author: WISE, Justice.

text:
    EX PARTE Kelly Martin LUCAS. (In re Diana Lynn McKee v. Kelly Martin Lucas).
    1150382.
    Supreme Court of Alabama.
    June 10, 2016.

      Ralph D. Gaines III and Thomas Reese Butler of Gaines Gault Hendrix, P.C., Birmingham, for petitioner.
    Frank S. Buck, J. Brooks Leach, and Rachel C. Buck of Frank C. Buck, P.C., Birmingham, for respondent.
   WISE, Justice.

Kelly Martin Lucas, the defendant below, filed a petition for a writ of mandamus requesting that this Court direct the Shelby Circuit Court to vacate its December 7, 2015, order denying her motion for a summary judgment and to grant the motion. We grant the petition and issue the writ.

Facts and Procedural History-

On August 1, 2011, there were two related automobile accidents involving Diana Lynn McKee’s vehicle on Pelham Parkway in Shelby County. In the first accident, Megan Anderson Gragg failed to stop her vehicle and allowed the front bumper of her vehicle to collide with the rear bumper of McKee’s vehicle. Shortly thereafter, in the second accident, Lucas failed to stop her vehicle and allowed the front bumper of her vehicle to collide with the rear bumper of Gragg’s vehicle, which then collided with the rear bumper of McKee’s vehicle a second time. All three drivers spoke with the law-enforcement officer who responded after the accidents, and the officer later completed two accident reports.

On May 6, 2013, McKee sued Gragg, alleging negligence and wantonness in connection with the accidents. She also included 16 fictitiously named defendants in her complaint and alleged that those defendants had been negligent and wanton in connection with the accidents. On March 21, 2014, after obtaining discovery from Gragg, McKee filed an amended complaint in which she named Lucas as a defendant.

On April 25, 2014, Lucas filed an answer to the amended complaint. She denied McKee’s allegations and also asserted affirmative defenses, including the expiration of the statute of limitations. Lucas subsequently filed a motion for a summary judgment and additional arguments and supplements in support of that motion. She argued that the amended complaint that named her as a defendant, which was filed more than two years after the cause of action accrued, did not relate back to the date the original complaint was filed because, she said, McKee had not exercised due diligence in attempting to discover her identity. Therefore, she concluded that McKee’s claims against her were barred by the two-year statute of limitations that is set forth in § 6-2-38(Z), Ala.Code 1975.

McKee filed responses in opposition to Lucas’s motion for a summary judgment and to Lucas’s subsequent filings in support of that motion. The gist of her arguments was that, even though she knew that there was a third driver who had collided with the rear end of Gragg’s vehicle and pushed that vehicle into hers, the investigating officer had given her information regarding only the accident report that listed Gragg as an at-fault driver and that she had filed her original complaint based on that accident report. McKee asserted that, when she received Gragg’s discovery responses on December 13, 2013, she learned for the first time that there was a second accident report that identified Lucas as the driver of the third vehicle. Finally, she alleged that, once she discovered the identity of the driver of the third vehicle, she promptly and timely filed the amended complaint. Therefore, McKee concluded, the claims against Lucas in the amended complaint related back to the filing of the original complaint and are not barred by the two-year statute of limitations.

In response to McKee’s arguments about the second accident report, Lucas argued that McKee was aware from the time of the accidents that she might have a claim against the driver of the third vehicle. She also noted that McKee conceded that she did not make any effort to locate the driver of the third vehicle, even though Lucas’s name was listed on the second accident report, a public document that would have been easy to obtain. Finally, she asserted that McKee’s lack of due diligence was not excusable simply because McKee was not an attorney.

On December 7, 2015, after conducting hearings on the summary-judgment motion, the trial court denied Lucas’s motion for a summary judgment, specifically finding that McKee had exercised due diligence, that the amended complaint related back to the filing of the original complaint, and that McKee’s claims against Lucas were not barred by the two-year statute of limitations. This petition followed.

Standard of Review

“ ‘ “Mandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.” Ex parte Horton, 711 So.2d 979, 983 (Ala.1998). “Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.” Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002)(citing Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000)).’
“Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 821-22 (Ala.2003). One of the ‘narrow exceptions’ to the general rule that a ruling on a summary-judgment motion is not reviewable by a petition for a writ of mandamus is the denial of a summary-judgment motion when ‘the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.’ Ex parte Snow, 764 So.2d 531, 537 (Ala.1999). In reviewing the grant or denial of a summary-judgment motion,
“ ‘ “we must determine whether there was a genuine issue of material fact and, if not, whether the mov-ant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the [materials before the Court] in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant.”
‘Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).
“ ‘ “A summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The party moving for the summary judgment, here [Chemical Lime], has the burden of establishing a prima facie showing that there is no genuine issue of material fact. Berner v. Caldwell, 543 So.2d 686 (Ala.1989). If the moving party makes such a showing, then the burden shifts to the nonmoving party to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. 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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”
‘Young v. La Quinta Inns, Inc., 682 So.2d 402, 403 (Ala.1996).’
“Ex parte Alloy Wheels, 882 So.2d at 822.”

Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596-97 (Ala.2005).

Discussion

Lucas argues that the trial court should have entered a summary judgment in her favor on the ground that McKee’s claims against her were barred by the two-year statute of limitations set forth in § 6-2-38(0, Ala.Code 1975. She bases her argument on her contention that McKee did not exercise due diligence to discover her identity as a proper party to be sued and did not add her as a defendant in this case until after the limitations period had expired.

“This Court has previously stated that Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P., ‘ “allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.” ’ Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala.2005) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Rule 9(h), Ala. R. Civ. P., provides:
‘“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.’
“Rule 15(c)(4), Ala. R. Civ. P., provides that ‘[a]n amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h), Ala. R. Civ. P.’
“In order to invoke the relation-back principle of Rule 15(c) in regard to fictitious-party practice under Rule 9(h), a plaintiff
“ ‘(1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued.’
“Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala.1996).
“ ‘A plaintiff is ignorant of the identity of a fictitiously named defendant when, after exercising due diligence to ascertain the identity of the party intended to be sued, he lacks knowledge at the time of the filing of the complaint of facts indicating to him that the substituted party was the party intended to be sued. Likewise, to invoke the relation-back principle of Rule 15(c), a plaintiff, after filing suit, must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendant and to amend his complaint accordingly.’
“Ex parte FMC Corp., 599 So.2d 592, 593-94 (Ala.1992) (emphasis added). Thus, it is incumbent upon the plaintiff to exercise due diligence to determine the true identity of defendants both before and after filing the original complaint. It is also incumbent upon the plaintiff to ‘substitute the named defendant for the fictitious party within a reasonable time after determining the defendant’s true identity,’ and ‘ “the same policy considerations which require a plaintiff to amend his complaint within a reasonable time after learning the defendant’s true identity also require the plaintiff to proceed in a reasonably diligent manner in determining the true identity of the defendant.” ’ Crawford, 678 So.2d at 1060 (quoting Kinard v. C.A. Kelly & Co., 468 So.2d 133, 135 (Ala.1985) (emphasis added)).”

Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1002-03 (Ala.2008) (some emphasis added).

“The purpose of Rule 9(h)[, Ala. R. Civ. P.,] is to toll the applicable statute of limitations when the plaintiff has diligently pursued the identity of, but has been unable to identify, certain defendants. The fictitious name serves as a placeholder for the defendant, and Rule 15(c)[, Ala. R. Civ. P.,] allows the claim against the substituted defendant to relate back to the date of the original complaint. Toomey v. Foxboro Co., 528 So.2d 302 (Ala.1988).
“ ‘Rule 9(h)[, Ala. R. Civ. P.,] is not intended to give plaintiffs additional time beyond the statutorily prescribed period within which to formulate causes of action. Instead, the principal reason for the rule is to toll the statute of limitations in emergency 'cases where [the] plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity.’
“Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1988) (citing Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978)).”

Weber v. Freeman, 3 So.3d 825, 832 (Ala. 2008).

The cause of action underlying this case accrued on August 1, 2011, and McKee filed her complaint on May 6, 2013, almost three months before the two-year limitations period was to expire. Lucas was not named as a defendant in the original complaint. Instead, several fictitiously named defendants were listed in the original complaint, and Lucas was added as a defendant by an amended complaint filed on March 21, 2014, well after the two-year limitations period had expired. Therefore, the question before this Court is whether the trial court exceeded its discretion in finding that McKee had exercised due diligence in discovering Lucas’s identity, in finding that the amended complaint related back to the original complaint, and in finding that McKee’s claims against Lucas were not barred by the statute of limitations and in denying. Lucas’s motion for a summary judgment.

Lucas argues that McKee did not act with due diligence in discovering her identity. Specifically, she contends that McKee knew or should have known that she had a possible claim against Lucas because McKee admitted in her deposition that she knew that there were two impacts with her vehicle and that three vehicles were involved in the accidents. Lucas also points out that McKee admitted that, when she picked up the accident report, she noticed that it included the information for only two vehicles and that she wondered why it did not reference the third vehicle. Finally, Lucas pointed out that McKee admitted that she had not taken any steps to locate another accident report or the driver of the third vehicle..

Lucas argues that this case is “closely analogous” to Ex parte Nicholson Manufacturing, Ltd., 182 So.2d 510 (Ala.2015), because “[b]oth cases involve situations where the information needed to discover the true identity of a fictitiously named party was available to the public more than a year prior to the filing of the complaint, and in both cases, the information was contained in an investigative report completed by law enforcement.” We agree with Lucas.

In Nicholson, Casimiro Deleon Ixcoy died on December 31, 2010, as a result of injuries from an incident at a sawmill involving a debarker machine. Five days after the accident, an attorney for Ixcoy’s estate demanded that evidence be preserved. On December 28, 2012, the administrator of his estate filed a complaint against several named and fictitiously named defendants. On January 2, 2013, two days after the statute of limitations expired, the administrator filed an amendment to the complaint to substitute Nicholson, the manufacturer of the debarker machine, for a fictitiously named defendant. Nicholson moved for a summary judgment on statute-of-limitations grounds and, when that motion was denied, petitioned this Court for a writ of mandamus.

This Court granted Nicholson’s petition and issued the writ, reasoning as follows:

“[Rule 9(h), Ala. R. Civ. P.,] permits a party who is ‘ignorant of the name of an opposing party’ to identify that party by a fictitious name. Once the true name of the opposing party is discovered, the party may amend the pleadings to substitute that true name. Rule 15(c)(4), Ala. R. Civ. P.; provides that such an amendment shall ‘relate[] back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).’
“ ‘However, the relation back principle applies only when the plaintiff “is ignorant of the name of an opposing party.” Rule 9(h); Harmon v. Blackwood, 623 So.2d 726, 727 (Ala.1993) (“In order to invoke the relation-back principles of Rule 9(h) and Rule 15(c), a plaintiff must ... be ignorant of the identity of that defendant....”); Marsh v. Wenzel, 732 So.2d 985 (Ala.1998).’
“Ex parte General Motors, 144 So.3d at 239.
“ ‘ “The requirement that the plaintiff be ignorant of the identity of the fictitiously named party has been generally explained as follows: ‘The correct test is whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously.’ Davis v. Mims, 510 So.2d 227, 229 (Ala.1987)....’”
“Ex parte Mobile Infirmary, 74 So.3d [424,] 429 [(Ala.2011)] (quoting Crawford v. Sundback, 678 So.2d 1057, 1060 (Ala.1996)(emphasis added)).
“In addition to being ignorant of the fictitiously named party’s identity, the plaintiff has a duty to exercise ‘due diligence’ in identifying such a defendant. Ex parte Mobile Infirmary, 74 So.3d at 429; Crowl v. Kayo Oil Co., 848 So.2d 930, 940 (Ala.2002). It is incumbent upon the plaintiff to exercise due diligence both before and after the filing of the complaint. Ex parte Ismail, 78 So.3d 399 (Ala.2011). Only if the plaintiff has acted with due diligence in discovering the true identity of a fictitiously named defendant will an amendment substituting such a party relate back to the filing of the original complaint. Ex parte Mobile Infirmary, 74 So.3d at 429. Therefore, if at the time the complaint is filed, a plaintiff knows the identity of the fictitiously named party or should have discovered that party’s identity, relation back is not permitted and the running of the statute of limitations is not tolled:
“ ‘[A]n amendment substituting a new defendant in place of a fictitiously named defendant will relate back to the filing of the original complaint only if the plaintiff acted with “due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” Ignorance of the new defendant’s identity is no excuse if the plaintiff should have known the identity of that defendant when the complaint was filed. ...’
“74 So.3d at 429 (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala.1999)(emphasis added)).
“Nicholson argues that Templeton did not act with due diligence in attempting to discover its identity because, it says, Templeton should have known when he filed the original complaint that Nicholson manufactured the debarker machine. Specifically, Nicholson argues that Tem-pleton failed to recognize that both a sheriffs incident report and a Department of Labor decision and order issued following the accident identified Nicholson as the manufacturer of the debarker machine. With its summary-judgment motion below, Nicholson provided a copy of the incident report, which included multiple photographs of the debarker machine on which was posted a clearly legible label stating ‘NICHOLSON.’ Further, Nicholson also provided a copy of a November 13, 2012, Department of Labor decision and order discussing the accident that resulted in Ixcoy’s death and identifying, within the inspection-summary section, the equipment allegedly involved in the accident as a ‘Nicholson’ debarker machine. Nicholson thus argues that Templeton had sufficient and readily available sources of information to lead to the discovery of its identity.
“In Ex parte Mobile Infirmary, supra, the plaintiff filed a wrongful-death action against an entity he identified in the complaint as Infirmary Health Systems, Inc., which had allegedly treated the decedent. 74 So.3d at 427. After the statutory limitations period had run, the plaintiff attempted to substitute Mobile Infirmary Association (‘Mobile Infirmary) for a fictitiously named defendant. Id. In deciding whether the substitution related back to the filing of the original complaint, we stated:
“‘The evidence attached to Mobile Infirmary’s summary-judgment motion indicates that [the plaintiff] did not act with due diligence. When he filed the original complaint, [the decedent’s] family had possessed her medical records for 20 months, and [the plaintiff] had possessed [the decedent’s] medical records for at least 3 months, including various paperwork from Mobile Infirmary, which indicated that [the decedent] had been admitted to the [Mobile Infirmary] Medical Center, had undergone surgery there, and had been treated there following her surgery. A reasonably diligent plaintiff possessing that information should have at least attempted to identify the corporation doing business as Mobile Infirmary Medical Center and include it as a defendant. See Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995) (holding that where plaintiff knew the allegedly defective forklift was manufactured by “Clark” and possessed forklift manuals providing Clark’s name but did not attempt to amend the complaint until after the limitations period had run, the plaintiff “did not act diligently in attempting to learn Clark Equipment’s identity”). As this Court has said,
“ ‘ “[i]f the plaintiff knows the identity of the fictitiously named parties or possesses sufficient facts to lead to the discovery of their identity at the time of the filing of the complaint, relation back under fictitious party practice is not permitted and the running of the limitations period is not tolled.”
‘Clay v. Walden Joint Venture, 611 So.2d 254, 256 (Ala.1992).’
“74 So.3d at 429-30 (emphasis added). See Marsh v. Wenzel, 732 So.2d 985, 990 (Ala.1998) (holding that one could not reasonably conclude that a plaintiff was ignorant of the name of her pathologist when the pathologist was identified by name in the plaintiffs medical records).
“Like the plaintiff in Mobile Infirmary, Templeton had access to information that would have led him to discover the identity of the manufacturer of the debarker machine: photographs included in the incident report clearly showing the ‘NICHOLSON’ label on the debarker machine and the Department of Labor decision and order identifying Nicholson as the manufacturer of the debarker machine. Templeton argues, however, that he was not actually in possession of the incident report at the time the complaint was filed and, nevertheless, that he acted with due diligence in investigating and discovering Nicholson’s identity. Specifically, he argues that his current counsel did not receive copies of the incident report until after the statute of limitations had run. He also contends that the Department of Labor decision and order does not provide proper notice because, he says, it is ‘unsigned’ and ‘non-final.’ ...
“The materials before us demonstrate that the incident report containing the photographs of the Nicholson debarker machine had been available to the public since September 2011. Further, despite the fact that the Department of Labor decision and order, available since November 13, 2012, was neither final nor signed, it nevertheless identifies Nicholson as the manufacturer of the debarker machine. Both sources would have led to the discovery of Nicholson’s identity with the exercise of due diligence.
“It is true that at the time of filing the complaint Templeton was not in possession of the incident report. However, simply lacking information that discloses an unidentified defendant does not necessarily excuse the failure to exercise due diligence. In Crowl, supra, the plaintiff, Crowl, was injured when he slipped and fell at a gasoline-service station. 848 So.2d at 932. He attempted to initiate an action against the owner of the gasoline-service station; after the statute of limitations had run, Crowl discovered the name of, and attempted to substitute for a fictitiously named defendant, the actual owner of the service station, Kayo Oil Company. 848 So.2d at 933-34. This Court held that Crowl had failed to exercise due diligence because Crowl did nothing to ascertain Kayo Oil’s identity before the statutory limitations period expired. Id. at 937. Specifically, we stated that the identity of Kayo Oil could have been ascertained by requesting and reviewing the publicly available property-tax records. Id.
“The circumstances surrounding the discovery of Nicholson’s identity are analogous to those in Crowl, The incident report had been available for nearly 15 months and the Department of Labor decision and order had been available for nearly 2 months before the expiration of the statutory limitations period. Consequently, Templeton, like the plaintiff in Crowl, could have easily obtained those documents before filing the complaint. The documents are products of standard investigations into a work-site-related death. Due diligence in identifying an unknown defendant should lead a party to seek out and to consult readily and publicly available documents of importance regarding a standard investigation of an accident forming the basis of a claim. Crowl, supra. See also Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (Ala.2008) (finding that the substitution of a defendant for a fictitiously named party does not relate back when the plaintiff could have discovered the insurer’s identity by, among other things, reviewing an accident report). The fact that Templeton was not in possession of both documents is the result of a failure to exercise due diligence in attempting to discover Nicholson’s identity.
“Because Templeton failed to act with due diligence in discovering the identity of the fictitiously named defendant, the trial court had no discretion other than to grant Nicholson’s motion for a summary judgment in its favor on the statute-of-limitations ground.... ”

Ex parte Nicholson Mfg. Ltd., 182 So.3d at 513-17 (last two emphases added; footnote omitted).

In this ease, McKee concedes that she did not make any effort to determine Lucas’s identity before she filed the original complaint, but she attempts to cast blame for her failure to do so on the responding officer, who allegedly gave her the reference number for only one accident report. The evidence does show that the officer who investigated the accidents prepared two accident reports, which were available from the Pelham Police Department within a few days after the accidents. The report McKee originally obtained listed only McKee and Gragg as drivers of the vehicles and described the first collision between their vehicles. The second report listed McKee, Gragg, and Lucas as drivers of the vehicles and described the second collision that involved all three vehicles. However, even assuming that McKee did not actually know that Lucas was the driver of the third vehicle, once she realized that the accident report she received listed only two vehicles and two drivers, she could have discovered Lucas’s identity by requesting copies of any additional accident reports involving her and/or Gragg, which were public records. See Crowl v. Kayo Oil Co., 848 So.2d 930, 937 (Ala. 2002)(“We agree with Kayo’s argument that Crowl did not exercise ‘due diligence’ to discover its identity as one of the fictitiously named defendants in Crowl’s complaint. ... The record in this case shows that had Crowl examined the property tax records for that property, he would have found that the property had been assessed in Kayo’s name.”). Cf. Weeks v. Danford, 608 So.2d 387 (Ala.1992) (denying a newly-discovered-evidence claim because, with due diligence, a third accident report could have been discovered before the trial).

Because McKee could have learned that Lucas was the driver of the third vehicle before she filed her complaint, she did not exercise due diligence in ascertaining Lucas’s identity. Also, because McKee did not act with due diligence in seeking to discover Lucas’s identity, the amendment to her complaint does not relate back to the date of the filing of her original complaint. Therefore, the trial court should have entered a summary judgment in favor of Lucas on the statute-of-limitations ground.

Conclusion

For the above-stated reasons, we grant Lucas’s petition for the writ of mandamus and direct the Shelby Circuit Court to vacate its order denying Lucas’s motion for a summary judgment and to enter a summary judgment in her favor.

PETITION GRANTED; WRIT ISSUED.

STUART, PARKER, SHAW, and BRYAN, JJ., concur.

      . McKee originally filed her complaint in the Jefferson Circuit Court, On August 28, 2013, the Jefferson Circuit Court transferred the case to the Shelby Circuit Court.

      . Section 6-2-38(Z), Ala.Code 1975, provides: "All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”

      . "A cause of action ‘accrues’ under § 6-5-482[, Ala.Code 1975,] when the act complained of results in legal injury to the plaintiff.” Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala.1994).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. DONALDSON, Judge,

license: Public Domain

text:
    T.L.M. v. J.K.M.
    2150067.
    Court of Civil Appeals of Alabama.
    June 10, 2016.

      Thomas A. Radney and David G. Thomas, Alexander City, for appellant.
    Roger W. Pierce of Haygood, Cleveland, Pierce & Thompson, LLP, Auburn, for appellee.
   THOMPSON, Presiding Judge.

J.K.M. (“the father”) and T.L.M. (“the mother”) were divorced by a February 25, 2010, judgment of the Lee Circuit Court (“the trial court”). Pursuant to the divorce judgment, the parties were awarded joint legal and physical custody of the minor child born of their marriage in 2006. On January 26, 2012, the trial court entered a modification judgment that incorporated an agreement of the parties. Pursuant to the January 26, 2012, modification judgment, the father was awarded “primary” physical custody, i.e., sole physical custody, see § 30-3-151(5), Ala.Code 1975, of the parties’ child and the mother was ordered to pay $700 in child support each month.

On September 16, 2013, the mother filed a petition seeking to modify her child-support obligation, alleging that her income had decreased because she had surrendered her pharmacy license and was no longer employed as a pharmacist. The father filed an answer arguing that child support should not be modified because the mother had voluntarily surrendered her pharmacy license, and he asserted a counterclaim seeking to hold the mother in contempt, alleging that the mother had failed to pay child support and had traveled with the child in violation of the terms of the January 2012 modification judgment. The father later amended his counterclaim to request that the mother’s visitation be suspended or supervised.

The mother filed an amended petition for modification in which she alleged that the current custodial arrangement had been difficult for the child and requested that the day and time on which the parents exchanged custody of the child be modified to better serve the child’s interests and to promote the child’s stability. On June 4, 2014, the father again amended his counterclaim, requesting that the timing of the mother’s visitation be altered. The mother then amended her petition to seek an award of sole legal and sole physical custody of the child.

At the conclusion of a hearing held on August 28, 2014 (“the pendente lite hearing”), the trial court stated:

“[I]t is the policy of this court,, unless there is a compelling reason not to, to give as much time as possible in these situations to each parent, and for or until the court has an opportunity to look at it further, the court will order that [the child] spend seven days with one parent and seven days with the other.”

The trial court did not immediately enter an order formalizing that ruling.

On November 18, 2014, the trial court entered an order modifying custody to award joint custody of the child to the parties. See § 30-3-151(1), Ala.Code 1975. In that order, the trial court stated:

“The Court finds that there has been a material change in circumstances affecting [the child’s] welfare since the previous Order of January 26, 2012. Further, the Court finds that the positive change of this modification of physical custody is not only in [the child’s] best interest, but will more than offset any disruptive effects of the change to a shared physical custody arrangement.”

On December 2, 2014, the trial court, ex mero motu, amended its November 18, 2014, order, declaring that the order was intended to be a pendente lite order. Both parties filed what they characterized as Rule 59, Ala. R. Civ. P., postjudgment motions. See Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999) (“A Rule 59[, Ala. R. Civ. P,, postjudgment] motion may be made only in reference to a final judgment or order.”). The trial court denied those purported postjudgment motions.

The trial court received ore tenus evidence at a final hearing on June 25, 2015, and on August 12, 2015, it entered a judgment- making final its previous pendente lite award of joint custody of the nine-year-old child to the parties, stating: “The Court finds that maintaining joint legal and physical custody of the minor child, is not only in her best interest, but materially promotes her well-being and has more than offset any disruptive effects of the change to a shared physical custody arrangement.” The father filed a Rule 59 motion to alter, amend, or vacate the judgment. The trial court denied the father’s postjudgment motion, and the father timely appealed.

Most of the evidence was elicited at the pendente lite hearing. That evidence is as follows. The father is employed as a police officer for the City of Auburn. The mother had previously been employed as a licensed pharmacist. However, because she had tested positive for alcohol and the use of prescription drugs for which she lacked a prescription, in violation of conditions set for her by the State Board of Pharmacy, the mother surrendered her pharmacy license. The mother testified that she is currently employed at PhiMed, a company that recruits and staffs physicians, but that she does most of her work at home. She also testified that her job requires her to travel about one or two days a week throughout the state.

The mother is remarried and resides in Dadeville. The mother testified that her husband has two children from a previous relationship and that her husband travels to Miami for the ten days each month that he has custody of those children. The mother stated that she goes to Miami with her husband when she does not have custody of the child and that they stay in a house they own in Miami. The mother testified that they also have a boat in Miami that they use to travel to and from the Bahamas.

The mother was questioned about her “swinging” lifestyle, which involved talking to people on the Internet and meeting up with them in Florida to trade sexual partners. The mother admitted that she and her husband had been involved with “swinging” before the pendente lite hearing but that their involvement in that lifestyle had only been intermittent and that she had ended her relationships of that nature. The mother claimed that no “swingers” ever came to her home in Dadeville. The father testified that he had learned about the mother’s “swinging” lifestyle because it had been publicized in some manner.

The mother was also questioned about her history of substance abuse. The mother stated that she first entered a rehabilitation center in 2007 because she was taking prescription opiates and Klonopin that she had stolen from the pharmacy where she was employed. The mother spent 12 weeks in an inpatient treatment facility and 3 months in a “halfway house.” In 2009, the mother tested “questionable” for alcohol, and a drug screen showed that she also tested positive for Soma, a muscle relaxer, even though the mother swore that she had never taken any Soma pills. In 2013, the State Board of Pharmacy ordered the mother undergo substance-abuse rehabilitation consisting of a 12-week program at the University of Alabama at Birmingham Hospital and a 6-month stay at a halfway house; however, the mother chose not to complete the stay at the halfway house because she did not want to be away from the child for that long. Instead, the mother surrendered her pharmacy license for a period of 30 years.

The mother testified that she had passed random drug screens since 2013 but that she continued to drink alcohol “occasionally” and that she sometimes did so in the presence of the child. The child’s guardian ad litem once went to the mother’s home for a random visit and found the mother drinking a glass of wine. The mother stated that she does not think that it is wrong for her to drink alcohol. However, she did state that she would comply if the trial court ordered her not to drink alcohol in front of the child. At the conclusion of the pendente lite hearing, the trial court ordered the mother not to drink alcohol in front of the child.

The father testified that he had filed his counterclaim seeking to suspend the mother’s visitation because of the mother’s sexual lifestyle and her alcohol and substance-abuse issues. The father also stated that he believed that the mother’s visitation should be suspended because of the amount of time it takes to travel from and father’s home to the mother’s home and because the child has to awaken earlier to prepare for school when the child stays with the mother. The mother testified that, during her visitation periods with the mother, the child had not had any “tar-dies” or problems arriving at school on time except on 1 occasion when the child had been 10 minutes late to the school for a field trip because the mother had forgotten the child’s book bag at home. The father admitted that there had not been any tardy issues since the child was in the first grade. The father also admitted that he could not point to anything that would suggest that the child was struggling or having any kind of issues.

The mother testified that, during her visitation periods, the child worked on her homework during the car ride from the school to the mother’s home so that she could start playing when she arrived at the mother’s home. The father testified that the child is doing well in school and that she is involved in “Children’s Church” and a program called “Girls in Action” at Ope-lika First Baptist Church.

Both the mother and the father testified about communication problems between them. The father testified that he and the mother have communication problems because, he says, the mother has been dishonest and deceitful in the past. The mother testified that the father’s current wife had sent e-mails or telephone text messages calling the mother names and making lewd comments. The mother testified that the father and his wife have refused at times to allow her to talk to the child and that, although she had tried to telephone and text the father to try to talk to the child, she had once gone 17 days without being allowed to talk to the child except for a few minutes when the mother had seen the child at the child’s school.

The mother also testified that she had sent the child’s birthday-party invitations in the child’s book bag on a Friday when the father’s wife had lunch with the child at school. She stated that, when she had not heard from anyone by the next Monday, she sent an e-mail to the parents of all of the children she had invited, and each one told her that they had not received an invitation. One parent showed her an email from the father’s wife that stated: “The email from [the mother] about [the child’s] party is not the party I’m giving her.” The mother also testified about another incident in which the father’s wife had told the principal at the child’s school that the mother had bribed the child’s teacher. When questioned by the trial court about why the father’s wife disliked the mother, the father testified that there had been some communications from the mother and her husband after the father’s wife became pregnant in which they had stated that the father was “fathering someone else’s child.” The father stated that his wife’s attitude toward the mother was in reaction to those communications.

The father testified to some incidents involving the child that had caused him some concern about the child’s being in the mother’s care. First, the father testified about an incident when the child was observed on a Seadoo recreational watercraft on Lake Martin with another child of about the same age. The mother testified that the child had ridden on the watercraft with a 14-year-old child who had a boater’s certification and that the mother’s husband had been in a boat following them. The father testified about another incident when the child and other children were allowed to walk unsupervised from the mother’s house on Lake Martin to the marina pool, which was more than a mile away. The mother testified that her husband had followed them to the pool and that a pool attendant was present at all times at the pool. The mother testified that the father’s wife had also been at the pool and was the one who saw the children there. The father also testified that the child had injured her foot when a golf cart she was riding in with other children had overturned. He stated that the child was taken to be x-rayed and was seen by medical staff and that the father had not been notified of the incident until several days later. As to that incident, the mother stated that the child’s stepcousin was driving the golf cart and that the golf cart had overturned when it “caught the lip of the road.” The mother stated that the child had scraped and bruised her foot but that she had not suffered any broken bones or sprains.

At the final hearing, the parties presented substantially the same evidence that had been presented at the pendente lite hearing with the exception of the following additional evidence. The father stated that he and his wife have a two-year-old child and that they reside in a house in Auburn that he has owned since 2003. The father testified that he earns approximately $50,000 each year as a police officer, and he stated that his wife is employed as a legal secretary.

The mother stated that she earned $39,000 in 2014. The mother explained that her job duties include scheduling, accounting, bookkeeping, recruiting, and “really [taking] care of all the physicians and the nurse practitioners.” Although the mother had surrendered her pharmacy license, she testified that it was possible for her to obtain a pharmacy license again in 30 years but that it was “more convenient” for her to do the job she had at the time of the hearing instead. The mother also testified that she often travels.

The mother testified that she takes Wellbutrin, an anti-depressant and anti-anxiety medication, and that she continues to drink alcohol even while taking that medication. The mother was again questioned about the “swinging” she had done in the past, and she testified that she did not think that that lifestyle would have any impact on the child and that the only reason she had not returned to that lifestyle was because the trial court did not approve of it.

Upon the mother’s release from her first stay in rehabilitation in 2007, the State Board of Pharmacy had required her to submit to “monitoring” in order to keep her pharmacy license. The mother testified that she had participated in a substance-abuse program in 2013 only because she had been ordered to participate by the State Board of Pharmacy. The father testified that the mother did not tell him that she had entered substance-abuse treatment again in 2013 and that there had been a period during the mother’s stay in that program when he had believed that the child was with the mother when the child was actually staying with someone else.

The mother stated that she had been attending counseling once every three weeks since June or July 2013 for her alcohol and substance abuse, as well as for life issues such as dealing with the father and his wife. The mother stated that the counseling was court-ordered and that she had to attend until the counselor believed that it was no longer necessary.

The father testified that he had seen changes in the child’s behavior that he attributed to the mother’s influence; he stated that the child would now tell a lie and not think anything about it. The father stated that the child had also told him that the mother had told the child that there were things they did not need to tell the father.

The mother again testified about the communication problems she had with the father. She stated that she had had problems gaining access to the parent portal used to access information concerning the child’s education during the last school year and that the father had told her “why don’t you just find out for yourself’ when she asked him about it.

The father testified that he believed that the mother still drank alcohol in front of the child even after the trial court entered the November 19, 2014, pendente lite order forbidding the mother from doing so because, he said, the child had told him about a colorful and “big beautiful drink” the mother had had and that the mother would not let her drink any of it even though the child had wanted to try it. The father stated that he and his wife sometimes drank alcohol in front of the child.

On appeal, the father argues that the trial court erred in modifying custody of the child. Specifically, the father argues that, because he had sole physical custody of the child, the mother was required to meet the burden of proof for a modification of custody set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the trial court erred in determining that the mother had met that burden.

“[W]here the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, ‘the trial court [is] correct in applying the McLendon standard and requiring the [parent] to show that a change in custody would materially promote the welfare and best interests of the child, offsetting the disruptive effect of uprooting the child.’ ”

Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995) (quoting Blackmon v. Scott, 622 So.2d 393, 394 (Ala.Civ.App.1993)).

“Under Ex parte McLendon, a final judgment awarding one parent primary physical custody of a child creates a ‘rule of repose’ by which it is presumed that the child should remain in the custody of that parent unless and until a material change of circumstances indicates that the positive good to the child resulting from a transfer of physical custody would outweigh the inherently disruptive effects of such a change. 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)). The noncustodial parent, as defined by the last ‘final’ custody judgment, bears the burden of meeting the McLendon standard, even if that parent has gained temporary custody of the child pursuant to a pendente lite order. It is reversible error for a trial court to relieve the noncustodial parent of that burden based on its pendente lite custody award.”

McCulloch v. Campbell, 60 So.3d 909, 916 (Ala.Civ.App.2010). The standard of review in a case involving the modification of child custody is well established:

“‘“Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala.Civ.App.1989), and Vail v. Vail, 532 So.2d 639 (Ala.Civ.App.1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala.Civ.App.1990); Flowers v. Flowers, 479 So.2d 1257 (Ala.Civ.App.1985).” ’ ”

Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (quoting Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting in turn Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)),

In support of her custody-modification claim, the mother was required to show that material changes that affect the child’s welfare had occurred since the entry of the January 26, 2012, modification judgment and that the benefits of the change in custody would outweigh the inherently disruptive effect of such a change. Ex parte McLendon, 455 So.2d at 865. The evidence indicates that the father has resided in the same home that is located in the child’s school district since 2003. The mother admitted that the child was currently doing well in school, was making good grades, and had no behavioral problems. The mother admitted that there had been no issues or problems with the child, and she did not identify any areas in which she contended that the father was not properly caring for the child.

The evidence in the record indicates that both parents love the child. The child is being appropriately cared for in the home of the father, and the mother did not identify any concerns with regard to the father’s having sole physical custody of the child. Rather, she presented evidence in support of her contention that, in the last few years, she had improved her own situation by no longer abusing prescription medications. Although we applaud the mother for the improvements in her circumstances, those improvements are not sufficient to warrant a change of custody under the McLendon standard.

“It is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981). The parent seeking the custody change must show not only that she is fit, but also that the change of custody ‘materially promotes’ the child’s best interest and welfare.”

Ex parte McLendon, 455 So.2d at 866.

The child’s guardian ad litem recommended that the child spend equal time with the mother and the father because, she said, it was her belief that spending equal time with both parents would be in the child’s best interests. The guardian ad litem also stated that the nine-year-old child wished to spend equal time with the mother and the father. However, although the preference of the child is a factor a trial court may consider with regard to custody, it is not controlling. Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008).

After reviewing the record, we conclude that the evidence the mother presented was simply not sufficient to show either a material change in circumstances or that a change in custody would materially promote the child’s best interests. Because the mother failed to introduce sufficient evidence to meet the Ex parte McLendon standard, the trial court’s judgment modifying custody to award the parties joint custody is reversed, and we remand the cause to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

DONALDSON, J., concurs specially.

DONALDSON, Judge,

concurring specially.

I concur to reverse the trial court’s judgment modifying an earlier judgment containing a physical-custody determination regarding a minor child because the holding of the main opinion is consistent with existing Alabama caselaw. The trial court’s judgment recites that “there has been a material and continuing change in circumstances” and that the modification will “materially promote[] [the child’s] well-being and ... more than offset any disruptive effects” to the child as a result of the modification of custody. But the judgment does not identify what material change has occurred and does not provide a reason why the child’s best interest will be materially promoted by the change. Without the benefit of the reasoning of the trial court, we are left to search the record for the basis for the judgment in order to address the arguments of the parties. If the only basis for a custody-modification judgment that can be ascertained is a change of circumstances of the person seeking a change of custody, the judgment cannot be sustained. Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984).

I recognize that there is no requirement that a judgment changing physical custody contain findings of fact or conclusions of law or any reasoning forming the basis for the finding that a change of physical custody is appropriate; however, based on the manner in which Ex parte McLendon has been applied, such findings and conclusions would help to clarify the trial court’s holding and assist appellate courts in focusing on whether the broad discretion of the trial court in such a case has been exceeded. For that reason, I believe “[a]ny finding of a compelling reason to change physical custody must be supported by the evidence and should be articulated by the trial court in the order modifying physical custody.” Gallant v. Gallant, 184 So.3d 387, 405 (Ala.Civ.App.2014) (Donaldson, J., concurring specially).

      . For the purposes of this opinion, we have characterized the custodial awards as those awards are properly defined in § 30-3-151, Ala.Code 1975.

      . The mother had been to New York City; Europe; Miami; Vail, Colorado; California; and New Orleans during the year preceding her deposition in this case, and she had since traveled to Vancouver, British Columbia; Salt Lake City, Utah; Jackson Hole, Wyoming; New York; Texas; the Bahamas; and Miami.

      . Although the parties had been exercising joint custody of the child since the November 18, 2014, pendente lite order was entered, this court has previously held that "custody may not be changed on a pendente lite basis solely to experiment with custody.” McCulloch v. Campbell, 60 So.3d at 918.


author: DONALDSON, Judge.

text:
    S.S. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2150093 and 2150094.
    Court of Civil Appeals of Alabama.
    June 17, 2016.

      Wendy Ghee Draper, Anniston, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
    Jennifer Argo, Anniston, guardian ad li-tem.
   DONALDSON, Judge.

S.S. (“the mother”) appeals from judgments of the Calhoun Juvenile Court (“the juvenile court”) terminating her parental rights to her children, H.S. and T.S. We affirm the juvenile court’s judgments.

Background

The mother has three children: H.S. (born in May 2005), T.S. (born in August 2007), and K.S. (born in November 2008) (“the three children”). P.H. (“the father”) is the father of H.S. and T.S. D.C. is the father of K.S. In September 2013, the mother was arrested on an outstanding warrant stemming from a shoplifting charge. Because the mother tested positive for methamphetamine and because there was no other caretaker for the three children, the Calhoun County Department of Human Resources (“DHR”) removed the three children from the mother’s custody. On September 20, 2013, the juvenile court entered an order finding the three children to be dependent and placing them in the custody of DHR.

On June 2, 2015, DHR filed petitions to terminate the mother’s and the father’s parental rights to H.S. and T.S. (“the children”). Termination proceedings were also commenced as to the mother’s parental rights to K.S., but the record indicates that the juvenile court stayed those proceedings because K.S. had been placed with relatives of D.C. The juvenile court held a trial on the termination petitions regarding the children on September 17, 2015, at which it received the testimony of Tammy Deese, a child-abuse-investigation worker with DHR; Shay Bradford, a DHR social worker; Genice Civitello, a manager at Oxford Outreach, an entity that conducted a treatment program that the mother had attended; and the mother. The record reveals that the father’s written consent to the termination of his parental rights was filed with the juvenile court.

Deese testified that the mother was arrested in September 2013. Deese testified that the mother was incarcerated at the Jacksonville city jail after her arrest and that, at the time of her arrest, the mother tested positive for methamphetamine. Deese testified that, at that time, K.S. and H.S. were interviewed by the Children Advocacy Center and that they disclosed that they had been sexually abused by the mother’s former boyfriend, J.D., while the family was living with J.D. in Georgia. Deese testified that a child-abuse and neglect report was initially marked as indicated for inadequate supervision as to the mother; that, upon a record review requested by the mother, the indication as to the mother was overturned; but that the report remained indicated for the children being inadequately supervised without a specific finding of neglect against the mother.

Deese testified that she held an Individualized Service Plan (“ISP”) meeting with the mother at the Jacksonville city jail on September 20, 2013. The report for that ISP meeting, which was introduced into evidence at trial, shows that DHR set the following goals for the mother in order for her to be reunited with the three children: to undergo a drug assessment, to obtain and maintain a home free from drugs and abuse and with working utilities, and to find employment. The report also states that DHR would complete a referral to the Calhoun County Family Drug Court program for the mother so that, among other things, a drug assessment could be completed. Deese testified that she discussed these goals with the mother.

Deese testified that she supervised two or three visits between the mother and the three children in 2013, that “they appeared to be very close, very loving toward each other,” and that they “had good visits.” Deese testified that the three children were bonded with one another, that they were happy to see each other at visits, and that they were sad when the visits were over.

Deese testified that the three children were initially placed in foster care. K.S. eventually was placed with relatives of her father, D.C. Deese testified that the children are “very rambunctious” and that they can be hard to control. Deese testified that T.S. has been diagnosed with attention-deficit/hyperactivity disorder and that he has a serious speech impediment that affects his ability to communicate. Deese testified that DHR provided the three children counseling.

Bradford téstifíed that she was assigned these cases in July 2015. Bradford testified that the mother was incarcerated in the Calhoun County jail when she started working on the cases. She testified that no visitations between the mother and the children had taken place since February 2015 because of the mother’s incarceration. Bradford testified that the mother was released from jail in September 2015, which was two weeks before the termination trial; that the mother contacted her a week after her release; and that the mother informed her that she was living at the facility of Oxford Outreach, which was conducting a rehabilitation program the mother was participating in. Bradford testified that the mother provided the name of the three children’s maternal grandmother as a possible relative resource for placement of the children but that the maternal grandmother had been ruled out as a resource because a previous child-abuse and neglect report had been indicated against her. Bradford testified that T.S. was placed at the Brewer Porch Center in Tuscaloosa in the summer of 2014. Bradford testified that the three children visit once a month at the Brewer Porch Center. Bradford testified that T.S. is receiving treatment from a psychiatrist, a counselor, and a speech therapist. She testified that T.S. had been in eight different placements. Bradford testified that H.S. has had seven different placements, that she was currently in a therapeutic foster home in Piedmont, and that she had been removed from her last placement because of behavioral problems. Bradford testified that the mother had not provided the children with any money or gifts since she had begun working on the cases. Bradford testified that the children have not asked about their mother at the visits they have with each other. Bradford testified that H.S. has expressed some “anger issues” regarding the mother and that visits between H.S. and the mother would not be in H.S.’s best interests. Bradford testified that she had not drug-tested the mother since her release from jail.

Bradford testified that, although there are no current identifiable adoptive resources for the children, she believes that the children are adoptable. She stated, however, that H.S.’s current foster parents have considered adopting H.S. Furthermore, she testified that the custodians of K.S., who are not relatives of the children, also indicated that they would take all three children if they could, but Bradford testified that KS.’s custodians did not want to go through the foster-parent certification process and that they had not filed a petition for custody of the children in the juvenile court. Bradford testified that H.S.’s foster parents and K.S.’s custodians are willing to allow weekend or overnight visits with the other children.

Civitello testified that the mother enrolled in the Oxford Outreach rehabilitation program two weeks before the trial. She testified that the mother had been living at Oxford Outreach’s facility and that the mother had been seeking employment. She testified that the mother just started a 12-step program. Civitello testified that the Oxford Outreach conducts a 12-month program, although the mother believed it to be a 6-month program. She testified that the mother was ordered by a criminal drug court to attend the program.

The mother testified that she was arrested on September 20, 2013, on a warrant for a shoplifting charge and that, at that time, she tested positive for methamphetamine. She testified that, as a result of that positive drug test, DHR referred her to an entity named New Directions for substance abuse counseling and that that entity instructed her that she needed to attend an inpatient rehabilitation program; however, the mother testified that she continued to use drugs. The mother testified that she did not complete the Calhoun County Family Drug Court program as was required by the September 2013 ISP meeting. The mother testified that she underwent a drug assessment, which took place in April 2014, and that she admitted during the assessment that she had been taking methamphetamine for three years. The assessment recommended that the mother undergo inpatient drug treatment.

The mother testified that she was arrested in August 2014 on charges of possession of a controlled substance and drug paraphernalia. As a condition of her bail on those charges, the criminal court required the mother to attend an inpatient drug-rehabilitation program conducted by an entity named Starting Point. The mother testified that she participated in that program for five months but that she voluntarily left the program because she was unable to pay the $665 rent charged by Starting Point. She testified that she had attempted to work three jobs in order to pay the rent. Because she left the Starting Point program, the mother was arrested in February 2015 for violating the terms of her bail. The mother testified that she had remained incarcerated in the Calhoun County jail from February 28, 2015, to September 3, 2015.

The mother testified that K.S. and H.S. had reported that J.D., her former boyfriend with whom she and the three children had lived in Georgia, had sexually abused them. She stated that she had left the home she shared with J.D. Nonetheless, the mother admitted that she had allowed J.D. to participate in a visit with T.S. in April 2014.

The mother testified that she had provided DHR with the name of the children’s maternal grandmother when DHR inquired about possible relatives for placement of the children. The mother testified that she was unsure whether the maternal grandmother would be willing to serve as a potential placement for the children and that she and the maternal grandmother “barely ever talk” to one another.

The mother testified that she had been making progress in the two weeks she had been participating in the Oxford Outreach program. She testified that Oxford Outreach had been assisting her in finding employment as a waitress but that she was not currently employed. She testified that DHR had mentioned to her that another individual with whom she had lived had possibly sexually abused her children. She testified that she would never intentionally let her children around a person who sexually abused them, although she admitted to allowing J.D. to attend one of the visitations with T.S. in April 2014. Regarding her pending drug charges, the mother testified that she had entered into a plea agreement pursuant to which she would participate in a drug-court program for 18 months and attend a rehabilitation program for 6 months. The mother testified that she had made efforts to remain drug-free, that she had not completed any drug-rehabilitation program she had entered, and that she had not found a suitable residence.

The mother testified that she had brought the children Christmas presents that her church had helped her obtain. She testified that DHR had provided her with transportation to Tuscaloosa to visit T.S. She stated that DHR had paid for her to attend substance abuse counseling at New Directions. The mother testified that she had seen H.S. at church on a Sunday before the trial, that H.S. had hugged her, but that they had not talked. She stated that she believed that she and H.S. had a strong bond and that H.S. had been excited to see her.

At the conclusion of the trial, the juvenile court stated its findings in open court, including the following:

“That reasonable efforts have been made by [DHR] and they have failed to reunite. That there’s been no viable alternative presented to the Court as to the termination of parental rights, and that the Court, after considering the evidence presented ore tenus as well as the evidence presented with documents entered into court lawfully, I find also considering Title 12-15-319 of the Code of Alabama and the grounds stated as well as for termination of parental rights as well as other grounds for termination of parental rights, I find that the mother and father’s parental rights should be terminated and that said termination is in the best interest of these two children.
“Therefore, this petition is sustained. Children are adjudicated dependent. The parental rights of the mother and father are hereby terminated. Permanent custody is hereby transferred to the [DHR] with the [DHR] having discretion in planning and placement.”

The juvenile court entered judgments on September 17, 2015, terminating the mother’s and the father’s parental rights to the children (“the September 17 judgments”). The mother filed a motion to alter, amend, or vacate the judgments on September 30, 2015, in which she contended that termination of her parental rights is not in the best interests of the children, that DHR had failed to meet its burden of proof, that there are viable alternatives to the termination of her parental rights, and that the judgments were contrary to the law and the evidence. The juvenile court entered amended judgments on October 2, 2015 (“the October 2 judgments”), but the October 2 judgments indicate that they were rendered by the juvenile court on September 17.

The September 17 judgments and the October 2 judgments are virtually the same in format and content; they were completed on what appears to be a local form utilized by the juvenile court in termination-of-parental-rights cases. The September 17 judgments were completed by hand, and the October 2 judgments were completed electronically. A comparison of the September 17 judgments and the October 2 judgments reveals that the juvenile court omitted to check certain boxes or to otherwise fill in certain fields in the September 17 judgments that it checked or otherwise filled in in its October 2 judgments, including the following:

• In both cases, a box indicating waiver of court costs was not marked on the September 17 judgments but the check box was marked on the October 2 judgments.
• In the case relating to T.S., a date field concerning a court report was left blank in the September 17 judgment but was filled in to reflect a date of “7/10/2015” in the October 2 judgment. This date field was filled in by the juvenile court on the September 17 judgment entered in the case involving H.S.
• In both cases, the boxes in Paragraph 7 of the September 17 judgments, concerning whether DHR made reasonable efforts toward reuniting the mother and the child, were only partially marked in both cases. In the October 2 judgments, these check boxes were marked to clarify that the juvenile court found that DHR had made reasonable efforts toward reuniting the mother and the children but that DHR’s efforts had failed.

The mother filed notices of appeal to this court on October 23, 2015. This court consolidated the appeals ex mero motu. The children’s guardian ad litem filed a brief on appeal in support of the mother.

Discussion

I. Timeliness of the Appeals

Neither party raises the issue of the timeliness of the appeals; however, an appellate court may consider the issue of subject-matter jurisdiction ex mero motu. C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003). The record shows that the judgments terminating the mother’s parental rights were rendered by the juvenile court and entered into the State Judicial Information System on September 17, 2015. Two days after the mother filed the postjudgment motion to alter, amend, or vacate the judgments, the trial court electronically entered amended judgments.

We must determine whether, by entering the October 2 judgments, the juvenile court ruled on the mother’s post-judgment motion or whether it corrected or clarified the judgments pursuant to Rule 60(a), Ala. R. Civ. P. If the former, then the mother’s postjudgment motion would have been ruled upon by the juvenile court on October 2 and the October 23, 2015, notices of appeal would be untimely pursuant to Rule 28, Ala. R. Juv. P. If the juvenile court’s October 2 judgments were within the scope of Rule 60(a), then the mother’s postjudgment motion would have remained pending until being denied by operation of law on October 14, 2015, pursuant to Rule 1(B), Ala. R. Juv. P.

Our supreme court has stated:

“““The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been.’ ” ’ ”

Ex parte Brown, 963 So.2d 604, 608 (Ala.2007)(quoting Higgins v. Higgins, 952 So.2d 1144, 1147-48 (Ala.Civ.App.2006), quoting in turn Ex parte Continental Oil Co., 370 So.2d 953, 955-56 (Ala.1979)(Torbert, C.J., concurring specially), quoting in turn Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641 (1900)).

In their appellate briefs, the mother and the guardian ad litem do not discuss the effect of the October 2 judgments. In its appellate brief, DHR contends that the October 2 judgments were entered to correct a “scrivener’s error.” We agree with DHR’s contention.

The October 2 judgments do not appear to be responsive to the mother’s post-judgment motion and they do not alter the effect of the September 17 judgments. Stated otherwise, the October 2 judgments did not involve the exercise of judicial discretion. It is evident from the record that the juvenile court’s entry of the October 2 judgments

“did not involve a reweighing of the evidence, a change of mind, or the rendering of a ‘different judgment.’ The trial court’s changes here involved corrections to make the record speak the truth. Because the trial court’s corrections did not involve judicial reasoning or the rendering of a ‘different’ judgment, the trial court, pursuant to Rule 60(a), Ala. R. Civ. P., had the authority to correct and was thereby acting within its discretion in correcting the mechanical errors in its April 18, 2006, order by issuing the June 29, 2006, order.”

Ex parte Brown, 963 So.2d at 609 (footnote omitted). The October 2 judgments were rendered on the same day that the September 17 judgments were entered. The record establishes that the juvenile court, by entering the October 2 judgments, marked boxes on the form concerning waiver of court costs that it omitted to mark in the September 17 judgments. Also, in the October 2 judgment pertaining to H.S., the juvenile court filled in a date field that it omitted to fill in in the September 17 judgment. To the extent that the juvenile court altered the September 17 judgments to mark boxes relating to its findings of DHR’s reasonable efforts, the juvenile court was only clarifying that which it stated in open court at the conclusion of trial. Although a trial judge’s oral statements regarding the manner in which he or she intends to rule does not constitute a judgment, the juvenile-court judge’s statements in open court at the conclusion of trial in this case serve as “ ‘ “something in the record from which the mistake or error to be corrected may be gleaned,” ’ ” and “‘“the fact of mistake or error [is] supported by the record of the proceedings.” ’ ” Ex parte Brown, 963 So.2d at 608 (quoting Higgins, 962 So.2d at 1148, quoting in turn Continental Oil, 370 So.2d at 966 (Torbert, C.J., concurring specially)). The oral statements further establish the intent of the juvenile court to find that DHR made reasonable efforts, to find that those efforts failed to reunite the mother and the children, and to enter a judgment terminating the mother’s parental rights, among other things. Therefore, we conclude that the juvenile court entered the October 2 judgments to correct a scrivener’s error and to make the record speak the truth. We conclude that the entry of the October 2 judgments did not impact the mother’s postjudgment motion, that the postjudgment motion was denied by operation of law on October 14, 2016, and that the mother filed timely notices of appeal.

II. Grounds for Termination of Parental Rights

The mother first contends that DHR failed to prove by clear and convincing evidence that the mother is unable to discharge her responsibilities for the children and failed to show that her conduct is unlikely to change in the foreseeable future.

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

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child ape 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 determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(9) Failure by the parents to provide for the material needs of the child or .to pay a reasonable portion of support of the child, where the parent is able to do so.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

This court has explained:

“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.”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)). The appellate courts must apply a presumption of correctness in favor of the juvenile court’s findings in a termination-of-parental-rights action. J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007). “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.” Id. See Ex parte McInish, 47 So.3d 767, 774 (Ala.2008)(explaining standard of review of judgment resting upon factual determinations required to be based on clear and convincing evidence).

The mother contends that DHR faded to present clear and convincing evidence that she engaged in excessive use of controlled substances “of a duration or nature as to render [her] unable to care for needs of the children].” § 12-15-319(a)(2). The mother, however, admitted that she continued to abuse methamphetamine after DHR removed the children from her custody. In August 2014, nearly a year after the children had been removed from her custody, the mother was arrested on drug charges. Although the mother’s recent attempt at rehabilitation is commendable, at the time of the termination trial the children had been in DHR’s custody for two years and the mother had not completed a drug-rehabili-tatio'n program. Attending the Starting Point program was a requirement of her bail on her criminal charges. The record shows that the mother voluntarily quit the Starting Point program, which resulted in her arrest and incarceration for six months. As this court has previously recognized, *“[i]n deciding to terminate parental rights, a trial court may consider the past history of the family as well as the evidence pertaining to current conditions.’” A.R. v. State Dep’t of Human Res., 992 So.2d 748, 760 (Ala.Civ.App.2008) (quoting T.B. v. Lauderdale Cty. Dep’t of Human Res., 920 So.2d 565, 570 (Ala.Civ.App.2005)). Additionally, although the mother had enrolled in the Oxford Outreach program, she had participated in that program for only two weeks prior to the termination trial. The juvenile court was within its discretion to determine that, “to the. extent the mother may have allegedly improved her condition, those efforts were merely last-minute efforts undertaken in anticipation of the impending termination-of-parental-rights trial.” A.M.F. v. Tuscaloosa Cty. Dep’t of Human Res., 75 So.3d 1206, 1213 (Ala.Civ.App.2011) (citing J.D. v. Cherokee Cty. Dep’t of Human Res., 858 So.2d 274, 277 (Ala.Civ.App.2003)).

Furthermore, although the mother had not been convicted of the criminal charges arising from her August 2014 arrest, she had entered into a plea agreement involving a deferred-prosecution arrangement pursuant to which she was required by the criminal court to complete an 18-month drug-court program. Thus, at the time of the termination trial, the criminal charges remained pending, and further incarceration of the mother in the event she failed to abide by the terms of the plea agreement remained a possibility.

As a part of the reunification plan set out by DHR in the September 2013 ISP report, the mother was required to achieve sobriety, maintain employment, and maintain a stable home free from drugs and with working utilities. At trial, the mother admitted that she did not have a house, that the children would not be able to live with her at the Oxford Outreach facility, and that she was not currently capable of receiving physical custody of the children. She also testified that, despite efforts to find employment, she was not employed. In its discretion, the juvenile court could have determined that the mother failed to make a consistent effort to meet the goals set forth by DHR. The juvenile court could have properly determined that the mother showed a “[ljack of effort ... to adjust ... her circumstances to meet the needs of the child[ren] in accordance with” the September 2013 ISP. § 12-15-319(a)(12); see also J.S. v. St. Clair Cty. Dep’t of Human Res., 969 So.2d 918, 923 (Ala.Civ.App.2007)(hold-ing that the juvenile court correctly determined that the mother had failed to make a consistent effort to meet the goals set forth by DHR).

The mother contends that DHR failed to make reasonable efforts to assist her in rehabilitating herself so that she could be reunited with the children. The mother contends that DHR offered the mother no counseling and no transportation. The testimony, however, reveals that DHR held 10 ISP meetings, that DHR established a list of goals for the mother to reach, that DHR referred the mother to the Calhoun County Family Drug Court Program, that DHR provided the mother with a drug assessment that the mother did not complete until April 2014, that DHR paid for the mother’s substance abuse counseling at New Directions, that DHR provided the children with counseling, that DHR provided the mother with visitation, and that DHR provided the mother with transportation to visits. The record supports a conclusion that DHR did make reasonable efforts to reunite the mother with the children and that the mother did not make sufficient progress. See J.P. v. S.S., 989 So.2d 591, 601 (Ala.Civ.App.2008)(holding that the juvenile court could have concluded that DHR had made reasonable efforts to reunite the father with the child).

The juvenile court could have also been concerned by the mother’s continued relationship with J.D., her former boyfriend. The mother admitted that she was aware that K.S. and H.S. had disclosed that J.D. had sexually abused them. Despite being aware of those allegations, the mother continued to communicate with J.D. The mother even allowed J.D. to accompany her on a visit with T.S. Based on the evidence indicating that the mother continued to involve J.D. in her life and to allow him around the children, the juvenile court could have determined that the mother’s conduct or condition rendered her unable to properly care for the children. See T.G. v. Houston Cty. Dep’t of Human Res., 6 So.3d 1182, 1190 (Ala.Civ.App.2008)(hold-ing that the juvenile court could have adopted a view of the evidence that the mother would likely continue that relationship with the person who had abused the children and thus subject the children to further physical abuse if she regained custody).

As this court stated in B.J.KA. v. Cleburne County Department of Human Resources, 28 So.3d 765, 771 (Ala.Civ.App.2009):

“As the main opinion in H.H. [v. Baldwin County Department of Human Resources, 989 So.2d 1094 (Ala.Civ.App.2007)(opinion on return to remand) ] recognized, ‘ “[a]t some point, however, the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a. suitable parent.”’ Id. at 1105 n. 5. (quoting M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000)). This case is rather like D.G. v. State Department of Human Resources, 569 So.2d 400 (Ala.Civ.App.1990), in which the mother’s two children had been in and out of foster care over a five-year period. As aptly stated by this court, ‘[a]t some point it becomes necessary to say that the children require a more permanent placement.’ D.G., 569 So.2d at 403. More recently, in M.A.J. v. S.F., 994 So.2d 280, 291 (Ala.Civ.App.2008), this court held that the 12-month period between foster-care placement and the 12-month permanency hearing required by former Ala.Code 1975, § 12-15-62(c), is sufficient time within which the parents may ‘prove that their conduct, condition, or circumstances have improved so that reunification may be promptly achieved.’ In M.A.J., we further held that the circumstances of a. particular case should dictate the length of the rehabilitation period allowed a particular parent. M.A.J., 994 So.2d at 291 (quoting Talladega County Dep’t of Human Res. v. M.E.P., 975 So.2d 370, 374 (Ala.Civ.App.2007)) (‘ “[T]he point at which the child’s needs overcome the parent’s right to be rehabilitated must be determined based on the facts of each individual case.” ’),”

These proceedings were conducted before the trial judge, who is- charged with the duty and responsibility of resolving disputed issues of fact by weighing the evidence and, when appropriate, assessing the credibility of the witnesses. An appellate court defers to the findings of the trial court on such matters.

“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] at 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 at 1185.

Sufficient evidence exists in the record for the juvenile court to have determined that DHR had expended an adequate amount of time and effort to assist the mother in rehabilitating herself but that further time and effort would not help achieve the goal of family reunification in light of the mother’s lack of progress over a two-year period. See B.J.KA., 28 So.3d at 771 (citing M.A.J. v. S.F., 994 So.2d 280, 292 (Ala.Civ.App.2008)).

III. Viable Alternatives

The mother and the guardian ad litem contend that there were viable alternatives to termination of the mother’s parental rights.

“If the trial court determines, based on all relevant factors, that grounds exist for terminating parental rights, then the court must proceed to the second part of its analysis, which is to consider whether all viable alternatives to terminating parental rights have been exhausted.”

Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008)(citing Ex parte Beasley, 564 So.2d at 954). The determination of whether a viable alternative to termination of parental rights exists is a question of fact. J.B. v. Cleburne Cty. Dep’t of Human Res., 991 So.2d 273, 283 (Ala.Civ.App.2008).

The mother contends that the juvenile court erred in terminating her parental rights in lieu of maintaining the status quo. The mother contends that she and the children share a strong emotional bond and each child’s current placement or custody arrangement alleviates any concerns regarding the mother.

“ ‘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 Cty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003). However, ‘ “[i]n deciding to terminate parental rights, a trial court may consider the past history of the family as well as the evidence pertaining to current conditions.” ’ A.R. v. State Dep’t of Human Res., 992 So.2d 748, 760 (Ala.Civ.App.2008) (quoting T.B. v. Lauderdale Cty. Dep’t of Human Res., 920 So.2d 565, 570 (Ala.Civ.App.2005)).”

C.P. v. Cullman Cty. Dep’t of Human Res., [Ms. 2140933, Feb. 26, 2016] 203 So.3d 1261, 1269 (Ala.Civ.App.2016).

The mother contends that the juvenile court received evidence establishing that a strong bond exists between her and the children and that she has made drastic efforts to improve her circumstances. As noted above, however, the record would support the juvenile court’s conclusion that the mother is currently unable and unwilling to discharge her responsibilities for the children. Deese testified that the mother and the children appeared to have a bond, but her observations were limited to visits that occurred in 2013 shortly after the children entered DHR’s custody. The juvenile court heard Bradford’s testimony that the children did not talk about or ask about the mother. It ■ also heard Bradford’s testimony that H.S. exhibited “anger issues” regarding the mother. The juvenile court, therefore, received conflicting evidence concerning the existence of a strong emotional bond. The juvenile court, as the trier of fact, is in the best position to resolve conflicts in the evidence. See D.C.S. v. L.B., 84 So.3d 954, 962 (Ala.Civ.App.2011) (“The trier of fact, and not this court, has the duty of resolving conflicts in the evidence.”). Furthermore, “[t]his court has held that maintaining a child in foster care indefinitely while a parent attempts to rehabilitate himself or herself is not a viable alternative to the termination of parental rights.” A.H. v. Houston Cty. Dep’t of Human Res., 122 So.3d 846, 851 (Ala.Civ.App.2013).

The mother and the guardian ad litem contend that DHR presented no evidence to show that the maternal grandmother’s current circumstances disqualified her from serving as a relative placement of the children. However, the mother testified that she was not sure if the maternal grandmother would be willing to serve as a placement for the children. The mother further testified that she and the maternal grandmother “barely ever talk.” Furthermore, the mother testified that the maternal grandmother did not raise her and that, instead, she was raised by her own grandmother. Additionally, the evidence showed that the maternal grandmother had a been indicated for child abuse and neglect and that, because of that report, the maternal grandmother had been ruled out as a relative resource. Furthermore, the maternal grandmother never came forward as a relative resource. See M.J.C. v. G.R.W., 69 So.3d 197, 209 (Ala.Civ.App. 2011)(“K.W.’s testimony at trial that no relatives of the parents had come forward in the four years since the child’s birth to offer to take custody of him was sufficient to support the juvenile court’s conclusion that no other viable alternative to termination of the parents’ parental rights existed.”).

Although Bradford testified that the children were adoptable and that there were potential adoptive resources, the mother contends that DHR failed to present evidence of an identifiable adoptive resource. However, “the lack of an identified adoptive resource does not necessarily preclude termination of parental rights.” T.L.S. v. Lauderdale Cty. Dep’t of Human Res., 119 So.3d 431, 439 (Ala.Civ.App.2013).

The mother and the guardian ad litem also contend that placing the children with the custodians of K.S. was also a viable alternative to termination of the mother’s parental rights. The custodians of K.S., however, are not relatives of the children or of the mother. Although the custodians expressed interest to DHR in receiving custody of the children, they did not want to go through the foster-parent certification process and they did not file a petition for custody of the children.

Based on the applicable standard of review, we conclude that there is evidence in the record that the juvenile court could have found to be clear and convincing so as to support the juvenile court’s conclusion that there were no viable alternatives to the termination of the mother’s parental rights.

IV. Best Interests

The mother and the guardian ad litem argue that the termination of the mother’s parental rights is not in the best interests of the children. “We are ever mindful that ‘[t]he paramount consideration in a case involving the termination of parental rights is the best interests of the children.’” T.G. v. Houston Cty. Dep’t of Human Res., 6 So.3d 1182, 1188 (Ala.Civ.App.2008)(quoting Q.F. v. Madison Cty. Dep’t of Human Res., 891 So.2d 330, 335 (Ala.Civ.App.2004)). “DHR may file a termination petition whenever it determines that the best interests of the child would be served thereby.” T.G. v. Houston Cty. Dep’t of Human Res., 39 So.3d 1146, 1150 (Ala.Civ.App.2009).

The mother and the guardian ad litem contend that it would not be in the children’s best interests to never see the mother again when there is not an identifiable adoptive resource. They cite the evidence discussed above concerning the emotional attachment between the mother and the children. They also contend that the mother had shown progress toward rehabilitation. Additionally, they contend that it would not be in the children’s best interests to not maintain a relationship with their siblings.

The juvenile court could have been convinced that termination was in the best interests of the children because the mother failed to complete drug rehabilitation after two years. The juvenile court could have concluded that the mother’s actions and her failure to take advantage of DHR’s reasonable efforts resulted in the children’s continuation in foster care. The juvenile court also received evidence indicating that the foster parents of H.S. and the custodians of K.S. recognized the need of the three children to maintain contact and to maintain a relationship after termination of the mother’s parental rights. Furthermore, the mother had been incarcerated for 6 months shortly before the termination trial and had not visited the children during that time. The juvenile court heard evidence that the children did not talk about or ask about the mother. The juvenile court could have determined that there was not a strong emotional bond between the mother and the children. Thus, the juvenile court properly exercised its discretion, based on clear and convincing evidence, to enter the judgments terminating the mother’s parental rights to the children. Based on the applicable standard of appellate review that governs our consideration of this case, the evidence reasonably could have produced in the mind of the juvenile-court judge a firm conviction as to each essential element of DHR’s claims and a high probability as to the correctness of the juvenile court’s conclusion that the children’s best interests would be served by the termination of the mother’s parental rights.

Conclusion

For the forgoing reasons, the juvenile court’s judgments terminating the mother’s parental rights to the children are affirmed.

2150093—AFFIRMED.

2150094—AFFIRMED.

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

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

      . As noted, the father consented to the termination of his rights, and he did not appeal the juvenile court's judgments.

      . Rule 60(a) provides that ‘'[cjlerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative....”

      . “The amendment [to correct a clerical error pursuant to Rule 60(a) ] relates back to the original judgment and becomes a part of it.” Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 829 (Ala.Civ.App.1997).