author: KING, JUSTICE, FOR THE COURT:

text:
    Eddie MINOR, III a/k/a Eddie Minor a/k/a Eddie Lee Minor, Jr. a/k/a Eddie Minor, Jr. v. STATE of Mississippi
    NO. 2016-KA-01311-SCT
    Supreme Court of Mississippi.
    November 30, 2017
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, PHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    EN BANC.
   KING, JUSTICE, FOR THE COURT:

¶ 1. Eddie Minor was convicted of armed robbery in the Circuit Court of Adams County and sentenced to serve a term of thirty-five years in the custody of the Mississippi Department of Corrections (MDOC). Minor now appeals his conviction, arguing both that the evidence was legally insufficient to support his conviction and that the jury's verdict was contrary to the overwhelming weight of the evidence. Finding no merit in his appeal, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 29, 2014, in Natchez, Mississippi, sixteen-year-old Jessie Elbert Taylor Jr. was fatally shot in the back. Officer Paulesha McBride, with the Natchez Police Department, was dispatched to the Beaumont Street area at around 9:00 p.m. that night. She arrived first on the scene and observed Taylor lying in the street. She testified that Taylor had been conscious, and that she had asked him what had happened. Taylor stated that "he had been robbed by two black males." Taylor told her that the two males had asked for everything in his pocket. He told them that he did not have anything, and the males pulled out guns and started shooting. Taylor stated that he then turned and started running down the street.

¶ 3. Investigator Otis Mazique, with the Natchez Police Department, testified that when he arrived at the scene shortly afterward, he observed Taylor lying in the street. Taylor had been talking, stating that two males had robbed him and had shot at him. He corroborated Officer McBride's testimony that Taylor had said that the two males had told him to empty his pockets. Investigator Mazique leaned down and asked Taylor to identify the two males but Taylor had passed out and did not respond. Taylor never regained consciousness.

¶ 4. A total of eight casings was found at the scene. Investigator Mazique testified that a single nine-millimeter casing had been found at the beginning of Beaumont Street, near Woodlawn Avenue. At the corner of Beaumont Street and Wallace Court, a small alley off Beaumont, seven nine-millimeter bullet casings were recovered. All seven of those casings were of the same type.

¶ 5. Officer McBride got word that Taylor had thrown a gun across the fence. The police department recovered an automatic Lorcin .380 pistol around twenty to thirty feet from Taylor. The Lorcin pistol had a .380 caliber bullet in it as well as a nine millimeter bullet. The nine-millimeter bullet fit the description of the single, nine-millimeter casing found at the corner of Beaumont and Woodlawn. Both had a red ring around the firing hole. Carl Fullilove, a forensic scientist with the Mississippi Forensics Laboratory, testified that the seven casings found together were shorter than the single, nine-millimeter cartridge that was found by itself. The only bullet that could have been fired from the .380 gun that Taylor supposedly had fired was the shorter bullet found by itself.

¶ 6. Dr. Mark LeVaughn, chief medical examiner for the State of Mississippi, listed Taylor's manner of death as homicide by multiple gunshot wounds. Taylor had two gunshot wounds, both entering through the back. The bullet recovered from Taylor's abdomen was a .38 caliber bullet. Fullilove testified that it could have been fired from the same nine-millimeter that had fired the seven cartridge casings found together.

¶ 7. Witnesses on the street identified then eighteen-year-old Minor, Emanuel "Little Carl" Latham, and Tyrone Noble as being involved in the shooting. The next day, Investigator Mazique brought Minor into the station and read him his Miranda rights. Minor refused to sign the Miranda form. Minor stated that he had been at home that night. He then put his head between his legs and did not say anything else.

¶ 8. Latham, fifteen years old at the time, waived his Miranda rights and gave oral and written statements. Latham also testified at Minor's trial. Latham stated that he had been with his cousin earlier that night when Minor had called him. After the call, Latham's cousin dropped him off at 27 Beaumont Street. Keterria Noble, Tyrone Noble's cousin, and Minor already were at the house when he arrived. A few minutes later, Taylor arrived on his bicycle. Latham testified that Taylor had asked Minor for synthetic marijuana. Latham, Minor, and Taylor then walked down the street to 35 Beaumont Street, allegedly to obtain the marijuana. Minor instructed Taylor to stay outside on the porch. After Latham and Minor went into the house, Minor instructed Latham to stay in the living room. Latham stated that Minor returned with two guns. Minor kept one gun and handed the other to Latham. Latham testified that he had received an automatic pistol while Minor had kept an all-black revolver. Latham asked Minor what Minor wanted Latham to do with the gun. Minor replied that Latham was to "just do what he do."

¶ 9. The two walked outside to meet Taylor. Latham stated that Minor then pulled out his gun and told Taylor to "give him everything." Taylor handed Minor the money that had been in his pocket and attempted to walk away. Latham testified that Minor grabbed Taylor by the back of his shirt and told him that he wanted the gun that was on his side. Minor then reached for Taylor's gun but was unable to retrieve it. Next, Latham testified:

After he reached for the gun, Jessie Taylor knocked his hand down. He got into a little tussle. Eddie Minor pushed Jessie up off of him.... After he pushed him up off him, Jessie Taylor turned around and started to walk off real fast. Eddie Minor fired the shot behind his leg like on the ground.

When Minor fired the shot, Taylor had started to run. Latham testified that when Taylor started to run, "he tried to pull his gun, but it looked like to me-to me it looked like it was stuck between his waist and his side." Latham stated that Minor fired another shot and that Taylor grabbed his backside as if he had been shot. Taylor was able to retrieve his gun and fire a shot backward without turning around. Latham said that it had sounded like the bullet had come close to his head. The shot had scared him, and Latham testified that he then began shooting until he emptied the gun's magazine.

¶ 10. The prosecutor asked what, if anything, Minor had been doing while Latham was shooting. Latham replied:

Well, when I was shooting, he was shooting too, but the way he was shooting is different from me. He shoot, and when his hand come up, he'll wait until it come back down and shoot again.

The two had been standing at the corner of Beaumont and Wallace Court. Latham took off running down Wallace Court to a pathway that led to the main street, Martin Luther King. A few seconds later, Minor came out behind him. Minor called Latham's name and suggested that the two walk back to Beaumont Street. As they were walking, Minor requested that Latham return the gun that he had given him. Latham stated that people had been in front of 35 Beaumont and that Taylor's bike had been laying in the middle of Beaumont Street. Minor told him to ride the bike home. Latham stated that he picked up the bike but then told Minor that he did not want it and laid it back down. When police lights became visible at the end of Beaumont Street, everybody began running. Latham testified that he ran behind Noble's house, jumped the gate, and then hid under the house until things got quiet. On cross-examination, Latham testified that he had known Taylor and that they had been friends from school.

¶ 11. Keterria testified to a slightly different version of events. She did not see Minor with a gun that night. She testified that on the evening of December 29, 2014, she had been outside her house with Minor and several friends. She testified that Latham had arrived and then, around fifteen to twenty minutes later, Taylor had walked up the street. Keterria went inside the house for a few minutes. Keterria stated that when she returned outside, Minor had been walking toward 35 Beaumont Street, and Latham had been walking a short distance behind him. Minor turned around and told Taylor to come with him. Taylor then began to walk down the street with Minor and Latham. Keterria testified that no one else had been with them. She stated that she thought they had gone into the alley next to 35 Beaumont Street. Twenty minutes later, she heard the first gunshot. Keterria saw Taylor run out of the alley with a limp "like he was shot in the leg." Latham then came out of the alley and started shooting at Taylor. She testified that, at that point, Taylor turned around and shot one time and then kept running.

¶ 12. Keterria testified that after the shooting stopped, she saw Latham coming up the street with Taylor's bike. She stated that Latham dropped the bike and ran when he saw the police lights. Minor had been coming from the alley but was not close to Latham. She did not observe anybody else coming down the street and did not see Minor with a gun at the time.

¶ 13. Minor and Latham were jointly indicted on March 23, 2015, on two counts: (1) armed robbery; and (2) murder. On November 23, 2015, the trial court declared a mistrial in Minor's first trial after the jury announced a deadlock.

¶ 14. Minor's second trial ensued, and a Circuit Court of Adams County jury convicted Minor of armed robbery on August 12, 2016. The jury remained undecided on the murder charge, and the trial court declared a mistrial on that charge. The trial court sentenced Minor to thirty-five years to serve in the Mississippi Department of Corrections for the armed-robbery charge. The State then entered a nolle prosequi regarding the murder charge.

¶ 15. Minor now appeals and challenges the weight and sufficiency of the State's evidence.

ANALYSIS

¶ 16. Minor was convicted of armed robbery pursuant to Mississippi Code Section 97-3-79, which reads:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery
....

Miss. Code Ann. § 97-3-79 (Rev. 2014).

I. Sufficiency of the Evidence

¶ 17. When reviewing the legal sufficiency of the evidence, this Court must determine whether the evidence shows " 'beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.' " Bush v. State , 895 So.2d 836, 843 (Miss. 2005), abrogated in part by Little v. State , No. 2014-CT-01505-SCT, 233 So.3d 288, 291-92, 2017 WL 4546740, at *3 (Miss. Oct. 12, 2017), (quoting Carr v. State , 208 So.2d 886, 889 (Miss. 1968) ). The relevant question is whether, when "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). The evidence is sufficient even when reasonable, fair-minded individuals might reach different conclusions on every element of the offense. Id. (citations omitted).

¶ 18. This Court previously has held that a defendant may be found guilty even on the uncorroborated testimony of a single witness. Graves v. State , 216 So.3d 1152, 1161 (Miss. 2016). Here, Latham testified that Minor had retrieved the guns and had instigated the robbery. Latham also testified that Minor, armed with an all-black revolver, had pointed the gun at Taylor and demanded everything in his pocket, as well as demanding Taylor's gun. While the testimony of an accomplice "must be viewed with 'great caution and suspicion,' " even uncorroborated accomplice testimony, as long as it is not unreasonable, improbable, self-contradictory, or substantially impeached, is sufficient. Johns v. State , 592 So.2d 86, 89 (Miss. 1991).

¶ 19. However, Latham's testimony was not uncorroborated. This Court also has held that "[o]nly slight corroboration of an accomplice's testimony is required to sustain a conviction." Jones v. State , 203 So.3d 600, 606 (Miss. 2016). In addition to Latham's testimony, Officer McBride testified that, as Taylor lay dying, he accused two males of robbing and shooting at him. Investigator Mazique confirmed that testimony and stated that Taylor had said that two males had robbed and shot at him. Moreover, Keterria testified that she had heard Minor ask Taylor to follow him down Beaumont Street, and that Minor and Latham had been the only ones with Taylor prior to when she heard the first gunshot. And Keterria testified that she had seen Minor walk out of the alley that Taylor and Latham had walked out of after Latham had finished shooting.

¶ 20. Although Minor argues that critical facts were directly contradicted in this case, we find any inconsistencies in testimony insufficient to warrant a reversal of Minor's conviction. "[I]nconsistencies in witnesses' testimony do not require the jury to reject the entire testimony." Duncan v. State , 939 So.2d 772, 782 (Miss. 2006). It is the function of the jury to pass upon the credibility of the witnesses and resolve the issues. Clanton v. State , 279 So.2d 599, 601 (Miss. 1973) ; see also Cousar v. State , 855 So.2d 993, 999 (Miss. 2003) ("The credibility of witnesses and responsibility for weighing and considering conflicting evidence is for the jury, not the reviewing court.").

¶ 21. When viewing the evidence in the light most favorable to the guilty verdict, a rational juror could find beyond a reasonable doubt that Minor had committed armed robbery. Therefore, the evidence was not insufficient in this case.

II. Weight of the Evidence

¶ 22. In the alternative, Minor contends that the jury's verdict was against the overwhelming weight of the evidence. "In reviewing the denial of a motion for a new trial 'based on an objection to the weight of the evidence,' this Court 'will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.' " Kirk v. State , 160 So.3d 685, 697 (Miss. 2015), reh'g denied (April 23, 2015) (quoting Bush , 895 So.2d at 844 ). "This occurs only if reasonable men could not have found the defendant guilty based on the evidence when it is viewed in the light most favorable to the verdict." Cotton v. State , 144 So.3d 137, 142 (Miss. 2014) (citations omitted).

¶ 23. Minor argues that Latham's version of the events was unconvincing and directly contradictory. However, based on the facts previously stated, we find that Minor's armed-robbery conviction was not against the overwhelming weight of the evidence. Minor next refers to the "bizarre compromised verdict" and argues that, if Latham's testimony was sufficient to establish armed robbery, then the jury also should have believed his testimony enough to support a murder conviction. Minor's argument is flawed. Latham admittedly emptied his magazine while firing at Taylor. Thus, the jury could have believed that Latham, in fact, dealt the fatal blow to Taylor instead of Minor.

¶ 24. Accordingly, because the jury's verdict in this case was not so against the overwhelming weight of the evidence as to require reversal, we find this issue to be without merit.

CONCLUSION

¶ 25. Because the evidence sufficiently supported Minor's conviction and because the verdict was not against the overwhelming weight of the evidence, we affirm Minor's conviction of armed robbery.

¶ 26. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Officer McBride no longer works for the Natchez Police Department.

      Investigator Mazique also is a former employee of the Natchez Police Department.

      The .380 was an automatic pistol which when fired would kick the shell out.

      Investigator Mazique testified that he questioned Noble and that Noble stated he had shot a .380 pistol that night, once in the air. However, after searching Noble's house, police ruled him out as a suspect.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The written statement was not entered into the record.

      Keterria also is referred to as Tyrone's sister in the record. Throughout the record she is referred to as "Katie" and "Kate."

      Thirty-five Beaumont Street was referred to in the record as "Steve's house."


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Debra Mae FOSTER v. NORTH AMERICAN BUS INDUSTRIES, INC.
    1150716
    Supreme Court of Alabama.
    April 28, 2017
    Thomas J. Knight of Hubbard & Knight, Anniston; and M.H. Watson, Jr., Anniston, for appellant.
    David J. Middlebrooks and Brett A. Janich of Lehr Middlebrooks Vreeland & Thompson, P.C., Birmingham, for appellee.
   MURDOCK, Justice.

Debra Mae Foster appeals from a summary judgment entered by the Calhoun Circuit Court in favor of North American Bus Industries, Inc. ("NABI"), in Foster's action alleging retaliatory discharge. We reverse the judgment of the trial court and remand the case.

I. Facts

NABI is a bus manufacturer whose principal production facility is located in Anniston. NABI has what it refers to as a "no-fault, points-based attendance and absenteeism policy." The "Attendance and Absenteeism Policy" ("the policy") organizes reasons for absences into sections, with points accumulated for the type of absence, ranging from 1/4 point to 2 points. An accumulation of six points or more qualifies an employee for "release[ ] from employment automatically." An "absence" is defined as "the failure of employees to be checked in when they are scheduled to work and/or to remain on the job for the entire scheduled shift." Under the section "Absences for the following will have zero (0) points charged" is listed "Job-related injury or illness," along with other reasons such as "Jury Duty" and "Required Military Leave." Under the "1 Point" subsection of the "Point System (values assigned for the described occurrences)" section, the policy states, in part:

"Absence from two or more consecutive full shifts for the same reason if a medical excuse is provided that explains the nature of the illness.
"Absences due to illness or injury to the employee or members of their immediate family (spouse, children) require a medical excuse for verification purposes. The excuse must be presented on the day the employee returns to work or the absences will count (1) point for each day absent.
"Failure to provide adequate medical documentation for each day will result in (1) point for each day missed."

Under the "2 Points" subsection, the policy states: "Absence with no call in. The call must be received at least (30) minutes prior to shift startup. * Note: Absences from two (2) consecutive shifts without proper notification will be considered a voluntary quit without notice." The policy also separately states: "Any absence must be reported at least thirty (30) minutes before scheduled startup. A supervisor or department manager must receive all calls. ... If the supervisor is not available, a message can be left on the appropriate department extension identified by the shift supervisor."

NABI hired Foster as a full-time harness technician on May 29, 2012. Foster worked the day shift, from 6:00 a.m. until 2:00 p.m. or 4:00 p.m. She normally worked Monday through Friday. Foster's immediate supervisor was Tammy Roper, a senior team leader, whose job was to walk the floor to ensure that harness technicians met their quotas. Judy Wright is NABI's Staffing and Benefits Manager, a position in Human Resources ("HR"). According to NABI, Wright's job is to coordinate leave arrangements for employees with non-work-related illnesses or injuries. Also according to NABI, Wright and Roper made the decision to hire Foster, and they were the principal employees involved in the decision to terminate her employment.

As a harness technician, Foster was responsible for putting relay switches, module boxes, and horn switches onto a steel panel. Foster would initially carry the empty steel panel to her station by herself. After she had completed her work on the panel, she would get another employee to help her carry it to a cart. The steel panels Foster worked on weigh about 14 pounds before the installation of switches and modules. After installation, they weigh about 22 pounds.

On Tuesday, July 10, 2012, at around 3:30 p.m., Foster was drilling a screw into a steel panel when the panel flipped forward, knocking off Foster's safety glasses and hitting her in the forehead, causing her to fall back into her chair. Then, according to Foster, "everything got black." No one else witnessed the accident. Because Roper was on vacation that week, Foster first reported the injury to Carol Brasher, whose responsibilities included providing parts, assisting less experienced employees, and being a first responder for workplace injuries. After Foster sat in a chair by Brasher's desk for about 30 minutes, Brasher took her to the office of Debra Hale, NABI's on-site nurse. Among other things, it was Hale's job to coordinate leave and obtain health care for work-related illnesses or injuries. Hale was not in her office, so Brasher and Foster returned to Foster's work station and waited there. Sometime thereafter, Hale came to see Foster.

Hale asked Foster what had happened, and Foster related the details of the accident. Foster informed Hale that she had a headache, and Hale assessed Foster for signs of a concussion. According to Hale, Foster had an abrasion on her right arm, but Foster did not exhibit any signs of serious head trauma. Another employee noted that Foster had a mark on her forehead. Hale told Foster that if she exhibited any further symptoms of headaches or any nausea, she should contact Hale and Hale would send Foster to the hospital for further evaluation.

After Foster's shift ended on July 10, she drove herself home. Later that night Foster began feeling worse and started vomiting. Because of her worsening condition, Foster went to Regional Medical Center ("RMC") in Anniston the following morning instead of showing up for her shift at NABI. Hale then received a telephone call from an RMC employee (Foster had given the employee Hale's telephone number) telling her that Foster was there receiving treatment and claimed that her injuries were the result of a workplace injury. There is a dispute as to what occurred next in the conversation. According to Foster, the RMC employee informed Foster that Hale said that Foster was not injured on the job and therefore that NABI would not pay for her medical care, and Foster told the RMC employee that she wanted to be seen at RMC anyway. According to Hale, she told the RMC employee that NABI used Stringfellow Hospital for emergency visits and that NABI would not pay for Foster to be seen at RMC. Following a CT scan of her head and several other tests, Foster was diagnosed with a concussion, and she was given two shots to help with her pain.

Foster was given a "Work/School Absence Form" from RMC dated Wednesday, July 11, 2012, which stated, in part:

"Please excuse the above-named individual from work/school. They were seen today in the Emergency Department, and should be able to return to work/school in two (2) days from the above date." Foster testified that her husband, Randy Foster, dropped off this doctor's note at the guard station located at the front of the NABI facility with the understanding that the excuse was to be delivered to HR. Randy Foster also testified that he left this doctor's note with the security guards posted at the front of the NABI facility. Hale testified that Foster gave her this doctor's excuse when she returned to work on Monday, July 16.

On Friday, July 13, 2012, Foster went to Oxford Family Practice, her primary-care physician at that time, for further evaluation. At the conclusion of that visit, Foster received a form from her physician stating that she should be excused from work for the dates of July 13 through 15 and that she could return to work on July 16, 2012. The form contained nothing more than the relevant dates and the doctor's signature. Foster testified that this was the excuse she brought in to Hale on July 16. NABI contends that Foster gave this excuse to Roper.

NABI's attendance records show that Foster did not receive any points for her absences from July 11 through July 13, which were her remaining scheduled workdays that week, because she was listed as "Consecutive Days Absence only if medical documentation provided."

Foster returned to work on Monday, July 16, 2012. Roper also returned to work from vacation on that date, and she was informed of Foster's accident. At around 9:30 a.m. that morning, Hale took Foster to Physicians' Care, an approved medical-services provider for NABI employees who had suffered on-the-job injuries, for evaluation. Physicians' Care released Foster for work on the same date, July 16, 2012, and Foster resumed her shift that day.

Foster worked as usual between July 16 and July 18. Foster testified in an affidavit filed after her deposition that, during this period, she and Roper had a conversation in which Roper stated that Foster "might have to find something else." Foster responded: "Are you talking about another job?" Roper replied: "I'm just saying." Roper and NABI deny that this conversation occurred.

On July 18, 2012, Patty Wyatt, one of Foster's coworkers, reported to Roper that Foster was feeling ill and nauseated. Wyatt and Roper went to check on Foster, and Foster reported that she had been throwing up. Roper noted that Foster was breathing heavily. Hale then came to Foster's station, and she took Foster to NABI's on-site doctor. After a while, Foster left work and went to Physicians' Care for treatment around 11:00 a.m.

At 6:45 p.m. on the night of July 18, 2012, Foster returned to RMC complaining of abdominal pain, vomiting, and bloody stools. Foster was admitted to the hospital for further testing. Medical records show that Foster had an emergency CT scan of her head on July 18 but that it did not find any abnormalities to explain her symptoms.

Randy Foster testified that he "personally left a message on Tammy Roper's voicemail on July 19, 2012, and told her that [Foster] was in the hospital and [he] did not know how long she would be in there, but she would be unable to go back to work for a while." He stated that he believed he used the hospital telephone to leave the message and that he placed the call before Foster's shift began. Roper testified that sometime after Foster's shift started she received a telephone call from Foster's husband informing her that Foster had been hospitalized and that Foster would be out for two or three days. An entry in Hale's contemporaneous notes for July 19, 2012 (a Thursday), states: "Debra [Foster] did not come into work. T[ammy] Roper received a phone call that she was in the hospital and would be out for a few days, per Debra's husband." NABI cites Randy Foster's telephone records to relate that he placed a call to Roper from his cellular telephone nearly two hours after Foster was to have started her shift.

Hale telephoned Foster later in the day on July 19. Hale testified that she asked Foster if her hospitalization was related to her work injury, but Foster simply replied that she was on heavy medication and in no condition to talk so she would call her later. Foster testified that Hale told her during this conversation: "If you are in the hospital because of your injury at NABI, I have nothing to say to you!"

Foster was discharged from the hospital on Sunday, July 22, 2012. Foster testified that her husband telephoned Roper on Sunday, July 22, and left a voicemail on her telephone stating that Foster had been released from the hospital but that she would be out of work until the doctor cleared her to return to work. Roper denies receiving any telephone call between July 22 and July 25 accounting for Foster's whereabouts during that period.

Both Foster and Randy Foster testified that, after Foster was discharged from RMC, Randy Foster drove them to the NABI facility to deliver a doctor's note from RMC that excused Foster from working until August 6, 2012. The note stated, in part: "P[atient] was admitted to the hospital 7/19/12 [and] discharged 7/22/12 due to medical reasons. She will need ... leave until Wednesday 8/6/12 when cleared to return to work." Foster and Randy Foster testified that they were unable to go farther than the guard post at the front of the Anniston facility because Foster felt too sick and they did not have a pass to get into the facility. Accordingly, they left the note with the guards, instructing them to give the note to Roper.

Roper denies ever receiving the note. NABI states that leaving medical excuses with the guards, who were not NABI employees, was not proper protocol. NABI also asserts that Foster could have entered the facility and given the note to someone in HR because she had her employee-identification card.

It is undisputed that Foster did not show up for work on July 23 or July 24. Foster testified that she received a telephone call from Judy Wright on July 23 informing her that Foster was going to receive a point on her absence record because she was not at work that day. Wright denies making such a telephone call. On July 25, Foster called Wanda Maddox, another NABI employee with supervisory responsibilities, informing Maddox that she had been released from the hospital.

According to Wright, on July 25 and July 26, she telephoned Foster and left voicemails seeking medical documentation for her work absences on July 23 and July 24. She said that Foster returned her calls on the night of July 26 and complained that Hale had not set up an appointment for neurological testing and indicated that she would "think about" providing medical documentation for her absences. Wright asserts that Foster was angry during the telephone call. Foster denies talking to Wright on July 26, though telephone records appear to establish that Foster made such a call.

NABI terminated Foster's employment on July 30, 2012. Its stated basis for doing so was two consecutive days of absence from work on July 23 and July 24 without calling in before each shift.

Foster continued to be seen by doctors for symptoms related to her head injury. On August 21, 2012, she was seen by Dr. Dalla M. Russell following a referral from Physicians' Care. Dr. Russell's diagnosis note from that date states in part: "Congestion with Post-concussive syndrome of headache, dizziness and nausea."

Foster filed an action alleging retaliatory discharge against NABI in the Calhoun Circuit Court on December 11, 2012, following Foster's initiation of proceedings to recover worker's compensation benefits. On January 23, 2013, NABI answered the complaint and denied the allegations. Following extensive discovery, NABI filed a motion for a summary judgment on November 18, 2015. Foster filed a response in opposition to the summary-judgment motion. In support of that response, Foster filed new affidavits from herself and her husband. On February 1, 2015, NABI filed a reply to Foster's response. Additionally, it filed motions to strike portions of the new affidavits submitted by Foster and her husband, contending that portions of the affidavits contradicted their previous testimony or other record evidence.

On February 19, 2015, the trial court entered an order granting NABI's motion for a summary judgment. The order offered no reasons for the decision, beyond stating that, "[a]fter reviewing all appropriate filings in this case and considering the oral arguments offered by each side at the hearing in this matter, the Court finds there exists no genuine issues of material fact." The trial court did not rule on NABI's motions to strike.

Foster filed a timely notice of appeal.

II. Standard of Review

"We review a summary judgment de novo, seeking to determine whether the evidence presents a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. If the movant makes a prima facie case that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala. 1989). Evidence is 'substantial' if it is 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). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990)."
Ford v. Carylon Corp., 937 So.2d 491, 493-94 (Ala. 2006).

III. Analysis

Foster broadly contends that a number of disputed facts preclude the entry of a summary judgment in this retaliatory-discharge action.

"In Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala. 2002), this Court articulated the following test for determining whether a plaintiff may recover for retaliatory discharge under § 25-5-11.1[, Ala. Code 1975]:[ ]
" 'In order for an employee to establish a prima facie case of retaliatory discharge the employee must show: (1) an employment relationship, (2) an on-the-job injury, (3) knowledge on the part of the employer of the on-the-job injury, and (4) subsequent termination of the employment based solely upon the employee's on-the-job injury and the filing of a workers' compensation claim.' "

Falls v. JVC America, Inc., 7 So.3d 986, 989 (Ala. 2008).

As is the case with many retaliatory-discharge actions, there is no dispute between the parties about the first three elements; the disagreement arises over whether Foster was terminated because of her on-the-job injury and the filing of a worker's compensation claim. We have established a burden-shifting process in such cases.

" 'We hold that an employee may establish a prima facie case of retaliatory discharge by proving that he was "terminated" because he sought to recover worker's compensation benefits, which would be an impermissible reason. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the employee must prove that the reason given by the employer was not true but a pretext for an otherwise impermissible termination.'
" Twilley [v. Daubert Coated Prods., Inc. ], 536 So.2d [1364,] 1369 [ (Ala. 1988) ]. We note that it would be more appropriate to say that, after the [employer] has met [its] burden of coming forward with evidence of a legitimate reason, ' "[t]he [employee] then has the burden of going forward with rebuttal evidence showing that the [employer's stated] reasons" ' for terminating the [employee] are not true. Twilley, quoting Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981). The [employee] does not have to 'prove' that the employer's stated reason is not true unless the [employer's] evidence is sufficiently certain, without more evidence from the [employee], to support a [judgment as a matter of law]. If the [employee's] prima facie case is strong, and the [employer's] evidence of an asserted reason is weak or equivocal, the jury might simply disbelieve the [employer].
"....
"Alabama's worker's compensation laws should be liberally construed in favor of the employee in order to advance and effectuate their beneficent purposes."

Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122-23 (Ala. 1992).

This Court previously has suggested that courts may consider several factors in evaluating whether a plaintiff has established a prima facie case of retaliatory discharge, such as

" '1) knowledge of the compensation claim by those making the decision on termination, 2) expression of a negative attitude toward the employee's injured condition, 3) failure to adhere to established company policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee's work performance evaluations following a workers' compensation claim, and 6) evidence that the stated reason for the discharge was false.'
"... Many states consider '[p]roximity in time between the filing of the workers' compensation claim and discharge....' Rebarchek v. Farmers Coop. Elevator & Mercantile Ass'n, 272 Kan. 546, 555, 35 P.3d 892, 899 (2001)."

Alabama Power Co. v. Aldridge, 854 So.2d 554, 564-65 (Ala. 2002) (quoting Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex. Ct. App. 2002) ).

Foster notes that she presented evidence of several of the foregoing factors. There was a relatively close proximity between the date on which Foster filed a claim for worker's compensation benefits and the date of her discharge. She was injured on July 10, 2012, and filed her claim for benefits on that date; she was discharged on July 30, 2012. There is no dispute that those who made the decision to terminate Foster's employment, Wright and Roper in particular, knew about Foster's worker's compensation claim. Foster presented evidence (albeit disputed) indicating that Debra Hale expressed a negative attitude about Foster's injured condition. There is also a conflict in the evidence as to whether NABI adhered to the policy in terminating Foster's employment.

Considering the foregoing evidence, we find no difficulty in concluding that Foster presented a prima facie case of retaliatory discharge. Therefore, it was incumbent upon NABI to present evidence indicating that Foster's employment was terminated for a legitimate reason.

NABI contended that it terminated Foster's employment pursuant to the "Attendance and Absenteeism Policy," which it says dictates that an employee is terminated if he or she fails to show up for scheduled work two consecutive days without calling in to a supervisor 30 minutes before his or her shift on each day. Specifically, NABI says Foster was terminated after she was a "no-call, no-show" on July 23 and July 24, 2012. NABI argues that there are no exceptions to this policy, and it presented evidence it says demonstrates that it terminated the employment of 44 employees for violating this same "no call, no show" policy between July 2010 and February 2013.

It is undisputed that Foster herself did not call in to a supervisor and that she did not show up for work on July 23 and July 24, 2012. Because NABI presented evidence of a legitimate reason for terminating Foster's employment, the burden shifted back to Foster to show that the reason given by NABI was not true but was a pretext for an otherwise impermissible termination.

Foster argues that she presented a variety of evidence indicating that NABI's stated basis for terminating her employment was untrue. First, she states that she fulfilled the requirements of the policy because her husband telephoned Roper on July 22, 2012, and left a voicemail informing Roper that Foster would not be coming back to work for at least a few days.

NABI responds that Roper never received such a call. It is true that Randy Foster's telephone records do not show a telephone call to Roper on July 22, 2012, and that Roper sent an e-mail to her colleagues on July 23, 2012, after Foster's shift had started asking if they knew where Foster was. NABI argues that, even if Roper had received such a call, the call did not fulfill the requirement in the policy that Foster had to call in each day at least 30 minutes before her shift began.

NABI's contention that Roper never received Randy Foster's telephone call ignores the fact that Randy Foster testified that he made such a call and the possibility that Randy Foster used the hospital's telephone to do so, as he had done on July 19, which would explain why the records for his cellular telephone did not reflect such a call. Thus, there is a conflict in the evidence on this point that raises a material question of fact.

The problem with NABI's argument that the telephone call described by Foster did not fulfill the policy's call-in requirement is that NABI allowed such a telephone call from Randy Foster to be sufficient on an earlier occasion. It is undisputed that Randy Foster telephoned Roper on July 19, 2012, and that he left a voicemail to inform Roper that Foster was in the hospital and that she would be out of work for at least a few days. NABI did not terminate Foster's employment for her absences from work on July 19 and July 20, 2012, even though, according to Roper and NABI, Randy Foster did not call in on July 19 until after Foster's shift had started and no call was made to Roper on Foster's behalf on July 20. Moreover, it is undisputed that no one called in before Foster's shifts on July 11, 12, or 13, yet Foster was not charged any points for her absences from work on those days because she had delivered medical-excuse notes for those absences either before or after the fact. In other words, the evidence in the record indicates that NABI did not consistently apply the "no-call, no-show" policy in Foster's case, which raises the possibility of pretext.

Foster next observes that, even if Randy Foster had not made the telephone call, she and Randy dropped off a medical-excuse note at the guard station at the front of the Anniston facility on July 22, 2012, that explicitly indicated that she would be unable to return to work until August 6, 2012. Foster argues that this should have been sufficient to fulfill the requirements of the policy because the policy expressly provides that a "[j]ob-related injury or illness" is completely excused. Foster contends that it defies common sense that she would have had to call in each day before her shift beginning on July 23, 2012, when her medical-excuse note explicitly stated that she could not work until August 6, 2012.

NABI offers multiple responses to Foster's contentions about the medical-excuse note dated July 22, 2012. First, it contends that NABI never received the note and that this failure was Foster's fault because she should have and could have delivered the note in person and because the guards posted at the front of the Anniston facility were not NABI employees. Second, NABI contends that, even if NABI personnel had received the medical excuse, the note would not have sufficiently apprised them that Foster's absence was the result of her on-the-job injury. Third, NABI argues that its policy requires employees to call in each day even if an employee has a medical excuse that provides for a multiple-day absence.

Whether Foster's method of delivering the medical-excuse note was sufficient is an issue of fact. Both Foster and Randy Foster testified that Randy delivered a medical-excuse note on July 11, 2012, to the guards posted at the guard station at the front of the Anniston facility, and the evidence appears to indicate that NABI personnel received that excuse because Foster was not charged any points for her absences on July 11 and July 12, 2012. Given this previous experience and the fact that no one appears to have told Foster that such a method of delivery was inappropriate, there remains an issue of fact as to whether Foster's method of delivering the July 22, 2012, medical-excuse note was sufficient.

NABI's contention that the content of the July 22, 2012, medical-excuse note was not sufficient to apprise NABI personnel that Foster's absences on July 23 and July 24 were related to her on-the-job injury rings more hollow than its protest concerning the method of the delivery of the note. NABI argues that "the note's ambiguous message did not reveal the origin of [Foster's] second hospital visit." This is because the note simply stated that Foster was in the hospital for "medical reasons" and that "[s]he will need ... leave until Monday 8/6/12 when she should return to work." One problem with NABI's argument is that NABI accepted as sufficient two previous medical-excuse notes that were at least as vague as the July 22, 2012, note. The first note, dated July 11, 2012, simply stated, in pertinent part: "Please excuse the above-named individual from work/school. They were seen today in the Emergency Department, and should be able to return to work/school in two (2) days from the above date." The second note, dated July 13, 2012, merely provided the relevant dates that Foster should be excused from work and the doctor's signature. Neither note expressly stated what kind of injury prevented Foster from returning to work or that the injury was work-related. Despite these deficiencies, it is undisputed that Foster was not charged any points for her absences from work from July 11 through July 13, and NABI's documentation stated that Foster was "Consecutive Days Absence only if medical documentation provided."

NABI's third rejoinder-that the policy required employees to call in each day even if they submitted a medical excuse that provided for a multiple-day absence-also does not square with NABI's previous practice in this case. As we already noted, it is undisputed that no one called in before Foster's shifts on July 11, 12, or 13, yet Foster was not charged any points for her absences from work on those days because she delivered medical-excuse notes for those absences.

Moreover, NABI's actions after Foster's absences on July 23 and July 24 cast further doubt on whether calling in each day was an unequivocal requirement. Wright testified as follows in her deposition:

"Q. Right. Your note says husband, Debra Foster's husband, calls Tammy Roper to report she had been admitted to the hospital. That wouldn't be good enough to cover anything the 19th?
"A. It would be if she had produced the medical documentation that I asked her for, which she failed to do.
"Q. So you go back, in other words, you do have a procedure for allowing an employee to go back and document it after the fact?
"A. Yes. In a case such as this when the husband had reported that she was in the hospital, you know, we would expect to get documentation to substantiate that, because if you noticed the record there on her attendance with all of the zeros, they're either consecutive days absence or she was absent due to doctor visits or whatever related to the injury that was reported."

Wright also testified that the reason she waited until July 30, 2012, to terminate Foster's employment was to give Foster a chance to submit medical documentation for her absences because she wanted "[j]ust to give that employee the benefit of the doubt as we do with all of our employees, or try to." This indicates that the real issue was not that Foster failed to call in before each shift but, rather, that she allegedly failed to provide adequate medical documentation for her absences after the fact.

In addition to all the foregoing, there is evidence indicating that, even if NABI never actually received the July 22, 2012, medical-excuse note-an issue that, as we have said, is a question of fact-it was aware that Foster's absences on July 23 and July 24 were related to her on-the-job injury. Foster talked to Wanda Maddox on July 25 and told Maddox that she had been released from the hospital. Wright testified that she talked to Foster on July 26 and that Foster expressed anger that Hale had not set up an appointment for Foster to receive neurological testing. NABI personnel also were well aware that Foster had been absent from work frequently since the July 10 accident. These communications and the context suggest, at least, that NABI knew Foster's absences were related to her July 10 accident.

Finally, Foster contends that there is one other compelling piece of evidence that shows that NABI's stated reason for termination of her employment was a pretext. Foster cites the portion of her affidavit she submitted in opposition to NABI's motion for a summary judgment in which she recounted a conversation she had with Roper shortly after her accident in which Roper stated that Foster "might have to find something else." Foster responded: "Are you talking about another job?" Roper replied: "I'm just saying." Foster argues that this conversation indicated that NABI did not want to employ Foster following her on-the-job injury.

NABI disputes this evidence by contending that Foster's testimony about this conversation directly contradicted testimony she provided in her deposition. NABI quotes Enoch v. Firestone Tire & Rubber Co., 534 So.2d 266, 269 (Ala. 1988), for the proposition that "on a motion for summary judgment, a party may not create an issue of fact 'with an affidavit that merely contradicts without explanation, previously clear testimony.' " (Quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984).) This argument was a basis of NABI's motion in the trial court to strike portions of Foster's affidavit, which motion was not granted.

We first note, however, that evidence of the conversation Foster recounted in the affidavit was present in the record before the taking of her deposition and the submission of Foster's post-deposition affidavit. Included in NABI's submissions in support of its motion for a summary judgment were handwritten contemporaneous notes Foster made concerning her interactions with NABI personnel pertaining to her on-the-job injury. One of those notes recounted the conversation Foster alleges she had with Roper shortly after her accident. NABI did not question Foster about this note in her deposition.

Moreover, as Foster also argues, the portion of her deposition NABI cites as "contradicting" her affidavit testimony does not do so in the manner contemplated by the cited proposition. The testimony consists merely of the following colloquy:

"Q. Ok. Has anyone at NABI ever expressed any hostility for making a Worker's Comp. claim?
"A. Not that I recall.
"Q. Have you ever heard anybody at NABI say anything negative about any other employees because they filed a Worker's Comp claim?
"A. Not that I recall."

The conversation between Roper and Foster does not necessarily indicate that Roper had "hostility" toward Foster for filing of a worker's compensation claim or that Foster must have understood the conversation in this manner. It does shows at least that Roper thought Foster's injured status would make it difficult for NABI to continue to employ her. But the conversation does not directly "contradict[,] without explanation, previously clear testimony." Enoch, 534 So.2d at 269. In any event, as already noted, evidence of the conversation is present in the record even without Foster's affidavit.

NABI disputes that the conversation between Roper and Foster highlighted in Foster's affidavit ever occurred, and it argues that the affidavit contradicts Foster's previous testimony in that regard, but NABI does not dispute that such a conversation, if it occurred, is damaging to its assertion that there is no evidence of a pretextual termination of employment. Once again, the evidence of the conversation raises questions of fact as to whether the conversation occurred, what its meaning was if it did occur, and whether it sufficiently demonstrates that NABI's stated reason for terminating Foster's employment was untrue. The answers to such questions require a jury determination.

IV. Conclusion

Based on the foregoing, we conclude that numerous issues of fact preclude the entry of a summary judgment in this case. More specifically, Foster introduced sufficient rebuttal evidence in support of her position that NABI's stated reason for terminating Foster's employment was a pretext so as to create a genuine issue of material fact. Accordingly, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Main, and Bryan, JJ., concur.

      Section 25-5-11.1 provides:
      "No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11."

      It is worth noting that the vast majority of the listed 44 employees were temporary workers.

      NABI has filed a motion requesting permission to file a surreply brief in an effort to focus this Court's attention on certain parts of the record that NABI contends conflict with factual assertions made by Foster in her reply brief. Having reviewed the entirety of the record, including the portions that are the subject of NABI's motion, and seeing no need for additional briefing, this Court by separate order is denying NABI's motion.


author: PITTMAN, Judge. MOORE, Judge, dissenting.

text:
    A.M. v. COLBERT COUNTY DEPARTMENT OF HUMAN RESOURCES
    2140519.
    Court of Civil Appeals of Alabama.
    Dec. 4, 2015. Rehearing Denied May 27, 2016
    Carla Putman Maples, Florence, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

A.M. ("the father") appeals from an adverse final judgment entered by the Colbert Juvenile Court in two cases involving petitions filed by the Colbert County Department of Human Resources ("DHR") seeking termination of the father's parental rights as to two children, A.C. and F.C. ("the children"), born of the father's relationship with L.C. ("the mother"). We affirm.

The record reflects that the children were born in 2009 and 2011 and that they were each removed from the care of the mother in 2011, when they were found dependent and placed in the custody of DHR and into foster care. The mother at that time did not identify the children's father. However, in September 2012, in connection with subsequent proceedings to terminate the mother's parental rights as to the children, the mother identified the father as having sired the children, and he submitted to genetic testing in November 2012 that yielded results that demonstrated his parentage. The father, who was then an Ohio resident, was thereafter added to those cases as a defendant; he relocated to Alabama in March 2013. After an ore tenus proceeding, the juvenile court concluded in an October 2013 judgment that the children were dependent and that the mother's parental rights were due to be terminated; however, that court simultaneously opined that it could not, "in good conscience, terminate the rights of" the father before "[a]ppropriate services" were offered to the father "to determine if he [was] willing to place the necessary time and efforts ... to be reunified with [the] children" and stated that "relative resources should be properly investigated and either approved or rejected." The juvenile court advised that, "[b]efore [it] engage[d] in the most drastic act of terminating [the father's] parental rights, a sufficient pattern o[f] his inability to comply with the Individualized Service Plan should be established."

In April 2014, DHR again initiated termination proceedings as to the father. After an ore tenus proceeding, the juvenile court rendered a judgment in July 2014 declining to terminate the father's parental rights, opining that, despite early drug-testing results showing that the father had used marijuana, he had "completed the majority of the [Individualized Service Plan] goals" apart from acquiring stable housing and long-term employment. However, the court cautioned the father that, "[w]hile much progress has been made, much is still required"; that it "d[id] not intend [for] the children [to] continu[e] to languish in the foster care system"; and that the father "need[ed] to continue to remain drug-free." That judgment further noted that no relative resources were available and specifically excluded the father's sister as a potential relative resource.

In September 2014, DHR filed new termination petitions in which it averred that the father had a "history of instability" preventing him from "maintaining stable housing and employment" and, thereby, "from discharging parental duties and properly caring for" the children and stated that, although termination had not been ordered as to the father on DHR's preceding petitions, "the father ... [wa]s not at the present time and w[ould] not be in the foreseeable future ... able or willing to provide for ... support, training, maintenance, or education" of each child. The father, through appointed trial counsel, answered and denied that grounds for termination existed. An initial ore tenus proceeding in December 2014 revealed that the father had received an offer of employment with Wise Alloys that might allow him to offer a stable home for him and the children but that he had tested positive for marijuana use in a hair-follicle test conducted in September 2014; the juvenile court entered an order in January 2015 setting the cases for further testimony in February 2015 and directing a home study of the father's living conditions. However, at that subsequent hearing, the father admitted that he had not been hired by Wise Alloys because he had failed a criminal-background check, and evidence was adduced showing that he had again tested positive for marijuana use and alcohol use approximately three weeks before the hearing. The juvenile court thereafter entered a judgment granting DHR's termination petitions, stating, in pertinent part:

"It has been made clear to [the father] over a period of about two years since March of 2013 through adjudicatory hearings, permanency hearings, [Individualized Service Plan meetings], discussions with case workers, and in the [termination proceedings] that the path to gaining custody of these two children lay in obtaining suitable housing, maintaining stable income, and avoiding drug and alcohol problems. While the felony conviction and the child support arrears probably hindered [the father's] efforts to progress, these obstacles were of his own making and not insurmountable. Unfortunately, it appears that there has been a pattern in this case of [the father's] not being able to achieve housing, employment and staying clean all at the same time for an extended period of time. [The father] has been unable to demonstrate significant stability in obtaining [sic ] a[nd] maintaining his [Individualized Service Plan] goals. [The father's] testimony has always been consistent that a new job or home is just days, weeks or months away. In all reality this vision of a new life is just another mirage that has persisted throughout this case."

The father, acting pro se, timely filed a notice of appeal from the juvenile court's judgment entered as to DHR's termination petitions, and new counsel was appointed to represent him on appeal. Because a court reporter was present at the ore tenus proceeding giving rise to the father's appeal and a transcript has been prepared, this court has appellate jurisdiction under Rule 28(a)(1)(c)(ii), Ala. R. Juv. P. The father's appellate brief raises two issues: whether the judgment was consistent with Code sections appearing in the Alabama Juvenile Justice Act ("AJJA"), Ala.Code 1975, § 12-15-101 et seq., and whether the juvenile court's judgment was erroneous based upon the claimed existence of viable alternatives to termination or the absence of an identified adoptive resource. Because the juvenile court's judgment was entered after an ore tenus proceeding, the applicable standard of review is that espoused in Ex parte State Department of Human Resources, 834 So.2d 117, 120-21 (Ala.2002), namely that appellate courts are to presume that trial courts' findings in cases of child custody are correct and that reversal will not obtain absent a clear abuse of discretion or plain error. See also Ex parte State Dep't of Human Res., 682 So.2d 459, 460 (Ala.1996).

In addressing the first issue, the father's brief correctly notes that the AJJA does not mandate the filing by DHR of a termination-of-parental-rights petition solely because a child has been in foster care for 12 of the preceding 22 months if DHR has not provided "such services as [DHR] deems necessary for the safe return of [a] child to his or her home." Ala.Code 1975, § 12-15-317(2) c. However, as this court noted in reviewing similar mandatory-filing provisions in prior law, such provisions do "not necessarily establish a 'starting point' for DHR to file a petition to terminate parental rights," and "DHR may file a termination petition whenever it determines that the best interests of the child would be served thereby." T.G. v. Houston Cnty. Dep't of Human Res., 39 So.3d 1146, 1150 (Ala.Civ.App.2009). We perceive no violation of § 12-15-317 on the part of DHR in its having filed the termination petitions giving rise to the judgment under review in September 2014-approximately two years after the father was identified by the mother.

The remaining portion of the argument presented by the father in connection with his first issue proceeds from the proposition that insufficient evidence was adduced tending to show the existence of the factors set forth in § 12-15-319 that would warrant termination of the father's parental rights. Although that statute is not specifically cited in the judgment entered by the juvenile court, the judgment is necessarily predicated upon those portions of subsection (a) providing that parental rights may be terminated upon a showing by clear and convincing evidence that respondent parents are "unable or unwilling to discharge their responsibilities to and for the [pertinent] child" or that those parents' "conduct or condition ... renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future." Among the factors mandated in § 12-15-319 by our legislature to be considered in termination cases are (a) "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," and (b) "[l]ack 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 [DHRs] or licensed child-placing agencies, in an administrative review or a judicial review." Ala.Code 1975, § 12-15-319(a), subsections (2) & (12). The father's contentions against the correctness of the judgment necessarily impugn the sufficiency of the evidence to support the judgment, necessitating a review of whether the evidence of record at trial did, in fact, warrant the termination of the father's rights as to the children.

The record reflects that a consistent concern for DHR after the father's arrival in Alabama was the father's housing and employment situation, as well as his use of alcohol and drugs. After the juvenile court had entered its judgment terminating the mother's parental rights as to the children, but had also noted that no services had been afforded to the father by DHR, provisions addressing the father's responsibilities were added in November 2013 to the individualized service plan ("ISP") adopted as to the family. Among the provisions added was the goal that the children would "reside in a safe, stable environment in which all of their basic needs are met," pursuant to which the father was to "maintain housing which is adequate to meet the welfare needs of the children" and to "obtain/maintain employment to ensure that he is able to meet the financial needs of the children." Further, and possibly because the father had admitted to marijuana usage at the trial preceding the entry of the October 2013 judgment terminating the mother's parental rights, provisions were included in the ISP as of November 2013 stating the goal that the father would "seek help with substance abuse issues[ ] and remain free from substances," pursuant to which he would submit to random drug testing and would "exhibit behaviors that are conducive to a sober lifestyle," including achieving "negative" drug-testing results.

The juvenile court's judgment on DHR's April 2014 petitions noted that the father had received positive test results indicating marijuana usage, although the juvenile court isolated those results as having occurred before the father had enrolled in and had completed an intensive outpatient substance-abuse program. Further, although the judgment was generally complimentary of the father's progress in meeting other ISP goals, the trial court noted that the father had been evicted from his residence for nonpayment of rent and had started residing with his sister and also that the father had managed to acquire stable employment at a Wal-Mart department store earning $7.85 per hour only after holding a series of temporary jobs. At that time, the juvenile court believed that the father should be given additional time to complete the tasks set forth in the ISP.

At the ore tenus proceedings following the filing of DHR's termination petitions in September 2014, the father was shown not to have made substantial advancement in meeting the ISP goals; indeed, there was evidence indicating that he was backsliding in his endeavors. First, the father's hair follicles collected on September 19, 2014, tested positive for cannabinoid chemicals, although a urine sample taken four days later did not yield a positive result. Similarly, a sample of the father's urine taken in January 2015 yielded a positive result for alcohol usage that he sought to attribute to "cold medicine" ingestion despite his pretest statement that he had not had any alcohol or prescription drugs in the preceding 30 days before the drug test, and a February 2015 urinalysis yielded positive test results for both alcohol products and cannabinoid chemicals. Although the father sought to blame his positive alcohol test result on having taken "NyQuil" cold medicine, and to blame his positive cannabinoid test on secondhand smoke from a roommate's marijuana cigarettes, the juvenile court heard from an employee of the pertinent drug-testing lab tending to indicate that the alcohol test would not yield a positive result upon consumption of cough-medicine alcohol and that a false cannabinoid positive test result, although theoretically possible in a living situation in which the pertinent residence "is fogged up 24 hours a day" for a long period, was extremely unlikely. The juvenile court could thus have determined from the evidence that the father was not maintaining sobriety as set forth in the ISP.

The evidence adduced in the ore tenus proceeding leading up to the judgment under review was also not favorable to the father as to his housing and employment situation. The record reveals that the father voluntarily left his Wal-Mart job because he believed he was going to be hired to work at Wise Alloys, yet he was not ultimately offered employment there because his criminal record reflected a Class A felony for having been involved in drug trafficking in 1993. As of the February 2015 hearing, the father expected to be employed by a temporary-staffing agency performing temporary work for a flooring company, but he admitted that he had not heard back regarding a required drug test and that he would be limited to 90 days of temporary work with the temporary-staffing agency, after which the flooring company could choose to hire him or not to hire him. However, the father also admitted at the February 2015 hearing that he had been terminated from one of his post-Wal-Mart employment situations with Great Southern Wood because of poor work performance. Further, as to housing, as of February 2015, the father had moved out of his sister's home and had moved into a one-bedroom apartment with a male roommate that, the father admitted, was "a little cluttered" and "not an appropriate place for either of the children," although he anticipated being able to occupy rent-subsidized public housing beginning in March 2015.

Based upon the record evidence set forth herein, we cannot conclude that the juvenile court erred in determining that the father had not made sufficient progress in achieving the directives of the ISP. Although the record does indicate that the father had managed periods of relative sobriety, he proved unable in the juvenile court's view to resist the consumption of alcohol and controlled substances sufficiently to stabilize his lifestyle so as to be able to care for two young children, the older of whom was shown to have near-constant acute allergy symptoms. The father further did not come forward with evidence indicating that he had been able to maintain steady employment or to secure and maintain appropriate housing despite notice from the ISP itself and clear warnings from the juvenile court that doing so would be expected of him. Because subsections (2) and (12) of § 12-15-319(a) provide that excessive use of controlled substances and failure to make progress in fulfilling ISP requirements are factors to be considered in assessing the overarching issue of a parent's ability to properly care for his or her children, and because the juvenile court could properly have drawn the negative inferences that it did from the evidence presented, we cannot perceive a violation of § 12-15-319 warranting reversal.

The father's second issue concerns whether the juvenile court properly considered and rejected viable alternatives to termination. However, the juvenile court explicitly rejected the father's sister as a viable relative resource to care for the children, and the father's brief to this court does not indicate that any other appropriate relative resources exist. To the extent that the father relies upon the lack of identifiable adoptive resources for the children and the opinion of the children's guardian ad litem to the effect that termination under such circumstances would be inappropriate, we note that "the lack of an identified adoptive resource does not necessarily preclude termination of parental rights," T.L.S. v. Lauderdale Cnty. Dep't of Human Res., 119 So.3d 431, 439 (Ala.Civ.App.2013), and that a guardian ad litem's recommendation in a termination-of-parental-rights action is by no means binding on a juvenile court. See S.M.W. v. J.M.C., 679 So.2d 256, 258 (Ala.Civ.App.1996) (affirming denial of termination in spite of guardian ad litem's contrary recommendation to juvenile court). Finally, to the extent that the father's brief may be read as arguing that the status quo-foster care subject to his visitation with the children-was due to be maintained because of his relationship with the children, we note that the juvenile court determined that, notwithstanding the existence of some sort of bond between the father and the children, no testimony was adduced tending to show "that the children would suffer emotionally if that bond was severed." The juvenile court thus did not err in determining that no viable alternative existed to the termination of the father's parental rights in view of his conduct indicating an enduring inability to care for the children notwithstanding the father's insistence that viable alternatives to termination existed.

The dissent in this case would reverse the juvenile court's judgment and remand the cause with instructions that the prejudgment status quo be maintained based upon the absence of an adoptive resource, relying upon a line of cases such as C.M. v. Tuscaloosa County Department of Human Resources, 81 So.3d 391 (Ala.Civ.App.2011), that stand for the general proposition that evidence of a parent's maintenance of consistent contact and communication with dependent children so as to indicate the potential existence of an emotional bond between parent and child may indicate, in certain circumstances, that the child's best interests may be served by maintaining preexisting foster-care arrangements and parental visitation.

However, "[t]he question whether viable alternatives to termination of parental rights exist[ ] is a question of fact," and "[o]ur review of a juvenile court's decision on the viability of a particular alternative to termination of parental rights is governed by the ore tenus rule." H.W. v. Morgan Cnty. Dep't of Human Res., 166 So.3d 142, 146 (Ala.Civ.App.2014). Here, the juvenile court expressly determined that "there was no testimony provided that the children would suffer emotionally if th[e parental] bond was severed," and there was evidence adduced tending to show that, during visits, the father tended to interact less with the children when the mother was in attendance and that he had, in contravention of DHR policy, made promises to take the children to particular places on future visits-evidence that could properly have been deemed by the juvenile court to indicate a more fragile familial bond than might otherwise warrant forbearance as to a parent's clear inability or unwillingness to assume parental responsibility.

Based upon the foregoing facts and authorities, the juvenile court's judgment is due to be affirmed.

AFFIRMED.

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

MOORE, J., dissents, with writing.

MOORE, Judge, dissenting.

I respectfully dissent.

In a judgment entered on March 11, 2015, the Colbert Juvenile Court ("the juvenile court") terminated the parental rights of A.M. ("the father") to A.C. and F.C. ("the children"). The father appeals.

In my opinion, the dispositive issue in this appeal is whether the juvenile court erred in terminating the parental rights of the father when no adoptive resources have been identified for the children. The main opinion summarily concludes that the juvenile court did not err on this point because " 'the lack of an identified adoptive resource does not necessarily preclude termination of parental rights,' T.L.S. v. Lauderdale Cnty. Dep't of Human Res., 119 So.3d 431, 439 (Ala.Civ.App.2013)." 236 So.3d at 87. Although that statement of the law is accurate, it is also incomplete. In certain circumstances, such as those existing in this case, a juvenile court should not terminate parental rights when adoption of the children remains merely speculative.

The facts pertinent to this issue show that the children have been in the same foster-care arrangement since 2011. D.M., the foster mother, testified that she and her husband would continue to care for the children until an adoptive resource could be identified but that they would not adopt the children. Jamie Young, the children's foster-care worker, confirmed that the Colbert County Department of Human Resources ("DHR") had not located anyone to adopt the children and that the children had not visited with any prospective adoptive parent. Young conceded that, if the parental rights of the father were terminated (as the mother's rights had been in October 2013), DHR could not provide custodial permanency for the children. The guardian ad litem for the children could not recommend termination of the father's parental rights in light of those circumstances.

Despite her admission that the children could not be readily adopted, Young testified that it would still be in the best interests of the children to terminate the parental rights of the father "just from [the father's] instability." The record fully supports DHR's concerns about the father's instability. As the juvenile court found, the father has not been able to sustain suitable housing, consistent employment, and clean drug and alcohol tests as required by the individualized service plans formulated by DHR. In light of the father's history, the juvenile court reasonably could have concluded that the father's employment, housing, and other circumstances would likely persist in the foreseeable future, although the father presented some evidence to suggest otherwise.

It remains, however, that termination of the parental rights of the father would achieve no beneficial purpose for the children. The termination certainly will not serve their permanency interest because the children will remain in foster care with only a contingent plan for their future adoption. On the other hand, the undisputed evidence shows that the children have bonded with the father, that they are excited to see the father, that they refer to the father as "Daddy," that they communicate with him over the telephone almost every day, and that they enjoy visiting with him in person regularly. The foster mother testified that the father loves the children and that they show him a great deal of affection through hugs and kisses. She also testified that the father attends the children's doctor's visits and is as involved with the children as he can be considering their foster-care arrangement. Although the juvenile court correctly noted that no witness directly testified that severing the relationship between the children and the father would emotionally harm the children, the burden of proof was not on the father; rather, the burden rested squarely on DHR to prove that permanent loss of that relationship would benefit the children. See Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990) (holding that party seeking to terminate parental rights must show "that termination is in the child's best interest, in light of the surrounding circumstances").

Before terminating the parental rights of an unwed father who has developed a significant parental relationship with his children, a juvenile court must exhaust all viable alternatives to termination. Cf. C.C. v. L.J., 176 So.3d 208 (Ala.Civ.App.2015) (unwed father who does not have significant parental relationship with child has no due-process rights requiring juvenile court to exhaust viable alternatives before terminating his parental rights). When children have an emotional bond with a parent, and the children face only an uncertain prospect of adoption, a juvenile court should maintain the children in a beneficial foster-care environment while allowing appropriate visitation with the parent if that option is viable. See, e.g., C.M. v. Tuscaloosa Cnty. Dep't of Human Res., 81 So.3d 391 (Ala.Civ.App.2011) ; B.A.M. v. Cullman Cnty. Dep't of Human Res., 150 So.3d 782 (Ala.Civ.App.2014) ; and Montgomery Cnty. Dep't of Human Res. v. N.B., 196 So.3d 1205 (Ala.Civ.App.2015). In this case, it is undisputed that the foster parents can and will properly care for the children and that the foster parents have and can facilitate appropriate visitation between the children and the father with DHR's assistance. Under these circumstances, the existence of that viable alternative prevents termination of the father's parental rights.

Finally, I note that, although the juvenile court determined that the father probably would not be able to exercise custody of the children in the foreseeable future, the circumstances might change and the juvenile court could reach a contrary conclusion based on those changed circumstances. It would not benefit the children to permanently foreclose that opportunity, even if presently deemed unlikely, merely on the remote chance that the children may someday be adopted. If, however, an adoptive resource later emerges, the juvenile court can always consider another petition to terminate the father's parental rights. See L.M. v. Shelby Cnty. Dep't of Human Res., 86 So.3d 377 (Ala.Civ.App.2011). Hence, in this case, it would be most beneficial to the children to maintain the status quo rather than to terminate the parental rights of the father. Because the juvenile court erroneously rejected that viable alternative, its judgment should be reversed.


text:
    EX PARTE A.M.
    (In re A.M. v. Colbert County Department of Human Resources)
    1150955
    Supreme Court of Alabama.
    April 28, 2017
    Carla Putman Maples, Florence, for petitioner.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for respondent.
    Prior report: Ala.Civ.App., 236 So.3d 81.
   MURDOCK, Justice.

The petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

Stuart, C.J., and Bolin, Parker, Shaw, Main, and Wise, JJ., concur.