Mantez currently has a $60.00 arrearage.” (C. 5.) Finally, as to the third charge — that Mantez failed to pay court-ordered moneys — the facts provided in the supervisor’s report indicate that “Mr. Mantez is currently behind on his Court Ordered Money payments, having last paid on 07-16-2010.” (C. 6.)

On January 27, 2011, following a hearing, the circuit court entered an order purporting to revoke Mantez’s probation. According to the order, the circuit court found that Mantez failed to pay supervision fees, failed to pay court fees, and admitted using various drugs. (C. 9.) The circuit court concluded that Mantez’s violations amounted to 5 separate “technical violations” of his probation and ordered Mantez to serve 5 consecutive 90-day terms in the state penitentiary, for a total confinement of 450 days. (C. 9; R. 5-6.) Notably, however, the circuit court stated in the hearing: “I’m going to ... recommended that he apply to Life Tech and if he is admitted into that program and successfully completes it, then I will terminate his probation.” (R. 5 (emphasis added).) Mantez now appeals.

Mantez argues, among other things, that his acts did not amount to 5 separate probation violations and, further, that the circuit court was without authority to order him to be confined in the state penitentiary in excess of 90 days. (Mantez’s brief, pp. 2-3.) The State argues, however, that the trial court properly revoked Mantez’s probation; the State also argues that the period of confinement imposed by the circuit court is lawful because, the State says, Mantez is not eligible for consideration under the technical-violator statutory provision, and, thus, according to the State, the term of imprisonment is proper. We do not reach Mantez’s arguments because we agree with the State that Mantez is not eligible for consideration under the technical-violator statutory provision, § 15-22-54, Ala.Code 1975. We affirm in part, reverse in part, and remand.

“ ‘A probation-revocation hearing is a bench trial and the trial court is the sole fact-finder.’ ” Smiley v. State, 52 So.3d 565, 568 (Ala.2010) (quoting Ex parte Abrams, 3 So.3d 819, 823 (Ala.2008)).

‘“Absent a clear abuse of discretion, a reviewing court will not disturb a trial court’s conclusions in a probation-revocation proceeding, including the determination whether to revoke, modify, or continue the probation. A trial court abuses its discretion only when its decision is based on an erroneous conclusion of law or where the record contains no evidence on which it rationally could have based its decision.’ ”

McCain v. State, 33 So.3d 642, 647 (Ala.Crim.App.2009) (quoting Holden v. State, 820 So.2d 158, 160 (Ala.Crim.App.2001) (citations omitted)). In this case, however, “[Mantez’s] case involves only issues of law and the application of the law to undisputed facts. Thus, our review is de novo.” Ex parte Walker, 928 So.2d 259, 262 (Ala.2005).

Section 15-22-54(d)(l), Ala.Code 1975, sets out options for a court in the event a probationer violates a condition of his or her probation:

“(1) If the defendant violates a condition of probation or suspension of execution of sentence, the court, after a hearing, may implement one or more of the following options:
“a. Continue the existing probation and suspension of execution of sentence.
“b. Issue a formal or informal warning to the probationer that further violations may, subject to paragraph f., result in revocation of probation or suspension of execution of sentence.
“c. Conduct a formal or informal conference with the probationer to reemphasize the necessity of compliance with the conditions of probation.
“d. Modify the conditions of probation or suspension of execution of sentence, which conditions may include the addition of short periods of confinement.
“e. If the violation of probation is the commission of a new offense, revoke the probation or suspension of execution of sentence. If the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence.
“f. If the probation violation is a technical violation, defined as a violation of a condition of probation other than the commission of a new offense, an eligible offender may be required to serve a term of not more than 90 days imprisonment in a Department of Corrections facility, which may include participation in the restart program, LIFETech program, or a technical violator program or, if no space is available in a Department of Corrections facility, not more than 90 days in the county jail.”

As indicated above, subsection f. provides the court with the ability to impose certain penalties in the event the court determines that a probation violation is technical; subsection f. dictates, however, that this option is available only if the violator is “an eligible offender.” § 15-22-54(d)(l)f., Ala. Code 1975. The term “eligible offender” is defined in § 15-22-54(d)(2)a., Ala.Code 1975:

“(2)a. An eligible offender subject to paragraph f. of subdivision (1) is a nonviolent felon serving a probationary sentence who has violated a condition or conditions of probation other than by the commission of a new offense and who has performed the conditions of probation, including remaining current on payment of court ordered money, for a consecutive six-month period.”

As a preliminary matter, neither party argues that there was insufficient evidence on which to conclude that Mantez had violated the conditions of his probation; in fact, Mantez admitted that he had violated the conditions of his probation. (R. 2.) At the hearing, the circuit court found “that [Mantez] is in violation of his probation and ... that [Mantez] technically violated his probation on 5 separate occasions”; consequently, the circuit court imposed “5 separate 90-day sentences, [to] run[ ] consecutively.” (R. 5.) Although the -written order indicates that the circuit court “ordered that [Mantez’s] probationary status is revoked” (C. 5), the hearing transcripts reflect that the circuit court intended to impose a term of imprisonment pursuant to the technical violator statutory provision and terminate Mantez’s probation only after successful completion of the LIFETech program. (R. 5.)

As the State correctly asserts, however, Mantez is not eligible for consideration under the technical-violator statutory provision. In accordance with the language of § 15 — 22—54(d)(1 )f., Ala.Code 1975, a court may impose a term of imprisonment for a technical violation of probation only if the defendant is an “eligible offender”; as noted above, an “eligible offender” is “a nonviolent felon ... who has violated a condition ... of probation ... and who has performed the conditions of probation, including remaining current on payment of court ordered money, for a consecutive six-month period.” § 15-22-54(d)(2)a., Ala.Code 1975.

In this case, however, Mantez was on probation from April 29, 2010, until he was arrested on December 8, 2010, during which time he admitted illegally using prescribed medications on various dates in violation of the condition of his probation that he “avoid injurious or vicious habits.” (C. 5.) In light of the length of Mantez’s probation, along with Mantez’s admitted drug use, Mantez did not perform the conditions of his probation for a consecutive six-month period, and, thus, he is not an eligible offender. § 15-22-54(d)(2)a., Ala. Code 1975. Because he is not an eligible offender, the trial court was without authority to impose a term of imprisonment pursuant to the technical-violator statutory provision.

Although we affirm the decision of the circuit court insofar as it found that Man-tez violated his probation, we reverse the decision of the trial court to the extent that it imposed a term of imprisonment under the technical-violator statutory provision, and we remand this cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      1. Mantez’s admitted use of marijuana and cocaine occurred before the date on which he was placed on probation; the remaining instances of drug usage, however, occurred during the time Mantez was on probation.

      . See 15 — 22—54(d)(l)f., Ala.Code 1975 ("If the probation violation is a technical violation, defined as a violation of a condition of probation other than the commission of a new offense, an eligible offender may be required to serve a term of not more than 90 days imprisonment in a Department of Corrections facility....”).

      3.The judge was apparently referring to a program operated by the Alabama Board of Pardons and Paroles known as Life Skills Influenced by Freedom and Education Tech.

      . This statutory provision, along with § 15-22-54.1, Ala.Code 1975, were amended effective June 14, 2011. Act No. 2011-696, Ala. Acts 2011. For the purposes of this appeal, we reference the pre-amendment language.

      . This conclusion is bolstered by the circuit court's finding that Mantez was also behind on payment of court-ordered moneys. (C. 9.)

      . We recognize that, had the circuit court made certain factual findings, the circuit court could have revoked Mantez's probation and “imposed the sentence that was suspended at the original hearing or any lesser sentence.” § 15-22-54(d)(l)e., Ala.Code 1975. The record does not indicate, however, that the circuit court made such findings nor does it indicate that the circuit court intended to impose Mantez's original suspended sentence or some lesser sentence. Instead, the record reflects that the circuit court found that Man-tez was a technical violator and imposed a term of imprisonment pursuant to the technical-violator statutory provision.