author: MOORE, Judge."

text:
    Michael Damon DUPRE v. Leah Sparks DUPRE
    2150632
    Court of Civil Appeals of Alabama.
    September 9, 2016
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1151320

      Maxwell H. Pulliam, Birmingham, for appellant.
    Virginia E, Miller and Stephen L. Sexton of Sexton/Miller, LLC, Birmingham, for appellee.
   MOORE, Judge."

Michael Damon Dupre (“the former husband”) appeals from an order entered by Jefferson Circuit Judge Julie A. Palmer denying his motion to recuse. We affirm the order.

Background

On April 4, 2014, the St. Clair Circuit Court entered a judgment divorcing the former husband from Leah Sparks Dupre (“the former wife”). On July 14, 20Í5, the former wife filed in the Jefferson Circuit Court (“the circuit court”) a motion to enroll the divorce judgment and a petition for a rule nisi. The clerk of the circuit court assigned the action to Judge Palmer, who, at the time, had qualified to run for réelection as a circuit-court judge for Jefferson County, Place 20. On July 29, 2015, the former husband moved to change venue to the St. Clair Circuit Court. After a hearing, Judge Palmer denied the motion. The former husband subsequently filed an answer and a counterclaim.

On April 8, 2016, the former husband filed a motion seeking the recusal of Judge Palmer on the ground that Stephen L. Sexton, one of the former wife’s attorneys, had made a $480 in-kind contribution to Judge Palmer’s campaign on September 24, 2015. Judge Palmer entered an order on April 11, 2016, denying the motion to recuse. The former husband filed a notice of appeal on April 27, 2016.

Discussion

Section 12-24-3(a), Ala. Code 1975, provides:

“In any civil action, on motion of a party or on its own motion, a justice or. judge shall recuse himself or herself from hearing a case if, as a result of a substantial campaign- contribution or electioneering communication made to or on behalf of the justice or judge in the immediately preceding election by a party. who has a case pending before that justice or judge, either of the following circumstances exist:
“(1) A reasonable person would perceive that the justice or judge’s ability to carry out his or her judicial responsibilities with impartiality is impaired.
“(2) There is a serious, objective probability of actual bias by the justice or judge due to his or her acceptance of the campaign contribution.”

Subsection (a) of § 12-24-3 applies when a party moves to recuse a judge on the ground that the opposing party, which would include an attorney of the opposing party, see Ala. Code 1975, § 12-24-3(c)(4), had made.a substantial campaign contribution to the judge in the “immediately preceding” judicial election. Justice Robert L. Brown, . Retired, Judicial Recusal: It’s Time to Take Another Look Post-Caperton, 38 Univ. Ark. Little Rock L. Rev. 63, 72 (2015).

Neither this court. nor- our supreme court has addressed the meaning of § 12-24-3(a). “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself.” Volkswagen of Am., Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala.1991). “When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute them ordinary plain meaning—they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). “[W]hen a term is not defined in a statute, the commonly accepted definition of the term should be applied.” Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003). In common parlance, the “immediately preceding” judicial election would be the last judicial election before the filing of the motion to recuse.

In this case, the former husband moved Judge Palmer to recuse herself from the case on the basis of a campaign contribution made in September 2015 in relation to Judge Palmer’s bid for reelection in 2016. The former husband did not contend that the former wife or her attorney had made a substantial campaign contribution for Judge Palmer’s “immediately preceding” election, which we judicially notice occurred in 2010. Because the former husband did not prove those prerequisite facts, we do not address whether the former husband proved the- other elements of bias or the appearance of bias. We conclude that § 12-24-3(a) does not apply in these circumstances.

Section 12—24—3(b), Ala. Code 1975, provides, in pertinent part:

“A rebuttable presumption arises that a justice or judge shall recuse himself or herself if a campaign contribution made directly by a party to the judge or justice exceeds the following percentages of the total contributions raised during the election cycle by that judge or justice and was made at a time when it was reasonably foreseeable that the case could come before the judge or justice:
“(2) Fifteen percent in a circuit court race.”

By its plain language, § 12—24—3 (b) (2) creates a rebuttable presumption that a circuit-court judge should recuse himself or herself when a party, or his or her attorney, contributes 15% or more of the total campaign contributions collected by the circuit-court judge during an election cycle while the party, or his or her attorney, has a case pending before the judge.

In this case, the former husband asserted that, while presiding over the underlying action, Judge Palmer had collected an in-kind contribution of $480 from Sexton on September 24, 2015. The former husband presented evidence indicating that Judge Palmer had collected $5,190 in campaign contributions-in September 2015. Assuming that the term “election cycle” as used in § 12—24—3(b) could be limited to only one month of the election season, which we do not decide, it remains that the former husband did not allege or prove that Judge Palmer had collected 15% of her campaign contributions from Sexton in September 2015 because his $480 in-kind contribution amounted to only 9.25% of the September 2015 total. Accordingly, the former husband did not prove the essential facts giving rise to the rebuttable presumption in § 12-24-3(b)(2).

On appeal, the former husband maintains that Sexton hosted a campaign party for Judge Palmer in his home that yielded the entire $5,190 that Judge Palmer collected in campaign contributions in September 2015. The former husband argues that the entire amount should be attributed to Sexton in deciding whether Judge Palmer should be recused. However, the factual assertions made by the former husband are not supported by any evidence in the record, see Geer Bros. v. Walker, 416 So.2d 1045, 1049 (Ala.Civ.App.1982) (“[A]n appellate court cannot consider statements in brief that are not supported by the record.”), and the former husband did not raise this argument below, so we cannot consider it on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

The former husband also argues for the first time on appeal that Judge Palmer should recuse herself based on Canon 3.C(1) of the Alabama Canons of Judicial Ethics, an argument we cannot consider. See Andrews, supra. Before Judge Palmer, the former husband premised his recusal motion entirely on the application of § 12-24-3. As we have shown, § 12-24-3 does not apply to the circumstances in this case. The former husband has failed to show that Judge Palmer exceeded her discretion in denying his motion to recuse. See Ex parte George, 962 So.2d 789, 791 (Ala.2006) (“A trial judge’s ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion.”). Therefore, we affirm the order denying the motion to recuse.

AFFIRMED.

Thompson, P.J., and Pittman and Donaldson, JJ., concur.

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

      . The former wife has attached as an appendix to her brief a transcript of that hearing, but that transcript was not certified as part of the record on appeal, and, thus, we cannot consider it. Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000) (“The record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief.”).

      . See Ala. Code 1975, § 12-24-3(d) ("An order of a court denying a motion to recuse shall be appealable in the same manner as a final order to the appellate court which would otherwise have jurisdiction over the appeal from a final order in the action.”). Section 12-24-3 was enacted on April 10, 2014, and became effective on July 1, 2014, after the United States Supreme Court issued its opinion in Shelby County, Alabama v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). See Ala. Acts 2014, Act.No. 2014-455, § 3. The former wife argues that § 12-24-3 is ineffective because it was not précleared by the United States Department of Justice, as required by § 5 of the Voting Rights Act of 1965; however, in Holder, the United States Supreme Court invalidated § 4(b) of the Voting Rights Act so that the preclearance requirement in § 5 did not apply to § 12-24-3.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    T.J., Jr., and J.J. v. WINSTON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150977
    Court of Civil Appeals of Alabama.
    March 24, 2017

      Lisa M. Ivey, Jasper, for appellants.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   MOORE, Judge.

T.J., Jr. (“the- father”), and J.J. (“the mother”) appeal from a judgment entered by the Winston Juvenile Court (“the juvenile court”) terminating their parental rights to H.D.J. (“the child”).

Procedural History

On October 13, 2015, the Winston County Department of Human Resources (“DHR”) filed a petition alleging that the child was dependent. That same day, the juvenile court entered an order permitting DHR to immediately take the child into its custody. That order contained a notation indicating that an oral pickup order had been issued on October 7, 2015. Also, on October 13, 2015, the juvenile court held a shelter-care hearing, and, on October 16, 2015, a shelter-care order was entered maintaining the child in DHR’s custody. After an adjudicatory hearing, the juvenile court entered an order on January 25, 2016, declaring the child dependent, determining that reasonable efforts by DHR to reunite the child and the parents were not required, and maintaining custody of the child with DHR. After a permanency hearing, the juvenile court entered an order on March 23,. 2016, providing that the permanency plan for the child was adoption with no identified resource.

On June 1, 2016, DHR filed a petition requesting that the juvenile court terminate the mother’s and the father’s parental rights to the child. The mother and the father, through the same counsel, filed an answer to the petition on June 16, 2016. After a trial, the juvenile court entered a judgment on August 23, 2016, terminating the mother’s and the father’s parental rights to the child. On September 1, 2016, the mother and the father filed a joint postjudgment motion, and, on September 6, 2016, the mother and the father filed their notice of appeal. The notice of appeal was held in abeyance pending the denial, by operation of law, of their postjudgment motion on September 15, 2016. See Rule 1(A) & (B), Ala. R. Juv. P.; Rule 69.1, Ala. R. Civ. P.; and Rule 4(a)(5), Ala. R. App. P.

Facts

Tyler Kilgore, a child-abuse-and-neglect investigator for DHR, testified that DHR had received reports that the parents had been homeless but that they were, at the time DHR took custody of the child, living with the father’s parents; he testified that the reports also indicated that the father was using drugs. He testified that DHR took the child into its custody in October 2015. According to Kilgore, both the mother and the father submitted to drug tests. The mother tested positive only-for drugs for which she had a prescription, but the father tested positive for methamphetamine and amphetamines. Kilgore testified that the father had claimed that he had not used drugs but had simply been in the home of someone who had’ been smoking those drugs.

Martha Haynes, a foster-care worker for DHR, testified that DHR had sought to implement services for the mother and the father through “FOCUS,” but, she said, FOCUS employees, who had worked with the parents before, had refused to work with them again. She testified that she was not aware of any extensive parenting program similar to the FOCUS program but that the parents had completed a less extensive parenting class.

Haynes testified that DHR had ordered both the mother and the father to submit to a psychological evaluation. A psychological evaluation was also done on the child. The reports from those evaluations were entered into evidence. The reports indicated that the mother and the father had requested that an older child “be placed in foster care [in 2010] due to his purported disruptive behaviors” and that then- parental rights to that child had been terminated in 2012 due to the mental instability of the mother and the father. The mother had previously had her parental rights terminated to two other children in 2005 and 2006.

According to the father’s psychological report, the father admitted that the parents had engaged in domestic violence. The psychologist noted that the father’s full-scale IQ score is 67 and that that score “meets part of the requirements for a diagnosis of mild mental retardation.” According to the psychologist, the father reported that he had used methamphetamine weekly for two years before ceasing use of the drug in 2013. The father also acknowledged having recently used the drug, but, he claimed, it had been “only once” in 2015.

Haynes testified that the psychologist had recommended that the father participate in random drug screening, individual counseling, marital counseling, and “Celebrate Recovery.” Haynes testified that the father had been referred to the Northwest Alabama Mental Health Center to address his drug usage and anger-management problems. She testified that domestic violence between the mother and the father had been an ongoing issue. She testified that the mother and the father had not participated in marital counseling.

The mother’s psychological report indicated that the mother had experienced suicidal thoughts her entire life and that she suffers from bipolar disorder. The psychologist noted that her full-scale IQ score is 80, which, he said, is “within the Low Average Range of intelligence.” The report also noted that the mother had reported that the father had had an affair and had moved in with his paramour, with whom, she claimed, he had used drugs. The mother also reported that she had subsequently reunited with the father but that she had moved in with the father and his paramour for some time. The psychologist reported that the mother’s “Child Abuse Potential Inventory” results suggest that the mother “shares personal and interpersonal characteristics of known physical child abusers.”

Haynes testified that the parents complain that the child is hyper, does not “mind,” and will not sit still. Before this case was instituted, the parents had taken the child to Children’s Hospital of Birmingham to be evaluated for attention-deficit/hyperaetivity disorder (“ADHD”). Haynes testified that the physician who had evaluated the child at Children’s Hospital explained to her that the problem was not the child’s behavior but, instead, was with the parents’ parenting. The psychological report on the child indicated that he does not have ADHD.

Haynes testified that she does not believe that the mother and the father can care for the child without supervision. She testified that they both have difficulty understanding what the child should be doing at each age. Haynes testified that the parents often fight in front of the child at visitations; that, on a few occasions, the father had fallen asleep during visitations; that the mother and the father are loud; that the mother and the father often overreact to situations, which, she said, has an effect on the child; that the mother and the father had yelled at the child and had threatened to spank the child; that the mother had spanked the child for accidentally hitting her with a ball; that the mother and the father had engaged in inappropriate conversations with the child; and that the mother and the father had sometimes ended their visits early without a reason. Haynes testified that the child interacts more with the mother than with the father and that the child often gets upset with the father or avoids physical affection with him and states that the father is mean. She testified that the mother and the father would make the child feel guilty for not showing the father affection and that, after one such occasion, the child had hidden under the table and had said he felt sick.

Pamela Sutherland, the supervisor of DHR’s child-protective-service unit, testified that the father had gotten upset with her at one visit and had stood up and pointed his finger in her face. She testified that the parents are very loud and that the parents would affect the child in such a way that he would become loud and disruptive.

Haynes testified that, at the time of the trial, the behavior of the mother and the father was consistent with their behavior at the time their parental rights had been terminated to their other child in 2012. She testified that the major issues the parents have are their low mental capacities and the anger and domestic-violence issues. According to Haynes, the father continued to exhibit anger even after completing anger-management counseling. She testified that the father had not tested positive for drugs subsequent to the child’s having been taken into DHR’s custody, but, she said, at the time of the trial, he had not recently attended “Celebrate Recovery.” She testified that the parents had had housing since February 2016.

The mother testified that there had been no incidences of domestic violence between her and the father since the child was born. She testified that she sees a psychiatrist and goes to counseling once every three months. The mother testified that she, the father, and their pastor had decided against the parents’ engaging in marital counseling because, she said, the parents wanted to leave the past in the past. She also testified that, at the time of the trial, the father was attending “Celebrate Recovery” two or three times a month and that she had been attending with him to support him. The mother testified further that, before the child was taken into DHR’s custody, she had taken the child to Children’s Hospital for an evaluation and that she had subsequently attended a parenting class there.

The father testified that he had tested positive for methamphetamine because he had been around someone smoking the drug. He testified that, at the time of the trial, he was attending “Celebrate Recovery” and that he had a sponsor.

Discussion

I.

On appeal, the mother and the father first argue that the juvenile court erred in failing to hold a hearing within 72 hours of the initial removal of the child from the home of the parents. We note, however, that the initial order awarding DHR custody of the child is “no longer in effect; [that order was] supplanted by later orders in which the juvenile court expressly found the child to be dependent [and thereafter by the judgment terminating the parents’ parental rights]. Thus, ‘no relief ordered by this eourt can change’ the custody provisions of [the] initial order[ ], and, therefore, the argument pertaining to [that order] is moot.” M.B. v. R.P., 3 So.3d 237, 247 (Ala. Civ. App. 2008). We therefore dismiss the parents’ appeal to the extent that it challenges the initial pickup order removing the child from their custody.

II.

The mother and the father next argue that the juvenile court erred in appointing one attorney to represent both of them in the proceedings below. The record shows that the juvenile court made the appointment on June 1, 2016. The juvenile court appointed the same attorney who had been previously appointed to represent both parents in the dependency proceedings, which had been commenced on October 13, 2015. That attorney represented the mother and the father through the end of the termination-of-parental-rights trial without objection. After the juvenile court entered the judgment terminating the mother’s and the father’s ■ parental rights, the juvenile court granted the attorney’s motion to withdraw from the case. The juvenile court then appointed a different attorney to represent the mother and the father in the postjudgment proceedings and on appeal.

The new attorney filed a postjudgment motion asserting, among other things, ineffective assistance of trial counsel. In the postjudgment motion, the new attorney argued, in pertinent part:

“[0]ne attorney represented both parents during the termination proceedings. In A.S.H. v. State Dep’t of Human Res., 991 So.2d 755, 757 (Ala. Civ. App. 2008), the Alabama Court of Civil Appeals found that one attorney could not adequately represent the interests of both parents, who had separated prior to the termination hearing. Id. In this case, the parents are still living together,- but given the extremely serious issues involved in an irreversible termination of parental rights, separate counsel would have been advisable to assure that both parents received full procedural and substantive due process.”

In the postjudgment motion, the new attorney asserted that the trial proceedings had been “infected with error,” but she did not allege any particular conflict of interest and did not point out any specific incident indicating that trial counsel had not effectively represented the mother and the father because of a conflict of interest. However, in a footnote, the new attorney explained that “a transcript of the case is not currently available at this time, and this motion is based on her best understanding of the case absent a transcript.”

On appeal, the new attorney, who continues to represent both parents, argues that the mother and the father had diverse interests at trial because

“the primary issue driving the , [petition to terminate parental rights] was the father’s previous ■ issue with illegal drugs.... The initial dependency petition did not make any specific allegations against the mother; caseworkers consistently testified that she was more interactive with the child than the father; and the caseworkers, expressed more concerns about the father’s alleged inability to control his temper during visitations.... Thus, there was a real and distinct- possibility of conflict- between the parents’ legal positions ■ that implicated the , need for separate attorneys.”

(Appellants’ brief, pp. 21-22.) Based on those allegations, the new attorney argues that the judgment should be reversed, that a new trial should be ordered, and that separate attorneys should be appointed to represent the mother and the father.

In this case, the mother and the father actually'raised in their postjudgment motion the argument that they had been deprived of effective assistance of counsel due solely to the fact that they were represented by the same attorney. However, the mother and the father- did not specifically argue- that they had received ineffective assistance of counsel because of a conflict between their interests. The mother and the father now raise that precise argument for the first time on appeal.

An appellant who has raised an argument in the proceedings below is not necessarily ‘limited in the appellate court to the same reasons or arguments advanced in the lower court upon the matter or question in issue.’ ” Ex parte Knox, 201 So.3d 1213, 1216 (Ala. 2016) (quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala. 1994), citing in turn Home Indem. Co. v. Reed Equip. Co., 381 So.2d 45, 50 (Ala. 1980)). However, an appellate court cannot consider an argument that differs from the argument made in the trial court. Id. “The function of an appeal is to obtain judicial review of the adverse rulings of a lower court; thus, it is a well-settled rule that an appellate court’s review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.” Beavers v. County of Walker, 645 So.2d at 1372 (citations omitted). In order to reverse the judgment of the juvenile court, this court would have to conclude that the juvenile court had erred in failing to determine that the claims and testimony at trial proved that the trial attorney for mother and the father had a conflict of interest that prevented the trial attorney from effectively representing both of them, even - though the juvenile court was never asked to consider those specific points. We cannot reverse the judgment on this ground.

Our conclusion does not leave the mother and the father without a remedy, - however. In Ex parte E.D., 777 So.2d 113, 115 (Ala. 2000), our supreme court noted that parents have a statutory right to effective assistance of counsel in a termination-of-parental-rights proceeding. Ordinarily, to be preserved for appeal, a claim of ineffective assistance of counsel must be raised in a motion for a new trial. If, due to-the unavailability of a trial transcript; a claim of ineffective assistance of counsel cannot be reasonably made within the 14-day period for filing a motion for a new trial as established in Rule 1(B), Ala. R. Juv. P., the parents may raise the claim in .a motion made pursuant to Rule 60(b)(6), Ala. R. Civ. P. In D.A. v. Calhoun County Department of Human Resources, 976 So.2d 502 (Ala. Civ. App. 2007), this court held that a parent who had failed to preserve an ineffective-assistance-of-coünsel argument for appellate review could nevertheless file a Rule 60(b)(6) motion for that purpose after the judgment was affirmed on appeal if the motion is ihade within a reasonable time.

III.

Next, the, mother and the, father argue that the juvenile court erred in admitting certain exhibits into evidence because, they say» those exhibits constitute inadmissible hearsay as defined by Rule 801, Ala. R. Evid. We note, however, that, although the parents’ attorney objected to the introduction of those exhibits, the attorney objected on the basis of lack of personal knowledge, which is governed by Rule 602, Ala. R. Evid. “When the grounds for an objection are stated, this impliedly waives all other grounds for the objection to the evidence; and the objecting party cannot predicate error upon a ground not stated in the trial court, but raised for the first time on ■ appeal.” Nichols v. Southeast Prop. Mgmt., Inc., 576 So.2d 660, 662 (Ala. 1991) (citations omitted). Thus, we decline to address this argument on appeal.

ÍV.

The mother and the father next argue that the juvenile court exceeded its discretion in terminating their parental rights to the child because, they say, there was a lack of clear and convincing evidence in support of termination.

A judgment terminating parental rights must be supported by clear and convincing evidence, which is “ ‘ “Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” ’ ” C.O. v. Jefferson Cty. Dep’t of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).

“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [(Ala. Civ. App. 2006)].
“To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ ”

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of cqrrectness. J.W. v. C.B., 68 So.3d 878, 879 (Ala. Civ. App. 2011).

A.

The parents specifically argue that there was not clear and convincing evidence presented indicating that they were unable or unwilling to care for the child.

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

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

In the present case, the evidence indicates that the parental rights of the mother and the father had previously been terminated to another child in 2012 as a result of the mental instability of the mother and the father. § 12-15-319(a)(2) & (8). Haynes testified that the parents’ behavior at the time of the trial was similar to their behavior at the time of the 2012 termination, and the psychological reports confirmed that both the mother and the father still have limited mental abilities. § 12—15—319(a)(2). Furthermore, the evidence indicated that the father has a long history of drug use, including a long period of sobriety followed by a recent relapse in 2015. § 12-15-319(a)(2). The evidence also indicated that the father had not attended “Celebrate Recovery” consistently as recommended. The evidence indicated further that the parents had ongoing problems with domestic violence and that, despite the father’s submitting to anger-management counseling, he continued to have angry outbursts. § 12-15-319(a)(7). Based on the foregoing, the juvenile court could have properly concluded that the parents are unable or unwilling to care for the child.

The parents specifically argue that this case is analogous to C.H. v. Franklin County Department of Human Resources, 171 So.3d 32 (Ala. Civ. App. 2015). In that case, this court held that there had not been clear and convincing evidence presented in support of termination of the parents’ parental rights because there had been little evidence presented other than evidence that the parents’ parental rights to other children had been terminated. C.H., 171 So.3d at 37. This court noted that the parents’ visits with the child were appropriate and that there was no evidence of recent drug use. Id. In the present case, however, the evidence indicated that the parents’ mental instability, the cause of the previous termination of their parental rights, continued at the time of the trial. Furthermore, the evidence indicated that the parents’ visits with the child had been inappropriate. Therefore, we conclude that this case is distinguishable from C.H.

B.

The mother and the father finally argue that termination of their parental rights was not in the best interest of the child and that maintaining the status quo was a viable alternative to termination.

“‘Our supreme court has held that a juvenile court should maintain foster care ... without terminating parental rights when a child shares a beneficial emotional bond with a parent and the custodial arrangement ameliorates any threat of harm presented by the parent.’ ” B.M. v. Jefferson Cty. Dep’t of Human Res., 183 So.3d 157, 160 (Ala. Civ. App. 2015) (quoting B.A.M. v. Cullman Cty. Dep’t of Human Res., 150 So.3d 782, 786 (Ala. Civ. App. 2014)).

In the present case, however, the evidence indicates that the mother and the father had acted inappropriately at visitations and that the child had been negatively affected by his visitations with the parents.

... “We have held that, ‘at some point, [a child’s] need for permanency must outweigh repeated efforts by DHR to rehabilitate’ a parent. N.A. v. J.H., 571 So.2d 1130, 1134 (Ala. Civ. App. 1990) (citing [former] § 26-18-7(b)(4), Ala. Code 1975). Further, ‘[i]n R.L.B. y. Morgan County Department of Human Resources, 805 So.2d 721, 725 (Ala. Civ. App. 2001), this court held that maintaining a child in foster care indefinitely is not a viable alternative to termination of parental rights.’ T.G. v. Houston County Dep’t of Human Res., [39] So.3d [1146, 1152] (Ala. Civ. App. 2009)....”.
“ ‘[Montgomery Cnty. Dep’t of Human Res. v. W.J.,] 34 So.3d [686,] 693 [ (Ala. Civ. App. 2009) ].’
“Jefferson Cnty. Dep’t of Human Res. v. L.S., 60 So.3d 308, 316 (Ala. Civ. App. 2010).’’

B.M., 183 So.3d at 161.

Because of the parents’ long history with DHR and their inability to change their circumstances despite DHR’s past assistance, we cannot conclude that- the juvenile court exceeded its discretion in determining that maintaining the child in foster care was not a viable alternative to' terminating the parental rights of the mother and the father.

Conclusion

Based on the foregoing, the appeal is dismissed to the extent the mother and the father argue that the juvenile court erred in failing to hold a hearing within 72 hours of the initial removal of the child from the home of the parents. With regard to all other issues, we affirm the juvenile court’s judgment.

APPEAL DISMISSED IN PART; AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concúr.

      . While an appeal is pending, an appellant can file a Rule 60(b) motion only with leave of the appellate court. See Rule 60(b), Ala. R. Civ. P.; and Jenkins v. Covington, 939 So.2d 31, 34 (Ala. Civ. App. 2006) (holding that appellant must obtain leave from appellate court in order to file Rule 60(b) motion in trial court when appeal is pending).


author: PER CURIAM.

text:
    Ellis GOLDEN v. Stacey Ann VELASQUEZ
    2150893
    Court of Civil Appeals of Alabama.
    March 31, 2017

      Leigh A. Shelton of Wilson & Shelton, LLC, Rainsville, for appellant.
   PER CURIAM.

Ellis Golden renovated a house owned by Stacy Ann Velasquez. Golden commenced an action in the Cherokee Circuit Court claiming that Velasquez had not paid for all the labor and materials. He asserted that he was entitled to damages for breach of contract, account stated, and quantum meruit. The jury trial occurred on April 18, 2016.

The jury heard testimony that Velasquez and Golden had entered into an oral contract in 2010. Golden agreed to provide the materials and labor to renovate Velasquez’s house; Velasquez agreed to remit one initial payment and, thereafter, monthly installments of $300 to satisfy the costs of the renovation. Velasquez made the initial payment of $1,000 and monthly payments of approximately $800 until March 2013. The parties agree that Velasquez had paid Golden $10,460 when, in March 2013, Golden agreed to allow her to stop paying the $300 monthly installments because Velasquez was caring for her mother who had been diagnosed with terminal cancer. Velasquez’s mother died in December 2013.

When Velasquez received approximately $38,000 in life-insurance proceeds, she contacted Golden. She testified that she had asked Golden how much she owed on the contract, that he had wanted her “to come sign papers,” but that she had not done so. Velasquez testified that she had later determined that the balance she owed to Golden was $9,540} however, she said: “He refused it.”

Golden testified that Velasquez had not communicated a renovation budget and that she owed him $23,351 plus $8,219.40 in interest. Golden testified that Velasquez had agreed to pay interest, but he admitted that the parties had never discussed a rate of interest. He said that he had decided to charge the same rate as had been charged by his bank. Velasquez testified that she had limited the renovation budget to no more than $20,000, that she had never agreed to pay interest, and that Golden had never mentioned interest. Phillip Rickey Gossett, Velasquez’s father and Golden’s employee, testified that he had participated in the initial discussion regarding the renovation, that Velasquez had communicated a $20,000 renovation budget to Golden, that interest had never been discussed, and, although his testimony is not entirely clear on this point, that he had reassured Golden that he would pay up to $20,000 if Velasquez did not.

After the close of all the evidence, the charge conference occurred. Golden moved for a Rule 50, Ala. R. Civ. P., judgment as a matter of law (“JML”), and Velasquez renewed her motion for a JML. The circuit court denied both motions. Golden then abandoned his account-stated and quantum-meruit claims. The circuit court read the agreed-upon jury instructions. The circuit-court judge said: “[Tjhis case is a little bit unusual in that there’s an admission [by Velasquez] that a[n oral] contract did exist”; the dispute, he explained, focused on the “extent of that contract.”

The jury returned a verdict for Velasquez. Golden moved for judgment notwithstanding the verdict, now referred to as a postverdict motion for a JML, see Rule 50, and he requested, in the alterna-five, a new trial pursuant to Rule 59, Ala. R. Civ. P. The circuit court held a post-judgment hearing at which it heard arguments of counsel. The circuit court specifically noted its consideration of whether the jury could have reasonably concluded that Velasquez had not breached the contract based upon her testimony that she had communicated a budget, that she had tried to pay Golden $9,540, and that he had refused the money. The circuit court entered a judgment on the verdict, denied Golden’s postverdict motion for a JML, and denied his motion for a new trial. Golden filed a timely notice of appeal, arguing that the evidence presented was insufficient to support the jury verdict and, therefore, that the circuit court had erred by refusing to grant his motion for a new trial.

“A strong presumption of correctness attaches to a jury verdict in Alabama, if the verdict passes the ‘sufficiency test’ presented by motions for directed verdict and JNOV [now denominated as motions for a JML under Rule 50, Ala. R. Civ. P.]. Christiansen v. Hall, 567 So.2d 1338, 1341 (Ala. 1990); Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160 (Ala. 1988). This presumption of correctness is further strengthened by a trial court’s denial of a motion for new trial. Christiansen, 567 So.2d at 1341. Denying, and to a more limited extent granting, a motion for new trial is within the sound discretion of the trial court. See, Jawad v. Granade, 497 So.2d 471, 477 (Ala. 1986). This Court will not reverse a judgment based on a jury verdict on the ground that the evidence was insufficient unless the evidence, when viewed in a light most favorable to the nonmov-ant, shows that the verdict wás ‘plainly and palpably wrong and unjust.’ Christiansen, 567 So.2d at 1341.”

Carter v. Henderson, 598 So.2d 1350, 1354 (Ala. 1992).

“ ‘The elements of a breach-of-contract claim under Alabama law are (1) a valid contract binding the parties; (2) the plaintiffs’ performance under the contract; (3) the defendant’s nonperformance; and (4) resulting damages.’” Shaffer v. Regions Fin. Corp., 29 So.3d 872, 880 (Ala. 2009) (quoting Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala. 2002)). There was no dispute that the parties had been bound by a valid contract and that Golden had performed under the contract. Moreover, the jury could have determined that, because Velasquez had testified that she had not refused to pay the $9,540, Golden had not met his burden to prove her nonperformance.

“[I]t is the duty of the [trier of fact] to resolve conflict in testimony and render judgment accordingly. Jones v. LeFlore, 421 So.2d 1287 (Ala. Civ. App. 1982). Where the [trier of fact] resolves a factual issue on conflicting evidence, the reviewing court may not reverse it if there is any credible evidence to support the judgment. Jones v. Jones, 470 So.2d 1207 (Ala. 1985).”

Big Thicket Broad. Co. of Alabama v. Santos, 594 So.2d 1241, 1243-44 (Ala. Civ. App. 1991). Based on the above reasoning, the circuit court upheld the jury’s verdict and denied Golden’s motion for a new trial. Such a decision rests within the sound discretion of the trial court. See Jawad v. Granade, 497 So.2d 471, 477 (Ala. 1986).

“This appeal is governed by certain well-established principles. Foremost, perhaps, is the principle that trial courts do have the power to grant motions for new trials in order to prevent irrevocable damage. Such power should be hesitantly exercised, because the verdict of a jury results from one of the most precious rights in our system of government, that is, the right of trial by jury. However, coupled with this principle of law, is a consistent principle that the power to set aside the verdict of a jury may be exercised when it affirmatively appears that the substantial ends of justice require the examination of facts by another jury. Walker v. Henderson, 275 Ala. 541, 156 So.2d 633 [ (1963) ].”

Lee v. Moore, 282 Ala. 461, 463, 213 So.2d 197, 198(1968).

In his appellant’s brief, Golden refers to the evidence presented regarding his refusal to accept Velasquez’s offer to pay him $9,540; however, he fails to develop a legal argument, with citation to supporting authority, asserting that Velasquez was liable for damages for breach of contract despite her offer. It is well settled that an appellate court

“will not ‘create legal arguments for a party based on undelineated general propositions unsupported by authority or argument;’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala. 1992). Further, it is well settled that ‘ “[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.” ’ Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala. 1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala. 1990)).”

Allsopp v. Bolding, 86 So.3d 952, 960 (Ala. 2011).

Based upon the arguments presented on appeal, we conclude that, when viewed in the light most favorable to Velasquez, the evidence presented is sufficient to support the jury verdict, the verdict is not plainly and palpably wrong, and the circuit court did not err by denying the motion for a new trial.

AFFIRMED.

. Pittman, Moore, and Donaldson, JJ., concur.

Thompson, P.J., and Thomas, J., concur in the result, without writings.

      . The complaint actually states a cause of action for "work and labor done," which was thereafter referred to as a claim based on the theory of quantum meruit. See Frank Crain Auctioneers, Inc. v. Delchamps, 797 So.2d 470, 474 (Ala. Civ. App. 2000) (explaining that the theories of quantum meruit or work and labor done "are methods of avoiding unjust enrichment”).