text:
    Carol BIGGS and West Goldwire, LLC v. CITY OF BIRMINGHAM.
    2100354.
    Court of Civil Appeals of Alabama.
    March 9, 2012.

      David Gespass of Gespass & Johnson, Birmingham, for appellants.
    Malera Traylor-Wright and Pamela Jones, City of Birmingham, Law Department, for appellee.
   PITTMAN, Judge.

Carol Biggs and West Goldwire, LLC, appeal from a judgment of the Jefferson Circuit Court upholding the denial by the City of Birmingham (“the City”) of their application for a liquor license. We affirm.

Facts and Procedural History

Biggs and her father own a two-and-one-half-acre parcel of property (“Biggs’s property”) on Ishkooda-Wenonah Road in the western section of Birmingham. There is a building on the property that had formerly been used as a single-family residence and then as a day-care center but that has been vacant since 2004. West Goldwire City Park is directly across the street from Biggs’s property, and there is a public basketball court next door to her property. The property is apparently located within the boundaries of the Industrial Center neighborhood of Birmingham. However, the West Gold-wire neighborhood boundary is two blocks from Biggs’s property and the Garden Highlands neighborhood boundary is one block from her property. The circuit court’s judgment explained:

“One of the confusing issues in the case is the location of the relevant property. It is ... located in or near three Birmingham neighborhoods: Garden Highlands Neighborhood; Industrial Center Neighborhood; and West Gold-wire Neighborhood. Any of the neighborhoods could be interested in [the liquor-license application]. In deciding whether to grant a liquor license to an applicant, one of the most important factors for consideration by the City Council is the recommendation of the Neighborhood Association.

In 2009, Biggs formed Urban Network and Technology Association (“UNTA”) as a not-for-profit association whose purpose, Biggs testified, was to provide networking, educational, and social opportunities for area small-business owners. Biggs intended the building on her property to be used as the office and regular meeting place for UNTA and to be available to UNTA members, for a fee, as an “event space” for parties, weddings, and other social events at which alcohol might be served. In connection with her application for a private-club Class II liquor license and a Division I dance permit for UNTA, Biggs made a presentation to the Garden Highlands Neighborhood Association on August 17, 2009. That association opposed the liquor-license and dance-permit applications on the basis that the building was located in a residential neighborhood. The city council voted to deny the applications on August 25, 2009.

A few months later, Biggs created West Goldwire, LLC (hereinafter referred to as “the LLC”), for the purpose of operating a bed-and-breakfast facility in the building— an enterprise that, the circuit court suggested (and Biggs agreed), “would sound more appealing to the neighborhood” than her first proposal for the use of the building. Biggs sought a special retail liquor license for the bed-and-breakfast facility, which would do business as “Hilltop Manor Tourist Home and Gardens.” In making her application on behalf of the LLC, Biggs was informed that her property was actually located in the Industrial Center neighborhood rather than the Garden Highlands neighborhood. Biggs subsequently appeared before the Industrial Center Neighborhood Association, which supported her application for a liquor license by a vote of six to zero.

At a meeting of the city council on December 8, 2009, Councilman James E. Roberson, Jr., whose district included the West Goldwire neighborhood, suggested that the West Goldwire Neighborhood Association should also be consulted about Biggs’s liquor-license application. Roberson moved to table the matter of Biggs’s application, and the city council agreed. Biggs testified that she had subsequently contacted the president of the West Gold-wire Neighborhood Association and had asked to appear at that association’s next meeting but that the president had informed her that there was no reason for her to appear because she had already received approval from the Industrial Center Neighborhood Association. Biggs stated that she had never been informed of the meeting date for the West Goldwire Neighborhood Association, and, she said, she assumed that she was not required to attend. Biggs appeared before the city council at its meeting on December 19, 2009, but consideration of her liquor-license application was again deferred.

On January 5, 2010, the city council considered and unanimously denied Biggs’s application. Biggs did not attend the city council meeting that day because, she said, she could not miss work. She explained that she had been employed as a librarian for the City’s school system and that January 5 was the day that the City’s schools reopened after the Christmas holidays.

Biggs, UNTA, and the LLC appealed to the Jefferson Circuit Court from the city council’s denial of their applications. The circuit court consolidated the appeals. The circuit court heard the testimony of Biggs and Councilman Roberson, received documentary and photographic evidence, and viewed an online audio-visual recording of the Birmingham City Council meeting on January 5, 2010. In its November 18, 2010, judgment, the circuit court made the following findings of fact and conclusions of law:

“City Councilman James E. Roberson, Jr., testified that [Biggs’s] building was in his district and that he was familiar with the property and its surroundings. The Council discussed the standards for issuing a liquor license and found that a liquor license in this location would be a potential nuisance. [Councilman Roberson] testified that he was opposed to the liquor license application for several reasons. It is across the street from a city park which was used by families. The neighborhood leadership did not want a liquor licensee in their residential neighborhoods.
“The court has considered the testimony and has looked at the photographs of the property in question and of the surrounding area. The area is a nice residential neighborhood and the area near [Biggs’s] property is attractive for public use by families and children. There are recreational facilities adjacent to the property. The uncontradicted evidence before the Court is that the Birmingham City Council considered the seven factors spelled out in the statute. In considering these factors, the Council could have reasonably determined that the granting of a liquor license to [Biggs, on behalf of UNTA or the LLC,] could create a nuisance or otherwise adversely affect the public health, safety and welfare of the adjacent residential neighborhoods.
“Under the facts presented to the City Council and to this court, the court is not willing to say that the City was arbitrary and capricious in its denial of the applications for a liquor license. The Court should not substitute its judgment for the decision of the Birmingham City Council.”

Biggs and the LLC timely appealed to the Supreme Court of Alabama from the circuit court’s judgment. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard, of Review

In City of Mobile v. Simpsiridis, 733 So.2d 378 (Ala.1999), our supreme court set out the applicable standard of review.

“The trial court’s findings of fact are presumed to be correct when they are based on ore tenus evidence. Because § 28-l-6[, Ala.Code 1975,] provides for de novo review in the circuit court from the disapproval of an application for a license to sell alcohol, the usual presumption in favor of the findings by the city or administrative agency is not applicable here.... In the case of an appeal to the circuit court, the statute requires a circuit judge to hear the evidence de novo, i.e., without any presumption in favor of the municipality....
“On appeal from the order of the circuit court, we are required to indulge every presumption in favor of the trial court’s findings of fact. King v. Travelers Ins. Co., 513 So.2d 1023 (Ala.1987); McCrary v. Butler, 540 So.2d 736 (Ala. 1989). The trial court’s judgment in such a case will be affirmed if, ‘under any reasonable .aspect of the testimony, there is credible evidence to support the judgment.’ Jones v. Jones, 470 So.2d 1207, 1208 (Ala.1985). Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 12-13 (Ala.1989).”

733 So.2d at 381-82.

Discussion

Section 28-1-6, Ala.Code 1975, pertains to the “[i]ssuance of licenses for sale of intoxicating beverages in Class 1 or Class 2 municipalities.” Section 28 — 1—6(a)(2) permits an appeal from a Class 1 municipality’s denial of a liquor license to the circuit court for “de novo proceedings.” That section provides:

“Proceedings in the circuit courts to review an action of a Class 1 municipal governing body denying'approval of an application shall be expedited de novo proceedings heard by a circuit judge without a jury who shall consider any testimony presented by the city governing body and any new evidence presented in explanation or contradiction of the testimony. Any proceeding to review the denial of approval of a license application shall be commenced within 14 days of the action by the municipal governing body and shall be set for hearing by the court within 30 days thereafter.”

Section 28-l-6(a)(l)b. provides that a circuit court may set aside the denial of approval of a liquor license by a Class 1 municipal governing body if

“the municipal approval was arbitrarily or capriciously denied without a showing of one of the following:
“1. The creation of a nuisance.
“2. Circumstances clearly detrimental to or which would adversely affect the public health, safety, and welfare of the adjacent residential neighborhoods.
“8. A violation of applicable zoning restrictions or regulations.
“4. An individual applying for the license has a prior conviction involving the use of alcohol or a controlled substance.
“5. The proximity of the business to a school or child care facility and the business hours of the operation will create a harmful environment for the children.
“6. The traffic congestion created by licensing the proposed location will endanger others.
“7. Any other reason that poses a risk.”

Biggs and the LLC argue that the circuit court applied the wrong standard of review to the City’s decision to deny them a liquor license. Citing Simpsiridis, supra, for the principle that § 28-1-6 “provides for de novo review in the circuit court,” 738 So.2d at 382, which review is “without any presumption in favor of the municipality,” id., Biggs and the LLC argue that the circuit court erroneously accorded the City’s decision a presumption of correctness, as evidenced, they say, by the circuit court’s statement that it would “not substitute its judgment for the decision of the Birmingham City Council.”

Although the Simpsiridis court did state that “ § 28-1-6 provides for de novo review in the circuit court,” 733 So.2d at 382, the court qualified that statement in two respects. First, the court explained that the proceedings in the circuit court are de novo in the sense that the circuit court may consider new evidence that was not before the municipality. 733 So.2d at 381 (stating that “[t]he statute requires the trial judge ... to consider all the evidence before the municipality and any new evidence that may be offered at the de novo hearing in the circuit court” (emphasis added)). Second, the court explained that “the statute requires a circuit judge to hear the evidence de novo, i.e., without any presumption in favor of the municipality.” 733 So.2d at 382. In the latter respect, § 41-22-20(k), Ala.Code 1975, the judicial-review provision of the Alabama Administrative Procedure Act, §§ 41-22-1 through -27, Ala.Code 1975 (“AAPA”), and cases construing that provision are instructive. Section 41-22-20(k) provides that

“[ejxcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.”

By negative implication, § 41-22-20(k) provides that when judicial review is by trial de novo (as it was in the instant case), the decision maker’s determination is not to be “taken as prima facie just and reasonable,” or accorded a presumption of correctness. Similarly, the Simpsiridis court held that, in de novo proceedings under § 28-1-6, the circuit court is required to “hear the evidence ... without any presumption in favor of the municipality.” 733 So.2d at 382. Notwithstanding the prohibition against according the decision maker’s ruling a presumption of correctness in de novo proceedings under § 41-22-20(k), the AAPA nevertheless permits a reviewing court to reverse a decision maker’s order if the reviewing court concludes that the order is, among other things, arbitrary or capricious. See § 41-22-20(k)(7). See generally Ex parte Sutley, 86 So.3d 997, 999 (Ala.2011). By the same token, § 28 — 1—6(a)(l)b. provides that the circuit court may set aside the denial of approval of a liquor license by a Class 1 municipal governing body if “the municipal approval was arbitrarily or capriciously denied.”

The arbitrary-and-capricious standard of review encompasses the principle that a reviewing court is not permitted to substitute its judgment for the decision maker. Cf. Phase II, LLC v. City of Huntsville, 952 So.2d 1115 (Ala.2006) (affirming a judgment of the circuit court entered after the circuit court had reviewed, by common-law writ of certiorari, a decision by a Class 3 municipality to deny a liquor license). In Phase II, our supreme court stated that “[a]n arbitrary and capricious standard of review does not permit the trial court or [an appellate court] to substitute its judgment for the judgment of the city council.” 952 So.2d at 1121. The court described the arbitrary-and-capricious standard of review as follows:

“ ‘In reviewing a municipal council’s exercise of its legislative discretion to approve or disapprove the issuance of a restaurant liquor license, this Court must apply an “arbitrary-and-capricious” standard.’ Ex parte Trussville City Council, 795 So.2d 725, 727 (Ala. 2001).
“ ‘ “A determination is not ‘arbitrary’ or ‘unreasonable’ where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards. State Department of Pensions and Security v. Whitney, 359 So.2d 810 (Ala.Civ.App.1978).
“ ‘ “If reasonable minds may well be divided as to the wisdom of [the] administrative board’s actions, or there appears some reasonable basis for the classification made by the board, such action is conclusive and the court will not substitute its judgment for that of the administrative body.” ’ ”

Phase II, 952 So.2d at 1119 (quoting City of Huntsville v. Smartt, 409 So.2d 1353, 1357-58 (Ala.1982), quoting in turn Hughes v. Jefferson Cnty. Bd. of Educ., 370 So.2d 1034, 1037 (Ala.Civ.App.1979)). Based on the foregoing authorities, we conclude that the circuit court’s statement that it would “not substitute its judgment for the decision of the Birmingham City Council” evidenced its application of the arbitrary-or-capricious standard of review and cannot be equated with its having erroneously accorded the City’s decision a presumption of correctness.

Biggs and the LLC next argue that the circuit court’s decision is due to be reversed because, they say, there was no evidence to support the City’s decision, which, they contend, was based solely on speculation that granting a liquor license “could” or “might” create a nuisance or adversely affect the adjacent residential neighborhoods. In support of that argument, Biggs and the LLC cite Simpsiridis, supra, and King v. City of Birmingham, 885 So.2d 802 (Ala.Civ.App.2004). Simp-sindis and King are distinguishable, and the statute under which those cases were decided was different from the version of § 28-1-6 that was in effect at times pertinent to this appeal.

First, neither Simpsiridis not King involved a residential neighborhood; there was no argument made and no evidence presented in either case that “the premises themselves were inherently unsuitable as the location of a lounge serving alcoholic beverages.” King, 885 So.2d at 805. “Notwithstanding the absence of restrictions in a statute or ordinance, licensing authorities have as a general rule been permitted to deny licenses where the proposed location is improper by reason of the location and its surroundings. 48 C.J.S. Intoxicating Liquors § 136; 45 Am.Jur.2d Intoxicating Liquors, § 138.” Broughton v. Alabama Alcoholic Beverage Control Bd., 348 So.2d 1059, 1060 (Ala.Civ.App. 1977) (holding that when applicant’s establishment was directly across the street from an elementary school and diagonally across from a church, a decision to grant .a liquor license would “ ‘not be in the best interest of the community, based on complaints of citizens in the immediate proximity of the applicant’s place of business’ ”).

Moreover, in Simpsiridis, there was no neighborhood opposition to granting the license and in King there was, this court held, no legally cognizable opposition. The applicant in King proposed to operate a lounge in the same commercial location where a lounge had been operating for decades. The first licensee had operated a lounge there for almost 30 years without complaint from the neighborhood; the most recent licensee’s operation, however, had generated numerous complaints from the neighborhood, but the applicant had no connection with that prior licensee, intended to cater to an older and presumably less rowdy clientele, and planned more limited hours of operation. This court held that denial of the license based solely upon the conduct or reputation of a prior licensee in the same location was arbitrary and capricious.

Second, when Simpsindis and King were decided, § 28-l-6(a)(l)b. provided that a circuit court could set aside the municipality’s denial of approval of a liquor license as arbitrary or capricious only when the municipality had failed to make a showing that one of three conditions existed:

“1. The creation of a nuisance;
“2. Circumstances clearly detrimental to adjacent residential neighborhoods; [or]
“3. A violation of applicable zoning restrictions or regulations.”

The pertinent portion of the statute has since been amended twice, effective August 4, 2004, and July 1, 2006. In 2004, additional material was inserted in subpar-agraph 2, and, in 2006, subparagraphs 4 through 7 were added. At all times pertinent to this appeal, the statute has provided that a circuit court is authorized to set aside the denial of approval of a liquor license by a Class 1 municipal governing body if

“the municipal approval was arbitrarily or capriciously denied without a showing of one of the following:
“1. The creation of a nuisance.
“2. Circumstances clearly detrimental to or which would adversely affect the public health, safety, and welfare of the adjacent residential neighborhoods.
“3. A violation of applicable zoning restrictions or regulations.
“4. An individual applying for the license has a prior conviction involving the use of alcohol or a controlled substance.
“5. The proximity of the business to a school or child care facility and the business hours of the operation will create a harmful environment for the children.
“6. The traffic congestion created by licensing the proposed location will endanger others.
“7. Any other reason that poses a risk.”

§ 28-l-6(a)(l)b. (emphasis added). Discussion at the city council meeting on January 5, 2010, focused on subparagraph 1 and the emphasized portions of the statute as the bases for denying the liquor-license application.

When the legislature added new subpar-agraph 5 (“[t]he proximity of the business to a school or child care facility and the business hours of the operation will create a harmful environment for the children”), it made explicit what was understood but not expressed in the previous version of the statute — that the sale of intoxicants presents a danger to children. Based on that legislative premise, subparagraph 5 necessarily places in issue the proximity of the licensee’s business to the place where children will be and whether the licensee’s hours of operation coincide with the time that children are present. Although Biggs’s property is not in close proximity to a school or a child care facility, it is directly across the street from a public park and next door to a public basketball court, both places that children are likely to be found during the daytime and early evening hours. The record contains no evidence of the LLC’s intended business hours, but the proposed bed-and-breakfast facility would presumably operate during the daytime and early evening hours.

Because subparagraph 5 is premised on harm to children, with the only debatable questions being the proximity of Biggs’s property to children and the LLC’s business hours — the answers to both of which questions support the City’s decision to deny the license application in this case— we reject the argument made by Biggs and the LLC that the City’s evidence established only a potential nuisance or the possibility of an adverse effect on the “public health, safety and welfare of the adjacent residential neighborhoods.”

In its judgment, the circuit court correctly stated that the City’s decision was not arbitrary or capricious because

“the Birmingham City Council considered the seven factors spelled out in the statute. In considering these factors, the Council could have reasonably determined that the granting of a liquor license to [Biggs and the LLC] could create a nuisance or otherwise adversely affect the public health, safety, and welfare of the adjacent residential neighborhoods.”

The judgment of the Jefferson Circuit Court is affirmed.

AFFIRMED.

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

MOORE, J., concurs in the result, without writing.

      "1 Birmingham's nine Council Districts are divided into 23 communities and 99 individual Neighborhoods. This structure was created to improve communication between resident and city leaders. The neighborhood associations are consulted on matters such as zoning changes and the issuance of liquor licenses."

      . UNTA did not appeal from the judgment.

      . Birmingham is a Class 1 municipality, as defined in § 11-40-12, Ala.Code 1975, because its population was more than 300,000 inhabitants as certified by the 1970 federal decennial census. See Madaloni v. City of Mobile, 37 So.3d 739, 745 n. 5 (Ala.2009). See also Phillips v. City of Citronelle, 961 So.2d 827, 830 n. 2 (Ala.Civ.App.2007) (stating that, "[t]o the extent that State Alcoholic Beverage Control Board v. Shabani, 819 So.2d 46, 48 n. 1 (Ala.Civ.App.2000), and City of Montgomery v. Glenn, 749 So.2d 478, 479 (Ala.Civ.App. 1999), intimate that an Alabama municipality may ‘grow into' or ‘shrink out of a particular population class defined in § ll-40-12(a), Ala.Code 1975 — a statute that ... uses the 1970 federal census as its reference point — so as to move into or out of the scope of § 28-1-6 and § 28-1-7, those cases appear to be in error”).


source: Caselaw Access Project

author: MOORE, Judge. THOMAS, Judge,

license: Public Domain

text:
    S.U. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2101045.
    Court of Civil Appeals of Alabama.
    March 9, 2012.

      Chris Messervy, Huntsville, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

S.U. (“the mother”) appeals from judgments of the Madison Juvenile Court (“the juvenile court”) terminating her parental rights to her children, J.A.B. and D.A.U. (sometimes hereinafter referred to collectively as “the children”).

Procedural History

On December 6, 2010, the Madison County Department of Human Resources (“DHR”) filed separate petitions to terminate the parental rights of the mother. After a July 5, 2011, trial, the juvenile court entered judgments on July 18, 2011, terminating the mother’s parental rights to the children. On July 28, 2011, the mother appealed from the judgments.

Facts

The mother gave birth to J.A.B. and D.A.U. out-of-wedlock on October 11, 2004, and June 17, 2008, respectively. According to the mother, she provided care and shelter for the children throughout their lives. The mother testified that she and J.A.B. had sometimes lived at a rescue mission or a hotel and had, at other times, stayed with the mother’s sister; she testified, however, that she had eventually obtained her own two-bedroom apartment. In the summer of 2009, the mother lived with the children and her boyfriend, L.W., in that apartment. The mother testified that, from 2005 through 2008, she had worked consistently, although for different employers, and had provided for the children from her wages. She testified, however, that she became unemployed and depended on government assistance to provide for the children in 2009. The mother testified that she and L.W. had used marijuana and cocaine, but, she said, they had both been able to properly care for the children while “high.” The mother testified that she had been investigated by DHR at some point before June 2009 for unstated reasons but that DHR had found no evidence indicating that the children were being mistreated.

The mother testified that, in 2003, when she was 22 years old, she had been indicted for attempting to obtain a controlled substance through fraud. As a result of that charge, the mother was referred to a drug-diversion program. The mother testified that she had repeatedly failed to report to the program and had failed to complete the steps outlined in • the program. According to the mother, when she failed to attend a court hearing in July 2006 a warrant was issued for her arrest. On September 1, 2009, the mother and L.W. engaged in an argument that resulted in L.W.’s telephoning the local police. When the police arrived, they discovered that the mother had an outstanding arrest warrant, and they took her into custody that day.

The mother testified that, when she was arrested, she had originally left the children with L.W. or a neighbor, with the expectation that she would be released from police custody the next day. However, the mother remained in jail and ultimately pleaded guilty to the 2003 offense, after which she was sentenced to a five-year split sentence, with two years to be served in prison. The children eventually came to be cared for by D.B., a man with whom one of the mother’s sisters lived. The mother did not know D.B., but the mother came to believe that D.B. was properly caring for the children based on letters he sent the mother and telephone calls they shared. In February 2010, after meeting D.B. one time at a court hearing and while she remained incarcerated, the mother wrote a letter requesting that D.B. maintain custody of the children and signed a document stating her intent that D.B. have temporary custody of the children.

Not long thereafter, D.B. reported to DHR that he needed assistance caring for the children. At that point, DHR opened an investigation, during which it discovered that D.B., who was not a licensed foster parent, did not have legal custody of the children, was living in an apartment provided by a church, and was using a bicycle for transportation. DHR removed the children from D.B.’s care. After a shelter-care hearing, DHR obtained legal custody of the children and placed them in foster care. DHR did not contact the mother at that time because it determined that it could not provide the mother with any reunification services because she was incarcerated. The mother did not visit with the children or provide any manner of support for the children while she was incarcerated.

DHR filed its petitions to terminate the parental rights of the mother on December 6, 2010, while she remained in prison. The mother moved into the Lovelady Center in Birmingham on March 10, 2011. That facility, which provides rehabilitation services for women in need, including those serving prison sentences, provides transportation for visitations between mothers housed in the facility and their children. On April 14, 2011, the mother’s attorney wrote DHR requesting visitation between the mother and the children, but DHR denied the request, insisting that no visitation would be allowed absent a court order. At the time of trial, the mother was working in the kitchen at the Lovelady Center, earning $150 per week, $125 of which she used to pay rent. A letter from a representative of that facility was introduced into evidence. The letter stated that the mother had tested negative on all of her drug screens and further stated: “We are proud of the process [sic] that [the mother] has made and we feel with the tools she has acquired from our program, she will be able to have a stable foundation to become a great mother and a productive member of society.”

At the July 5, 2011, trial, the mother testified that her sentence would end on July 22, 2011, but that she would remain on probation for three years following the end of her prison sentence. She testified that, upon her release from prison, she planned to remain a resident of the Love-lady Center for another year in order to complete a program that would transition her back into society. As part of that program, the Lovelady Center would locate a job and suitable housing for the mother. The mother testified that the Lo-velady Center has a school and a day care and that the children could live with her at the center during her transition process. The mother testified that 400 women reside at the facility, approximately one-half of which have experienced drug problems, and that the Lovelady Center had allowed other children to stay there with their mothers. The mother testified that she intended to stay in Birmingham and not return to Huntsville because of the bad influences that would surround her if she was living there. Although she admitted that she had not previously taken her legal problems seriously, the mother testified that this time she will report to her probation officer and pay her fines. The mother admitted, however, that she had previously promised a court that she would abide by its rules, only to renege on her promise.

At the time of trial, the children were residing in their second foster-care home. The foster parent informed DHR that she did not plan to adopt the children, and DHR had not identified any other adoptive placement for the children. DHR had completed an investigation for any relative resource, but it had found no suitable or willing relative to take custody of the children.

In separate judgments, the juvenile court determined that the mother was unable or unwilling to discharge her parental responsibilities to and for the children and that the conduct or condition that prevented her from properly caring for the children was unlikely to change in the foreseeable future. The juvenile court specifically found:

“At the hearing on termination of parental rights, the mother avowed that she has changed her ways, that she has reformed, and that she will be an effective parent if given further opportunity to do so. The mother’s history belies those statements, however. She previously agreed to abide by the conditions of the [drug-diversion program], but failed to do so. After having evaded arrest for approximately three years, when she was finally taken into custody as a result of her failure to comply with the conditions of that program, the mother again asserted that, if given another chance, she would do all that was required of her. The Court finds her representations lacking in credibility, based upon her prior history.
“The mother is presently serving the remainder of her custodial sentence at the Lovelady Center.... The mother expressed her belief that it would be in the best interests of the [children] for them to be uprooted from their present foster home and placed in that residential rehabilitation facility with her, in Jefferson County. The Court disagrees.
“The mother also expressed an intention to obtain stable suitable housing to meet the needs of her children and the intention to obtain stable, suitable employment to meet their financial needs. The mother’s history of minimal employment, unstable housing and failure to comply with court orders suggests the contrary, however. The Court does not believe that it would be in the best interests of the [children] to be placed in a residential group home rehabilitation facility pending the mother’s efforts to obtain housing and employment.”

Issues

On appeal, the mother argues that the judgments terminating her parental rights should be reversed because the record contains insufficient evidence to demonstrate that she is unwilling or unable to care for the children and because viable alternatives to termination of her parental rights have not been exhausted.

Discussion

Section 12-15-319(a), Ala.Code 1975, provides, in pertinent part:

“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

The parental “responsibilities” referred to in § 12-15~319(a) include the duties to protect, to educate, to care for, to provide for, to maintain, and to support children. See Ex parte M.D.C., 39 So.3d 1117, 1121 (Ala.2009) (quoting M.D.C. v. K.D., 39 So.3d 1105, 1110 (Ala.Civ.App.2008) (Moore, J., dissenting)). Because the statute is phrased in present and future terms, a juvenile court may terminate a parent’s parental rights only if clear and convincing evidence shows that the parent is currently unable to discharge his or her parental duties properly, see D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003), and that the conduct or condition that prevents ■ the parent from assuming or exercising proper care will likely persist in the foreseeable future. See D.M. v. Walker Cnty. Dep’t of Human Res., 919 So.2d 1197, 1211 (Ala.Civ.App. 2005).

The record in this case indicates that DHR did not identify any problems with the mother’s child-rearing skills before her arrest and imprisonment in September 2009, having left the children with the mother after an investigation by a social worker. DHR obtained custody of the children only after the mother relinquished their physical custody as a result of her inability to raise them while she was confined in prison. It is undisputed that, at the time of trial, the mother was residing in a facility that would allow her to personally care for the children. Hence, at the time of trial, the problem causing the initial separation of the family no longer existed. DHR contends in its brief to this court that the juvenile court could nevertheless terminate the mother’s parental rights based solely on evidence of her past felony conviction and imprisonment. However, Ala.Code 1975, § 12-15-319(a)(4), provides that the mother’s conviction of, and imprisonment for, a felony is only a factor the juvenile court should have considered “[i]n determining whether or not [she is] unable or unwilling to discharge [her] responsibilities to and for the children].” The circumstances of this case show that the mother’s imprisonment no longer prevents her from discharging her parental responsibilities to and for the children.

Additionally, the record shows that the mother’s incarceration was due to end on July 22, 2011, only three weeks after the trial. The condition that led to the separation of the family — the mother’s incarceration — was not “unlikely to change in the foreseeable future.” Of course, if the mother violates the terms of her probation, she will be subject to reincarceration, which would likely prevent her from discharging her parental responsibilities. See Ex parte A.S., 73 So.3d 1223 (Ala.2011). However, the record contains no evidence indicating that the mother was engaging, or could engage, in any activity as a resident of the Lovelady Center that would endanger her liberty. The letter from the Lovelady Center read into evidence belies any contention that the mother is likely to return to criminal behavior. The mother indicated she would remain at the facility for at least another year arid that she would not return to Huntsville where she would be surrounded by “bad influences.” Given the mother’s present circumstances, it would be speculative, at best, to conclude that the mother would, in the foreseeable future, return to prison for violating the conditions of her probation.

In its judgments, the juvenile court did not find that the mother excessively uses controlled substances in such a manner as to render her unable to care for the children. See Ala.Code 1975, § 12-15-319(a)(2). DHR nevertheless argues that the mother’s previous drug use and history of failed treatment warranted the termination of her parental rights. We note, however, that, at the time of the termination hearing, it was undisputed that the mother had not tested positive on any drug screen administered by the Lovelady Center, indicating that she was not using drugs. In M.G. v. Etowah County Department of Human Resources, 26 So.3d 436 (Ala.Civ.App.2009), the main opinion stated:

“DHR did not present any evidence from the drug-rehabilitation professionals who had treated the mother regarding the depth of the mother’s drug addiction or the extent of her recovery. One of DHR’s witnesses testified that the mother had never stopped using drugs for as long as 16 months before. DHR did not introduce any reports or elicit any testimony from any witness indicating that the mother’s current 16-month abstinence should not be considered a reliable indicator of her commitment to ending her drug problem altogether. In short, DHR produced no evidence indicating that relapse was so likely or imminent that the mother should have been considered as having a current drug problem that interfered with her ability to properly care for the children.”

26 So.3d at 443 (Per Moore, J., with one Judge concurring and one Judge concurring in the result). Similarly, in the present case, “DHR did not present any evidence ... regarding the depth of the mother’s [alleged] drug addiction or the extent of her recovery,” nor did it “introduce any reports or elicit any testimony from any witness indicating that the mother’s current ... abstinence should not be considered a reliable indicator of her commitment to ending her drug problem altogether.” Id. Accordingly, we conclude, like in M.G., that DHR failed to prove that “relapse was so likely or imminent that the mother should have been considered as having a current drug problem that interfered with her ability to properly care for the children.” Id.

DHR also argues that the mother’s failure to visit the children and her lack of effort “to adjust ... her circumstances to meet the needs of the child[ren]” justified the judgments terminating her parental rights. See Ala.Code 1975, § 12-15-319(a)(10) & (12). We disagree. It is undisputed that the mother did not visit the children while she was in prison, but the record reflects that she requested visitation soon after her enrollment at the Lovelady Center. DHR refused that request on the ground that its petitions to terminate the mother’s parental rights were pending. Because the mother has not properly argued the point in her appellate brief, this court will not address the propriety of DHR’s refusal to allow her visitation for its asserted reason; however, we hold that, because the mother was not afforded any opportunity to visit with the children, the mother cannot be said to have “failed” to visit the children.

The undisputed evidence in the record also contradicts DHR’s contention that the mother has failed to adjust her circumstances to meet the needs of the children. As stated above, the “circumstance” that caused the family’s separation was the imprisonment of the mother and her resulting inability to personally care for the children. By the time of trial, that circumstance had certainly changed and, as the letter from the Lovelady Center attested, the mother had made progress in her rehabilitation program, reflecting her efforts to further adjust her circumstances to meet the children’s needs.

In its judgments, the juvenile court expressed concern over the mother’s employment and housing situations. Although the juvenile court stated that the mother had a history of minimal employment and unstable housing, DHR presented no evidence indicating that the mother had ever failed to adequately provide for the children, either from her wages or with government assistance, and the record indicates that, although the mother at one time depended on others for shelter, she and the children had enjoyed a stable residence for a lengthy period before their separation. The family was not separated because of those issues. Moreover, the evidence shows that the Lovelady Center provides adequate shelter, education, and day-care facilities for children of other mothers residing at the center, and the record contains no evidence indicating that the mother would not be able to meet the financial needs of the children while residing there.

The juvenile court evidently concluded that the children would fare better in foster care than they would residing with their mother in a group home dedicated to assisting, among others, recovering drug addicts. However, the law does not allow a family to remain separated solely because the children would be in a superi- or environment outside of their parent’s care. See J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1191-93 (Ala.Civ.App. 2007). The law presumes that it is in the best interests of children to be in the care of a fit parent even if another person can provide a higher standard of living. 986 So.2d at 1191-92. That presumption is overcome only when clear and convincing evidence shows that the parent cannot discharge basic parental responsibilities, id., not when clear and convincing evidence shows that others can discharge those responsibilities better. The record contains no evidence indicating that the mother will not be able to adequately protect and nurture the children while they reside together at the Lovelady Center; that a more ideal living situation exists for the children provides no basis for terminating the parental rights of the mother.

As for the foreseeable future, the mother indicated that she would leave the Lovelady Center in approximately July 2012 and that she would be placed in housing and in employment with the assistance of her rehabilitation program. Nothing in the record indicates that the mother will be unable to meet the shelter and financial needs of the children just as she had before the separation of the family in 2009. Moreover, if the juvenile court doubted the ability of the mother to secure and maintain adequate employment and housing upon her departure from the Lovelady Center, the juvenile court could have provided that DHR, or other state agencies, monitor and assist the mother in that regard. A juvenile court has an imperative duty to exhaust all viable alternatives before terminating a parent’s parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990).

From the tenor of its judgments, it is apparent that the juvenile court overemphasized the past conduct, condition, and circumstances of the mother when it decided to terminate her parental rights. Although a juvenile court certainly can consider a parent’s past child-rearing history, see Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993), legislative policy, see M.G., 26 So.3d at 442, as well as constitutional due-process concerns, see Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), require that a parent’s parental rights be terminated based on clear and convincing evidence of that parent’s present inability or unwillingness to eare for the children that is likely to persist in the foreseeable future. When reviewing a judgment terminating parental rights, this court must determine whether the fact-finder reasonably could have determined that clear and convincing evidence established such facts. See Ex parte McInish, 47 So.3d 767, 774 (Ala.2008). Based on our review, we conclude that the record does not contain sufficient evidence indicating that the mother presently lacks the ability to adequately care for the children or that her conduct, condition, or circumstances will likely render her unable or unwilling to adequately care for the children in the foreseeable future.

For the foregoing reasons, the judgments of the juvenile court are reversed, and the cases are remanded for the juvenile court to conduct further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

THOMAS, J., concurs in the result, with writing, which PITTMAN, J., joins.

THOMAS, Judge,

concurring in the result.

I am convinced that the parental rights of S.U. (“the mother”) to J.A.B. and D.A.U. (“the children”) should not be terminated at this time. However, I respectfully disagree with the main opinion’s characterization that the mother’s incarceration was the condition that caused the family’s separation.

On January 29, 2010, the mother was convicted on felony drug charges. The mother was incarcerated after she engaged in illegal conduct and was arrested, tried, and convicted. The mother could have avoided the separation from the children resulting from her conviction by simply participating in a drug-diversion program. The mother’s conduct caused her separation from the children.

Like the juvenile court, I doubt the mother’s representations that she will comply with court orders, obtain suitable housing, and obtain stable employment.

However, I agree with the main opinion that the juvenile court has not exhausted all viable alternatives to the termination of the mother’s parental rights. Because the children are in their second foster home, because they are not being considered for adoption by the foster parents, and because there is a possibility that the mother has been rehabilitated, I concur in the result of the main opinion, which reverses the judgments of the juvenile court terminating the mother’s parental rights to the children.

PITTMAN, J., concurs.

      . DHR also moved to terminate the parental rights of the fathers of the children. The parental rights of any persons claiming parental rights to the children, other than the mother, were terminated on February 17, 2011. The parental rights of the fathers are not at issue in this appeal.

      . The mother testified that DHR had once asked her to care for her sister’s children after those children were removed from their parents’ care. The mother had not, however, ever taken custody of her sister’s children.

      .The mother testified that a friend had asked her to obtain a prescription for hydrocodone at a pharmacy and that, unbeknownst to the mother, the prescription had been forged.

      . The mother admitted that she had been placed on probation before 2003 relating to another criminal matter and that she had also stopped reporting to her probation officer.

      . A DHR representative testified that D.B. obtained physical custody of the children from one of the mother’s sisters.

      .Through questioning, the mother's attorney indicated that he had personally requested that DHR representatives allow the mother to visit the children on other occasions. In the letter, the mother’s attorney also requested the scheduling of an Individualized Service Plan meeting, but it is unclear whether that meeting was ever scheduled.

      . The mother testified that the author of this letter had observed the mother caring for the children of other residents at the facility.