author: PARKER, Justice. MOORE, Chief Justice

text:
    Ex parte ALABAMA DEPARTMENT OF MENTAL HEALTH. (In re Ex parte Alabama Department of Mental Health) (In re State of Alabama v. Jeremy Bentley).
    1111621.
    Supreme Court of Alabama.
    Sept. 20, 2013.
    Rehearing Denied Nov. 22, 2013.
    Nancy S. Jones, Alabama Department of Mental Health, Tuscaloosa, for petitioner.
    Ashley M. Rich, dist. atty., and Martha Tierney, asst. dist. atty., Mobile, for respondent.
    Anne A. Hill, gen. counsel, and Bart Harmon, asst. atty. gen., Alabama Department of Corrections, for amicus curiae Alabama Department of Corrections, in support of the petitioner.
    Lonnie J. Wiliams and James Tucker, Alabama Disabilities Advocacy Program, Tuscaloosa, for amicus curiae Alabama Disabilities Advocacy Program, in support of the petitioner.
   PARKER, Justice.

PETITION DENIED. NO OPINION.

STUART, BOLIN, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

The Alabama Department of Mental Health (“ADMH”) petitions this Court for a writ of mandamus directing the Mobile Circuit Court (“the trial court”) to vacate portions of its order denying ADMH’s Rule 25.8(f), Ala. R.Crim. P., motion to release Jeremy Bentley from commitment in an ADMH facility and transferring Bentley to an Alabama Department of Corrections (“ADOC”) facility.

The Court today denies ADMH’s petition for a writ of mandamus. For the reasons discussed below, I dissent.

I. Facts and Procedural History On April 16, 2012, the trial court denied ADMH’s motion to release Bentley from commitment. The trial court’s order summarizes the facts and procedural history of the case:

“On November 14, 2000, Jeremy Bentley (‘Bentley’) was charged with murder during the course of a kidnapping and murder during the course of a robbery in connection with the killing of Jamie Ray Tolbert. Evidence presented by the State at trial established that Bentley and his codefendant, Brent Kabat, abducted Tolbert in his own vehicle from a nightclub in Biloxi, Mississippi. Bentley and Kabat drove Tolbert to a rural area in Mobile County, where they killed him. The two then continued traveling in Tolbert’s vehicle and were later apprehended in California. Kabat was also charged with, and later convicted of, two counts of capital murder, and he was sentenced to life imprisonment without parole.
“Following Bentley’s indictment on capital-murder charges, Bentley entered a plea of ‘not guilty by reason of insanity’ and filed pretrial motions raising concerns about his competency to waive his Miranda rights before making inculpa-tory statements, his competency to stand trial, and his competency at the time of the crime. Bentley retained Dr. Marianne Rosenzweig, Ph.D., a clinical and forensic psychologist, to evaluate his competency. The State also sought to have an expert evaluate Bentley’s competency, and the trial court granted the State’s request that Bentley be evaluated at [ADMH’s] Taylor Hardin Secure Medical facility (‘Taylor Hardin’) in Tuscaloosa. There, Bentley was evaluated by Dr. Kathleen Ronan, Ph.D., a certified forensic examiner and then director of the hospital’s evaluation/psychology services. Bentley remained at Taylor Hardin for the purposes of evaluation and treatment from July 25 until September 27, 2001.
“Drs. Ronan and Rosenzweig both submitted reports finding Bentley incompetent. Dr. Rosenzweig determined that Bentley was suffering from paranoid schizophrenia and dissociative identity disorder (formerly known as ‘multiple personality disorder’) and that both of these disorders contributed to Bentley’s actions in the killing of Tolbert. Dr. Ronan diagnosed Bentley as suffering from dissociative identity disorder and either schizophrenia or paranoid delusional disorder. Both psychologists testified that Bentley was, and was likely to remain, a substantial risk to others.
“Based on the reports and testimony of Drs. Rosenzweig and Ronan, the State and Bentley filed a joint motion asking that Bentley’s insanity plea be accepted and that he be committed to Taylor Hardin. However, the trial judge was not convinced and he rejected this recommendation. Instead, the trial judge ordered that Bentley be evaluated by a third forensic examiner, Dr. Doug McKeown. Dr. MeKeown determined that Bentley was competent at the time of the crime, was competent to waive his Miranda rights, and was competent to stand trial.
“The trial court determined there were reasonable grounds to doubt [Bentley’s] mental competency. Thereafter, on October 31, 2002, a trial commenced with the jury first charged to determine whether Bentley was competent to stand trial. Drs. Rosenzweig, Ronan, and McKeown all testified as to their respective findings. After hearing the testimony, the jury determined that Bentley was competent to stand trial. The trial then proceeded on the merits and, on November 7, 2002, the jury rejected Bentley’s defense of not guilty by reason of mental disease or defect and found him guilty of two counts of capital murder. Based on these verdicts, the trial judge adjudged Bentley guilty and sentenced him to life imprisonment without parole.
“However, in a 3-2 decision, the Alabama Court of Criminal Appeals reversed Bentley’s convictions and sentences. See Bentley v. State, 904 So.2d 351 (2004), cert. denied, 904 So.2d 365 (Ala.2005). Although the trial judge— and later the jury — had the opportunity to observe Bentley as well as the testimony of the mental health experts, the appellate court found that the trial judge exceeded his authority and erred by ordering, and allowing the admission of, the third mental evaluation, i.e., McKeown’s evaluation that Bentley suffered no mental illness. Id. at 360-63. Speaking for the majority, [Judge] Cobb stated: ‘The record in this case presents one of the most disturbing portraits of mental illness in a criminal defendant that can be imagined.’ Id. at 363.
“The Court of Criminal Appeals remanded the case for further proceedings, but the court specifically prohibited any use of Dr. McKeown’s testimony that Bentley was not suffering from mental disease or defect. Consequently, on remand, the trial court entered judgment finding Bentley not guilty by reason of mental disease or defect on all counts, and the court committed him to the custody of Taylor Hardin.
“On November 9, 2011, [ADMH] filed a ‘Notice of Proposal for Release’ asking this [c]ourt to release Bentley from Taylor Hardin, stating that Bentley ‘has received the maximum benefit of treatment from [ADMH] and it is the opinion of the professionals of [ADMH] that [Bentley] is showing no signs or symptoms of a mental illness and has no mental disorder for which any appropriate treatment is available in a [ADMH] facility.’
“In fact, during the two-day hearing in this matter, [ADMH] admitted that from the time Bentley arrived at Taylor Hardin in February of 2005, its medical providers have believed that he has been faking mental illness. [ADMH] acknowledged that as soon as Bentley learned he could not be re-tried for the capital murder of Jamie Tolbert, he dropped all pretense of suffering from mental illness. The records reflect that Bentley admitted that he had been faking mental illness all along, and it is clear [ADMH] staff members and medical providers believe his admission. [ADMH] believes that Bentley is simply a cold-blooded psychopath, and while Bentley is extremely dangerous and likely to kill again, he does not suffer from a treatable mental illness. Thus, [ADMH] contends that the [c]ourt has no choice but to grant [ADMH’s] request to release Bentley into society as a free man.
“ Bentley has been in the custody of [ADMH] since then, except for a period of time after Bentley assaulted a Taylor Hardin police officer and another patient. The officer filed charges, and Bentley was arrested, charged with two counts of assault, and held in Tuscaloosa County Jail. In May 2010, Bentley pled guilty to both counts and served several months in a state penitentiary.”

The trial court then summarized the testimony of the expert witnesses that was presented at the hearing on ADMH’s motion to release Bentley. The order also sets forth the applicable law. The trial court then concluded:

“[ADMH] and the State are certainly in agreement on one thing: Jeremy Bentley is an extremely dangerous man. Apparently, the question is not so much whether Bentley is likely to kill again, but rather “who will be the next victim?’ The real point of contention between the parties centers on why that is so.
“[ADMH] believes, and has for a long time, that Bentley faked mental illness and that his violent behavior and dangerous proclivities are simply the byproduct of Bentley’s psychopathic personality. [ADMH’s] official diagnosis of Bentley is that he has a ‘personality disorder not otherwise specified,’ with components of antisocial personality disorder and borderline personality disorder. By all accounts, antisocial personality disorder (a/k/a psychopathic personality disorder) is, like the other personality disorders, not treatable and not classified as a mental illness.
“It may come as a surprise to the general public, as it did to the undersigned, that persons with psychopathic personality disorders are not considered mentally ill. But that is just ‘who they are,’ and a typical psychopath is intelligent, calculating and cunning. Many, if not most, serial killers are diagnosed as having a psychopathic personality disorder. The mentality of a serial killer, while grossly disturbed, is not the result of a treatable mental illness; rather, such psychopaths are simply people with deeply flawed characters who have no empathy or morals.
“The State agrees that Bentley presents as having an antisocial or psychopathic personality disorder, but the State’s experts believe that Bentley suffers from dissociative identity disorder (formerly] known as multiple personality disorder) and that only one of Bentley’s many personalities (or ‘alters’) has a psychopathic personality disorder. According to the State’s experts, some of Bentley’s other alters suffer from psychotic disorders (which are serious mental illnesses), but Bentley’s alter with a psychopathic personality disorder is the dominant alter at this time. By all accounts, dissociative identity disorder is classified as a serious and treatable mental illness.
“Under the law, if [ADMH] is correct and Bentley is simply a psychopath (even one who desires to commit many future murders), this [c]ourt is obligated to order his release into society. If the State is correct and Bentley suffers from dissociative identity disorder (and only one of his multiple identities is a psychopath), then Bentley must remain institutionalized and be treated for his mental illness.
“The [c]ourt considered the testimony of all the witnesses along with the voluminous records placed into evidence by the parties. The witnesses presented by both parties were highly qualified and well prepared. However, after observing the demeanor and testimony of all of the witnesses, the [c]ourt finds the testimony that Bentley suffers from dissociative identity disorder to be the most credible and persuasive. The records placed into evidence also support that finding. Therefore, [ADMH’s] application for Bentley’s release is due to be denied.
“The Court is not unsympathetic to the plight of [ADMH], which is charged with treating a person whose current and dominant alter is that of a psychopath. The records show that Bentley is terrorizing not only other patients but also the staff at Taylor Hardin. [ADMH] is concerned, and rightly so, for the safety of its staff and other patients if forced to continue treating Bentley at Taylor Hardin, and it is not surprising that [ADMH] seeks to have Bentley released from its facility. It is apparent that Taylor Hardin is ill equipped to handle a patient like Bentley. Most mentally ill patients are nonviolent and a mental health institution like Taylor Hardin is not designed or staffed to properly protect its patients and staff from a psychopath within its walls.
“In addition to the safety concerns associated with treating Bentley at Taylor Hardin, the undisputed testimony at the hearing indicated that Taylor Hardin does not currently have the expertise to treat patients with dissociative identity disorder. That mental illness requires highly specialized treatment over the course of many years, and it is possible for a dissociative identity disorder to never be cured. The only medical provider in Aabama who currently accepts patients for treatment of dissociative identity disorder is Dr. Ronan, who no longer works for [ADMH]. Accordingly, [ADMH] will have to contract with Dr. Ronan (or a medical provider who treats dissociative identity disorder) to provide treatment for Bentley.
“It is therefore ordered, adjudged and decreed:
“(1) [ADMH’s] application for Bentley’s release is denied,
“(2) in order to ensure the safety of the staff and other patients at Taylor
Hardin, [ADMH] is ordered to transfer Bentley to a secure facility operated by [ADOC] where Bentley is to receive treatment for dissociative identity disorder until Bentley is cured of said mental illness, if ever,
“(3) until the transfer to [ADOC] is accomplished, [ADMH] is to keep Bentley in forensic restriction,
“(4) [ADMH] must contract with Dr. Ronan (or a medical provider who treats dissociative identity disorder) to provide treatment for Bentley. If [ADMH] later hires or trains staff with the expertise to treat dissociative identity disorder, then [ADMH] may use its own qualified personnel to treat Bentley at [ADOC’s] facility,
“(5) [ADMH] is directed to notify [ADOC] that Bentley’s alter with a psychopathic personality disorder is the dominant alter at this time, that this particular alter could remain dominant for many years, and that while Bentley is presenting with this particular alter he is to be viewed and handled as a very dangerous person, and
“(6) [ADOC] is ordered to accept the transfer of Bentley into one of its secure facilities capable both of dealing with a very dangerous person and allowing a mental health professional to treat Bentley.”

After the trial court denied ADMH’s motion to release Bentley, ADMH filed a motion to alter, amend, or vacate the trial court’s judgment, which the trial court denied on April 18, 2012. The trial court thereafter stayed enforcement of its judgment in order that ADMH might seek appellate review.

ADMH petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to vacate the April 16, 2012, judgment. The Court of Criminal Appeals issued a unanimous order granting ADMH’s petition in part on September 6, 2012. See State v. Bentley (No. CR-11-1386, Sept. 6, 2012), — So.3d-(Ala. Crim.App.2012) (table). That order reads, in part:

“First, [ADMH] argues that there is no basis in law for the circuit court to transfer Bentley to [A]DOC. The respondent asserts that Rule 26.6, Ala. R.Crim. P., allows a court to place a defendant in some ‘other public facility,’ which would include [A]DOC. The Alabama Supreme Court in Ex parte Alabama Department of Mental Health and Mental Retardation, 18 So.3d 356 (Ala. 2009), stated:
“ ‘No definition of “other public facility” is provided in Rule 25 or in Title 15, Chapter 16, of the Alabama Code 1975. However, § 1 of Act No. 1220, Ala. Acts 1975, which authorized [ADMH] to establish the institution now known as Taylor Hardin, specifically provides that the institution authorized thereunder is “under the jurisdiction of’ [ADMH]. Accordingly, we hold that, because it is under the jurisdiction of [ADMH], Taylor Hardin is not an “other public facility” under Rule 25, Ala. R.Crim. P. Thus, under Rule 25.6(b) and § 15-16-43, Judge Bahakel was not authorized to commit McBride directly to Taylor Hardin rather than to the custody of [ADMH].’

18 So.3d at 361. [A]DOC is not under the jurisdiction of [ADMH]; therefore, it appears that [A]DOC would classify as an ‘other public facility’ under Rule 25, Ala. R.Crim. P.

“Second, [ADMH] argues that there is no law that allows the court to fashion the treatment method for any individual under its custody and that for the court to do so violates the Separation of Powers Doctrine.

“The Alabama Supreme Court in Ex parte Department of Mental Health, 511 So.2d 181 (Ala.1987), considered the validity of an order directing that a child be committed to [ADMH] and placed in a private psychiatric facility with the costs borne by [ADMH]. The Supreme Court, in setting aside the court’s order, stated: ‘[ADMH] is therefore charged by the Legislature to accept minors alleged to be mentally ill and treat them by means of its various programs and facilities. Nowhere in any of these statutes does the Legislature state that anyone other than [ADMH] is authorized to care for and treat these children.’ 511 So.2d at 183. See also Alabama Dep’t of Mental Health & Mental Retardation v. Andres, 515 So.2d 9, 12 (Ala.Civ.App. 1987) (‘That part of the court’s order proscribing [ADMH’s] discretion in formulating a plan for the child’s treatment and placement is reversed and remanded for entry of a judgment consistent with this opinion.’).

“The same is true in this case. Section 22-50-9, Ala.Code 1975, specifically states: ‘[ADMH] through its commissioner is hereby authorized to act in any prudent way to provide mental health services and mental retardation services for the people of Alabama.’ See also § 22-50-11(2), Ala.Code 1975. This court can locate no law that allows a circuit court to dictate a treatment regimen for any individual that [ADMH] is charged with treating. Accordingly, this petition for a writ of mandamus is granted in part. Judge Youngpeter is directed to set aside those portions of his order— sections numbered 3 and 4 — that dictate a specific treatment regimen and the personnel that must be supplied by [ADMH] to treat Bentley’s mental illness.”

II. Standard of Review

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.”

Ex parte Alabama Department of Mental Health & Mental Retardation, 18 So.3d 356, 358 (Ala.2009).

III. Analysis

A. A Clear Legal Right and an Imperative Duty

In order for mandamus to lie, ADMH must have a clear legal right to the relief sought, and the trial court, as respondent, must have an imperative duty to perform, i.e., to grant the relief. Ex parte Alabama Dep’t of Mental Health, 18 So.3d at 358. ADMH’s legal rights and duties are set forth in the Code of Alabama 1975. ADMH is “authorized to supervise, coordinate and establish standards for all operations and activities of the state related to ... the providing of mental health services.” § 22-50-11(2), Ala.Code 1975 (emphasis added). ADMH has the duty to “promulgate ... reasonable minimum standards for the admission, diagnosis, care, treatment, [and] transfer of patients or clients and their records.” § 22-50-11(11), Ala.Code 1975 (emphasis added). ADMH also has oversight over all State facilities providing mental-health treatment. § 22-50-11(12), Ala.Code 1975 (emphasis added). ADMH “may file and prosecute civil actions ... to enforce this article and such rules and regulations as may be promulgated under authority of that article,” § 22-50-11(16), Ala.Code 1975, and “such civil actions may include actions for an injunction to restrain any organization from violating ... any [ADMH] rule or regulation.” Id.

Thus, Alabama law gives ADMH a right to intervene in the court-ordered transfer of an ADMH mental patient where the transfer would violate ADMH’s minimum standards for the care, treatment, and transfer of the patient. The trial court, moreover, would have an imperative duty to perform: i.e., to uphold ADMH’s rules and regulations.

B. Whether Bentley May he Transferred from ADMH to ADOC ADMH petitioned this Court for a writ of mandamus directing the trial court to vacate that portion of the its April 16, 2012, order that would effect Bentley’s transfer from an ADMH facility to an ADOC facility. ADMH argued that it “has a clear legal right to the relief sought because there is no basis in law for the trial court to order [ADMH] to transfer Bentley to [ADOC].” The Alabama Rules of Criminal Procedure provide:

“If, at the hearing held pursuant to Rule 25.3, the court finds that the defendant is mentally ill and as a consequence of such mental illness poses a real and present threat of substantial harm to himself or to others, the court shall order the defendant committed to the custody of the commissioner or to such other public facility as the court may order.”

Rule 25.6(b), Ala. R.Crim. P. (emphasis added).

ADMH acknowledges that Rule 25 does not define “other public facility,” but it maintains that the term clearly does not include an ADOC facility. ADMH maintains that Alabama law does not entrust ADOC with responsibilities that are not penal or corrective in nature. ADMH cites § 14-1-1.2, Ala.Code 1975, which states that ADOC is “responsible for administering and exercising the direct and effective control over penal and corrections institutions throughout this state.” ADMH also argues that the trial court has no authority to “sentence” Bentley to further commitment in an ADOC facility, because he has not been found guilty or convicted of the charges against him.

In order to define “other public facility” in Rule 25.6(b), we must apply the rules of statutory construction.

“ ‘[T]his Court is to ascertain and effectuate the legislative intent as expressed in the statute. In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses, and words are given their plain and usual meaning. Moreover, just as statutes dealing with the same subject are in pari materia and should be construed together, parts of the same statute are in pari materia and each part is entitled to equal weight.’ ”

Lambert v. Wilcox Cnty. Comm’n, 628 So.2d 727, 729 (Ala.1993) (quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979) (citations omitted)). Although Rule 25 does not define “other public facility,” the rule does reference other “facilities.” Rule 25 defines a “[r]egional or community mental health facility ” as “any mental health facility providing mental health services pursuant to Ala.Code 1975, §§ 22-51-1 through 22-51-14.” Rule 25.1(f), Ala. R.Crim. P. (emphasis added). Rule 25.8 refers multiple times to “regional or community mental health facilities].” Rule 25.8(b); (c); (g)(l)-(3), Ala. R.Crim. P. Section 22-51-2, Aa. Code 1975, provides that persons may form a mental-health facility as a public corporation “to contract with the State Board of Health or [ADMH] in constructing and operating facilities” in the State. Alabama’s regional mental-health facilities provide inpatient care, diagnosis, evaluation, rehabilitation, residential care, and services aimed at preventing “all forms of mental ... illness.” § 22-51-1 (d), Ala.Code 1975.

In addition, Rule 25.2(b), Ala. R.Crim. P., refers to “an appropriate mental health facility,” “such other public facility,” and custody in a facility under the jurisdiction of ADMH. The various references to “other public facility,” “appropriate mental health facility,” and “regional or community mental health facility” in Rule 25 all deal with the central subject of Rule 25: the commitment of those found not guilty by reason of a mental disease or defect. In contrast, Rule 25 never mentions “penal and corrections institutions,” as described in § 14-1-1.2, Ala.Code 1975. Applying the fundamental rules of statutory construction, I would conclude that “other public facility” must mean either a “regional or community mental health facility” or an “appropriate mental health facility,” but not an ADOC facility.

However, the Court of Criminal Appeals held that because “[A]DOC is not under the jurisdiction of [ADMH], ... it appears that [A]DOC would classify as an ‘other public facility’ under Rule 25, Ala. R.Crim. P.” (Citing Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 18 So.3d 356, 361 (Ala.2009).) In Ex parte Alabama Dep’t of Mental Health, this Court considered whether Taylor Hardin Secure Medical Facility was an “other public facility” contemplated by Rule 25.6, Ala. R.Crim. P. 18 So.3d at 360. ADMH argued that because Taylor Hardin exists as an ADMH facility, it could not be an “other public facility.” Id. at 361. We agreed and held that “because it is under the jurisdiction of [ADMH], Taylor Hardin is not an ‘other public facility’ under Rule 25.” Id. (emphasis added).

Thus, in Ex parte Alabama Department of Mental Health, this Court dealt with the question of what is not an “other public facility.” Here, we are faced with the question of what is an “other public facility” under Rule 25. It is not sufficient under Rule 25 to show that a public facility is “not under the jurisdiction of ADMH” to classify that facility as an “other public facility.” There are many “public facilities” in Alabama that are not under the jurisdiction of ADMH. However, the trial court likely would not commit Bentley to those “other public facilities.”

Rather, any “other public facility” must serve the purpose of “the involuntary commitment of those who are found not guilty by reason of mental disease or defect,” which is the overarching topic of Rule 25. ADMH is authorized to “provide mental health services and mental retardation services for the people of Alabama.” § 22-50-9. A “[Regional or community mental health facility” also provides such services. In contrast, ADOC operates “penal and corrections institutions,” as described in § 14-1-1.2, facilities that are not designed for the commitment and rehabilitation of those found not guilty of a crime by reason of mental disease or defect. In fact, if Bentley indeed was a convict, both ADOC and the governor would have a statutory duty to remove Bentley from any ADOC facility: “The names of all convicts who ... have become insane must be forthwith reported ... to the Board of Corrections, which shall immediately cause such convict to be removed to the hospital, and must also report their names to the Governor, in order that proper steps may at once be taken for their removal.” § 14-3-42, Ala. Code 1975.

The Committee Comments to Rule 25.2, Ala. R.Crim. P., cite Lynch v. Baxley, 744 F.2d 1452 (11th Cir.1984), which offers persuasive authority regarding the issues behind Bentley’s pending confinement as a mentally ill individual in an ADOC facility.

In Lynch, the plaintiffs sought to enjoin Alabama officials from detaining in county jails persons awaiting involuntary-commitment proceedings for mental illness. 744 F.2d at 1454. The United States Court of Appeals for the Eleventh Circuit held that such individuals must “be detained in the nearest state, regional, community, county or private hospital or mental health facility which provides quarters for mentally ill patients,” rather than in county jails. 744 F.2d at 1462.

Similarly, the Alabama Attorney General issued a 1986 opinion in response to the question: “If the Probate Court commits a person to [ADMH] and [ADMH] refuses to take the said person, what is the Sheriffs duties as far as release or confinement?” Ala. Op. Att’y Gen. 87-00018, at 1 (Oct. 16, 1986). The attorney general opined: “If [ADMH] refuses to accept such a person, then the ... Court must determine where such a person is to be placed.... [A] mentally ill person must be placed in a facility equipped to care for him.” Id., at 2 (citing Lynch, 744 F.2d at 1459 (emphasis added)).

Those suffering serious mental disease do not belong in prisons, and convicted criminals do not belong in mental hospitals. This is self-evident. Article III of the Alabama Constitution of 1901 is titled “The Distribution of Powers of Government.” However, power is not distributed among only the legislative, executive, and judicial departments. The decentralization and distribution of powers is systemic and inheres in Alabama’s government at the various levels of city, county, and state government and among the various departments at each level.

The distribution of powers “has a history older than the State of Alabama; as old, indeed, as constitutional liberty on this continent.” Scott v. Strobach, 49 Ala. 477, 482 (1878). “The decentralization of power ... was a controlling, fundamental maxim with the founders.” Id. James Madison stated that “[t]he accumulation of all powers ... in the same hands, whether of one, a few, or many, ... may justly be pronounced the very definition of tyranny.” The Federalist No. 47 (James Madison). “The purpose of this article of the Constitution was to separate and distribute the powers of the government, and to prevent their centralization.” Scott, 49 Ala. at 488 (emphasis added). The Court in Scott stated that “[ajll the objects which governments are instituted to accomplish, and all individual rights, depend principally, if not exclusively, upon the observance and preservation of this distribution of power.” 49 Ala. at 483 (emphasis added).

“Has it ever been thought that the executive and ministerial, and indeed, in some instances, the judicial or quasi judicial, functions of the tax assessor, tax collector, county treasurer, coroner, county surveyor, and clerks of courts, to which may be added the officers and boards of control of our state institutions for the care of the insane and deaf, dumb, and blind, and our state and county medical boards for the preservation of the public health, properly belong to the several state bodies of magistracy created by the constitution, within the spirit and intent of that instrument, and must therefore be confided to the exclusive exercise of those bodies? None will so declare.”

Fox v. McDonald, 101 Ala. 51, 69, 13 So. 416, 419 (1893) (emphasis added).

The ministerial function of caring for the mentally ill does not belong to the executive, judicial, or legislative branches. This function or power is separate and is distributed to ADMH as a public corporation, see § 22-50-4, Ala.Code 1975, and similar institutions. Likewise, the ministerial functions performed by ADMH and like institutions do not properly belong to ADOC. ADMH and ADOC exercise different powers and functions — the former rehabilitative and restorative, “mental health services and mental retardation services,” § 22-50-9, and the latter “penal and corrective,” § 14-1-1.2. The trial court’s apparent confusion of ADOC’s penal and corrective power with ADMH’s restorative and rehabilitative power is, in principle and in practice, a violation of the distribution of powers in Article III of the Alabama Constitution.

I conclude that a facility operated by ADOC is not an “other public facility” under Rule 25. There is no basis in Alabama law for the trial court to order ADMH to transfer Bentley to an ADOC facility. Our 2009 decision in Ex parte Alabama Department of Mental Health provides no support for the Court of Criminal Appeals’ decision to uphold the transfer order. ADOC has no legal jurisdiction over non convicted, mentally ill persons; the power to care for such persons has been distributed to ADMH and other similar institutions. Because ADMH has a clear legal right to prevent the transfer of mental-health patients to facilities that are not public facilities for mental-health services, and because there is no basis in Alabama law for the trial court to order Bentley’s transfer to an ADOC facility, I would hold that ADMH is entitled to the writ of mandamus directing the trial court to vacate the transfer order.

C. Fraud on the Court

Furthermore, I believe the trial court in this ease may consider whether Bentley has perpetrated fraud upon the court. Fraud upon the court is “ ‘ “that species of fraud that defiles or attempts to defile the court itself or that is a fraud perpetrated by an officer of the court, and it does not include fraud among the parties, without more.” ’ ” Johnson v. Neal, 39 So.3d 1040, 1044 (Ala.2009) (quoting Christian v. Murray, 915 So.2d 23, 28 (Ala.2005), quoting in turn other cases). Fraud on the court is, “ ‘ “[i]n a judicial proceeding, a ... party’s misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding.” The cases in which fraud on the court has been found, for the most part, have been cases in which there was “the most egregious conduct involving a corruption of the judicial process itself.

39 So.3d at 1044 (quoting Christian, 915 So.2d at 28, quoting in turn Black’s Law Dictionary 686 (8th ed. 2004)). The fraud-on-the-court doctrine has been applied in criminal cases in Alabama:

“There is a principle of law, that if a fraud on the court be attempted, in the getting up of false testimony, or by any other artifice tending, or designed to deceive or mislead, or to make the false appear to be the true, and this is knowingly assisted, or procured to be done by the suitor, this is a circumstance which the jury may rightly consider, to the disadvantage of the party making, or assisting in such attempt.”

Beck v. State, 80 Ala. 1, 2 (1885) (emphasis added); see State v. Vance, 80 Ala. 356, 357 (1885) (citing Beck, supra); and Parker v. State, 10 Ala.App. 53, 56, 65 So. 90, 90-91 (1914) (quoting Beck, 80 Ala. at 1). The application of the doctrine is limited to the more egregious forms of subversion of the legal process.

“ ‘Fraud on the court’ has been defined as ‘fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.’ Such fraud must be ‘extrinsic, ’ that is, perpetrated to obtain the judgment, rather than ‘intrinsic.’ ...
“ ‘ “Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible.... Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, ... those we cannot necessarily expect to be exposed by the normal adversary process.” ’ ”

Hall v. Hall, 587 So.2d 1198, 1200-01 (Ala. 1991) (citations omitted; emphasis added).

The trial court below summarized ADMH’s position on (and doubts about) Bentley’s mental health:

“[Fjrom the time Bentley arrived at Taylor Hardin in February of 2005, its medical providers have believed that he has been faking mental illness.... [A]s soon as Bentley learned he could not be re-tried for capital murder of Jamie Tol-bert, he dropped all pretense of suffering from mental illness. The records reflect that Bentley admitted that he had been faking mental illness all along, and it is clear [ADMH] staff members and medical providers believe his admission. [ADMH] believes that Bentley is simply a cold-blooded psychopath, and while Bentley is extremely dangerous and likely to kill again, he does not suffer from a treatable illness.”

In short, Bentley’s primary-care providers, who have eared for him on a daily basis for over eight years, believe he has been faking mental illness all along. His primary-care providers believe he does not suffer from a mental illness. However, two expert witnesses believe Bentley suffers from several mental diseases, and, on that basis, the trial court has ordered Bentley confined in an ADOC facility.

These facts raise the possibility that Bentley obtained his judgment of not guilty by reason of mental disease by perpetrating a fraud upon the court. Judgments procured by fraud may be vacated. Maddox v. Hunt, 281 Ala. 335, 341, 202 So.2d 543, 548 (1967) (“Courts of equity will set aside and vacate judgments procured by fraud.”). Potentially, the State might bring an “independent action ... to set aside or vacate a judgment procured by fraud.” Ex parte Burlington N. R.R., 470 So.2d 1094, 1095 (Ala.1985). It is true that “[t]he Declaration of Rights provides, that ‘no person shall, for the same offense, be twice put in jeopardy of life or limb.’ ” Moore v. State, 71 Ala. 307, 309 (1882) (quoting Art. 1, § 10, Ala. Const. 1875 (now Article 1, § 9, Ala. Const. 1901)). However, “if the former conviction was procured by the fraud, connivance, or collusion of the defendant, this fact vitiates it, and it is no bar to a subsequent prosecution.” 71 Ala. at 311. See also Baldwin v. State, 47 Ala.App. 136, 140, 251 So.2d 633, 637 (Crim.App.1971) (same, quoting Moore).

The Moore Court explained the procedure for such a subsequent prosecution:

“If the State intends to avoid the force of the plea of former conviction, or acquittal, by showing that the proceedings in the former case were fraudulently designed to shelter the defendant from the punishment justly due his offense, such facts must be set up by replication [] to the plea.”

Id. The Moore Court cited as authority State v. Lowry, 31 Tenn. (1 Swan) 34, 35-36 (1851), the relevant portion of which reads as follows:

“[T]his proceeding before the justice was in fraud of the law and in contempt of the court.
“... [W]e cannot wholly disregard it without permitting, in cases like the present, an injurious conflict of jurisdiction and a perversion of the public justice.
“The proceeding before the justice, instituted by the witness as a pretended prosecutor, with the probable collusion of the defendant, was in bad faith — was intended to favor the accused, and not to punish him for his offence — and was in its circumstances a fraud upon the jurisdiction of the circuit court.”

The Moore Court also cited State v. Little, 1 N.H. 257, 257-58 (1818) (“[T]he issue, as to the fraudulent procurement of the conviction before the justice, was a material issue; and that the conviction, if found to have been obtained by the covin[] of the defendant, would be no bar to the present prosecution.”), and State v. Reed, 26 Conn. 202, 208 (1857) (“[I]f the conviction in question had been procured by the fraud and collusion of the defendants, on which point there are respectable authorities to show that it would be void.”).

IV. Conclusion

ADMH’s petition did not seek relief from the portion of the trial court’s order that denied the motion to release Bentley. If the court had granted ADMH’s petition, we could have restored the status quo and left Bentley in ADMH’s custody. Instead, Bentley will be transferred to an ADOC facility, which will likely guarantee the release of this highly dangerous man. ADOC’s amicus brief noted “there is no guarantee a habeas corpus or injunctive relief petition [Bentley] could subsequently file would not be granted and result in Bentley’s immediate release, the very result the Circuit Court and [the district attorney] seek to avoid.”

This Court should seek to avoid that result as well. I believe that ADMH should file a motion to modify the order transferring Bentley to an ADOC facility by requesting that ADMH retain custody of Bentley under Rule 25.7(a), Ala. R.Crim. P. (“For good cause, the court may modify any order entered under Rule 25.6 at any time.”). Also, I believe that the State should seek an independent action to set aside the trial court’s order finding Bentley not guilty by reason of mental disease or defect because that judgment was obtained by a fraud upon the court. Then Bentley’s original sentence could be reinstated or Bentley could be retried, as the trial court may determine. In any event, Bentley should be retained in custody and should pay the penalty for the crimes for which he was originally convicted. One thing to which we all agree is that Bentley is a danger to society and should not be released among the general public.

For these reasons, I respectfully dissent from the Court’s decision to deny ADMH’s petition for a writ of mandamus.

      . Replication is an equity or common-law pleading. Replication per fraudem is a common-law pleading "asserting that the discharge pleaded by the defendant was obtained by fraud." Black's Law Dictionary 1414 (9th ed. 2009). Discharge in this context means "[t]he release of a prisoner from confinement.” Id., at 530.

      . Covin is "[a] secret conspiracy or agreement between two or more persons to injure or defraud another.” Black’s Law Dictionary, at 422. As an adjective, covinous means "[o]f a deceitful or fraudulent nature.” Id.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    A.M. v. ST. CLAIR COUNTY DEPARTMENT OF HUMAN RESOURCES G.M. v. St. Clair County Department of Human Resources.
    2120556, 2120557, 2120558, 2120559, and 2120589.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2013.
    Kathryn S. Henry, Hoover, for appellant A.M.

      Ericka Elzey, Pell City, for appellant G.M.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

A.M. (“the mother”) appeals from judgments of the St. Clair Juvenile Court (“the juvenile court”) terminating her parental rights to her four children, F.P., D.P., C.M., and V.M. (hereinafter collectively “the children”). G.M. (“the father”) appeals from the judgments terminating his parental rights to the two children he had with the mother, C.M. and V.M. (“the father’s children”). This court consolidated the appeals ex mero motu. The parental rights of E.P., the father of F.P. and D.P., also were terminated; however, E.P. did not appeal. Accordingly, we will not include facts relating only to E.P. in this opinion.

The record indicates the following. The father had previously worked as a welder but had nearly severed a finger on his left hand — his dominant hand — and had also injured his back. During the time St. Clair County Department of Human Resources (“DHR”) was working with the family, the father did not have steady employment; he earned money from recycling scrap metal. He would scrape rust from the scrap metal and leave the scrap metal in the family’s yard. The mother conceded that, at times, the yard would have been dangerous to the children because of the scrap metal.

The mother did not work outside the home. She suffers from a congenital hip condition for which she sometimes takes prescription pain medication. The mother testified that she had applied for Social Security disability benefits, but her application had been denied.

DHR first became involved with this family in January 2009, when the mother’s mother (“the maternal grandmother”), who lived with the family, was injured in a fall at the home and required hospitalization. A worker from DHR’s adult-protective-services division conducted an investigation. Because of excess clutter and an infestation of roaches in the home, a decision was made not to return the maternal grandmother to the home. The maternal grandmother required a wheelchair, and the excessive clutter in the house, as well as a lack of ramps, would impede her ability to move about the house. The maternal grandmother was placed in a nursing home, where she still resided at the time of the trial.

Sue Latham, a DHR social worker, testified that there were concerns for the children during the investigation arising from the maternal grandmother’s fall; however, the children were not removed from the house at that time. Latham became involved with the family in March 2009, when there was a fire in the kitchen of the house. F.P., who was 13 years old at the time, was alone in the house with C.M., then 2 years old, while the mother and D.P. visited the mother’s obstetrician. The mother was about to give birth to V.M., her youngest child. When the fire broke out, F.P. took C.M. to a neighbor’s house to call the fire department because there was no telephone at their house. After the fire, the family stayed at a motel for several weeks while repairs were made to the kitchen. The American Red Cross paid for the motel stay.

Because of the uncleanliness of the home, DHR provided services to the mother and the father in an effort to teach them housekeeping and parenting skills. However, the children were not removed from the home until July 12, 2010, when the mother tested positive for the use of opiates and the father tested positive for the use of marijuana. The mother testified that she had taken pain medication that had been prescribed for her on earlier occasions but that she had not discarded in a timely manner. The mother’s testimony was consistent with DHR’s assertion that the mother was taking pain medication in a manner that was not prescribed by her treating physicians. The mother tested positive for opiates on various occasions throughout the time DHR was working with her.

After the children were removed from the home, DHR increased the services it was providing to the mother and the father, including providing individual and family counseling. Glenn Margaree, a counselor, began working with the family in July 2010 to address the issues that led to the children’s removal from the home, including the father’s drug use, the mother’s and father’s neglect of the home and the children and their leaving the children to care for themselves, and the mother’s and the father’s issues with anger management, conflict resolution, and domestic violence.

Margaree first visited with the mother and the father at their home in July 2010, when the children were first removed from the home. Margaree testified that the home was in a state of disrepair and infested with roaches. When them appointments were moved to her office, Margaree said, the mother and the father missed appointments or were frequently late. Margaree said she determined that the father was lazy, an opinion that she supported by pointing out that he had failed to maintain employment, and that he exhibited controlling behavior. Margaree also concluded that both the mother and the father were emotionally unstable.

The mother completed one set of parenting classes, but because DHR workers did not believe the mother’s parenting skills had improved sufficiently, she was asked in June 2012 to enroll in a second parenting class. In addition to parenting classes, the mother started attending a substance-abuse class. However, the mother said, those classes ended before she completed the course. A psychological evaluation performed on the mother by psychologist Dr. Yolanda Suarez indicated that the mother had displayed symptoms of depression that were exacerbated by her chronic hip pain. However, Dr. Suarez did not find anything that led her to be concerned that the mother was engaged in child abuse or substance abuse, and she did not regard the mother as a threat to the children.

At the trial, Latham testified that although the mother had visited the children consistently, she had to be prompted to call the children or to send them letters. The older children’s foster mother testified that the mother would call regularly only for a short time after Individual Sendee Plan (“ISP”) meetings with DHR and for a short time before scheduled court dates.

Latham also testified that she had observed both the mother and the father interact with the children. During her time with them, Latham said, she did not see anything that would lead her to believe that either one could successfully parent the children. Connie Allen, Latham’s supervisor at DHR, testified that, during the time DHR had been working with her, the mother would make strides but then fall back into old patterns of behavior.

Latham testified that the father completed a psychological assessment and assessments regarding parenting and anger management. He was referred to job and marriage counseling, anger-management classes, and parenting classes. Latham initially said that the father did not complete any of those programs before August 2011, when he moved to Ohio, but she later testified that she had erred in her earlier testimony and that the father had completed the courses. However, she said, the father had not taken part in any services since August 2011, although he had taken part in ISP meetings by telephone. La-tham also noted that the father did not test positive for any illegal drug between the July 2010 test that led to the removal of the children from the home and the father’s August 2011 move to Ohio; however, she said, he had not submitted to a drug test since moving to Ohio.

During the termination hearing, the juvenile court ordered the father to submit to a drug test. The results of that test were positive for the use of marijuana. The father explained that, because he had had cancer surgery the week before the trial, he had eaten medical marijuana, which had previously been prescribed to him as Marinol. The father had surgery in Ohio on the first day of the trial in this matter. His attorney had requested a continuance because of the scheduled surgery, and the father submitted a physician’s note indicating that the surgery was to be performed on September 17, 2012, the first day of the trial. The motion to continue was denied. Despite the physician’s admonition to the father that he not travel, the father appeared for the last day of the trial, September 19, 2012.

At trial, the mother acknowledged that she took pain medications when her hip was especially painful. DHR’s position was that the medication she was taking had been prescribed on earlier occasions and that the prescriptions were no longer valid at the time the mother was taking the medication. Drug tests administered to the mother in January 2011 and October 2011 were negative; however, the mother again tested positive for opiates in July 2012, just two months before the trial.

At the time of the trial, neither the mother nor the father lived in the same location they had when the children were removed from the home. As mentioned, the father was living in Ohio. By January 2012, the mother had moved to a one-bedroom apartment, which DHR workers said was neater and more organized than the mother’s previous residence, and had been placed on a waiting list for a larger apartment to accommodate the children. The mother was also working at a fast-food restaurant in January 2012. In July 2012, the mother moved to a two-bedroom apartment. She testified that she intended for the children to use the bedrooms and she would sleep on the couch. Allen, Latham’s supervisor, testified that, at the time of the trial, the mother had continued her employment, had obtained housing, had a working vehicle and insurance, and was attending the second parenting class that had been recommended to her.

The father testified that he moved to Ohio to obtain a job. At the time of the trial, he lived with his girlfriend and her children. The father acknowledged that he had not seen the children from the time he moved to Ohio in August 2011 until July 2012; however, he estimated that, before moving, he had missed only 4 of about 50 visitations available to him. He also said that he spoke on the telephone with the children regularly.

Both the mother and the father were in arrears on their court-ordered child-support payments. At the time of trial, the mother owed $7,000 in past-due support. The mother testified that the father owed between $30,000 and $40,000 in past-due child support. The father also testified that before the children had been removed from the home, they had never been hungry, they had always had a place to live, they had had all of their inoculations, and they had a pediatrician. He also said that he helped the children with their homework, which F.P. acknowledged.

F.P., the mother’s oldest child, was 15 years old at the time of the trial. She testified that she did not wish to return to the mother’s home. She said that her mother related to her “more like a friend” than a daughter. F.P. said that, in her opinion, the mother was unable to adequately care for the children. For example, F.P. said, the mother was unable to set a routine for the children to follow, she was unable to properly discipline the children, and she could not control the children. She also testified that the mother had failed to teach the children basic hygiene skills, good nutrition, and the like. For example, F.P. said, when she first entered foster care, she weighed approximately 290 pounds. Under the guidance of her foster parents, F.P. said, she had lost more than 80 pounds. F.P. described the father as “controlling” of both the children and the mother.

F.P. also testified that the father, her stepfather, had taken the children with him to Birmingham on more than one occasion to buy marijuana. She also told DHR workers that she had seen her mother peeling the coating off of the pain medications she took, which apparently intensified the drugs’ effects.

F.P. said both the mother and the father relied on her to do chores around the house and to care for the younger children. She described the parties’ residence as being “nasty,” with piles of clothes and trash everywhere about the house. F.P. also said that roaches infested the house and that, when one picked up clothes, roaches would scatter. There were occasions when the utilities were turned off at the house because of unpaid bills, F.P. said. The record also indicates that D.P., F.P.’s younger brother, sent a letter to the judge stating that he, too, wished to remain with his foster parents.

Both the mother and the father provided DHR with lists of possible relative placements for the children. Two individuals from the lists were seriously considered. The mother’s father initially said he would serve as a relative placement for the children. In March 2012, after a home study was conducted, DHR approved the mother’s father for placement. Overnight visits were arranged for the children at the mother’s father’s house. On May 31, 2012, the day the children were to move in with their maternal grandfather, he contacted DHR and declined to serve as a resource for the children.

The father’s list included several family members, but he did not include contact information for some of those family members. Latham said that she contacted the father’s mother (“the paternal grandmother”), who initially said that she wanted to be involved, but she hoped that all four children could remain together and hoped that one of the parents could obtain custody. The paternal grandmother did not respond to Latham’s first written inquiry as to whether she would be willing to take custody of the children. However, in March 2012, before DHR filed its April 2, 2012, termination petitions, DHR received a letter from the paternal grandmother in which she agreed to serve as a placement for the children. From the record, it appears that only the father’s children, C.M. and V.M., were being considered for placement with the paternal grandmother. The paternal grandmother lives in Michigan, and DHR requested that the State of Michigan perform a home study pursuant to the Interstate Compact on the Placement of Children (“ICPC”). However, DHR did not make the request until July 2012, and the study of the paternal grandmother’s home had not been completed at the time of the September 2012 termination hearing. According to ICPC documents contained in the record, the paternal grandmother is an “administration assistant” and her husband is a licensed attorney with a private practice in family law.

The termination hearing in this matter was held in September 2012, and the juvenile court entered its judgments terminating the parental rights of the mother, the father, and E.P. six months later, on March 19, 2013. In December 2012, between the trial and the entry of the judgments, the Michigan home study was completed, and the paternal grandmother was approved for placement of the father’s children, C.M. and V.M.; however, a comment on the cover page of that same form stated: “Placement cannot be approved at this time. Upon family completing foster care licensing AND Interstate approval placement may be approved.” The cover sheet also stated: “Interstate services appear complete. Our Interstate case is closed.” The apparent contradiction in the statements on the same page of the form is not explained. Nonetheless, in January 2013, the paternal grandmother filed a petition for custody of the children. According to the case-action summaries in these cases, the petition was denied after a May 13, 2013, hearing.

Both the mother and the father filed timely appeals from the judgments terminating their parental rights. As mentioned, E.P. did not appeal.

With regard to reviewing a judgment in a termination-of-parental-rights case, this court has stated:

“This court’s standard of appellate review of judgments terminating parental rights is well settled. 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 ten-us evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala. 2002) (emphasis added). 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.”

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

“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.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-ll-20(b)(4)).

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

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

In the judgments, the juvenile court stated that it had initially found the children to be dependent because of the parents’ drug use, domestic violence in the home, and neglect by the parents. It determined that the children remained dependent. It also found that DHR had provided numerous services to the mother and the father to facilitate reunification with the children. It noted that different methods of instructing the parents were used in the hopes of finding a method that would benefit the parents. Nonetheless, the juvenile court stated, the evidence indicated that the parents had failed to attend several appointments or had been consistently late to appointments. Accordingly, the juvenile court found, the parents had failed to take advantage of the services provided by DHR.

The juvenile court also noted that the mother had failed to attend scheduled visits with the children, had failed to provide financially for the children, had failed to complete services aimed at rehabilitation, and had failed to obtain suitable housing for the children. The juvenile court determined that the mother was “unwilling and clearly unable to discharge [her] responsibilities to and for [her] children,” that her condition was such as to render her unable to properly care for the children, and that her condition was unlikely to change in the foreseeable future. After noting the length of time the children had been in foster care, the juvenile court stated that the children “are entitled to permanency and deserve safety and stability in their everyday interactions with their caretakers.” It then determined that termination of the mother’s and the father’s parental rights was in the children’s best interests.

The mother argues that, although she is still not consistent with discipline and although she serves her children corndogs or other foods of questionable nutritional value, “there is no evidence whatsoever that [she] cannot currently parent her four children or would be unable to care for them in the future.”

When deciding whether to terminate parental rights, “the primary focus of a court ... is to protect the welfare of children and at the same time to protect the rights of their parents.” Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). Thus, “a court should terminate parental rights only in the most egregious of circumstances.” Id. (emphasis added). In Ex parte T.V., 971 So.2d 1 (Ala.2007), our supreme court reversed this court’s affirmance of the trial court’s termination of T.V.’s parental rights. In T.V., the children were removed from T.V.’s custody because T.V. was addicted to crack cocaine, was homeless, did not have a job or transportation, and was unable to perform her parental duties. She also was facing criminal misdemeanor charges. Id. at 3.

In reversing the trial court’s judgment terminating T.V.’s parental rights, our supreme court noted that both the court’s order and the record in the termination-of-parental-rights case established that T.V. had met the goals that DHR had originally set for her, stating:

“[T.V.] is no longer homeless, and she has dealt with her drug problem. She reconciled with and married D.R.V., the father of her first child. Through involvement with their church, T.V. and D.R.V. • have quit using illegal drugs. T.V. testified that she has been drug-free since July 20, 2002. T.V. ministers to people with substance-abuse problems. She has maintained employment since July 20, 2002, with short interruptions. She has voluntarily contributed small amounts to [her child’s] support; these amounts total $270 since 2004.”

Id. Our supreme court continued:

“We do not believe that the evidence in this case clearly and convincingly supports the factual finding that there are no viable alternatives to terminating T.V.’s parental rights. The trial court’s order includes a factual finding that T.V. has stopped using drugs, that she has reconciled with her family, that she participates in raising and supporting her other son, and that she regularly attends church. The only reason the trial court offered as justification for its finding that there is no viable alternative to the termination of T.V.’s parental rights was T.V.’s failure to visit N.V. and the child’s corresponding inability to know her as his mother. However, the only evidence in the record regarding the effect of these absences on N.V. was the testimony that N.V. did not understand who T.V. was and the social worker’s testimony that a bond between N.V. and T.V. was emerging. The trial court’s concern that T.V. ultimately wanted to regain custody of N.V. does not, in itself, provide clear and convincing evidence that the current situation in which T.V. is allowed to visit with N.V. is untenable. Both B.S. and C.S. testified that they would eventually have to tell N.V. that he is not their natural son. The child still carries T.V.’s last name, and he uses that name at school. Thus, given that N.V. will one day have to learn that he is not B.S.’s natural son, visitation — which upon all accounts does not harm N.V. and which the guardian ad litem concluded is good for N.V. — would appear to be a viable alternative to the termination of T.V.’s parental rights. Therefore, the conclusion that there are no viable alternatives to terminating T.V.’s parental rights is not supported by clear and convincing evidence.”

Id. at 9-10 (footnote omitted).

Similarly, in A.H. v. Houston County Department of Human Resources, 122 So.3d 846, 852 (Ala.Civ.App.2013), this court reversed the trial court’s judgment terminating A.H.’s parental rights. We note that, in A.H., the children had not lived with A.H. for 30 months. In reversing the trial court’s judgment, this court wrote:

“In the present case, DHR failed to present clear and convincing evidence demonstrating that [A.H.] continues to suffer from a drug or alcohol addiction or that [A.H.] is ‘unable or unwilling to discharge [her] responsibilities to and for the [children], or that the conduct or condition of [A.H.] renders [her] unable to properly care for the [children] and that the conduct or condition is unlikely to change in the foreseeable future.’ § 12-15-319(a), Ala.Code 1975. ‘This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.’

D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App. 2003). Although [A.H.] had not attended a substance-abuse-treatment program, she had passed every drug test except the most recent one before trial, which she did not take due to time constraints imposed by her house arrest. Albeit with the help of her family, [A.H.] had procured suitable housing for the children. Since May 2012, [A.H.] has also consistently exercised visitation with the children.

“ ‘ “ ‘[T]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in [this] ease[ ] “does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.” ’ ” “ ‘D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 445 (Ala.Civ.App.2003) (quoting V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998)).’

“[Ex parte ] AS, 73 So.3d [1223] at 1230 [ (Ala.2011) ].”

122 So.3d at 852.

In this case, Connie Allen, La-tham’s supervisor at DHR, and Latham both testified that the mother had obtained and continued her employment; that she had continuously maintained transportation and insurance; that she had obtained housing, although she had only lived in her new apartment a matter of months; and that she was attending her second set of parenting classes, although she had not yet completed the classes. Allen questioned the stability of the mother’s housing situation. The juvenile court apparently agreed, finding that the mother had “failed to obtain suitable housing capable of accommodating her children.” However, in S.K v. Madison County Department of Human Resources, 990 So.2d 887, 900 (Ala.Civ.App.2008), this court noted the following:

“The evidence indicated that, before DHR became involved in the case in 2003, the family had been living for seven or eight years in a small but adequate mobile home that the father owned and for which he was paying only $75 per month in lot rent. DHR, however, opined that the mobile home was too small and induced the father to move. From that point on, the father was engaged in a struggle to find living quarters that would satisfy DHR and still be within his means. Given the father’s efforts to find suitable housing in the face of financial difficulty, we cannot hold that his having multiple addresses was a factor indicating his unwillingness to discharge his parental responsibilities to his children. On the contrary, his multiple attempts to obtain a suitable residence tended to show his willingness ■ to do whatever it took to fulfill the requirement that DHR had set for him with respect to housing, even if meeting that requirement was more costly than his former housing had been. The housing issues the father faced appeared to be more a function of his poverty than any other factor. ‘ “[P]overty alone is not enough to warrant the termination of parental rights.” C.B. v. State Dep’t of Human Res., 782 So.2d 781 (Ala.Civ.App.1998).’ A.J.H.T. v. K.O.H., 983 So.2d 394, 406 (Ala.Civ.App.2007).”

In this case, the mother moved out of the roach-infested house where the family had lived and moved into a one-bedroom apartment. She placed her name on a list to move to a larger apartment and had been able to make that move only a month or two before the trial. DHR workers acknowledged that, since moving from the old house, the mother’s residences had been neat and clean. Moreover, we note that DHR did not remove the children from the mother and the father because of the clutter and roach infestation. The children continued to live in the home for a year and a half after DHR became aware of the condition of the family’s house. It was not until the mother and the father tested positive for the use of opiates and marijuana, respectively, that the children were removed from the home. It appears from the evidence that the mother has obtained the most suitable housing she is able to afford for herself and the children, and her inability to afford to live in a residence with more bedrooms cannot be the basis for the termination of her parental rights.

Allen also noted that the mother’s pattern had been to take part in various classes, but, she said, the mother failed to complete them. Allen testified that the mother had missed one visit with the children because she was incarcerated, and, she said, the mother had been late for some visits, “or in the past I think she erided some early due to boredom and stuff.” Therefore, Allen said, she did not believe the mother was doing “100% of what she should do.” Additional evidence indicated that the results of a random drug screen performed on the mother on July 17, 2012, were positive. However, both Latham and Allen acknowledged that, at the time of the trial of this matter, the mother had met or was making progress toward meeting the goals that DHR had established for her.

Admittedly, the mother has much room for improvement in her parenting skills, and she continues to misuse prescription pain medication. We also recognize that 15-year-old F.P. would have preferred more structure in her life, and she expressed an unhappiness that the mother treated her more like a friend than as a daughter. We are not unsympathetic to the child’s wishes or her desire for a different parenting style; however, neither issue raised by F.P. is a sufficient basis on which to terminate the mother’s parental rights. Furthermore, the mother may not have been diligent in arriving on time to appointments, meetings, and visitation with the children, but there is not clear and convincing evidence that she is or will be unable or unwilling to care for the children’s needs.

“It is because the termination of parental rights implicates ‘[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child,’ Santosky [ v. Kramer ], 455 U.S. [745] at 753, 102 S.Ct. 1388 [(1982)], that such an exacting level of certainty based on evidence of the parent’s current situation is required. Thus, while we must presume under the ore tenus rule that the trial court’s factual findings are correct, that rule does not relieve this Court of its responsibility to ensure that those facts clearly and convincingly warrant the termination of parental rights.”

Ex parte T.V., 971 So.2d at 9.

Moreover, as noted,
“ ‘ “[t]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated ....’”
“D.O. v. Calhoun County Dep’t of Human Res., 859 So .2d 439, 445 (Ala.Civ. App.2003) (quoting V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala. Civ.App.1998)).”

Ex parte A.S., 73 So.3d 1223, 1230 (Ala. 2011); see also A.H., 122 So.3d at 852.

This is a difficult case. However, we conclude that the evidence in this case, like the evidence in the cases cited above, does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute. In short, based on the evidence contained in the record, we hold that this case does not involve “the most egregious of circumstances” meriting the termination of parental rights. See Ex parte Beasley, 564 So.2d at 952. Accordingly, we conclude that the juvenile court erred in terminating the mother’s parental rights.

The father argues that the juvenile court erred in terminating his parental rights to C.M. and V.M. because, he says, DHR failed to make reasonable efforts to reunite him with his children. Specifically, the father contends that even though he had moved to Ohio, DHR was not “absolved from responsibility for providing services leading toward reunification to a parent who is located out of state, and more specifically, ... merely instructing a parent to seek out services on his own is not sufficient to meet DHR’s burden of making reasonable efforts.” The father cites D.S.S. v. Clay County Department of Human Resources, 755 So.2d 584, 589-90 (Ala.Civ.App.1999). We find M.H. v. Calhoun County Department of Human Resources, 848 So.2d 1011, 1016-17 (Ala.Civ.App.2002), to be more on point, however. In M.H., we affirmed the judgment terminating M.H.’s parental rights, distinguishing her circumstances from those of the father in D.S.S. as follows:

“The mother also argues that DHR failed to offer her rehabilitative services once she moved to Iowa. Although we have held that DHR is required to investigate and, if necessary, to provide rehabilitative services to a parent who resides in another state before proceeding with a termination of that parent’s parental rights, see D.S.S. v. Clay County Department of Human Resources, 755 So.2d 584, 590-91 (Ala.Civ.App.1999), we cannot agree that D.S.S. supports the mother’s argument in this case. The failure of DHR to provide services to the mother upon her move to Iowa cannot be considered in isolation. In D.S.S., DHR had failed not only to offer any rehabilitative services to the father, who resided in Georgia, but also to even investigate the father’s circumstances to determine if he needed those services. In the present case, DHR provided services to the mother for almost two years, during which time the mother made little and unsustained improvement. The record compels the conclusion that, despite DHR’s attempts to rehabilitate her, the mother, for whatever reason, has been unable to commit to making the changes necessary to entitle her to the return of her children.”

Id.

In this ease, the father had been receiving services from DHR before he moved to Ohio. DHR workers testified that they believed that the father was still in need of the services DHR provided; for example, they recommended that he take an additional parenting class. They explained to the father that DHR would not be able to provide services to him once he moved; nonetheless, the father chose to move out of state, where he could not avail himself of the services that might enable him to regain custody of his children. Therefore, we cannot conclude that DHR was required to continue to provide services to the father after he moved to Ohio. Accordingly, we also cannot conclude that the juvenile court erred in determining that the father failed to take advantage of the services DHR offered to him in an effort to rehabilitate the father. However, our inquiry into the propriety of the termination of the father’s parental rights to his two children, C.M. and V.M., does not end here.

A finding of dependency alone will not allow a trial court to terminate a parent’s rights to his or her child; the trial court also must find by clear and convincing evidence that there are no viable alternatives to the termination of parental rights. Beasley, 564 So.2d at 954. Before terminating parental rights, a trial court must consider and reject all potential viable alternatives. See T.V., 971 So.2d 1; A.D.B.H. v. Houston Cnty. Dep’t of Human Res., 1 So.3d 58, 63-64 (Ala.Civ.App.2008); and B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004).

The record indicates that in March 2012 the paternal grandmother notified DHR that she was interested in being a relative-placement resource for the father’s children. The petitions seeking the termination of the father’s parental rights were not filed until April 2, 2012. In July 2012, four months after the paternal grandmother had expressed her interest and three months after it had filed its petitions to terminate the father’s parental rights, DHR submitted the necessary paperwork to the State of Michigan requesting that its social-service agency conduct a home study on the paternal grandmother. The home study had not been completed as of the time of the September 2012 termination hearing, and the father requested a continuance pending the outcome of that home study. The paternal grandmother was approved for placement before the juvenile court entered its March 18, 2013, judgments terminating the father’s parental rights.

‘The party seeking to terminate a person’s parental rights thus has the burden of producing dear and convincing evidence that there are no viable alternatives to the termination of parental rights. Ex parte Ogle, 516 So.2d [243] at 247 [ (Ala.1987) ]; see also K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App. 2003) (holding that the party seeking to terminate the parental rights of another bears the burden of proving that termination of those rights is the appropriate remedy).’ ”

C.E.W. v. P.J.G., 14 So.3d 166, 170-71 (Ala.Civ.App.2009) (quoting Ex parte T.V., 971 So.2d at 9).

Based on the record before us, we conclude that DHR failed to present clear and convincing evidence that there were no viable alternatives to terminating the father’s parental rights. The paternal grandmother is not an ideal candidate to be a relative resource for the father’s children. The record indicates that she did not know the children well, that she had not spent time with the children, and that she did not seek custody of the children the majority of the time they were in foster care. Nonetheless, before the termination petitions were filed, the parental grandmother indicated her interest in serving as a relative placement for at least C.M. and V.M., the father’s children. However, DHR went forward with filing its petitions to terminate the father’s parental rights before it began its investigation into the paternal grandmother’s suitability as a relative placement.

We note that DHR waited four months after learning of the paternal grandmother’s interest before submitting its request to the State of Michigan pursuant to the ICPC regarding the paternal grandmother. Had the request been made in a more timely fashion, the results may have been available at the time of the termination hearing.

Based on the record before us, we conclude that DHR failed to meet its burden of proving by clear and convincing evidence that no viable alternative existed to the termination of the father’s parental rights. Although we do not necessarily hold that the paternal grandmother should be considered a viable alternative to the termination of the father’s parental rights, we conclude that, based on DHR’s failure to meet its burden with regard to demonstrating the absence of viable alternatives to the termination of the father’s parental rights, the juvenile court erred in failing to consider the paternal grandmother as a relative-placement resource. Accordingly, we conclude that the juvenile court erred in entering judgments terminating the father’s parental rights to his children, C.M. and V.M.

For the reasons set forth above, we conclude that the juvenile court erred in terminating the parental rights of both the mother and the father. As mentioned, this is a close case that ultimately turns on our determination that there is not clear and convincing evidence to support the juvenile court’s judgments. We are mindful of the court’s mandate “to protect the welfare of children and at the same time protect the rights of their parents,” Ex parte Beasley, 564 So.2d at 952, and to terminate parental rights “only in the most egregious of circumstances.” Id. Accordingly, the judgments entered in this matter are reversed. In reaching this conclusion, this court is not foreclosing DHR’s ability to file subsequent termination petitions in this matter, nor are we to be understood to imply that the children are to be immediately returned to the custody of the mother. We hold only that a termination of the mother’s and the father’s parental rights was premature based on the record before us.

2120556, 2120557, 2120558, and 2120559 — REVERSED.

2120589 — REVERSED.

PITTMAN and DONALDSON, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . Although the father testified that he had had cancer surgery, the physician’s note that accompanied the father's motion for a continuance, dated August 2, 2012, indicated that the father had visited the doctor because a "screw in head came out, pain on top side of head.” The physician’s note stated that "images of the head were obtained” and that there was "no evidence of mass, hemorrhage or infarct.... There is a 1 cm soft tissue density in the scalp in the midline over the frontal bone. The underlying calvarium is intact.” The note indicated that the father’s brain was "normal” but that he had a "small soft tissue mass in the midline over the frontal bone. This may represent a small tumor, dermoid cyst or hematoma. Clinical correlation is recommended.” There was no mention in the note that the father had cancer or had ever had cancer. The record also does not provide information as to why the father had a screw in his head.