author: MOORE, Judge.

text:
    Kevin Lee GALLOWAY v. OZARK STRIPING, INC., and Alabama Barricade, Inc.
    2080137.
    Court of Civil Appeals of Alabama.
    March 27, 2009.
    Certiorari Denied June 19, 2009 Alabama Supreme Court 1080854.

      Keith T. Belt, Jr., and William T. Johnson III of Belt Law Firm, P.C., Birmingham, for appellant.
    Robert V. Wood, Jr., and Nicole L. Schroer of Wilmer & Lee, P.A., Huntsville, for appellee Ozark Striping, Inc.
    Joseph H. Driver of Carr Allison, Birmingham, for appellee Alabama Barricade, Inc.
   MOORE, Judge.

Kevin Lee Galloway appeals from summary judgments entered by the Calhoun Circuit Court (“the trial court”) in favor of Ozark Striping, Inc. (“OSI”), and Alabama Barricade, Inc. (“ABI”), in a personal-injury action. We affirm in part, reverse in part, and remand.

Procedural H.isto'ry

On September 8, 2006, Galloway filed a complaint against Reginald Wayne Jairrels II, O.K., Inc., OSI, ABI, and various fictitiously named parties, seeking compensatory and punitive damages for personal injuries he allegedly received on September 10, 2004, when an automobile driven by Jairrels struck him while he was placing a traffic cone on U.S. Highway 78 during the course of his employment with McCartney Construction. Galloway alleged that Jairrels had negligently and/or wantonly operated his motor vehicle thereby causing injury to Galloway. Galloway also alleged that O.K., Inc., OSI, and ABI had negligently and/or wantonly failed to provide Galloway with a safe workplace by failing to control traffic flow sufficiently to prevent the accident. All the defendants filed answers denying liability and asserting various affirmative defenses. The trial court dismissed the complaint against O.K., Inc., on June 29, 2007. After Galloway reached a pro tanto settlement with Jairrels, the trial court also dismissed the complaint against Jairrels on October 8, 2008.

OSI filed a motion for a summary judgment on March 7, 2007. ABI filed a motion for a summary judgment on July 11, 2008. Galloway filed his response to the motions on July 22, 2008. In that response, Galloway specifically abandoned his wantonness claim. After conducting a hearing on the motions, the trial court granted the motions in two separate detailed judgments entered on September 8, 2008. Galloway timely filed his notice of appeal to the Supreme Court of Alabama on October 14, 2008; pursuant to Ala.Code 1975, § 12-2-7, that court transferred the appeal to this court on November 7, 2008.

Issues

On appeal, Galloway argues that the trial court erred in entering the summary judgments on his negligence claim. Galloway contends that he proved that both OSI and ABI owed him a duty of care and that a genuine issue of material fact exists as to whether they breached their duty and proximately caused his injuries.

Standard of Review

In Sizemore v. Owner-Operator Independent Drivers Ass’n, 671 So.2d 674, 675 (Ala.Civ.App.1995), this court stated:

“The law regarding summary judgment is well established. A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, [Ala.] R. Civ. P. The moving party bears the burden of negating the existence of a genuine issue of material fact. Melton v. Perry County Board of Education, 562 So.2d 1341 (Ala.Civ.App.1990). Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), [Ala.] R. Civ. P. Proof by substantial evidence is required. Ala. Code 1975, § 12-21-12; Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). The reviewing appellate court must apply the same standard utilized by the trial court when reviewing a summary judgment. Melton, supra. Additionally, the entire record is reviewed in a light most favorable to the nonmovant. Mann v. City of Tallassee, 510 So.2d 222 (Ala.1987).”

Facts

In reviewing a summary judgment, this court is limited to a consideration of only the evidence submitted to the trial court when it ruled on the motion for a summary judgment. Bean v. State Farm Fire & Cas. Co., 591 So.2d 17, 20 (Ala.1991). In the present case, that evidence consisted of the materials attached to or filed in support of OSI’s and ABI’s motions and Galloway’s response thereto. That evidence tended to show the following. In 2004, the Alabama Department of Transportation (“ALDOT”) decided to repave approximately nine miles of a two-lane portion of Highway 78 that runs through Calhoun County (“the project”). ALDOT developed a construction plan for the project that was prepared by its engineers. That plan included, among other things, provisions regulating the control of traffic during the repaving project. The plan specified that the speed limit on the project would be 55 miles per hour, even though at times one of the lanes of travel would be closed. The plan also called for the use of flag men and pilot vehicles to guide motorists through the construction when a lane was closed. In addition, the plan required the placement of approximately 90 signs in and around the work site, stating things such as “Road Work Ahead,” “End Road Work,” “Speeding Fines Doubled,” “Uneven Lanes,” “Bump,” “One Lane Road Ahead,” and “Workers Present.” For the purposes of this appeal, we refer to those signs as “the construction signs.” Paul Kenneth Naugher, the ALDOT project engineer, testified that the traffic-control plan for the project set out the “bare minimum” amount of traffic control required for that type of project.

On July 2, 2004, ALDOT awarded the repaving contract to McCartney Construction (“McCartney”), Galloway’s employer. McCartney subsequently entered into subcontracts with OSI and ABI. Pursuant to its subcontract, ABI agreed to supply, install, and maintain all the construction signs specified by the construction plan, including two signs designating the speed limit as 55 miles per hour. Pursuant to its subcontract, OSI agreed to stripe the solid and broken white and yellow lines on the highway once paving and resurfacing was completed.

Neither ABI employees nor OSI employees were involved in the planning process for the project. ABI and OSI had no authority regarding the establishment of the speed limit, which was the responsibility of ALDOT. Neither ABI nor OSI designed the traffic-control plan for the project. ABI did not determine the construction signs to be used or where those signs would be located. ABI simply supplied the construction signs ALDOT specified in the construction plan and placed those signs where ALDOT employees instructed. ABI did not have the authority to change the construction signs that were specified or to alter their locations without ALDOT’s approval. ABI employees spent several days on the site erecting the construction signs. ALDOT inspected the site daily to ensure that the construction signs were placed in accordance with the construction plan. Thereafter, when notified of a problem with a construction sign, ABI employees would travel to the site and repair the construction sign.

The subcontracts of ABI and OSI contained the following provisions:

“1.1 The Subcontractor hereby agrees to furnish all labor, shop and erection drawings, samples, supervision, services, materials, equipment, tools, scaffolds, transportation, storage and all other things necessary to perform the work described in Rider A attached hereto (hereinafter called the Work’ the terms of which are incorporated by reference), being a portion of the work required of Contractor under the Prime Contract between Owner and Contractor, and all work incidental thereto.... The Work shall be performed by Subcontractor strictly in accordance with the Contract Documents, which consists of the Prime Contract between Contractor and Owner, and the plans, drawings, conditions, specifications, addenda attached and/or incorporated into the contract between Contractor and Owner which are incorporated by reference into this Subcontract; this Subcontract; general conditions, drawings and specifications prepared by the Alabama Department of Transportation; other documents identified in Rider B attached hereto (the terms of which are incorporated by reference) and all modifications issued hereinafter thereto (hereinafter call [sic] the ‘Contract’ or ‘Contract Documents’).
“1.2 ... Subcontractor represents and agrees that it has had access to all Contract Documents and has carefully examined and understands the Contract Documents that Subcontractor deems relevant to the Work; has previously notified Contractor in writing of all ambiguities, inconsistencies and omissions, if any, in the Contract Documents that relate to the Work; has adequately investigated the nature and conditions of the Project Site and locality; has familiarized itself with conditions affecting the difficulty of the Work; and has entered into the Subcontract based on its own examination, investigation and evaluation and not in reliance upon any opinions or representations of Contractor.
“1.3 In the performance of the Work, Subcontractor agrees that, except as expressly otherwise stated in this Subcontract, it is bound to Contractor by the terms and conditions of the Contract Documents and that Subcontractor is obligated and liable to Contractor to the same extent Contract is obligated and liable to Owner. Subcontractor hereby assumes toward Contractor all of the duties, obligations and responsibilities that Contractor has by the Prime Contract and Contract Documents assumed toward the Owner....
“2.3 On portions of the contract being performed by Subcontractor, Subcontractor shall erect suitable guardrails, appropriate warning signs, lights, or other traffic control devices as required by the Contract Documents referred to herein, along with plans and specifications, the current Alabama Department of Transportation Standard Specifications Supplemental Specifications and Special Provisions as evidenced by the Special Provisions sheet of said contract, a copy of which is attached hereto as Rider B (the terms of which are incorporated by reference). This provision shall apply regardless of whether guardrails, signs, lights, or other traffic control devices are furnished by Contractor or Subcontractor; and if they are being furnished by Contractor, Subcontractor shall be responsible to ensure that same are obtained and utilized and maintained in accordance with plans and specifications, the current Alabama Department of Transportation Standard Specifications, Supplemental Specifications and Special Provisions as evidenced by the Special Provisions sheet of said contract, attached hereto as Rider B.
“12.1. Subcontractor accepts complete responsibility for the health and safety of its employees and its subcontractors’ employees, the safe performance of the Work and compliance with all applicable state and federal health and safety laws, including, but not limited to the regulations and standards of the Occupational Safety & Health Act of 1970 (‘OSHA’), as amended.
“12.2 Contractor shall have no duty to monitor Subcontractor’s practices or performance of the Work for safety and shall have no duty to stop Subcontractor’s unsafe practices or to insure that Subcontractor’s practices and methods of performing the work are safe.”

Because federal aid funded a portion of the project, additional provisions were placed in ABI’s and OSI’s subcontracts, including the following:

“VIII. SAFETY: ACCIDENT PREVENTION
“1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the [State highway agency] contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.
“2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).”

On September 10, 2004, sometime between 7:00 a.m. and 8:00 a.m., Galloway was working for McCartney as a flag man on the project. While preparing to close one of the two lanes in preparation for paving, Galloway was standing in the eastbound lane of Highway 78 placing a traffic cone. At that time, Galloway was struck by an automobile traveling east that was operated by Jairrels. Jairrels testified by deposition that, for several months, he had observed that Highway 78 was under construction in the area where the accident occurred. He also testified that, previously, when one lane had been closed, a flag man would hold up signs directing motorists to “slow” or “stop” (hereinafter referred to as “warning signs”) and that the traffic would alternate traversing the open lane. He also testified that he had previously observed the use of a pilot car to guide traffic through the open lane. Jair-rels testified that, on the day of the accident, he had not seen any warning signs or a pilot car and that he had not seen Galloway before his vehicle struck Galloway. The only sign Jairrels recalled seeing on the day of the accident was a speed-limit sign indicating that the speed limit was 55 miles per hour. Jairrels testified that, had he been traveling less than 55 miles per hour or had he been escorted by a pilot car, he could have avoided the accident. Jairrels further testified that he would have slowed and used reasonable precautions to avoid Galloway had he been warned of Galloway’s presence.

When closing a lane for paving, McCartney employees implemented traffic-control procedures to guide traffic. Those procedures included placing portable warning signs that indicated the presence of workers and using flag men and a pilot truck. ABI and OSI were not involved with traffic control for closing a lane in order to perform paving operations. McCartney, not ABI, provided the portable warning signs.

According to ALDOT’s reports from the date of the accident, all the construction signs specified in ABI’s subcontract were in place. Only one ABI employee worked at the site on the day of the accident, but the record contains no evidence indicating whether that employee was present at the time of the accident. Naugher testified that ABI’s duties that day only consisted of covering two “bump” signs and correcting a leaning speed-limit sign that had been facing westbound traffic. None of those signs were closer than two miles from the accident site. OSI had begun striping work on September 2, 2004, but OSI did not have any employees on the project site at the time of the accident because OSI did not commence its striping work until the late afternoon or early evening when paving was complete for the day.

Naugher testified that, if ALDOT’s traffic-control plans are not correctly implemented, then accidents involving drivers traveling through a project site and persons working on the project are more likely to occur. James Deatherage, Ph.D., a civil-engineering expert retained by Galloway, opined that the speed limit on the construction site was too high for the project conditions. Deatherage stated in an affidavit that ABI and OSI should have appreciated the danger of such a high speed limit and, pursuant to their contractual duties, should have taken all reasonable steps to have ALDOT lower the speed limit to 25 miles per hour. Deatherage faulted ABI and OSI for not recognizing the hazards created by such a high speed limit and for not taking those actions necessary to have the speed limit reduced. Deatherage also opined that ABI and OSI had breached the standard of care by failing to maintain the required construction signs that were mandated by ALDOT’s traffic-control plan if, in fact, those construction signs were not in place. Death-erage further opined that “there exists a reasonable debate about whether [OSI] was, in fact, responsible for traffic control at all times relevant to [the accident]” and that, if OSI was in fact in control, then OSI had breached the standard of care by failing to ensure that a pilot vehicle was present and being used in accordance with ALDOT’s traffic-control plan. Deatherage stated that, if ABI and OSI had fulfilled their duties, the accident probably would not have occurred.

Merrill Whittington, ABI’s corporate representative, testified by deposition that, in the past, he had requested changes to road-construction plans that posed a hazard to the motoring public and ABI employees but that he had never asked to change a speed limit because “that’s not my call.” Whittington testified that he had reviewed the construction plan for the project, including the 55-mile-per-hour speed limit, but that he had not objected to it. Leon Gross III, president of OSI, testified by deposition that, in the past, he had pointed out errors in striping plans that needed correction and that he would not “put anything down” that would endanger motorists or his employees. Gross stated that he had never been on a construction site where he thought the posted speed limit was too high. Gross testified that he had not worked on the site at issue and that he had not known of the 55-mile-per-hour speed limit until he was deposed. Gross testified that, due to his unfamiliarity with the site, he did not have an opinion as to whether the posted speed limit was too high. However, Gross earlier testified that he had considered all road-construction work to be unsafe because of motorists’ traveling through the working area.

Analysis

Galloway first maintains that ABI and OSI owed him a duty to take all reasonable steps to lower the construction-zone speed limit from 55 miles per hour to 25 miles per hour. Section 82-5A-176.1, Ala.Code 1975, imposes on ALDOT the duty to establish speed limits in rural and urban construction zones along state and interstate highways. Presumably, our legislature recognized that ALDOT employs professionals sufficiently familiar with .the criteria for establishing and implementing construction-zone speed limits because § 32-5A-176.1 does not set out in any detail how ALDOT is to determine the appropriate speed limit and does not authorize ALDOT to delegate its authority for setting speed limits to another entity. Nevertheless, Galloway argues that ABI and OSI had a duty to prevail upon AL-DOT to lower the speed limit in this case under Aldridge v. Valley Steel Construction, Inc., 603 So.2d 981, 984 (Ala.1992), and the terms of the subcontracts.

In Aldridge, supra, the supreme court held that “an independent contractor is not free to comply with obviously defective plans and specifications that the contractor should know may create unreasonably dangerous conditions.” 603 So.2d at 984. Galloway points out that, in the subcontracts, both ABI and OSI agreed that they had reviewed the construction plan establishing the speed limit. Deatherage testified that the 55-mile-per-hour speed limit was obviously too high. The principal officers for both companies testified that, in the past, they had objected to hazardous construction plans. Hence, Galloway maintains that, under the rule of Aldridge, ABI and OSI had a duty to recognize the obvious defect in the construction plan and to take reasonable steps to have ALDOT remedy the defect.

In Aldridge, an independent contractor installed a pump motor in precise compliance with specifications provided by the owner of a plant. The electrical-control panel for the pump exploded, allegedly due to infiltration by fluids, and injured a plant worker. That worker presented expert testimony indicating that the contractor should not have followed the installation plans provided by the plant owner because the contractor should have known that they violated an applicable safety code. 603 So.2d at 982-84. The supreme court stated:

“The law in Alabama concerning liability of contractors following acceptance of their work by the owner was set out in McFadden v. Ten-T Corp., 529 So.2d 192, 200 (Ala.1988) (quoting from Hunt v. Blasius, 74 Ill.2d 203, 23 Ill.Dec. 574, 577, 384 N.E.2d 368, 371 (1978)):
“1 “An independent contractor owes no duty to third persons to judge the plans, specifications or instructions which he has merely contracted to follow. If the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications unless they are so obviously dangerous that no competent contractor would follow them.” ’
“Pursuant to McFadden, this Court has adopted the view that an independent contractor is not free to comply with obviously defective plans and specifications that the contractor should know may create unreasonably dangerous conditions. Rather, a contractor is expected to act reasonably under the particular circumstances in order to avoid accidents. However, this Court has not had the opportunity to explore the contours of the liability of such a contractor who discovers, or should have discovered, an apparent defect in the plans and specifications, or the effect a subsequent change or modification would have on the contractor.”

603 So.2d at 984. The supreme court held that summary judgment was not appropriate because questions of fact remained as to, among other things, whether the installation plans were defective and whether the independent contractor should have discovered the alleged defect. 603 So.2d at 984-85.

Although the “contours” of the rule established in McFadden and Aldridge have yet to be fully delineated even now, it is apparent that the rule applies solely to contractors who construct, install, or modify a device that subsequently causes injury. In Aldridge, the contractor was hired to install the very pump that later exploded. In Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839 (Ala.2002), the supreme court reversed a summary judgment for a contractor based on evidence indicating that the contractor had converted a belt-wrapper machine without adding a barrier guard that was required by applicable safety standards, which resulted in the death of a worker who got pinned in the machine. In Nicholson v. Alabama Trailer Co., 791 So.2d 926 (Ala.2000), the supreme court held that a trailer company that had designed a trailer to meet the specifications of a utility company was not entitled to summary judgment in a wrongful-death action because some evidence indicated that the trailer company should have known that the design was flawed because of the absence of stanchions and that that flaw could cause the trailer load to fall. In each of those cases, the contractor, as an expert in the building or installation of the injurious device, should have known of the obvious defect and was in the best position to remedy that defect.

Unlike the contractors in Aldridge and its progeny, ABI and OSI are not charged with any specialized knowledge as to the method and manner for establishing speed limits in highway-construction zones. The record indicates that ALDOT did not request or rely on any input from either subcontractor but, instead, pursuant to its statutory duty, formulated the speed limit itself. We therefore decline to extend the Aldridge rule to the situation presented in the present case, and, accordingly, we hold that ABI and OSI did not have a duty to correct, or to request that ALDOT correct, the speed limit established by ALDOT.

Galloway next argues that OSI, and to a lesser extent, ABI, had a duty to provide a pilot vehicle because it was foreseeable that Galloway would be injured without one. See Smitherman v. McCafferty, 622 So.2d 322, 324 (Ala.1993) (recognizing foreseeability as a key factor in imposing legal duty). That argument has no merit. Although it may have been foreseeable to OSI and ABI that the absence of a pilot vehicle could cause Galloway injury, the law does not impose a duty based on foreseeability alone. Rather, in cases involving injuries on construction sites, the determination whether a subcontractor owes a duty to a general contractor’s employee depends on whether that subcontractor has control over the method and manner by which the work was to be performed. See Garner v. Hutcheson Constr. Co., 661 So.2d 221 (Ala.1995); Procter & Gamble Co. v. Staples, 551 So.2d 949, 950 (Ala.1989) (construing Ala. Code 1975, § 25-1-1, as requiring “employers” to provide reasonably safe place to work to “employees” as those terms are defined therein). In this case, the record indicates that McCartney, not ABI or OSI, provided and controlled the pilot vehicles that were used during lane closings.

Galloway nevertheless argues that the subcontracts required ABI and OSI to assure that the entire construction site was reasonably safe and that appropriate traffic-control devices, which would include pilot vehicles, were being used. See H.R.H. Metals, Inc. v. Miller ex rel. Miller, 833 So.2d 18, 25 (Ala.2002) (holding that duty to provide reasonably safe place to work may be assumed in contract). We do not agree. Articles 1, 2, and 12 of the subcontracts all govern OSI’s and ABI’s obligations to provide for the safe performance of their portion of the contract, known as “the Work.” The subcontracts define the term “the Work” as “the work described in Rider A.” In relation to ABI, that rider refers exclusively to the provision of the construction signs, while OSI’s rider refers solely to its striping responsibilities. Nothing in Articles 1, 2, and 12 suggests that OSI and ABI agreed to investigate and monitor the conditions of the project for the purpose of protecting the safety of McCartney’s employees or for the purpose of assuming custody and control of the entire job site and the manner in which every activity on that site was performed. More specifically, neither OSI nor ABI agreed to control the work of McCartney’s employees or to assume any safety responsibilities over the repaving operations conducted by McCartney.

By the terms of Article VIII, section 2, OSI and ABI

“shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).”

The term “employee” is defined in federal regulations to include every laborer on a worksite “regardless of the contractual relationship which may be alleged to exit between the laborer ... and the contractor or subcontractor who engaged him.” 29 C.F.R. § 1926.32(j). Galloway maintains that OSI and ABI assumed a duty to assure that Galloway, as an “employee” within the meaning of § 1926.32(j), was not working in conditions dangerous to his safety. However, the above-quoted clause defines that duty to extend only to conditions that are dangerous “as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).” Galloway has not cited to this court a single construction safety and health standard promulgated by the Secretary of Labor to support his contention that the duty assumed in Article VIII, section 2, included the responsibility to ensure the use of pilot vehicles. “It is neither the duty nor the function of an appellate court to perform a party’s legal research.” Sullivan v. Alfa Mut. Ins. Co., 656 So.2d 1233, 1234 (Ala.Civ.App.1995).

Galloway last argues that ABI and OSI had a duty to assure that appropriate signs were in place to alert motorists to the presence of workers on the construction site. As to OSI, we disagree. Although Article 2.3 obligates OSI to “erect suitable guardrails, appropriate warning signs, lights, or other traffic control devices as required by the Contract Documents,” the article specifies that OSI must use such traffic-control devices only “[o]n portions of the contract being performed by Subcontractor.” Article 2.3 unambiguously requires OSI to use the traffic-control devices set out in the contract when performing striping work. When those devices are provided to OSI by McCartney, Article 2.3 further requires OSI to assure that the devices are “utilized and maintained in accordance with plans and specifications, the current Alabama Department of Transportation Standard Specifications Supplemental Specifications and Special Provisions .... ” However, that language does not in any manner impose upon OSI the duty to assure that McCartney used required warning signs when performing its paving operations. Galloway cannot rely on Article VIII, section 2, to create that duty because, as we mentioned above, Galloway has not cited any regulation requiring OSI to use warning signs for the protection of Galloway. See Sullivan, supra.

For the same reasons, we reject Galloway’s argument that Article 2.3 or Article VIII, section 2, required ABI to erect and maintain warning signs when McCartney closed a lane for its paving operations. However, ABI did agree in its subcontract to provide, install, and maintain the construction signs set out in the construction plan. Those signs were intended to be placed permanently in and around the construction zone to alert motorists to, among other things, the presence of workers. It was foreseeable to ABI that, if it negligently performed or failed to perform its contractual duties, then Galloway, a worker on the roadway project, could be injured. See Nelson by and through Sanders v. Meadows, 684 So.2d 145 (Ala.Civ.App.1996) (holding that duty of reasonable care to third parties may arise from contractual obligation when injury to third party resulting from negligent failure to perform contractual duty is foreseeable). The question, therefore, is whether Galloway presented substantial evidence indicating that ABI breached that duty. See Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ.App.1996), overruled on other grounds, Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 758, 756 (Ala.2000) (recognizing that evidence of breach of duty to place appropriate warning signs in roadway-construction zone can preclude summary judgment).

ABI contends that the evidence is not in dispute on this point. ALDOT records indicate that, on the date of the accident, all the construction signs required by the construction plan were “in place throughout job.” Galloway maintains, on the other hand, that he presented substantial evidence indicating that the ALDOT reports are not reliable. Indeed, Naugher testified that he did not sign the traffic-control-device log for the day of the accident and that the absence of his signature meant that he could not rely on the log to accurately reflect the condition on the date of the accident, i.e., whether the construction signs were, in fact, in place. Moreover, Jairrels testified as follows:

“Q: Were you able to see road signs?
“[JAIRRELS]: Yes.
“Q: Were you able to see — were the weather conditions such that any street lights were on, that you recall?
“A: There weren’t any traffic signs but, no, there weren’t any street lights on.
“Q: Okay. That you recall?
“A: Yeah.
“Q: Did you see — do you recall seeing any traffic signs whatsoever?
“A: No.
“Q: Okay. And did you ever see any signs on this road that said ‘Construction in progress,’ or, Workers Present’?
“A: Are you talking about at the time of the — the day of the accident?
“Q: Yes, sir, and any other time. Let’s take the day of the accident first.
“A: The day of the accident, no.
“Q: Okay. And do you recall seeing a sign on the day that Mr. Galloway was there?
“A: No.”

Jairrels testified that the only sign he recalled seeing on the date of the accident was a speed-limit sign. That testimony is substantial evidence creating a genuine issue of material fact as to whether ABI breached its duty to erect and maintain the construction signs. See Daniels v. East Alabama Paving, Inc., 740 So.2d 1033 (Ala.1999) (affirming judgment in part based on evidence indicating that highway-construction company did not place appropriate warning signs to alert motorists to pavement drop-off).

The record likewise contains substantial evidence indicating that ABI’s failure to erect and maintain the construction signs, if that failure in fact occurred, proximately caused the accident. See Sanders, 684 So.2d at 150 (discussing proximate cause as element of negligence action). “[I]n Alabama ... a negligent act or omission is the proximate cause of an injury if the injury is ‘a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury.’ ” Id. (quoting Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976)). Proximate causation is ordinarily a question for the jury. Id.

Naugher testified that, absent full compliance with the traffic-control plan, the likelihood of an accident involving a motorist and a worker increases. Jairrels testified that, if he had been alerted earlier to the presence of workers at the site, he would have taken precautions to avoid the accident. Deatherage opined in his affidavit that, had ABI complied with its duty to maintain the construction signs, the accident probably would not have occurred.

In response, ABI argues that Jairrels testified that he would have been more observant only if he had seen warning signs placed immediately before the accident scene. ABI maintains that McCartney, not ABI, would have been responsible for placing portable warning signs immediately before the site of the accident when closing a lane for paving operations. We have closely reviewed the portions of Jair-rels’s testimony upon which ABI relies. Jairrels did not testify as ABI maintains. Jairrels simply stated that, if he had seen signs alerting him to the fact that workers were present at the construction site, he would have slowed down and taken precautions to avoid those workers. He did not indicate that only warning signs placed immediately before the accident scene would have been effective. Jairrels referred precisely to the type of signs ABI was hired to install.

ABI further contends that Jairrels already knew about the construction zone, having seen it for months before the accident, and that fog or the sun may have obscured Jairrels’s vision. Those contentions tend to indicate that the absence of the construction signs may not have been the proximate cause of the accident, but they do not conclusively decide that issue in light of the substantial evidence to the contrary. We therefore hold that a genuine issue of material fact exists as to the proximate cause of the accident.

To summarize, we conclude that Galloway has not presented substantial evidence indicating that OSI owed him a duty to lower the speed limit, or to request that ALDOT lower the speed limit, in the construction zone or to assure the use of traffic-control devices. We, therefore, affirm the summary judgment entered in favor of OSI. Although we conclude that ABI also owed no duty to Galloway to lower the speed limit, or to request that ALDOT lower the speed limit, we do conclude that ABI owed Galloway a duty to perform its contractual obligation to erect and maintain the construction signs set out in the construction plan in a reasonable manner. We further conclude that genuine issues of material fact exist as to whether ABI breached that duty and whether the breach of that duty proximately caused the accident. We, therefore, reverse the summary judgment entered in favor of ABI, and we remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Naugher testified that, other than ALDOT, no entity could change a speed limit other than the Alabama Department of Public Safety-

      . Alabama Code 1975, § 32-5A-176.1, provides, in pertinent part:
      "(a) The State Department of Transportation may set the speed limits in urban and rural construction zones along state and interstate highways and the county commission of a county may set the speed limits in urban and rural construction zones along county roads or highways."

      . In its judgment granting ABI’s summary-judgment motion, the trial court stated, in part:
      "[Galloway] cannot rely on the testimony of Jairrels, who stated merely that he did not see certain signs, when Jairrels also agreed that it was not his responsibility to determine whether the proper signs were in place, and that he would not dispute evidence from ALDOT as to whether all of the proper signs were up.”
      Based upon our review of the record, we find no testimony to that effect.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. MOORE, Judge, THOMAS, Judge,

license: Public Domain

text:
    C.S.B. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2071120.
    Court of Civil Appeals of Alabama.
    April 3, 2009.
    Rehearing Denied June 26, 2009.
    Pamela Millsaps, Mobile, for appellant.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   THOMPSON, Presiding Judge.

C.S.B. (“the mother”) appeals from the juvenile court’s judgment terminating her parental rights to A.L.C. (“the child”). That judgment also terminated the parental rights of the child’s father. The father has not appealed.

On March 14, 2007, the Department of Human Resources (“DHR”) filed a petition in the juvenile court to terminate the mother’s parental rights as to the child, who has been diagnosed with cerebral palsy. According to the petition, the child had been in the custody of DHR since April 6, 2004. The petition asserted that the mother had been diagnosed with mild mental retardation that prevented her from being able to adequately care for the child. It also alleged abandonment and neglect.

The record contains a report prepared for the juvenile court by DHR workers that stated that DHR had received reports that the mother was placing the child at risk of serious harm. One of the DHR workers said in the report that the child’s maternal grandmother had alleged that the mother was abusing the child. According to the report, DHR workers who investigated the allegations did not see any unusual marks or bruising on the child. The report stated that it was later discovered that there was a conflict between the mother and the child’s maternal grandmother. Because DHR had determined that the child’s safety was “questionable,” it removed the child from the mother’s home and placed her in foster care.

At the hearing on DHR’s petition, the following evidence was adduced. The mother has an older child; her parental rights as to that child were terminated in April 2001, five months before the child in this case was born. The record does not reveal the circumstances leading to the termination of the mother’s parental rights in that earlier case.

As to this case, the evidence indicated that the mother has worked diligently with DHR. The mother visited with the child every other week. Susan Gardner, who supervised foster care for the Mobile County DHR, testified that the mother had missed only one scheduled visit with the child. In that instance, Gardner said, the mother had telephoned DHR to say that she would not be able to make the visit because her father had died. However, DHR later learned that the mother’s father had not died. The mother denied that she had told DHR that her father was dead, but she did admit that she had said that he was dying. The mother’s father was still living at the time of the termination hearing.

Gardner also testified that the mother had completed parenting classes, had gone to counseling, and had submitted to two psychological evaluations that DHR had requested. Juanita Spinks, another DHR employee, testified that she had attended the home study that DHR had conducted at the mother’s home in Jackson, where she was living with her husband at the time of the termination hearing. Spinks said that the home, a three-bedroom, two-bath mobile home, was clean, that there was adequate space in the home for the child, and that, although the home needed a few repairs outside, the results of the home study were favorable to the mother.

Tamecca Bell, another DHR employee, testified that the mother had attended an individualized service plan (“ISP”) meeting, where Bell was able to see the mother and child interact. When asked whether she had observed anything that caused her concern, Bell related an incident in which the mother had allowed the child to stand on the back of a chair. The mother was sitting in the chair while the child brushed the mother’s hair.

Although DHR alleged that the mother was mildly mentally retarded, no expert testimony was admitted as to the mother’s mental condition. DHR attempted to call as a witness Dr. John Davis, who had interviewed the mother at DHR’s request. The mother’s attorney objected to allowing Dr. Davis to testify and to the admission into evidence of the report that he had prepared, in which he had evaluated the mother, saying that the mother had not waived the psychotherapist-patient privilege and that anything the doctor may have learned from his evaluation of the mother was inadmissible. The juvenile court sustained the mother’s objection. DHR has not appealed from the juvenile court’s rulings preventing Dr. Davis’s expert testimony and the admission of his report.

The mother testified that she had completed the 10th grade. The mother’s testimony indicated that she most likely has a diminished mental capacity. The following colloquy was had between the mother and the attorney for DHR:

“Q. [By DHR’s attorney]: You know that [the child] has cerebral palsy; you know what that is?
“A. [By the mother]: She was diagnosed with it when I — when she was a baby. She was diagnosed, they told me, one of the doctors, gave her a bottle or one of the nurse gave her a bottle and killed her. That’s why she’s got cerebral palsy now. They said it killed her brain.
“Q.: [The child] died?
“A.: Yes. She died right after she went to the [intensive-care unit],
“Q.: She died in the I.C.U.? Were you there?
“A.: No.
“Q.: Where were you?
“A.: I tried and they killed me.
“Q.: They killed you? When did they kill you?
“A.: Right before she was born.
“Q.: But you’re living now?
“A.: Yeah.
“Q.: How is that?
“A.: They gave me six transfusions.
“Q.: Six transfusions of what?
“A.: Blood.
“Q.: And that brought you back to life?
“A.: Uh huh.
“Q.: And how do you know you died?
“A.: I just — before [the child] was born my water broke and they let me bleed to death. It was at Women and Children’s.
“Q.: Women and Children’s let you bleed to death?
“A: Yep.
“Q.: How do you know that you died?
“A.: I just knew when I was fixin [sic] to go out.
“Q.: You knew when you were fixin [sic] to go out, where?
“A.: When I was laying down.
“Q.: When you were laying down, you knew that you were going to die?
“A.: No. My eyes rolled back and forth in my head and (inaudible).
“Q.: So, you knew you died? Do you know how long you were dead?
“A.: For a day and a half.
“Q.: How do you know you were dead a day and a half?
“A.: I just was like in a coma.
“Q.: And how do you know you were in a coma for a day and a half?
“A.: Cause I could hear people — when I’d come in and out, I could hear people talking.
“Q.: So, you didn’t die, you were in a coma?
“A.: I lost my blood.”

DHR workers testified that the mother had told them that she had seen between five and ten “Mexicans” drilling for oil in her backyard. The mother testified that the child’s father, to whom she is not married, had been peeking in the window at her house. Further, she claimed that the child’s father had raped her. She said that she had been raped five or six times, including being raped by a friend of her mother’s brother and, most recently, by the “satellite dish man.” She said that criminal charges arising from the alleged rape were pending against the “satellite dish man” in Clarke County. There was no evidence presented to dispute the mother’s testimony on those matters.

The mother testified that she did not work because she was disabled because she has breathing problems. She said that she did not have a mental disability. She told the court that she did not drive, and that, if the child were to become ill, she would call her husband to come for them. She said that she would feed the child fruits and vegetables and that, if the child misbehaved, she would punish the child by “putting her in the corner.” The mother did not know what grade the child was in at the time of the termination hearing. She also did not know how much money her husband made.

The mother’s husband, who was 61 years old at the time of the termination hearing, confirmed that he and the mother had been married for one year. He testified that he was not then earning an income, but he was attempting to qualify for disability income. He also said that he had money in savings from when he was working. The mother’s husband has four adult children from a previous marriage. He said that his younger two children were in college at the time of the termination hearing.

The mother contends that the juvenile court improperly terminated her parental rights to the child because, she says, DHR failed to prove by clear and convincing evidence that the child was 'dependent, that there were no viable alternatives to termination of her parental rights, and that she was unable or unwilling to discharge her parental responsibilities to the child, pursuant to § 26-18-7, Ala.Code 1975.

This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007). Additionally, we will reverse a juvenile court’s judgment terminating parental rights if the record shows that the judgment is not supported by clear and convincing evidence. F.I, 975 So.2d at 972. “Clear and convincing” evidence has been defined as “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” ’ ” J.A. v. Etowah County Dep’t of Human Res., 12 So.3d 1245, 1252 (Ala.Civ.App.2009) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting in turn § 6-11-20(b)(4), Ala. Code 1975)). “ ‘Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’ ” Southeast Envtl. Infrastructures, L.L.C. v. Rivers, 12 So.3d 32, 48 (Ala.2008) (quoting § 6-11-20(b)(4), Ala. Code 1975).

Our juvenile courts use a two-pronged test to determine whether to terminate parental rights:

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

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)). Section 26-18-7, Ala.Code 1975, sets forth the statutory authority for the termination of parental rights. That section provides, in pertinent part:

“(a) If the 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 is such as to render them unable to properly care for the child and that such 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, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for [the] needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) 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.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular* visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.
“(c) In any case where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a re-buttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.”

In this case, the juvenile court found that the mother’s parental rights as to one child had already been terminated; however, in this case, DHR did not present any evidence regarding the circumstances involved in that termination.

In its findings, the juvenile court also wrote:

“Although the Court finds at this time that the mother’s house is adequate, and that the mother wishes to be reunited with her child, the Court finds that it is inappropriate at this time to reunify the child and the mother, and that the mother is unable to properly care for the child, and the Court having previously found that she was unable due to mental limitations to care for the child properly, and no evidence has been offered to the contrary.”

From the record, it is apparent that the mother’s alleged mental deficiency was the basis for DHR’s decision to remove the child from the mother in the first place, as well as for its decision to seek the termination of her parental rights. In its report to the court, DHR noted that the mother “seems to love [the child], but her ability to care for her is questionable.” The report then referred to the results of psychological evaluations of the mother, which the trial court declined to admit into evidence. The juvenile court, too, based its decision to terminate the mother’s parental rights on her limited mental capacity.

In this case the juvenile court was called upon to balance the best interests of a child with cerebral palsy with the right of the mother to retain her relationship with the child. As this court has often noted,

“[p]arents and children have a fundamental right to maintaining their relationship that does not evaporate simply because the parents ‘have not been model parents or have lost temporary custody of their child to the State.’ Sanbosky v. Kramer, 455 U.S. 745, 753 (1982). ‘The termination of parental rights is an extreme matter and is not to be considered lightly.’ S.M.W. v. J.M.C., 679 So.2d 256, 258 (Ala.Civ.App.1996). ‘Inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances.’ Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990).”

T.B. v. DeKalb County Dep’t of Human Res., 12 So.3d 90, 99 (Ala.Civ.App.2008).

In this case we conclude that the juvenile court’s decision to terminate the mother’s parental rights was not supported by clear and convincing evidence. From the mother’s testimony, we can glean that her intellectual capabilities are undoubtedly below average. However, because no doctor who has evaluated the mother was allowed to testify about or submit reports regarding those evaluations, there is no evidence as to the extent of the mother’s limited mental capacity, whether the mother’s mental limitations prevent her from being able to fulfill her parental responsibilities to the child, and whether the mother’s condition is likely to change.

Furthermore, upon close consideration, we find that what DHR referred to in its brief as the mother’s “delusions” do in fact have some basis in reality. When the mother said that she “died,” she later clarified that she was actually in a coma; she described being able to hear people talking when she would “[go] in and out.” The mother was able to say where she was hospitalized and that she was treated with blood transfusions. As to the testimony that the mother had said that a group of “Mexicans” were drilling for oil in her yard, her husband testified that there were individuals from an “oil-well crew” who were running lines close to their home. As to the mother’s allegations that she had been raped five or six times, including being raped by the child’s father, her uncle’s friend, and the “satellite dish man,” based on the record before us, we cannot say that such assaults did not occur.

As noted, DHR has failed to challenge on appeal the juvenile court’s refusal to admit expert testimony regarding the mother’s mental capacity and whether she suffered from any mental illness. DHR also failed to present evidence showing the extent of the child’s cerebral palsy or how the child is affected by the condition. The juvenile court sustained the mother’s objection to the testimony of DHR workers who appeared to be ready to testify as to whether, because of the cerebral palsy, the child was in need of special attention beyond what the mother is capable of providing. DHR did not appeal from the juvenile court’s ruling. The child’s foster father did testify, however, that the child is in private school because the child needs assistance with speech. The record does not indicate that the child has ever been abused. Other than the single incident in which the mother allowed the child to stand on the back of a chair, there is no evidence to indicate that the mother is unable to care for the child. There was no evidence tending to indicate that the mother was unable to learn or apply the concepts taught in the parenting classes that she completed or that she was unable to carry out the requirements of the ISP.

On the other hand, the undisputed evidence indicates that the mother visited the child every other week. There was only one occasion when she missed a visitation, and she informed DHR beforehand that she would not be able to make the appointment. She completed parenting classes. She attended her scheduled ISP meetings. The only example of concern about the mother’s ability to care for the child that DHR workers could describe was the mother’s allowing the child to stand on the back of a chair to brush the mother’s hair. That “incident” would not likely be viewed as rising to the level of abuse or neglect. Indeed, there is no evidence indicating that the mother ever abused the child. DHR’s own report to the court indicated that, when DHR employees responded to allegations of abuse, they did not notice any marks or bruising on the child. In her testimony, the mother gave appropriate responses to parenting questions, saying she would punish the child by putting her in the corner and that she would feed the child fruits and vegetables. DHR workers acknowledged that the mother’s home was clean and adequate for the child; the home study that DHR had conducted was positive. DHR acknowledged that the mother appears to love the child.

We understand DHR’s concern for the child, especially in light of the child’s diagnosis of cerebral palsy and the mother’s apparent limited mental capacity. However, as this court has held, “[pjoverty and limited mentality of a mother, in the absence of abuse or lack of caring, should not be the criteria for taking away a wanted child from the parents.” In re Hickman, 489 So.2d 601, 602-03 (Ala.Civ.App.1986). Based on the evidence in the record, we cannot say that the evidence supports a finding that the circumstances in this case are so egregious as to warrant the irrevocable termination of the mother’s parental rights as to the child. We conclude that the juvenile court’s findings are not supported by clear and convincing evidence.

For the reasons set forth above, we reverse the judgment terminating the mother’s parental rights, and we remand this matter to the juvenile court.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

MOORE, J., concurs specially.

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

MOORE, Judge,

concurring specially.

I concur with the main opinion that the Mobile County Department of Human Resources (“DHR”) did not present clear and convincing evidence of grounds to terminate the parental rights of C.S.B. (“the mother”).

In its final judgment, the juvenile court stated:

“[T]he mother is unable to properly care for the child, and the Court having previously found that she was unable due to mental limitations to care for the child properly, and no evidence has been offered to the contrary.”

The juvenile court apparently took judicial notice of a previous factual finding that the mental limitations of the mother prevented her from caring for the child arid placed the burden on the mother to prove that the mental limitation no longer existed. However, the law places the burden on DHR, as the party seeking a judgment terminating parental rights, to present clear and convincing evidence that the parent’s current conditions prevent the parent from properly caring for the child. See Ex parte T.V., 971 So.2d 1, 9 (Ala.2007). Thus, regardless of any previous factual finding based on conditions then existing, at the trial on the petition to terminate parental rights, DHR had to present clear and convincing evidence that the mother’s mental limitations still persisted and that they still prevented her from being able to properly care for the child.

As to the existence of the mother’s mental limitations, I agree with the dissent that expert testimony should not be required to prove an obvious mental deficit. 26 So.3d at 435 (Thomas, J., dissenting). In this case, the juvenile court, as the fact-finder, could have been clearly and reasonably convinced, based on the mother’s disjointed and confusing responses to direct questions, that the mother suffers some lack of comprehension and communication skills evidencing a mental problem. In fact, the juvenile court did conclude that the mother had a mental disability, and, under the ore tenus standard of review, we must defer to that finding. See Ex parte McInish, [Ms. 1060600, Sept. 5, 2008] — So.3d —, — (Ala.2008).

However, under § 26-18-7, Ala.Code 1975, a juvenile court may not find a parent unable to discharge his or her parental responsibilities based on a mere finding that the parent has a mental limitation. The juvenile court may reach that conclusion only if it also finds, based on clear and convincing evidence, that the mental limitation is “of such duration or nature as to render the parent unable to care for [the] needs of the child.” Ala.Code 1975, § 26-18-7(a)(2). In this case, the juvenile court did find that, because of her mental disability, the mother was unable to properly care for the child; however, it did not base that finding on any evidence contained in the record. The record contains no evidence, much less clear and convincing evidence, indicating that the mother’s mental disability has ever or will ever prevent her from being able to care for the needs of the child.

Apparently, DHR attempted to prove that the child has special needs that require care that is beyond the mental capabilities of the mother; however, the juvenile court thwarted those attempts by excluding the testimony of the psychologist who examined the mother and by ex-eluding the testimony of several witnesses regarding the needs of the child. I believe the juvenile court erred in those rulings, but DHR did not make any offer of proof or file a cross-appeal; therefore, we cannot hold the juvenile court in error as to those matters. 26 So.3d at 428 n. 1. Without the necessary evidence of the effect of the mother’s mental limitations on her ability to care for the child, we cannot affirm the judgment terminating the parental rights of the mother. Even under the ore tenus standard of review, we may affirm a judgment only if the factual findings underpinning that judgment are supported by sufficient evidence contained in the record. See Mclnish, supra.

That being said, I note that, by reversing judgment in this case, we are simply holding that DHR did not present sufficient evidence to support the judgment terminating the parental rights of the mother. We are not holding that the mother is entitled to custody of the child; that matter is not before us on this appeal.

THOMAS, Judge,

dissenting.

I respectfully dissent because I believe that this court, in the main opinion reversing the juvenile court’s judgment terminating the mother’s parental rights, has reweighed the evidence. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007).

“This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).”

Ex parte Farm, 810 So.2d 631, 633 (Ala.2001).

The conclusion of the main opinion — that the evidence was insufficient to support a judgment terminating the mother’s parental rights — fails to give proper consideration to the specific findings of the juvenile court. Although it is true that the juvenile court heard no expert testimony regarding the effect of the mother’s mental limitations, the juvenile court, nonetheless, found:

“[T]he mother is unable to properly care for the child, and the Court having previously found that she was unable due to mental limitations to care for the child properly, and no evidence has been offered to the contrary.”

Because the mother’s mental deficiencies and delusions were readily apparent from her testimony, the juvenile court, which heard that testimony and observed the mother’s obvious intellectual limitations, was not plainly and palpably wrong in finding that the mother was unable, due to her mental limitations, to properly care for the child. When a witness’s mental deficiency is readily apparent to the fact-finder, expert testimony is not indispensable. See Beavers v. State, 634 S.W.2d 893, 898 (Tex.App.1982)(holding that defense counsel was not ineffective for failing to present, for purposes of impeachment, expert psychological testimony as to the mental deficiency of the State’s eyewitness when “[t]he record itself clearly show[ed] that during [the eyewitness’s] testimony, his mental deficiency and his capacity should have been thoroughly apparent to the jury”).

The main opinion notes that, although the mother’s parental rights to another child had previously been terminated, the record does not indicate the basis for that termination. The juvenile court, however, was required to consider that prior termination in weighing the effect of the mother’s obvious mental limitations on her ability to care for the child. See § 26-18-7(a)(8), Ala.Code 1975 (stating that, “[i]n determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider ... [t]hat parental rights to a sibling of the child have been involuntarily terminated”).

The role of this court in viewing the sufficiency of the evidence is strictly to determine whether a reasonable fact-finder could be clearly convinced that the mother’s mental limitations rendered her unable to provide proper care for the child. We are not permitted to reweigh the evidence. It is a “well-established and fundamental principle of appellate review that the weighing of evidence presented ore tenus ... is to be performed by the trier of fact, not the appellate court.” Ex parte McInish, [Ms. 1060600, Sept. 5, 2008] — So.3d —, — (Ala.2008).

“ ‘[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. Even if an appellate court in considering the evidence of record would reach its own conclusion that the evidence presented does not clearly and convincingly establish the fact sought to be proved, it is not for that court to act upon its own factual determination but to determine instead whether the fact-finder below reasonably could have made a different finding based on the same evidence.’ ”

Ex parte McInish, — So.3d at — (quoting KGS Steel, Inc. v. McInish, [Ms. 2040526, June 80, 2006] — So.3d —, —(Ala.Civ.App.2006) (Murdock, J., concurring in the result)).

BRYAN, J., concurs.

      . We note that Rule 503(d)(5), Ala. R. Evid., provides an exception to the psychotherapist-patient privilege in those cases in which "relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.” However, because DHR did not cross-appeal as to the juvenile court's ruling excluding Dr. Davis's testimony as to the relevant communications and did not make an offer of proof as to the contents of the excluded psychological records, we cannot consider any information contained in those records.

      . Any conclusion that the mother’s mental disability prevented her from caring for her previous child, as to whom the mother’s parental rights were terminated, would be mere speculation on our part because DHR presented no evidence as to the circumstances leading to that termination.


author: MOORE, Judge. THOMAS, Judge,

text:
    M.G. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080217.
    Court of Civil Appeals of Alabama.
    June 19, 2009.

      Paul R. Roberts II, Gadsden, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. gen. counsel, Department of Human Resources, for ap-pellee.
   MOORE, Judge.

M.G. (“the mother”) appeals from a judgment terminating her parental rights to her four youngest children, D.D.C., M.S.C., M.D.C., and S.C.C. We reverse and remand.

The mother has a long history of substance-abuse problems that have affected her ability to properly care for the children. In 1999, when D.D.C. was born, both D.D.C. and the mother tested positive for cocaine and marijuana. In 2002, the mother spent time in jail after being arrested for the distribution of crack cocaine from her home. On July 26, 2004, when S.C.C. was born, both the mother and S.C.C. tested positive for cocaine and marijuana. On February 15, 2005, after the children fell asleep, the mother left the children at home alone while she went out and got “high.”

After each drug-related incident between 1999 and 2005, the Etowah County Department of Human Resources (“DHR”) instituted various safety plans to prevent the permanent removal of the children from the custody of the mother. The last safety plan, which was instituted in February 2005, required, among other things, that D.S.S., the children’s maternal grandmother, move in with the mother and the children to supervise the family. However, that safety plan failed after the mother left the home on March 11, 2005, without explanation. The maternal grandmother indicated to DHR at that time that she could not properly care for the children without additional family assistance, and no one from either the mother’s or the children’s father’s family came forward to help the maternal grandmother with the children. At that point, the children were placed in foster care.

At some point thereafter, the mother became compliant with DHR’s requirements and the father was released from jail and attended and completed intensive outpatient-drug treatment. The children were returned to the custody of the parents on July 25, 2006, but their custody remained subject to DHR oversight. The mother tested positive for drugs in November 2006; the mother also admitted to having smoked marijuana in December 2006. In addition, DHR discovered that the mother had lied about being employed. In January 2007, the mother met with DHR and school officials to discuss behavioral problems exhibited by M.S.C. and M.D.C. After that meeting, at which the mother stated that she was a good parent and that any behavioral problems the children were exhibiting were not the product of anything going on in the family home, the mother contacted DHR and informed the family’s caseworker, Monica Mostella, that she would no longer cooperate with DHR. After increasing its in-home supervision of the family to five days a week, DHR met with the parents at an individualized service plan (“ISP”) meeting on January 24, 2007. After the mother again displayed what DHR considered to be an uncooperative attitude, the decision was made that the mother and the father had become too unstable and noncompliant to maintain custody of the children. On January 25, 2007, the children were returned to foster care.

DHR continued to provide services to the mother. Between January and April 2007, the mother tested positive for marijuana and missed a few drug screens. In addition, the mother admitted that she had paid a child for urine to enable the mother to falsify a drug test in March 2007; she also asked that drug screens be completely terminated because she no longer wanted to be monitored. DHR established goals for the mother to obtain steady employment, to obtain stable and suitable housing, and to remain sober and drug-free as verified by no positive drug screens. Mos-tella also indicated that, if the father was “out of the picture, it would make [the mother’s] situation a lot better.”

The father and the mother ended their relationship, and the mother moved out of the home she shared with the father. The mother moved in with the maternal grandmother and obtained a job with flexible hours in June 2007 cleaning a nightclub. That same month, the mother tested negative on a drug screen. Thereafter, despite undergoing numerous drug screens, the mother, who regularly attended Narcotics Anonymous meetings, never again tested positive for any controlled substance. The mother temporarily rented a home in September 2007, but she realized that she could not afford it and returned to the maternal grandmother’s home.

In December 2007, DHR transferred the family’s case to its termination unit. Beverly Bankston, a DHR caseworker, explained to the mother at an ISP meeting held that month that DHR intended to file a petition to terminate her parental rights. Bankston asked the mother if she needed any additional services, and the mother indicated that she did not at that time but that she would let Bankston know if she needed them in the future.

In March 2008, the mother moved into a three-bedroom, two-bath house that she rented for $400 per month. The mother paid the rent and utilities with her income from her main job of cleaning the nightclub as well as from jobs she obtained from temporary-employment agencies. The mother did not obtain gas service for the house, however, because she owed the gas company $600 for an outstanding bill that had been incurred and left unpaid by the father. The mother heated the house with electrical space heaters, and she heated water for bathing on the stove. R.T., the mother’s teenage daughter, resided with her in that home without incident. R.T. attended high school, where she was an honor-roll student preparing for college admission, and she worked part time at a local fast-food franchise.

Throughout 2008 the mother continued to test negative on all drug screens. The mother missed some visitations with the children during the early part of 2008; however, after April 2008, the mother did not miss any visits. The mother continued to work, and she provided employment verification to DHR in July 2008.

DHR filed a petition to terminate the parental rights of the mother to the children on September 15, 2008. The Etowah Juvenile Court conducted a trial on the petition on October 27, 2008. At the trial, Mostella, who oversaw the family’s case from October 2, 2006, to April 24, 2007, testified that, while in the mother’s care, the children were happy, were well-fed, were clothed, and had made average grades in school, although they had had some discipline problems in school. Mos-tella testified that she would have recommended that the children be reunited with the mother if, during Mostella’s tenure, the mother had successfully passed drug tests for 16 months and had acquired a steady job and a steady residence. Mos-tella also expressed concern that the mother might relapse into drug use as she had before. Nakesha Garrett, the DHR caseworker assigned to the family from April 2007 to December 2007, testified that she considered the mother to have acquired a stable job and a stable home because she had been working at the same place of employment since June 2007 and had been living in the same home since March 2008. Beverly Bankston, the DHR caseworker assigned to the family from January 2008 to April 2008, testified that the mother had complied with the ISP requirements of finding stable housing and remaining drug-free. Talessia English, the DHR caseworker assigned to the family from August 2008 to the time of trial, testified that the period leading up to the trial was the longest period the mother had been drug-free and had maintained stable employment and stable housing. English testified as follows:

“[MOTHER’S COUNSEL]: So at this point of her having a steady job, her being drug-free, her having a living arrangement that she’s been in for a while, her visiting with the children — and as far as we know the visitation is going well. The only argument that termination should happen is, well, she’s messed up in the past?
“A: Yes.”

English stated that she ultimately recommended permanent placement of the children outside the mother’s home based on “[the mother’s] history of substance abuse.”

Willis Estis, a licensed professional counselor who was called as an expert witness by DHR, testified that, when he evaluated the mother in 2003, he believed she had developed a “resentful, rebellious, and nonconforming” impulsive personality that would prevent her from benefiting from past experience and that, without external controls, the mother had a poor prognosis for recovery and would likely revert back to her previous lifestyle. However, Estis also testified that, in the past, he had observed patients overcome drug-abuse problems after he had originally predicted that they had no hope of recovery. As a result, Estis agreed that it was possible the mother could conquer her drug problem. Estis stated that he had not seen the mother since June 2006 and that “the more important thing would be the history of what’s been happening during that period of time.” When informed that the mother had not used drugs in 16 months, Estis testified that he considered that a “very positive thing” and indicative of the possibility that the mother would continue her sobriety. Estis admitted that, without a more recent evaluation, he could not give an opinion whether the mother was a suitable person to assume custody of the children at the time of the trial.

Clara Williams, a visitation supervisor for Sorage, a business retained by DHR to arrange and monitor the mother’s visits with the children, testified that the children interact well with the mother and R.T. and that she had never seen the mother endanger the children during visits. R.T. testified that when the father lived with the family, the mother had taken care of the children, following a structured schedule, and that the family had been happy. R.T. admitted that drugs had been prevalent when the father lived with the family; she also stated that the mother had since extricated herself from the father, that the mother did not have any current romantic relationship, and that the mother had changed for the better. R.T. stated that she helped the mother some financially with money she earned from her part-time work and that she would assist the mother in caring for the children if they were reunited. The maternal grandmother testified that she had reported the mother to DHR in the past for drug use, but she also testified that she believed the mother had improved her circumstances, in large part, by leaving the father and by her newfound ability to handle emotional pressure without resorting to drugs. The maternal grandmother testified that the mother deserved to have the children returned to her custody. The maternal grandmother pointed out that the mother had purchased a reliable automobile and had rented a suitable house. According to the maternal grandmother, the mother no longer required the maternal grandmother’s assistance to pay her bills.

The mother testified that she had finally rehabilitated herself in the spring and summer of 2007 because she loved being a mother and because she missed her children. The mother also said that she wanted to be respected by others and that she had learned that drug addicts are not respected. In addition, although the mother said she could not blame the father for all of her poor choices, the mother explained that her decision to end her relationship with the father had aided her in taking the necessary steps to improve her life. The mother indicated that she had done everything she could to accomplish the goals set for her by DHR. As for there being no gas service to her home, the mother testified that she would have already paid the $600 bill to initiate service but for the expenses she had incurred in this case. Nevertheless, she stated that she would take out a loan to pay the bill if she needed to do so in order to obtain custody of the children. The mother testified that, out of the approximately $1,190.75 per month she earns, she spends monthly $400 on rent, $147 to $148 for power, $45 for water, $86 to $90 for cable television, $60 for cellular-telephone service, and $400 to $450 for groceries. The mother also testified that if she obtained custody of the children she would be eligible for food stamps.

After the trial, the juvenile court entered a judgment terminating the parental rights of the mother, citing the mother’s history of substance abuse and her current financial condition. The mother appeals that judgment, arguing first that DHR failed to present clear and convincing evidence of current conditions indicating that she could not properly care for the children. She further argues that the juvenile court erred when it determined that there was no viable alternative to termination of her parental rights. We do not address the second issue because we find resolution of the first issue to be disposi-tive.

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

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). In order to find a child dependent, the juvenile court must find that grounds for termination exist. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990). The statutory grounds for termination are found in Ala.Code 1975, § 26-18-7(a), which provides, in pertinent part:

“If the 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 is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

As explained by this court, “the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003). That principle derives from the wording of the operative statute, which provides, in pertinent part, that parental rights may be terminated when “the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future.” § 26-18-7(a) (emphasis added). Although “[a] court may consider the past history of the family, as well as evidence of its present conditions,” Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993), based on the plain language of the statute, and as clarified by our caselaw, the mere fact that, at one time, the parent may have committed conduct or suffered from a condition that rendered the parent unable to properly care for the child does not authorize a juvenile court to terminate parental rights. See V.M. v. State Dep't of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998). Rather, the test is whether DHR has presented clear and convincing evidence demonstrating that the parental conduct or condition currently persists to such a degree as to continue to prevent the parent from properly caring for the child. See id.

Section 26-18-7(a)(2), Ala.Code 1975, requires juvenile courts, when deciding whether grounds for termination exist, to consider, among other things, “excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for the needs of the child.” In this case, at the time of trial, the mother had abstained from using drugs for over 16 months, as was established both by her testimony and by the multiple negative drug-test results she had produced. DHR presented absolutely no evidence indicating that, at the time of the trial, the mother was using any controlled substances, much less that the mother was using illegal drugs in such a manner as to render her unable to properly care for the children.

The evidence indicates that the mother meets all the needs of the children when she is not abusing drugs. Nevertheless, DHR maintained through its witnesses at trial that the mother’s parental rights should be terminated out of fear that the mother would resume using drugs as she had done in the past. However, DHR did not present any evidence from the drug-rehabilitation professionals who had treated the mother regarding the depth of the mother’s drug addiction or the extent of her recovery. One of DHR’s witnesses testified that the mother had never stopped using drugs for as long as 16 months before. DHR did not introduce any reports or elicit any testimony from any witness indicating that the mother’s current 16-month abstinence should not be considered a reliable indicator of her commitment to ending her drag problem altogether. In short, DHR produced no evidence indicating that relapse was so likely or imminent that the mother should have been considered as having a current drug problem that interfered with her ability to properly care for the children.

Given the undisputed evidence indicating that the mother had not used drugs since June 2007, and further given the lack of any negative testimony regarding the effect of the mother’s drug-rehabilitation efforts, the record does not contain evidence from which the juvenile court reasonably could have been clearly convinced that the mother suffers from an ongoing drug-addiction “condition” or exhibits drug-use “conduct” that prevents her from properly caring for her children.

As set out above, the testimony of the DHR caseworkers themselves established that, by the time of the trial, the mother had also resolved any and all other problems identified by DHR as obstacles to family reunification. However, in its final judgment, the juvenile court found that the mother, at the time of the trial, “still did not have the gas service on her home turned on (for heat and hot water) and did not have income sufficient to support herself and her four children.” It is undisputed that the mother did not have gas service due to nonpayment of an approximate $600 bill incurred by the father that was placed on the mother’s account. The mother compensated for that missing service by using electric space heaters to heat the home and by heating water on the stove for bathing. DHR presented no evidence indicating that those compensatory devices would endanger the children in any way. The absence of gas heat, as opposed to electric heat, does not obviously impair the mother’s ability to properly care for the children. In fact, the evidence shows that the mother’s 17-year-old daughter was thriving under those living arrangements, earning good grades while working part time and preparing for college. In any event, the mother indicated, without contradiction, that she could remedy that problem by obtaining a loan to pay the bill if the children were returned to her custody.

As for the mother’s income, DHR presented no evidence indicating that the mother would be unable to properly clothe, feed, shelter, educate, and care for the children based on her income and supplemental governmental benefits. Although it would be preferable if the mother had ongoing gas service to heat her home and water, and although it would be better if the mother had a higher income to provide a higher standard of living for the children, the mere fact that the mother has only a limited income and must improvise to provide for the children due to financial constraints does not render her unable to properly care for the children. As this court has repeatedly held, poverty alone is not enough to warrant the termination of parental rights. See, e.g., S.K v. Madison County Dep’t of Human Res., 990 So.2d 887 (Ala.Civ.App.2008); D.A. v. Calhoun County Dep’t of Human Res., 892 So.2d 963, 968 (Ala.Civ.App.2004); C.B. v. State Dep’t of Human Res., 782 So.2d 781 (Ala.Civ.App.1998); Bowman v. State Dep’t of Human Res., 534 So.2d 304 (Ala.Civ.App.1988); In re Hickman, 489 So.2d 601, 602-03 (Ala.Civ.App.1986); and K.M. v. Shelby County Dep’t of Human Res., 628 So.2d 812, 813 (Ala.Civ.App.1993). In the absence of any evidence of current aggravating conditions, conduct, or circumstances, the mother’s limited income does not afford grounds for terminating her parental rights.

Because the record does not contain evidence that a fact-finder reasonably could find to clearly and convincingly establish that the mother’s current conduct or condition renders her unable to properly care for the children, see J.B. v. DeKalb County Dep’t of Human Res., 12 So.3d 100 (Ala.Civ.App.2008), the judgment terminating her parental rights is due to be reversed. The case is hereby remanded for the juvenile court to conduct further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BRYAN, J., concurs.

THOMPSON, P.J., concurs in the result, without writing.

PITTMAN, J., dissents, without writing.

THOMAS, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I must respectfully dissent. M.G. (“the mother”) had improved her circumstances after losing custody of her children for the second time and after being informed that the Etowah County Department of Human Resources (“DHR”) was planning to terminate her parental rights. DHR had a long history with the mother, having instituted safety plans on at least three occasions before the children were first removed from the mother’s care and placed in DHR’s legal custody in March 2005. DHR based its decision to seek termination of the mother’s parental rights on her repeated inability to meet the needs of her children without supervision and DHR intervention.

DHR also based its decision to seek termination on the psychological evaluation of the mother performed in June 2006 by Willis Estis, a licensed professional counselor. His report was introduced into evidence. Estis interviewed the mother and administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test and the Shipley Institute of Living Scale test. Those tests indicated that the mother was in the low average range of intellectual functioning and that the mother “tends to be resentful, rebellious, and nonconforming.” Estis noted that the mother would be inclined to respond impulsively and that she would not benefit from experience. In other words, Estis explained, the mother would not learn from her mistakes but would instead repeat them. Es-tis thought that, if well supervised, the mother could effectively parent the children. According to Estis, the mother would respond to external controls placed upon her, but he opined that, without those controls, the mother would be likely to return to her old patterns and habits. Es-tis suggested that the mother be subjected to random drug tests for an extended period and that she be provided with counseling to educate her about the addictive process. However, Estis concluded that the prognosis for long-term recovery in the mother was poor.

The mother had made recent progress toward meeting the goals set out in her individualized service plan (“ISP”). She had been drug-free for over one year, and she had maintained employment, although her employment provided income that did not appear to be sufficient for the mother to meet all of her expenses were she to have four additional children to feed and clothe. However, test results and Estis’s testimony indicated that the mother’s personality was one that responded to external controls on her behavior, and Estis opined that the mother’s impulsive behavior and harmful patterns would likely return once the mother was no longer controlled by things like DHR supervision or random drug tests. Notably, the mother had been subject to those controls for the entire 16-month period of sobriety. Although Estis admitted that the mother’s reported progress was encouraging, he had not seen her since 2006 and could not offer an opinion on whether she would be a suitable parent at the time of the termination trial. However, Estis’s earlier prognosis was borne out by the mother’s behavior after the children were first returned to her in 2006. The mother began to use drugs again and became increasingly resistant to DHR intervention. Thus, the progress the mother had made is tempered by the earlier attempt to reunite the family and the apparent correctness of Es-tis’s predictions regarding the mother’s behavior patterns.

Because I believe that DHR did prove that the mother, although currently meeting ISP goals, had repeatedly failed to maintain progress toward being able to meet the responsibilities of parenting, I would affirm the judgment terminating the mother’s parental rights.

      . That judgment also terminated the parental rights of B.M.C., the father of the children. The father has not appealed.

      . The children's father apparently was incarcerated at this time.

      . An organization known as "Youth Villages” advocated for keeping the family united and provided in-home services for the family at the request of DHR.

      . DHR also called D.T., the children’s paternal grandmother, as a witness adverse to the mother. However, D.T. testified that she had not been around the mother in two or three years and that she therefore had no firsthand knowledge of the current condition of the mother.

      . During the trial, the following colloquy occurred:
      "[MOTHER’S COUNSEL]: As [the mother] sits here today, what testimony do you have that says she's unable to care for her children?
      "[TALESSIA ENGLISH]: I’m not really sure what you're asking me.
      "[MOTHER'S COUNSEL]: Well, I mean, at the present moment, as we sit here today, what argument is there that her ability to take care of the children — not your belief of her going to backslide or anything like that. But her ability at this point today, what would you state is her — the excuse that she's unable to take care of her children?
      "[GUARDIAN AD LITEM]: Judge, I'm going to object. I think this is repetitious and covering ground we've already covered.
      "[MOTHER'S COUNSEL]: I’m asking for present today.
      "[COURT]: Again, the point is the children are not in her care, therefore, the question is speculative, and I'll sustain the objection.
      "[MOTHER’S COUNSEL]: Okay.
      "[COURT]: Because they haven't been in her physical custody since January of ’07.
      "[MOTHER’S COUNSEL]: That's the question I'm asking.
      "[MOTHER'S COUNSEL]: Is there something that you, as the caseworker at the present time, can say — give an exact reason of her inability to take care of the children?
      "[COURT]: She’s not. She is not caring for them at the present time.
      "[DHR’S COUNSEL]: Judge, if that was the standard, I mean, we'd never be able to prove the petition.
      "[COURT]: That’s not the standard."
      To the extent that the juvenile court ruled that DHR did not have the burden of proving the mother’s present inability to properly care for the children because she had not had physical custody of the children for a long period, the juvenile court erred as a matter of law. As stated infra, in a termination-of-parental-rights case, DHR bears the burden of proving by clear and convincing evidence that a parent's current conditions prevent the parent from properly caring for the child. The fact that tire child is not in the physical custody of the parent does not relieve DHR of that burden.