author: PITTMAN, Judge. BRYAN, Judge, PITTMAN, Judge. MOORE, Judge,

text:
    CITY OF MOBILE v. PINTO ISLAND LAND COMPANY, INC.
    2051075.
    Court of Civil Appeals of Alabama.
    June 29, 2007.
    Order Denying Rehearing Dec. 14, 2007.
    Certiorari Denied Oct. 10, 2008 Alabama Supreme Court 1070459.

      John L. Lawler, Mobile, for appellant.
    Edward G. Hawkins Law Firm, L.L.C., Mobile, for appellee.
   PITTMAN, Judge.

The City of Mobile (“the City”) appeals from a summary judgment entered in favor of Pinto Island Land Company, Inc. (“Pinto Island”), in Pinto Island’s action to prevent the City from vacating a portion of a public street abutting a parcel of property owned by Pinto Island.

Pinto Island owns a parcel of real property (“the property”) located within the City’s corporate limits, and it leases the property to a shipbuilding company. On March 8, 2005, pursuant to Ala.Code 1975, § 23-4-2, the City adopted a resolution stating that it was in the public interest to vacate a portion of Short Texas Street, a public street that abuts the property. Pinto Island appealed from the City’s decision to the Mobile Circuit Court, pursuant to Ala.Code 1975, § 23-4-5.

In the circuit court, Pinto Island filed a motion, supported by various evidentiary submissions, seeking a summary judgment declaring the City’s vacation resolution void. The motion and supporting affidavits asserted that vacating a portion of Short Texas Street would deprive Pinto Island of its “only means” of ingress to and egress from the property. The City responded to Pinto Island’s summary-judgment motion by submitting affidavits and documentary evidence indicating that vacating a portion of Short Texas Street would not deprive Pinto Island of reasonable and convenient means of accessing the property.

After hearing the arguments of counsel, the circuit court entered a summary judgment on May 30, 2006, in favor of Pinto Island. That judgment specifically determined that the City’s resolution vacating a portion of Short Texas Street had violated § 23-4-2(b), Ala.Code 1975, because that vacation, according to the circuit court, deprived Pinto Island “of its reasonable and convenient access to its property and failfed] to provide Pinto Island with other reasonable and convenient access to its property.” After the City’s postjudgment motion was denied, the City appealed.

The City contends that Pinto Island has not been denied “reasonable and convenient access to its property” and that the City has not violated § 23-4-2(b), Ala. Code 1975. Moreover, the City asserts that whether Pinto Island has such access is a question of fact. In addition, the City states that the circuit court erred in granting Pinto Island’s summary-judgment motion because, the City claims, it adduced substantial evidence to rebut Pinto Island’s contention that vacating a portion of Short Texas Street would result in the loss of reasonable and convenient access to its property.

Our standard of review is well settled:

“A summary judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(8), Ala. R. Civ. P. When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether a summary judgment is proper, a court must construe the evidence in a light most favorable to the nonmoving party, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993).”

Telfare v. City of Huntsville, 841 So.2d 1222, 1226-27 (Ala.2002).

The record establishes the following pertinent facts. The property owned by Pinto Island is situated along the Mobile River, near the river docks in downtown Mobile. The property is bordered on the east by the waterfront and on the west by Old Water Street, which runs north and south along the entire length of the property. Short Texas Street, which runs east and west, abuts the property at the point where that street intersects Old Water Street. The portion of Short Texas Street that was vacated by the City’s resolution includes that portion of Old Texas Street that abuts the property. After the vacation, the only public street abutting the property was Old Water Street, which could be accessed either by Elmira Street or Palmetto Street; those two streets are parallel to, and north of, Short Texas Street.

Old Water Street originally had a total width of 50 feet, but railroad tracks, running generally north and south, later occupied approximately 30 feet of the westernmost part of that street. The remaining usable road surface abutting the property has a width of approximately 20 feet. Vehicles approaching the property must turn onto Old Water Street from Elmira or Palmetto Streets before proceeding south to the point where the entry gate to the property opens onto Old Water Street. The undisputed evidence indicated that even before the City vacated the pertinent portion of Short Texas Street, vehicles entering the property were required to turn south onto Old Water Street to access the entry gate to the property, which is located several hundred feet south of the intersection of Short Texas Street and Old Water Street.

Alabama’s street-vacation statute, as amended, requires that when a county or municipality desires to vacate a street, alley, or highway, or any portion thereof, the proposed vacation must be advertised for four weeks in a local newspaper, a public hearing must be held, and abutting landowners must be notified of the proposed vacation and the date of the public hearing before a vacation resolution may be adopted. See § 23-4-1 et seq., Ala.Code 1975. In addition, the Code stipulates that a street vacation cannot deprive “property owners of any right they may have to convenient and reasonable means of ingress and egress to and from their property” and further provides that “if that right is not afforded by the remaining streets and alleys, another street or alley affording that right must be dedicated.” See § 23-4-2(b), Ala.Code 1975.

Pinto Island submitted a survey and the deposition testimony of W.L. Lawler III, whose survey indicated the previously described boundaries of Pinto Island’s property. Pinto Island also offered the deposition testimony of Gary D.E. Cowles, who opined that oversized trucks and large hauling trucks would not be able to negotiate the turn from either Elmira Street or Palmetto Street onto Old Water Street without crossing into the oncoming lane of traffic, thereby violating the standard rules of the road.

In contrast, the City submitted deposition testimony from William J. Metzger, the City’s traffic engineer, who opined that vacating the pertinent portion of Short Texas Street would not deprive Pinto Island of reasonable and convenient access to the property because the property in question abuts a lengthy portion of Old Water Street and has other access points, including Elmira Street and Palmetto Street. Directly contradicting Cowle’s testimony, Metzger offered his opinion that “large semi-trailer trucks” could access the property by turning from Elmira Street onto Old Water Street without leaving the dedicated rights-of-way of either street.

Our Supreme Court has previously noted that any private right of abutting owners to a vacated street is “entirely and completely subordinate to the public right, and any invasion of the street in the way of private use can be justified only on the ground of public necessity.” Thetford v. Town of Cloverdale, 217 Ala. 241, 243, 115 So. 165, 167 (1927). In addition, when comparing a private citizen’s interest in a public street to that of a government’s interest in vacating a street, our Supreme Court pointed out that “a vacation of a street initiated by public authority to better serve the public interest [is a situation] where the rule of public necessity must override private convenience.” McPhillips v. Brodbeck, 289 Ala. 148, 154, 266 So.2d 592, 598 (1972). In McPhillips, our Supreme Court reversed a judgment upholding the vacation of a portion of a public street because the vacation had deprived the plaintiff of his only means of access to his property and Mobile Bay. In the instant case, however, Pinto Island continues to have the means to access its property through the use of at least two alternate streets that intersect Old Water Street, a public thoroughfare that abuts the entire length of the property.

In reading the trial court’s summary judgment, it appears that the trial court entered that judgment in favor of Pinto Island based upon a determination that the City’s vacation of the pertinent portion of Short Texas Street deprived Pinto Island of “reasonable and convenient access” to the property, thereby violating § 23-4-2(b). However, when viewed in the light most favorable to the City as the nonmov-ant, the record indicates that substantial evidence was adduced establishing that Pinto Island still retains at least two viable alternative routes to access the property located on Old Water Street. Our Supreme Court has stated that in considering the propriety of the vacation of a public street, “[i]t is not a question of comparing conveniences or desirability, but whether there is left or provided some other reasonably convenient way.” Chichester v. Kroman, 221 Ala. 203, 206, 128 So. 166, 169 (1930); see also Elmore County Comm’n v. Smith, 786 So.2d 449 (Ala.2000). Moreover, the City’s resolution to vacate a portion of Short Texas Street is prima facie evidence that such action is in the public’s best interests. See Chichester and McPhillips, supra.

Because we conclude that the City adduced substantial evidence to rebut Pinto Island’s contention that vacating a portion of Short Texas Street would result in the loss of reasonable and convenient access to its property, we must reverse the trial court’s summary judgment in favor of Pinto Island and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN, J., dissents, with writing, which MOORE, J., joins.

BRYAN, Judge,

dissenting.

In its summary judgment, the trial court concluded that the vacation of Short Texas Street would deprive Pinto Island of convenient and reasonable access to its property, in violation of § 23-4-2(b), Ala. Code 1975. The main opinion notes that Pinto Island has alternate means to access the property following the vacation. However, the trial court concluded that those alternate means were not convenient and reasonable because the property could not be accessed after the vacation by large commercial trucks without violating traffic laws. The trial court specifically based its conclusion on evidence indicating that large commercial trucks accessing the property by turning south, or right, from Elmira Street onto Old Water Street must, in order to make that turn, illegally enter the left-hand lane of Elmira Street, ie., the oncoming lane of traffic. The trial court’s judgment also cited evidence indicating that, at some time before the vacation of South Texas Street, that street could be used to access the property without violating traffic laws.

William J. Metzger, the City’s traffic engineer, testified that “large semi-trailer trucks” could make the turn from Elmira Street onto Old Water Street “without going onto the railroad tracks and without leaving the right-of-way” of either street. The term “right-of-way,” as used in this case, refers to the strip of land that contains an entire public street. Therefore, I do not believe that Metzger’s testimony refutes the essential evidence on which the trial court based its judgment: that large commercial trucks accessing the property by turning south from Elmira Street onto Old Water Street must, in order to make that turn, illegally enter the left-hand lane of Elmira Street. The City submitted no evidence disputing this essential evidence.

Because I conclude that Metzger’s testimony does not establish the existence of a genuine issue of material fact, I would affirm the summary judgment of the trial court. Accordingly, I respectfully dissent.

MOORE, J., concurs.

On Application for Rehearing

PITTMAN, Judge.

APPLICATION OVERRULED.

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

MOORE, J., concurs specially.

BRYAN, J., dissents, without writing.

MOORE, Judge,

concurring specially.

I concur in overruling the rehearing application filed by Pinto Island Land Corn-pany, Inc. After further consideration, I believe the main opinion on original submission was correct, and, if I were voting today, I would concur in that opinion.

      . That statute, as amended by Act No. 2004-323, Ala. Acts 2004, which became effective July 1, 2004, entitles any party affected by the vacation of a street to de novo review via appeal to the appropriate circuit court.

      . The City presents no argument addressing whether the trial court’s conclusion on this issue is correct as a matter of law.


source: Caselaw Access Project

author: BRYAN, Judge. THOMPSON, Presiding Judge, BRYAN, Judge.

license: Public Domain

text:
    R.H. v. D.N.
    2061155.
    Court of Civil Appeals of Alabama.
    May 9, 2008.
    Opinion on Return to Remand Oct. 10, 2008.

      R.H., pro se.
    Sheila V. Stone, Elberta, for appellant (on return to remand).
    Gregory B. Dawkins, Mobile; and Sharon Hoiles of Hoiles, Dasinger & Hollon, P.C., Robertsdale, for appellee.
   BRYAN, Judge.

R.H. (“the mother”) appeals a judgment finding L.W. (“the child”) dependent and awarding D.N. (“the paternal grandmother”) custody of the child. For the reasons given below, we remand the cause to the Baldwin Juvenile Court with instructions.

On December 6, 2005, the paternal grandmother petitioned the Montgomery Juvenile Court seeking, among other things, a judgment finding the child dependent and awarding her custody. On January 17, 2006, the Montgomery Juvenile Court awarded the paternal grandmother “temporary sole physical custody” of the child. The case was then transferred to the Baldwin Juvenile Court (“the juvenile court”).

On March 13, 2006, N.F., the child’s maternal grandmother, moved the juvenile court for leave to intervene in the action to seek custody of the child. The juvenile court granted that motion. Thereafter, the parties filed various pleadings and motions in the juvenile court.

The juvenile court held ore tenus pro-, ceedings in October 2006, February 2007, and August 2007. It then entered a judgment on August 28, 2007, that, among other things, found the child dependent and awarded the paternal grandmother custody of the child. The mother then timely appealed.

The mother first argues on appeal that the juvenile court erred by failing to appoint her an attorney to represent her on appeal. “It is well settled that the ‘constitutional due process clause does not require the appointment of counsel for an indigent parent in dependency and temporary custody proceedings.’ ” W.C. v. State Dep’t of Human Res., 887 So.2d 251, 256 (Ala.Civ.App.2003) (quoting Morgan v. Lauderdale County Dep’t of Pensions & Sec., 494 So.2d 649, 651 (Ala.Civ.App.1986), citing in turn Lassiter v. Department of Social Servs. of Durham County, North Carolina, 452 U.S. 18, 34, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). However, “ ‘[parents of a child in a dependency case must be advised of their right to be represented by counsel and to have counsel appointed, pursuant to 12 — 15—63(b), Ala.Code 1975.’ ” K.P.B. v. D.C.A., 685 So.2d 750, 751 (Ala. Civ.App.1996) (quoting F.D.M. v. C.D.S., 646 So.2d 117,118 (Ala.Civ.App.1994)).

Section 12-15-63(b), Ala.Code 1975, provides:

“(b) In dependency cases, the parents, guardian or custodian shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable for financial reasons to retain their own.
“The court shall also appoint counsel for the child in dependency cases where there is an adverse interest between parent and child or where the parent is an unmarried minor or is married, widowed, widowered or divorced and under the age of 18 years or counsel is otherwise required in the interests of justice.”

(Emphasis added.) In Smoke v. State, Department of Pensions & Security, 378 So.2d 1149, 1150 (Ala.Civ.App.1979), this court stated:

“The right of the parents of the child in a dependency case to be represented by counsel at every stage of the proceeding is a fundamental one protected by statute and court decision. § 12-15-63, Code of Alabama (1975); Crews v. Houston County Department of Pensions and Security, 358 So.2d 451 (Ala.Civ. App.1978); In re Ward, 351 So.2d 571 (Ala.Civ.App.1977). The statute places upon the court the duty of informing the parents, guardian or custodian of their right to counsel and their right to have counsel appointed where they are unable for financial reasons to retain their own. §§ 12 — 15—63(b), 65(b), Code of Alabama (1975).”

(Emphasis added.)

The record on appeal establishes that the Montgomery Juvenile Court, on December 8, 2005, appointed the mother an attorney. After the case was transferred in January 2006, the mother, in February 2006, completed an affidavit of substantial hardship and requested that the juvenile court appoint her an attorney. The juvenile court denied that request. The mother again requested a court-appointed attorney on February 27,2006.

The record indicates that the mother retained counsel, Thomas Bear, in April 2006. On December 4, 2006, Bear moved to withdraw as counsel on the ground that the mother had failed to pay for services rendered and that a breakdown in the attorney-client relationship had occurred. The juvenile court then granted that motion.

The mother, on December 20, 2006, filed another affidavit of substantial hardship requesting a court-appointed attorney. On September 10, 2007, the mother, through an attorney named Jerry Blevins, alleged that she suffered from financial hardship and moved the juvenile court to allow her to obtain her trial transcripts free of charge. On September 11, 2007, the juvenile court ordered the mother to complete a new affidavit of substantial hardship. The juvenile court then granted the mother’s motion on September 28, 2007. The juvenile court also granted Blevins’s motion to withdraw based on an “irreconcilable conflict.” After the mother filed a notice of appeal, she submitted a letter to the juvenile court requesting, among other things, an attorney.

The record indicates that the mother submitted two affidavits of substantial hardship requesting that she be permitted to proceed in forma pauperis and seeking the appointment of an attorney. See Rule 24, Ala. R.App. P. (governing actions to proceed in forma pauperis). After the case was transferred, the juvenile court did not appoint the mother an attorney. The record further indicates that the mother did not pay for services rendered when she retained her own counsel. Therefore, the record tends to establish that the mother could not afford to retain her own counsel. Additionally, the record does not indicate that the mother waived her right to counsel. Since a parent is afforded a right to a court-appointed attorney at every stage of a dependency proceeding, we conclude that the juvenile court erred by failing to appoint the mother an attorney on appeal. See § 12-15-63(b); Smoke, supra. We remand this case to the juvenile court to comply with our instructions in this opinion. Due return shall be filed with this court within 42 days of the date of the release of this opinion and shall include the juvenile court’s order appointing appellate counsel for the mother. The time standards for filing briefs shall commence on the date the return to remand is effected. Other than the modifications stated herein, Rule 31, Ala. R.App. P., shall govern the time for serving and filing briefs with this court. Given this court’s disposition of the mother’s first issue on appeal, we pretermit a discussion of the mother’s remaining issues presented on appeal.

REMANDED WITH INSTRUCTIONS.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., dissents, with wilting, which MOORE, J., joins.

THOMPSON, Presiding Judge,

dissenting.

Section 12 — 15—63(b), Ala.Code 1975, provides that “counsel shall be appointed where the parties” in a dependency case “are unable for financial reasons to retain them own.” See also Smoke v. State Dep’t of Pensions & Sec., 378 So.2d 1149 (Ala. Civ.App.1979). Based on the plain language of § 12 — 15—63(b), I believe that the trial court erred in denying the mother’s requests that counsel be appointed after the case was transferred in February 2006 and subsequently while the case was pending; I also believe that the trial court erred in allowing the case to proceed although the mother was not represented by counsel. Accordingly, I would reverse the trial court’s judgment and remand the case for a new trial. Because the main opinion concludes only that the trial court erred in failing to appoint the mother an attorney on appeal, I respectfully dissent.

MOORE, J., concurs.

On Return to Remand

BRYAN, Judge.

R.H. (“the mother”) appeals from a judgment of the Baldwin Juvenile Court finding L.W. (“the child”) dependent and awarding D.N. (“the paternal grandmother”) custody of the child.

On December 6, 2005, the paternal grandmother petitioned the Montgomery Juvenile Court seeking a judgment finding the child dependent. On the same day, the paternal grandmother filed with the Montgomery Juvenile Court an ex parte motion seeking an emergency order placing custody of the child with her. On January 12, 2006, the Montgomery Juvenile Court entered an order awarding the paternal grandmother “temporary sole physical custody” of the child and transferring the cause to the Baldwin Juvenile Court (“the juvenile court”). On March 13, 2006, N.F. (“the maternal grandmother”) moved the juvenile court for leave to intervene to seek custody of the child. The juvenile court granted that motion. On March 24, 2006, the maternal grandmother petitioned the juvenile court for custody of the child. On September 26, 2006, the mother and the maternal grandmother filed with the juvenile court a “joint motion for ex parte relief’ in which they requested that the mother be awarded temporary custody of the child pending a final hearing on the matter. On December 20, 2006, the mother petitioned the juvenile court for a judgment finding the child dependent.

The juvenile court held ore tenus proceedings regarding the parties’ petitions in October 2006, February 2007, and August 2007. On August 28, 2007, the juvenile court entered a judgment that, among other things, found the child dependent and granted the paternal grandmother custody of the child. The mother appealed from the juvenile court’s August 28, 2007, judgment arguing, among other things, that the juvenile court had erred by failing to appoint her an attorney to represent her on appeal. This court remanded the cause to the juvenile court with instructions to appoint appellate counsel for the mother. See R.H. v. D.N., 5 So.3d 1253, 1255 (Ala. Civ.App.2008).

On return to remand, the mother, through her court-appointed counsel, appeals from the juvenile court’s August 28, 2007, judgment. The mother’s sole argument on appeal is that the juvenile court erred by failing to appoint her an attorney to represent her during the dependency proceedings. We agree.

“It is well settled that the ‘constitutional due process clause does not require the appointment of counsel for an indigent parent in dependency and temporary custody proceedings.’ ” W.C. v. State Dep’t of Human Res., 887 So.2d 251, 256 (Ala.Civ. App.2003) (quoting Morgan v. Lauderdale County Dep’t of Pensions & Sec., 494 So.2d 649, 651 (Ala.Civ.App.1986), citing in turn Lassiter v. Department of Soc. Sens, of Durham County, North Carolina, 452 U.S. 18, 34, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). However, “ ‘[pjarents of a child in a dependency case must be advised of their right to be represented by counsel and to have counsel appointed, pursuant to [§] 12 — 15—63(b), Ala.Code 1975.’ ” K.P.B. v. D.C.A., 685 So.2d 750, 751 (Ala.Civ.App. 1996) (quoting F.D.M. v. C.D.S., 646 So.2d 117, 118 (Ala.Civ.App.1994)).

Section 12-15-63(b), Ala.Code 1975, provides:

“(b) In dependency cases, the parents, guardian or custodian shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable for financial reasons to retain their own.
“The court shall also appoint counsel for the child in dependency cases where there is an adverse interest between parent and child or where the parent is an unmarried minor or is married, widowed, widowered or divorced and under the age of 18 years or counsel is otherwise required in the interests of justice.”

(Emphasis added.) In Smoke v. State, Department of Pensions & Security, 378 So.2d 1149, 1150 (Ala.Civ.App.1979), we stated:

“The right of the parents of the child in a dependency case to be represented by counsel at every stage of the proceeding is a fundamental one protected by statute and court decision. § 12-15-63, Code of Alabama (1975); Crews v. Houston County Department of Pension,s and Security, 358 So.2d 451 (Ala.Civ. App.1978); In re Ward, 351 So.2d 571 (Ala.Civ.App.1977). The statute places upon the court the duty of informing the parents, guardian or custodian of their right to counsel and their right to have counsel appointed where they are unable for financial reasons to retain their own. §§ 12-15-63(b), 65(b), Code of Alabama (1975).”

(Emphasis added.)

The record on appeal establishes that the Montgomery Juvenile Court, on December 8, 2005, appointed the mother an attorney. After the case had been transferred to the juvenile court, the mother, on February 16, 2006, filed an affidavit of substantial hardship asserting that she was financially unable to hire an attorney and requesting that the juvenile court appoint an attorney to represent her. On February 27, 2006, the juvenile court received a letter from the mother in which she again asserted that she did not have adequate financial resources to hire an attorney. The juvenile court, in a notice dated March 7, 2006, denied the mother’s request for appointed counsel.

The record on appeal also establishes that, in April 2006, attorney Thomas Bear filed a notice of appearance on behalf of the mother. On December 4, 2006, Bear moved to withdraw as counsel, asserting, among other things, that the mother had “failed to pay for the services rendered.” The juvenile court, on January 9, 2007, entered an order granting Bear’s motion to withdraw.

On December 20, 2006, the mother filed an affidavit of substantial hardship again asserting that she was financially unable to hire an attorney and requesting that the juvenile court appoint an attorney to represent her. The juvenile court again refused to appoint counsel for the mother; however, the juvenile court, finding that the mother was indigent, waived prepayment of the docket and service fees. On September 10, 2007, the mother, through attorney Jerry Blevins, moved the juvenile court to provide her with trial transcripts free of charge on the basis that she was “financially unable to bear the costs of obtaining” the transcripts. On September 11, 2007, the juvenile court ordered the mother to complete a new affidavit of substantial hardship. The juvenile court then granted the mother’s motion seeking free trial transcripts on September 28, 2007. In October 2007, the juvenile court received a letter from the mother requesting, among other things, an attorney.

The mother filed with the juvenile court two affidavits of substantial hardship and also submitted two letters stating that she could not afford to hire an attorney and requesting that the juvenile court appoint an attorney to represent her. The juvenile court had denied each of the mother’s requests for an attorney. The mother retained Bear to represent her after the juvenile court denied her first request for an attorney; however, Bear later withdrew from the case based, in part, on the mother’s failure to pay for services rendered. Therefore, the record tends to establish that the mother could not afford to retain her own counsel. Because the mother could not afford to retain her own counsel and the juvenile court refused to appoint counsel to represent her, the mother appeared at dependency proceedings in this case on February 17, 2007, August 3, 2007, and August 15, 2007, without the assistance of counsel. Furthermore, the record on appeal does not indicate that the mother waived her right to counsel. Because Alabama law affords a parent the right to a court-appointed attorney at every stage of a dependency case, we conclude that the juvenile court erred by failing to appoint an attorney to represent the mother during the dependency proceedings. See § 12 — 15—68(b); Smoke, supra. Accordingly, we reverse the juvenile court’s August 28, 2007, judgment and remand the cause to the juvenile court for a new trial with instructions to appoint an attorney for the mother.

The paternal grandmother’s motion to dismiss the appeal or, in the alternative, to strike the mother’s brief as untimely is denied.

REVERSED AND REMANDED.

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

      . The juvenile court implicitly granted the mother leave to proceed in forma pauperis by granting her motion seeking to obtain trial transcripts free of charge. See Rule 24(a), Ala. R.App. P.

      . The record on appeal reveals that Bear, on February 21, 2007, again moved to withdraw as the mother's counsel; however, the record does not reflect that Bear had filed a second notice of appearance after the juvenile court had granted his prior motion to withdraw.

      . The record on appeal does not reflect that Blevins filed a notice of appearance with the juvenile court. On September 17, 2007, Blevins moved to withdraw as the mother’s counsel on the ground that "an irreconcilable conflict ha[d] arisen.”

      .The juvenile court implicitly granted the mother leave to proceed in forma pauperis by granting her motion seeking to obtain trial transcripts free of charge. See Rule 24(a), Ala. R.App. P.


author: BRYAN, Judge. MOORE, Judge,

text:
    Jerome D. VAUGHN v. Kathy Williams VAUGHN.
    2061142.
    Court of Civil Appeals of Alabama.
    June 13, 2008.
    Rehearing Denied Aug. 15, 2008.
    Certiorari Denied Oct. 10, 2008 Aabama Supreme Court 1071626.
    Roy 0. McCord of McCord & Martin, Gadsden, for appellant.
    David C. Livingston, Gadsden, for appel-lee.
   BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Aa. R.App. P.; State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821-22 (Ala.2005); Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992); Lollar v. Lollar, 991 So.2d 758 (Ala.Civ.App.2008); and Diggs v. Diggs, 910 So.2d 1274, 1276-77 (Ala.Civ.App.2005).

The appellee’s request for an attorney’s fee on appeal is denied.

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

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

MOORE, Judge,

concurring in part and concurring in the result in part.

Athough I concur with the no-opinion affirmance with regard to the division of property and award of alimony, I concur only in the result with regard to the award of postminority support.


author: BRYAN, Judge.

text:
    C.J. v. MARION COUNTY DEPARTMENT OF HUMAN RESOURCES. A.J. v. Marion County Department of Human Resources.
    2061130 and 2070017.
    Court of Civil Appeals of Alabama.
    June 27, 2008.
    Rehearing Denied Aug. 8, 2008.
    Certiorari Denied (as to C.J.) Oct. 10, 2008 Aabama Supreme Court 1071600.

      R. Wyatt Howell of Green & Howell, Hamilton, for appellant C.J.
    John V. Martine, Winfield, for appellant A.J.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth L. Hendrix, asst, attys. gen., for appellee Department of Human Resources.
   BRYAN, Judge.

In these consolidated appeals, C.J. (“the father”) and A.J. (“the mother”) appeal a judgment terminating their parental rights with respect to their minor child S.K.J. We affirm.

The mother and the father met in June 2005 and married on August 20, 2005, when the mother was 19 years old and the father was 18. The mother was approximately five months pregnant with another man’s child when they married; she subsequently gave birth to that child, a boy named C.A.J., on October 3, 2005.

In December 2005, C.A.J. suffered a seizure and was taken to the hospital. The hospital informed the Marion County Department of Human Resources (“DHR”) that CA.J. had suffered serious brain injuries that were likely caused by his having been shaken violently. As a result, DHR picked up C.A.J., and both DHR and the Alabama Bureau of Investigation investigated to determine the cause of C.A.J.’s injuries. In January 2006, the father signed a written statement in which he admitted that he had shaken C.A.J. on two occasions, and the mother signed a written statement in which she stated that the father had admitted to her that he had shaken C.A.J. on two occasions. DHR then petitioned the juvenile court to terminate the mother’s and the father’s parental rights with respect to C.A.J.

The juvenile court appointed an attorney to represent the mother and the father in the termination-of-parental-rights proceeding regarding C.A.J. While that proceeding was pending, DHR told the mother and the father that it would close its file on them if they consented to the termination of their parental rights with respect to C.A.J. The mother and the father subsequently consented to the termination of those rights, and the juvenile court, on May 5, 2006, entered a judgment terminating those rights. However, before DHR closed its file on the mother and the father, it learned that the mother was pregnant with another child and informed the mother and the father that, although it was closing its file on them, the possibility existed that they could lose custody of their unborn child because C.A.J. had suffered abuse while in their custody. DHR then closed its file on the mother and the father.

In September 2006, the father was indicted for felony child abuse as a result of his allegedly shaking C.A.J. Shortly before October 13, 2006, DHR received an anonymous report that the mother had been admitted to the hospital in order to give birth to the child she had been carrying when DHR had closed its file on the mother and the father. On October 15, 2006, DHR received a report that, on October 18, 2006, the mother had given birth to a male child named S.K.J. DHR sought and obtained a pick-up order from the juvenile court on the ground that, because S.KJ.’s sibling had been abused while in the care of the mother and the father, the risk that S.K.J. would suffer abuse while in their care was too great for him to remain in their custody. Pursuant to that order, DHR picked up S.K.J. on October 15, 2006, and placed him in foster care.

On October 17, 2006, DHR petitioned the juvenile court for temporary custody of S.K.J. That same day, the juvenile court held a shelter-care hearing regarding S.K.J. The record on appeal does not contain a transcript of the shelter-care hearing. On October 25, 2006, the juvenile court entered an order regarding the shelter-care hearing. Although the record on appeal does not contain that order, other parts of the record indicate that that order maintained DHR’s temporary custody of S.K.J. In addition, a portion of the October 25, 2006, order was read into the record at trial in this matter. That portion of the order stated:

“The Court finds that reasonable efforts to preserve or reunify the family are not required because the child cannot safely remain at home or be safely returned home based upon the following: The parents have subjected the child to aggravated eircumstance[s], for example, the father has committed abusive acts against the child’s sibling, and a risk of maltreatment is too high for the child to safely remain at or be returned home.”

On October 31, 2006, S.KJ.’s paternal great-aunt, K.E.H., and her husband, C.D.H. (“the great-aunt and great-uncle”), petitioned the juvenile court for temporary custody of S.KJ. and filed documents signed by the mother and the father in which they consented to the juvenile court’s granting the great-aunt and great-uncle temporary custody of S.K. J.

The juvenile court held a permanency hearing on November 14, 2006. Following the permanency hearing, the juvenile court entered an order regarding the permanency plan for S.K.J. Although the record on appeal does not contain a transcript of the permanency hearing or the order regarding the permanency plan for S.K.J., other parts of the record on appeal indicate that DHR informed the juvenile court at the permanency hearing that DHR planned to seek the termination of the mother’s and the father’s parental rights so that S.K.J. could be adopted by his foster family.

On December 14, 2006, the juvenile court entered an order requiring the father to participate in a domestic-violence-intervention program. On December 19, 2006, DHR petitioned the juvenile court (1) to appoint an attorney to represent the mother and the father, (2) to appoint a guardian ad litem to protect S.K.J.’s interest, and (3) to terminate the mother’s and the father’s parental rights with respect to S.K.J. The juvenile court appointed an attorney to represent both the mother and the father and appointed another attorney to serve as guardian ad litem for S.K.J. Subsequently, the father employed his own attorney.

Having ordered that DHR’s action seeking the termination of the mother’s and the father’s parental rights and the great-aunt and great-uncle’s action seeking custody be consolidated for purposes of trial, the juvenile court received evidence ore tenus at a trial on March 30, April 24, May 3, June 22, and August 24, 2007. On May 3, 2007, the mother moved the juvenile court to dismiss DHR’s action seeking the termination of her parental rights on the grounds, among others, (1) that the mother did not recall being advised by the juvenile court at the shelter-care hearing that she had the right to an appointed attorney if she were unable for financial reasons to retain her own, as required by § 12 — 15—60(c), Ala.Code 1975; and (2) that the juvenile court had not appointed an attorney to represent the mother at the shelter-care hearing as required by § 12-15 — 63(b), Ala.Code 1975. However, the mother did not support her motion to dismiss with an affidavit or any other evidence tending to prove that the juvenile court had failed to advise her of her right to an attorney at the shelter-care hearing or that she had requested an appointed attorney at any time before the juvenile court appointed one to represent her. On May 9, 2007, DHR filed a response to the mother’s motion to dismiss in which DHR stated, in pertinent part:

“In accordance with § 12-15-60(c) and § 12 — 15—63(b), Code of Alabama [1975], at the commencement of the Shelter Care/Dependancy hearing held on October 17, 2006 the Court advised/informed [the mother] and [the father] of their right to be represented by counsel. Neither party requested the appointment of counsel based upon inability to retain counsel for financial reasons .... ”

The record does not contain any indication that the juvenile court ruled on the motion to dismiss the mother filed on May 3, 2007. On June 22, 2007, the mother filed a renewed motion to dismiss on the grounds, among others, (1) that the juvenile court had failed to advise her at the shelter-care hearing of her right to an attorney; and (2) that the juvenile court had not appointed an attorney to represent her at the shelter-care hearing. In addition, she alleged that she had twice requested the tape recordings of the shelter-care hearing and the permanency hearing, but the tape recordings were not in the court file and had not been located. However, the mother did not support her renewed motion to dismiss with an affidavit tending to prove that the juvenile court had failed to advise her at the shelter-care hearing of her right to an attorney or that she had requested an appointed attorney at any time before the juvenile court appointed one to represent her. When the juvenile court heard the mother’s renewed motion to dismiss, the mother’s attorney stated, in pertinent part:

“As counsel [for DHR] pointed out earlier, this is a renewed motion. And basically counsel [for DHR] has responded to my Initial Motion to Dismiss based on the parent was not appointed counsel timely, by his statement that my client, [the mother], was advised that she had the right to counsel in the initial shelter care and the subsequent permanency hearing.
“I attempted to verify that but was unable to because I can’t find the tapes in the court file. So I think that at this point the burden of proof is on [DHR] to produce those tapes.
“In talking with my client, it’s her— she stated to me that she doesn’t recall being advised that she had the right to counsel. There’s no record that I can find of such an advisement in the shelter-care hearing or permanency hearing.”

(Emphasis added.)

In response, DHR’s attorney stated, in pertinent part:

“It is my recollection that [the mother] as well as [the father] were advised by this honorable Court of [their] right to retain counsel. Neither party made request of appointed counsel, stating as their basis financial inability.
“The code does not mandate court appointment of counsel, but the code says that the Court shall appoint counsel as required.”

After hearing the arguments of the attorneys regarding the mother’s renewed motion to dismiss, the juvenile court denied that motion.

At the trial, Dr. Kathy Ronan, a clinical psychologist who had evaluated the mother and the father at the behest of DHR, testified that she had diagnosed the father as suffering from post-traumatic stress disorder; major depression, recurring; anxiety disorder, not otherwise specified; and personality disorder, not otherwise specified. She also gave the father a provisional diagnosis of dissociative disorder, not otherwise specified. She further testified that, because of those disorders, the father is “struggling just to maintain a basic daily lifestyle” and his capacity to parent a child is highly impaired. In addition, she testified that the father had related to her that, when he had shaken C.A.J., he had been unable to stop himself from doing so. Consequently, Dr. Ronan opined, if S.K.J. were in the care of the father, the father could become angry, lose control of himself, and shake S.K.J. to death. Although Dr. Ronan opined that the father’s psychological problems could be treated, she testified that it would take years of intensive therapy for him to make significant progress.

Dr. Ronan testified that the mother suffered from a personality disorder that had resulted in a series of failed relationships. The symptoms of this personality disorder consisted of the mother’s excessive emotional dependence on another person followed by emotional withdrawal from that person. Dr. Ronan also testified that the mother felt no anger or negative emotions toward the father as a result of his injuring C.A.J. and that such a lack of emotion was abnormal. In addition, Dr. Ronan testified that the results of the written tests she had administered to the mother indicated that she tended to “become very self-focused to the exclusion of the needs of others .... ” She also testified that, although the mother did not exhibit all the signs of post-traumatic stress disorder, the ones she did exhibit interfered with her general functioning. Although Dr. Ronan opined that the mother’s psychological problems could be treated, she opined that it would take years of intensive therapy for her to make significant progress.

Dr. Trudi Porter, a clinical psychologist who evaluated the mother and the father at their behest, testified that the father experienced rages over which he did not seem to have much control and, therefore, should not have sole responsibility for a child at the present time because he could harm the child while it was in his care. Dr. Porter opined that the father could improve to a great extent if given intensive treatment for one to two years.

Dr. Porter testified that the mother had “personality issues” and “bonding issues” with respect to C.A.J. and S.K.J. as evidenced by her lack of any emotional response to her losing custody of them. Dr. Porter further testified that the mother would need therapy to address those issues in order to be a good parent. In addition, Dr. Porter testified that, although she did not think that the mother posed a direct threat to S.K.J., the mother’s lack of emotional response to the father’s injuring C.A.J. caused Dr. Porter to question whether the mother’s instinct to protect S.K.J. was strong enough to prompt her to intervene if the father attempted to hurt S.K.J. Moreover, Dr. Porter testified that, even if the mother divorced the father, she would not recommend that the mother be given custody of S.K.J. until the mother had received therapy and had acquired parenting skills.

In their testimony, both the mother and the father admitted that they were not capable of taking care of S.K.J. at the present time. They also admitted that they were both unemployed and that their mobile home had been bought for them by S.KJ.’s paternal grandfather (“the paternal grandfather”), who is a convicted sex offender.

Crystal Roberts, an employee of the De-Kalb County Department of Human Resources (“the DeKalb DHR”), testified that DHR had requested that the DeKalb DHR do a home study of the great-aunt and great-uncle, who are residents of DeKalb County. Roberts further testified that she was the DeKalb DHR employee who had done that home study and that she had recommended that the great-aunt and great-uncle not be awarded custody of S.K.J. for three reasons. The first reason was that the paternal grandfather, who is a convicted sex offender, is very involved in the life of the great-aunt. He and the great-aunt have a close relationship; the great-aunt has allowed the paternal grandfather to be around her children in her home and at family gatherings; and the great-aunt had stated that the paternal grandfather would be a source of financial assistance if she and the great-uncle were awarded custody of S.K.J. The second reason was that the great-uncle, who has had two heart attacks, would be the primary caregiver for S.K.J. while the great-aunt is working. The third reason was that the great-aunt had demonstrated a propensity to disregard court orders by disregarding a protection-from-abuse order she had obtained against one of her brothers.

The great-aunt and great-uncle introduced the testimony of several witnesses that tended to prove that the great-aunt and great-uncle have been loving parents to their own children.

Ali Tyra, the DHR employee assigned to this matter, testified that, even though DHR was aware that the mother was pregnant with S.K.J. when DHR closed its file regarding the mother and the father, it could not provide the mother and the fa.ther with services during the period between the termination of the mother’s and the father’s parental rights with respect to C.A.J. and the birth of S.K.J. because DHR is not authorized to provide services to the parents of an unborn child. Tyra further testified that it sought a pick-up .order with respect to S.K.J. on October 15, 2006, because the father’s abuse of C.A.J. and the mother’s failure to protect C.A.J. from that abuse indicated that S.K.J. could not safely remain in the custody of the mother and the father. Tyra also testified that the abuse suffered by C.A.J. while in the custody of the mother and the father constituted an “aggravating circumstance” that, pursuant to § 12-15-65(m), relieved DHR of the obligation to make reasonable efforts to reunify the family before seeking termination of the mother’s and the father’s parental rights.

In addition, Tyra testified that DHR had determined that no viable alternative to termination of the mother’s and father’s parental rights existed. When dealing with C.A.J., DHR had requested that the mother and the father provide them with the names of relatives with whom C.A.J. could possibly be placed while the mother and the father rehabilitated themselves. The mother identified C.A.J.’s maternal grandmother and grandfather and K.P., a cousin, as relatives with whom C.A.J. might possibly be placed. Tyra spoke to the maternal grandmother and grandfather; the maternal grandmother told Tyra that they were financially unable to support C.A.J. and that he needed to be placed for adoption rather than placed temporarily with a relative. The mother never provided Tyra with contact information for K.P. After picking up S.K.J. on October 15, 2006, DHR identified Mr. and Mrs. T. as relatives with whom S.K.J. might possibly be placed temporarily; however, DHR learned at the shelter-care hearing that the mother and the father were living with Mr. and Mrs. T., and, therefore, their home would not be safe for S.K.J. Tyra testified that she requested at the shelter-care hearing that the mother and the father provide her with the names of relatives who would be suitable custodians for S.K.J., but they never provided her with any other names.

Tyra testified that in mid-October 2006 the great-aunt, the paternal grandfather, and the paternal grandmother came to the DHR office and that Tyra encouraged the great-aunt to file a petition for custody of S.K.J. However, the subsequent home study regarding the great-aunt and great-uncle indicated that they would not be suitable for placement of S.K.J.

The mother testified that she had told DHR that her brother and her aunt and uncle were relatives who would be suitable temporary custodians of S.K.J. In addition, both the mother and the great-aunt testified that there were other relatives who would be suitable temporary custodians of S.K.J. whom DHR had not contacted.

Following the trial, the juvenile court entered a judgment finding that S.K. J. was dependent, finding that the great-aunt and great-uncle were not suitable custodians for S.K.J., finding that no other relatives of the mother and the father were suitable custodians for S.K.J., finding that S.K.J. could not be returned to the home of the mother and the father now or in the foreseeable future because the danger to him was too great, finding that the mother and the father were presently unable to take care of S.K.J. and that they were not likely to be able to do so in the foreseeable future, finding that no viable alternatives to the termination of the mother’s and the father’s parental rights existed, and terminating the mother’s and the father’s parental rights. The mother and the father timely appealed to this court. The juvenile court subsequently certified that the record on appeal was adequate for appellate review in accordance with Rule 28(A)(1)(a), Ala. R. Juv. P.

Before we review the merits of the juvenile court’s judgment, we must consider two procedural arguments the mother has presented. The mother’s first procedural argument is that the record on appeal is inadequate for appellate review because it does not contain transcripts of the shelter-care hearing and the permanency hearing. She further argues that, because the record on appeal is allegedly inadequate for review by an appellate court due to the absence of transcripts of those hearings, we should transfer the mother’s appeal to the Marion Circuit Court for a trial de novo. “Rule 28(B), Ala. R. Juv. P., provides that an appeal from a juvenile court shall be to the circuit court for a trial de novo when the record on appeal is inadequate for review by an appellate court. Rule 28(D), Ala. R. Juv. P., provides that ‘[a]n appellate court or circuit court may transfer an appeal that it determines should have been transferred to or brought in another court to that other court.’ ” W.E.C. v. Madison County Dep’t of Human Res., 909 So.2d 849, 850 (Ala. Civ.App.2005). If, in an appeal from a juvenile court, we determine that the record is inadequate for review by an appellate court, we can transfer the appeal to the circuit court for a trial de novo despite the juvenile court’s having certified that the record is adequate for review by an appellate court. Id.

In W.E.C., we held that, when the record on appeal in a dependency action did not contain a transcript of the dispositional hearing, the record on appeal was inadequate for review by an appellate court, and we transferred the appeal to the circuit court for a trial de novo. In R.G. v. C.M., 980 So.2d 417 (Ala.Civ.App.2007), we held that, when the record on appeal in a dependency action did not contain transcripts of any of the hearings before the juvenile court, the record on appeal was inadequate for review by an appellate court, and we transferred the appeal to the circuit court for a trial de novo.

However, in the case now before us, although the record on appeal does not contain transcripts of the shelter-care hearing and the permanency hearing, it does contain a 1,071-page transcript of the trial on the merits of DHR’s termination action and the great-aunt and great-uncle’s action seeking custody. Thus, we have before us the evidence upon which the juvenile court based its judgment terminating the mother’s and the father’s parental rights and denying the great-aunt and great-uncle’s claim for custody. A trial de novo in the circuit court would merely duplicate the evidence we already have before us. Therefore, in the case now before us, we conclude that the record on appeal is adequate for our review despite the absence of transcripts of the shelter-care hearing and the permanency hearing, and we reject the mother’s first procedural argument.

The mother’s second procedural argument is that we should reverse the juvenile court’s judgment terminating her parental rights because, she says, she does not recall being advised at the shelter-care hearing of her right to an attorney and the juvenile court did not appoint an attorney to represent her until after the permanency hearing. However, in the juvenile court, the mother never submitted an affidavit attesting that she did not recall being informed at the shelter-care hearing of her right to an attorney or that she had requested that the juvenile court appoint an attorney to represent her before the juvenile court appointed one. Although the mother’s attorney, during his argument in support of the mother’s renewed motion to dismiss DHR’s action, informed the juvenile court that the mother had told him that she did not recall being advised at the shelter-care hearing of her right to an attorney, “[t]he unsworn statements, factual assertions, and arguments of counsel are not evidence.” Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005). In the absence of any evidence indicating that the mother did not recall being advised at the shelter-care hearing of her right to an attorney, we cannot reverse the juvenile court’s judgment on the ground that she does not recall being so advised. See E.S.R. v. Madison County Dep’t of Human Res., [Ms. 2060800, March 28, 2008] — So.3d -, - (Ala.Civ.App.2008) (holding that, in the absence of a transcript of the shelter-care hearing or any evidence indicating that the father did not receive proper notice of the shelter-care hearing, we could not reverse the judgment of the juvenile court on the ground that the father did not receive proper notice of the shelter-care hearing). Moreover, even if we treated the representation of the mother’s attorney as evidence establishing that she did not recall being advised at the shelter-care hearing of her right to an attorney, such evidence would not tend to prove that she was indeed not advised of that right — it would merely tend to prove that she does not recall whether she was advised of that right. Therefore, we find no merit in the mother’s argument that we should reverse the juvenile court’s judgment terminating her parental rights because, she says, she does not recall being advised at the shelter-care hearing of her right to an attorney.

Likewise, we find no merit in the mother’s argument that we should reverse the juvenile court’s judgment terminating her parental rights because the juvenile court did not appoint an attorney to represent the mother until after the permanency hearing. In a dependency action, the juvenile court is obligated to inform the parents of their right to an attorney; however, the juvenile court is not obligated to appoint an attorney unless the parents, having been informed of their rights, request the appointment of one. See § 12-15 — 63(b) (“In dependency cases, the parents ... shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable for financial reasons to retain their own.” (emphasis added)); and § 12-15-60(c) (“At the commencement of the ... shelter or other care hearing, the court shall advise the parties of the right to counsel and shall appoint counsel as required.” (emphasis added)). The record on appeal does not contain any evidence indicating that the mother requested that an attorney be appointed to represent her at any time before the juvenile court appointed one to represent her. Consequently, we cannot reverse the juvenile court’s judgment on the ground that the juvenile court did not appoint an attorney to represent the mother until after the permanency hearing. See §§ 12-15-6S(b) and 12 — 15—60(c).

Having found no merit in the mother’s procedural arguments, we will next consider the arguments of the mother and the father challenging the merits of the juvenile court’s judgment. In doing so, we are governed by the following principles:

“A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is ‘required to apply a presumption of correctness to the trial court’s finding[s]’ when the trial court bases its decision on conflicting ore tenus evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002) .... Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.
“This court has stated that clear and convincing evidence is
“ ‘ “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”
“ ‘§ 6 — 11—20[ (b) ](4), Ala.Code 1975.’ “L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ.App.2002) ....
“... [I]n cases involving the termination of parental rights our appellate courts do not apply the clear-and-convincing-evidence standard of proof utilized by trial courts but, instead, use a settled standard of appellate review— the ore tenus rule. See Ex parte State Dep’t of Human Res., 834 So.2d at 122. Because appellate courts do not weigh evidence, particularly when ‘the assessment of the credibility of witnesses is involved,’ Knight [ v. Beverly Health Care Bay Manor Health Care Ctr.], 820 So.2d [92,] 102 [ (Ala.2001) ], we defer to the trial court’s factual findings. ‘The ore tenus rule reflects this deference; it accords a presumption of correctness to the trial court’s findings because of that court’s unique ability to observe the demeanor of witnesses.’ Id.;' see also Fitzgerald v. Jeter, 428 So.2d 84, 85 (Ala.Civ.App.1983), and Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183-85 (Ala.Civ.App.2007) (footnotes and emphasis omitted).

“In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief. Ostrander v. Ostrander, 517 So.2d 3 (Ala. Civ.App.1987). Further, in determining the weight to be accorded to the testimony of any witness, the trial court may consider the demeanor of the witness and the witness’s apparent candor or evasiveness. Ostrander, supra .... It is not the province of this court to override the trial court’s observations. Brown [ v. Brown, 586 So.2d 919 (Ala. Civ.App.1991) ].”

Woods v. Woods, 653 So.2d 312, 314 (Ala. Civ.App.1994).

When, as in the case now before us, the party seeking the termination of parental rights is a nonparent, the Alabama courts use a two-pronged test to determine whether to terminate the parental rights:

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

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ. App.2004).

In the ease now before us, neither the mother nor the father challenges the juvenile court’s determination that S.K.J. is dependent; indeed, they both concede in them briefs on appeal that S.K.J. is dependent. However, they argue that the juvenile court erred in finding that no other viable alternatives to the termination of their parental rights existed. Specifically, the mother and the father argue that two viable alternatives to termination of their parental rights exist: (1) maintaining S.K.J. in foster care while the mother and the father undergo therapy for their psychological problems; and (2) placing S.K.J. in the care of a relative while the mother and the father undergo therapy for their psychological problems.

The juvenile court, however, found that the mother’s and the father’s inability to care for S.K.J. was unlikely to change in the foreseeable future. This finding is supported by the testimony of Dr. Ronan, who opined that it would take years of intensive therapy to treat the mother’s and the father’s psychological problems. Although Dr. Porter opined that the mother’s and the father’s psychological problems could be treated more quickly than Dr. Ronan believed they could be treated, the juvenile court was the sole judge of the facts and the credibility of the witnesses. See Woods v. Woods, supra. Because the juvenile court’s finding that the mother’s and the father’s inability to care for S.K.J. was unlikely to change in the foreseeable future is supported by the evidence, we cannot hold that the juvenile court erred in finding that maintaining S.K.J. in foster care indefinitely was not a viable alternative to termination of the mother’s and the father’s parental rights. See R.L.B. v. Morgan County Dep’t of Human Res., 805 So.2d 721, 725 (Ala.Civ.App.2001) (holding that maintaining a child in foster care indefinitely is not a viable alternative to termination of parental rights).

Moreover, the juvenile court found that neither the great-aunt and great-uncle nor any other relatives were viable custodians for S.K.J. Although the great-aunt and great-uncle introduced testimony tending to prove that they had been loving parents to their own children, the juvenile court’s finding that the great-aunt and great-uncle were not viable custodians is supported by the testimony of Crystal Roberts, who testified that the paternal grandfather, who is a convicted sex offender, is very involved in the life of the great-aunt; that the great-uncle, who has had two heart attacks, would be S.KJ.’s primary caretaker while the great-aunt works; and that the great-aunt has demonstrated a propensity to disregard court orders. Accordingly, despite the evidence tending to prove that the great-aunt and great-uncle had been good parents to their own children, we cannot hold that the juvenile court’s finding that the great-aunt and great-uncle were not viable custodians for S.K.J. was so unsupported by the evidence as to be plainly and palpably wrong.

Furthermore, Ali Tyra testified that, when dealing with C.A.J., she had investigated all the relatives suggested to her by the mother as suitable custodians for C.A.J. except K.P., whose contact information the mother had never provided, and that none of them were suitable. Tyra further testified that she had asked the mother and the father for additional names at the shelter-care hearing regarding S.K.J., but the mother and father never provided her with any additional names. Although the mother testified that she had given Tyra additional names following the shelter-care hearing and that Tyra had not investigated whether those relatives would be suitable custodians, the juvenile court was the sole judge of the facts and the credibility of the witnesses — the juvenile court could have found that Tyra’s testimony was credible while the mother’s conflicting testimony was not. See Woods v. Woods, supra. Parents who oppose the termination of their parental rights have a duty to notify DHR of relatives or other persons who may be suitable temporary custodians. See M.E. v. Shelby County Dep’t of Human Res., 972 So.2d 89, 103 (Ala.Civ.App.2007) (plurality opinion). Accordingly, we cannot hold that the juvenile court’s finding that not only were the great-aunt and great-uncle not suitable custodians but also that no other relatives were suitable custodians was so unsupported by the evidence as to be plainly and palpably wrong. Thus, the juvenile court’s finding that no viable alternatives to termination of the mother’s and the father’s parental rights existed is due to be affirmed.

Nonetheless, the mother and the father argue that we should reverse the juvenile court’s judgment because DHR did not provide them with therapy during the five months that elapsed between the termination of their parental rights with respect to C.A.J. and the birth of S.K.J. However, the mother and the father have not cited any law indicating that DHR was authorized to provide them with therapy during that five-month period. Moreover, the juvenile court could have found from the evidence indicating that it would take years of intensive therapy for the mother and the father to make significant progress in dealing with their psychological problems that DHR’s providing the mother and the father with therapy during that five-month period would not have altered the fact that the mother’s and the father’s inability to care for S.KJ. was unlikely to change in the foreseeable future.

Finally, the mother and the father argue that, because DHR told them that it would close its file on them if they consented to the termination of their parental rights with respect to C.A.J., DHR should be precluded from seeking the termination of their parental rights with respect to S.K.J. In effect, the mother and the father are arguing that DHR’s telling the mother and the father that it would close its file on them if they consented to the termination of their parental rights with respect to C.A.J. was a promise that estopped DHR from seeking the termination of the mother’s and the father’s parental rights with respect to S.K.J. However, the mother and the father have not cited any law standing for the proposition that DHR’s performance of its statutory duties with respect to dependent children is subject to the doctrine of promissory estoppel. Moreover, DHR’s stating that it would close its file on the mother and the father if they consented to the termination of their parental rights with respect to C.A.J. was not tantamount to a promise that it would not seek the termination of the mother’s and the father’s parental rights with respect to children born after the termination of their parental rights with respect to C.A.J. Therefore, we find no merit in the mother’s and the father’s promissory-estoppel argument.

For the reasons discussed above, we affirm the juvenile court’s judgment terminating the mother’s and the father’s parental rights.

2061130 — AFFIRMED.

2070017 — AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur in the result, without writing.

      . Even though the father was not the biological father of C.A.J., he was the presumptive father because C.A.J. was born while the mother and the father were married. See § 26 — 17—5(a)(1), Ala.Code 1975("(a) A man is presumed to be the natural father of a child if any of the following apply: (1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage .... ”).

      . Section 12-15-60(a), Ala.Code 1975, provides, in pertinent part:
      “(a) When a child is not released from ... shelter care as provided in Section 12-15-58, a petition shall be filed and a hearing held within 72 hours, Saturdays, Sundays, and holidays included, to determine whether continued ... shelter care is required.”

      . Generally, when DHR removes a child from its family, DHR is obligated to make reasonable efforts to reunify the child and the family, see § 12-15-65; however, § 12-15-65(m)(l) relieves DHR of that obligation when a court of competent jurisdiction determines that a parent has '‘[sjubjected the child to an aggravated circumstance ....”

      . Section 12-15-62(c), Ala.Code 1975, provides, in pertinent part:
      "(c) Within 12 months of any court order placing a child in foster care the court shall hold a permanency hearing. The Department of Human Resources shall present to the court at such hearing a permanent plan for said child. If a permanent plan is not presented to the court at this hearing there shall be a rebuttable presumption that the child should be returned to the family. This provision is intended to insure that a permanent plan is prepared by the Department of Human Resources and presented to the court within 12 months of the placement of any child in foster care. The purpose of the permanency hearing shall be to determine the permanency plan for the child which may include whether and, if applicable, when, the child shall be (i) returned to the parent, (ii) placed for adoption wherein the Department of Human Resources shall file a petition for termination of parental rights, or (iii) referred for legal custody....”
      Ideally, the juvenile court should also determine at the permanency hearing whether viable alternatives to the termination of the parents' parental rights exist. See A.D.B.H. v. Houston County Dep’t of Human Res., 1 So.3d 53 (Ala.Civ.App.2008) (Bryan, J., concurring specially, joined by Thomas, J.; and Moore, J., concurring in part and concurring in the result). In the case now before us, the juvenile court made the determination that no viable alternatives to termination existed on the basis of the evidence introduced at the subsequent evidentiary hearing regarding DHR’s petition to terminate the mother’s and the father's parental rights and tire great-aunt and great-uncle's petition for temporaiy custody.

      . In pertinent part, § 12-15-60(c) provides that "[a]t the commencement of the ... shelter or other care hearing, the court shall advise the parties of the right to counsel and shall appoint counsel as required.”

        . In pertinent part, § 12-15-63(b), Ala.Code 1975, provides that ''[i]n dependency cases, the parents ... shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable for financial reasons to retain their own.”

      . The great-aunt and great-uncle appealed to this court from (lie denial of their petition for temporary custody. Their appeal was not consolidated with the mother’s and the father’s appeals.

      . Rule 28(A)(1)(a) provides that, if the juvenile court certifies that the record is adequate for appellate review, an appeal may be taken from the juvenile court directly to the appropriate appellate court rather than to the circuit court for a trial de novo.

      .The father does not make either of these procedural arguments.

      . The father does not claim that he was not advised at the shelter-care hearing of his right to counsel or that the juvenile court erred in failing to appoint an attorney to represent him until after the permanency hearing.


author: THOMAS, Judge.

text:
    David BRUNSON and Charity Brunson v. Bobby LUCAS.
    2070238.
    Court of Civil Appeals of Alabama.
    Sept. 5, 2008.
    Frederick P. Gilmore of Gilmore Law Firm, Grove Hill, for appellants.
    K. Scott Stapp of Manley, Traeger, Perry & Stapp, Demopolis, for appellee.
   THOMAS, Judge.

David Brunson (“the employee”) was injured when he was struck by an automobile driven by Bobby Lucas (“the co-employee”) while crossing the street from the parking lot of Georgia-Pacific Corporation (“the employer”) to the employer’s plant entrance to begin his shift on December 4, 2004. Brunson and his wife Charity Brun-son sued, among others, the employer and Lucas. Brunson sought and received workers’ compensation benefits from the employer. The Brunsons sought damages from Lucas, alleging that he had negligently or wantonly injured Brunson. Lucas moved for a summary judgment, arguing that the Brunsons were precluded from maintaining an action against him by virtue of the immunity extended to co-employees for negligent and wanton acts by Ala.Code 1975, § 25-5-11 and § 25-5-14. The trial court entered a judgment in favor of Lucas, and the Brunsons appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). We affirm.

The legislature has clearly expressed its intent to provide immunity to co-employees except in cases involving willful conduct:

“The Legislature finds that actions filed on behalf of injured employees against officers, directors, agents, servants, or employees of the same employer seeking to recover damages in excess of amounts received or receivable from the employer under the workers’ compensation statutes of this state and predicated upon claimed negligent or wanton conduct resulting in injuries arising out of and in the course of employment are contrary to the intent of the Legislature in adopting a comprehensive workers’ compensation scheme and are producing a debilitating and adverse effect upon efforts to retain existing, and to attract new industry to this state. Specifically, the existence of such causes of action places this state at a serious disadvantage in comparison to the existing laws of other states with whom this state competes in seeking to attract and retain industrial operations which would provide better job opportunities and increased employment for people in this state. The existence of such causes of action, and the consequent litigation resulting therefrom, results in substantial costs and expenses to employers which, as a practical matter, must either procure additional liability insurance coverage for supervisory and management employees or fund the costs of defense, judgment or settlement from their own resources in order to retain competent and reliable personnel. The existence of such causes of action has a disruptive effect upon the relationship among employees and supervisory and management personnel. There is a total absence of any reliable evidence that the availability of such causes of action has resulted in any reduction of the number or severity of on-the-job accidents or of any substantial improvement on providing safe working conditions and work practices. The intent of the Legislature is to provide complete immunity to employers and limited immunity to officers, directors, agents, servants, or employees of the same employer and to the workers’ compensation insurance carrier and compensation service companies of the employer or any officer, director, agent, servant, or employee of such carrier or company and to labor unions and to any official or representative thereof, from civil liability for all causes of action except those based on willful conduct and such immunity is an essential aspect of the workers’ compensation scheme. The Legislature hereby expressly reaffirms its intent, as set forth in Section 25-5-53, as amended herein, and Sections 25-5-144 and 25-5-194, regarding the exclusivity of the rights and remedies of an injured employee, except as provided for herein.”

Ala.Code 1975, § 25-5-14.

Sections 25-5-11 and 25-5-53 also express the intent to extend immunity to co-employees except in cases involving willful conduct on the part of the co-employee.

“The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer’s employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment. In addition, immunity from civil liability for all causes of action except those based upon willful conduct shall also extend to the workers’ compensation insurance carrier of the employer; to a person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer; to an officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation; to a labor union, an official, or representative thereof; to a governmental agency providing occupational safety and health services, or an employee of the agency; and to an officer, director, agent, or employee of the same employer, or his or her personal representative. Nothing in this section shall be construed to relieve a person from criminal prosecution for failure or neglect to perform a duty imposed by law.”

§ 25-5-53 (emphasis added). Section 25-5-ll(a) reads, in pertinent part:

“If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not the party is subject to this chapter, the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover damages for the injury or death, and the amount of the damages shall be ascertained and determined without regard to this chapter. If a party, other them the employer, is a workers’ compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer, or any officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation, or is a labor union, or any official or representative thereof, or is a governmental agency providing occupational safety and health services, or an employee of the agency, or is an officer, director, agent, or employee of the same employer, or his or her personal representative, the injured employee, or his or her dependents in the case of death, may bring an action against any workers’ compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers’ compensation claims for the employer, labor union, or the governmental agency, or person, or his or her personal representative, only for willful conduct which results in or proximately causes the injury or death.”

(Emphasis added.)

Our supreme court has construed §§ 25-5-11, 25-5-14, and 25-5-53 to extend immunity to co-employees of injured employees who are entitled to receive workers’ compensation benefits unless the injured employee can prove that the injury was caused by willful conduct on the part of the co-employee. See Ex parte Newton, 895 So.2d 851, 854 (Ala.2004) (quoting § 25-5-14 and stating that “[t]he Workers’ Compensation Act ... provides immunity to co-employees ‘from civil liability for all causes of action except those based on willful conduct ’ ”); Reed v. Brunson, 527 So.2d 102, 118 (Ala.1988) (stating that section § 25-5-11 “limits and employee’s claim for damages, where workers’] compensation benefits are payable, in actions against[, among others, co-employees] to actions in which willful conduct results in or proximately causes the injury or death”).

“Under Alabama’s [workers’] compensation laws, an injured worker who has elected to receive benefits under the compensation system may pursue a civil action against a co-employee only if the injury sustained by the worker resulted from the ‘willful conduct’ of the co-employee. Ala.Code 1975, §§ 25-5-ll(b), -53; Reed v. Brunson, 527 So.2d 102 (Ala.1988).”

Turnbow v. Kustom Kreation Vans, 535 So.2d 132, 134 (Ala.1988).

In his summary-judgment motion, Lucas focused heavily on whether Brunson and Lucas were in the course of their employment when the accident occurred. In general, an employee is not entitled to workers’ compensation benefits for an injury sustained while traveling to and from his or her place of employment; however, one exception to that rule permits an employee to recover compensation benefits if he or she is injured while in a parking lot owned and maintained by his or her employer. See, generally, Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987). Indeed, in Hughes, our supreme court considered whether the deceased employee who was killed while crossing a public street after the conclusion of her shift at the hospital had been killed in the course of her employment. Hughes, 514 So.2d at 937. The court discussed the general rule that employer-owned parking areas are considered to be part of the employer’s premises even if separated from the main premises of the employer and the majority rule that injuries incurred on a public street or other off-premise area between the employer’s place of business and its parking lot are considered to arise out of or in the course of employment if that street or area is a necessary route between the two premises. Id. Based on these general rules, the supreme court concluded that the deceased employee was killed in the course of her employment and that, as a result, her estate could not sue the hospital for wrongful death because the Workmen’s Compensation Act provided the exclusive remedy for her death. Id. at 938. Thus, the trial court in this case, concluding that the exception outlined in Hughes applied, and noting that Brunson had availed himself of that exclusion to receive compensation benefits from the employer, found Lucas immune from the Brunsons’ negligence and wantonness claims.

The Brunsons focus their argument on appeal on the fact that cases involving whether an accident in an employer-owned parking area occurred within the line and scope of one’s employment focus solely on whether the injured employee was injured in the course of his or her employment. The Brunsons contend that the trial court wrongly focused on whether Brunson was injured in the course of his employment at the time of the accident to determine whether Lucas should be liable for Brun-son’s injuries. Instead, they argue, the focus should have been on whether Lucas was in the course of his employment as he drove out of the parking lot after concluding his shift. They rely on Wells v: Anderson, 8 Kan.App.2d 431, 659 P.2d 833 (1983), in which the Kansas Court of Appeals considered whether co-employee immunity should be limited to those cases in which the co-employee would also be covered by the compensation law. Ultimately, after briefly surveying the conclusions reached by some other states that had considered the issue, the Kansas court decided that “a co-employee is immune only if he would have been entitled to receive compensation had he been injured in the same accident.” Wells, 8 Kan.App.2d at 434, 659 P.2d at 836.

The language used in § 25-5-14 indicates that the legislature has conditioned co-employee immunity on the receipt of or eligibility for workers’ compensation benefits. Based on that language and the similar language of § 25-5-11 and § 25-5-53, our supreme court has indicated in its opinions that co-employee immunity is tied to the receipt of or entitlement to receive workers’ compensation benefits. Turnbow, 535 So.2d at 134; Reed, 527 So.2d at 113. Because the supreme court has at least implicitly determined this issue, we are not at liberty to consider the Brunsons’ argument that a co-employee must also be acting in the course of his or her employment in order to be entitled to co-employee immunity. We conclude that the trial court properly considered Brunson’s entitlement to and acceptance of workers’ compensation benefits to trigger co-employee immunity for Lucas. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

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

MOORE, J., recuses himself.

      . Charity Brunson asserted a loss-of-consortium claim.

      . We remanded the case to the trial court for the entry of an order pursuant to Rule 54(b), Ala. R. Civ. P., because the Brunsons' claims against certain other defendants had not yet been resolved. The trial court entered the certification, rendering the judgment in favor of Lucas final.

      . Even were we to consider the Brunsons' argument that we must examine whether Lucas was in the course of his employment at' the time the accident occurred, we would still affirm the trial court's summary judgment in favor of Lucas because he, like Brunson, was in the course of his employment while leaving the parking lot owned by his employer after the conclusion of his shift. See Hughes, 514 So.2d at 937.


author:
THOMAS, Judge.
      BRYAN, Judge,

text:
    Cynthia J. CORWIN (Martin) v. Rocky V. CORWIN.
    2070259.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.

      Cynthia J. Corwin (Martin), pro se.
    Paul R. Cooper of Cooper & Cooper, Montgomery, for appellee.
   THOMAS, Judge.

Cynthia J. Corwin (Martin) (“the mother”) and Rocky V. Corwin (“the father”) were divorced in April 1989. They had one child, whose custody was awarded to the mother; the father was ordered to pay $100 per month in child support. The mother remarried in 1992; in August 1994, her husband adopted the child. On July 11, 2007, the mother filed a contempt petition seeking to have the father held in contempt for nonpayment of his child support between April 1989 and August 1994. She sought a $6,200 child-support arrear-age and $2,502.49 in interest on that ar-rearage. After a trial, the trial court denied the mother’s petition. She appeals.

At trial, the mother testified that the father had made no child-support payments between the date of the parties’ April 1989 divorce and the date of the child’s adoption in August 1994. The father presented receipts showing payments to the mother and to the Montgomery Family Court. Although some of the payments the father alleged he had made were made to the mother to pay a hospital bill incurred by the child, the father testified that the mother had agreed to accept those payments in lieu of child-support payments. The father also testified that he had made three cash payments to the mother. The father’s testimony and documentary evidence amounted to proof of payments totaling $3,614. The father admitted, however, that he had not made any payments since October 1992, after, he said, the mother told him she did not need his money anymore because of her remarriage. The father admitted that he did owe an arrearage for the time between the last payment he made in October 1992 and the date of the child’s adoption in August 1994.

The trial court’s judgment denying the mother’s contempt petition reads, in pertinent part:

“These parties were divorced by Order of this Court [on] April 17, 1989. There was one child born of that marriage _Said child has reached adulthood and at the time of trial was age 20. “The [father] was ordered to pay $100 per month in child support pursuant to the Final Decree of Divorce. The [mother] seeks an award of $6,200, plus interest accrued for the last 13 years. The [mother] filed exhibits with her Petition to Show Cause which indicate that the [child] was legally adopted by Robert Martin, to whom the [mother] is married. The date of the adoption was August 22, 1994. The [mother] asserts that the [father] is due to pay her child support for the time period between the date of the divorce and the date that the child was legally adopted.
“The [mother] also asserts that no child support was ever received by her, nor any payments made on her behalf by the [father] in lieu of child support.
“The [father] produced numerous receipts of money orders made payable to the Family Court of Montgomery County evidencing payments made for child support in 1989, 1990, 1991 and 1992. In addition, the [father] produced a document evidencing the [mother’s] signature on a receipt wherein he paid $300 to the [mother] during this time period. [The mother’s] Exhibit #2 is a document from the Court Payment Center showing that no records were found. Clearly, because no records could be found does not mean that the [father] did not pay child support monies into the system or directly to the [mother] as his receipts evidence.
“A review of the adoption documents submitted by the [mother] does not indicate that any amount of child support arrearage was preserved in the Final Order of Adoption. While it is undisputed that a child support obligation becomes a judgment when due and unpaid, it is well settled that amounts of judgments must be preserved if they are to be collected. Here, the [mother] has failed to preserve any amount of child support arrears, in the form of judgment or otherwise, contemporaneous with the termination of the [father’s] rights at the time of the adoption on August 22, 1994.
“The Code of Alabama, 1975, § 26-10A-29, clearly states that a natural parent is relieved of any further obligation to the adoptee at the time the child is adopted. In other words, parental rights are terminated by adoption prior to or at the time of adoption, and this Court is not aware of any statute which allows termination of parental rights to be reversed.
“The Court notes with interest that the Petition For Adoption filed by the [mother’s] husband states at Paragraph # 8 that the natural father verbally consented to the adoption on April 15, 1992, some two and a half years prior to the adoption of the child in August of 1994.
“It appears that the [father] made child support payments between the time of the divorce and the date of adoption. Whether or not the [father] made all child support payments required of him prior to the adoption cannot be determined. The [the mother’s] testimony that no child support was ever paid nor was any amount paid on her behalf in lieu of child support is not credible. Based on undisputed evidence presented by the [father], he made some, if not all, child support payments.
“Based upon the statutes and the undisputed evidence that the [child] was adopted, the [father’s] rights terminated and no judgment or child support ar-rearage was preserved or perfected contemporaneous with those events, the Court has no alternative but to deny the [mother’s] Petition to recover child support during the years prior to the adoption.”

The mother argues that the trial court erred when it failed to award her the accumulated child-support arrearage. Specifically, the mother challenges the trial court’s reliance on the mother’s “failure to preserve” the arrearage in the 1994 adoption action in the probate court. She relies on the oft-stated principle that child-support payments are judgments on the date that they become due. See Ex parte State ex rel. Lamon, 702 So.2d 449, 450 (Ala.1997); State ex rel. Howard v. Howard, 671 So.2d 83, 85 (Ala.Civ.App.1995); State ex rel. McDaniel v. Miller, 659 So.2d 640, 643 (Ala.Civ.App.1995); Frasemer v. Frasemer, 578 So.2d 1346, 1348 (Ala.Civ. App.1991); and Endress v. Jones, 534 So.2d 307, 308 (Ala.Civ.App.1988).

The father relies on the principle that, once a child is adopted, the natural parent of that child is “relieved of all parental responsibility” for that child. Ala.Code 1975, § 26-10A-29(b). Both on appeal and at trial, the father relied on the following language from Ex parte Bronstein, 434 So.2d 780, 782 (Ala.1983), construing Ala. Code 1975, 26 — 10—5(b), the predecessor statute to § 26-10A-29(b): “The law is unequivocal. It mandates that upon entry of a final order of adoption, the natural parent is ‘divested of all legal rights and obligations’ .... ” Based on the principle that adoption extinguishes a parent’s responsibilities to and for a child, the father concludes that his responsibility to pay past-due child support was extinguished by the child’s adoption in 1994.

The law clearly supports the mother’s position. Each unpaid child-support payment was a judgment at the time that it became due and could be collected as any other money judgment. Ex parte State ex rel. Lamon, 702 So.2d at 450; Endress, 534 So.2d at 308. The mother was not required to take any steps, in the probate court or otherwise, to “preserve” the child-support arrearage.

Although the August 1994 adoption relieved the father of any further duty to support the child, it did not affect the accrued child-support arrearage in any respect. “[A] trial court may not modify, release, or discharge the obligor of past due support once the obligation matures and becomes final under the original divorce judgment.” Howard, 671 So.2d at 85. A trial court does, however, have the power to allow a parent credit for gifts or other payments made to or on behalf of the child. Ex parte State ex rel. Lamon, 702 So.2d at 450; Frasemer, 578 So.2d at 1348.

Because the trial court erred in determining that the mother’s failure to “preserve” the arrearage in the 1994 adoption action precluded her recovery of the child-support arrearage, we reverse the judgment and remand the cause for the trial court to compute, based on the evidence of record, the amount of the arrearage owed by the father.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BRYAN, J., concurs specially, with writing.

BRYAN, Judge,

concurring specially.

I concur in the main opinion’s decision to reverse the trial court’s judgment and to remand the cause for the trial court to compute the amount of the arrearage owed by the father. I write specially to reemphasize the holding in Campbell v. Davison, [Ms. 2070465, August 15, 2008] — So.3d -, - (Ala.Civ.App.2008), in which this court held, as a matter of first impression, that a parent’s obligation to pay child support is extinguished when that parent’s parental rights have been terminated.

      . Section 26-10-5(b), at the time Bronstein was decided, read:
      "When the final order of adoption shall have been entered, the natural parents of the child, if living, shall be divested of all legal rights and obligations due from them to the child or from the child to them and the child shall be free from all legal obligations of obedience or otherwise to such parents. The adopting parent or parents of the child shall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been bom to them in lawful wedlock, including the right of said adopting parent or parents of inheritance to real estate and to the distribution of personal estate on the death of such adopted child as if said child had been born to them in lawful wedlock, and the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate and to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock.”

      . We note that the mother’s delay in seeking to hold the father in contempt and to secure payment of the arrearage would not preclude her recovery under the doctrine of laches. Ex parte State ex rel. Lamon, 702 So.2d at 451 (citing Davis v. State ex rel. Sledge, 550 So.2d 1034, 1035 (Ala.Civ.App.1989)).