R.D. v. Mobile County Department of Human Resources

Rel: October 17, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2025-2026
_________________________

CL-2025-0065
_________________________

R.D.

v.

Mobile County Department of Human Resources

Appeal from Mobile Juvenile Court
(JU-23-832.02)

MOORE, Presiding Judge.

R.D. ("the father") appeals from a judgment of the Mobile Juvenile

Court ("the juvenile court") that terminated his parental rights to L.D.

("the child"). In the same judgment, the juvenile court also terminated
CL-2025-0065

the parental rights of A.W. ("the mother"). The mother has not appealed.

We affirm the juvenile court's judgment.

In its final judgment, the juvenile court found that the mother

threatened the physical and emotional safety of the child because she

"suffers from a mental illness of a duration or nature as to render her

unable to care for the needs of [the child] now and in the foreseeable

future." See Ala. Code 1975, § 12-15-319(a)(2) (requiring a juvenile court,

when determining whether to terminate parental rights, to consider an

"[e]motional illness, mental illness, or mental deficiency of the parent ...

of a duration or nature as to render the parent unable to care for the

needs of the child"). The juvenile court further found that the father was

"unable to discharge his parental responsibilities for the child and [that]

said conduct [was] unlikely to change in the foreseeable future" because,

among other reasons,

"[t]he father appears to be emotionally dependent on the
mother. The father is unable or unwilling to protect the child
from the mother. He and the mother have lived together in a
rental house in Shelby, Alabama for at least one year. He fails
to see anything wrong with the mother. He and the mother
plan to marry."

2
CL-2025-0065

The predominant issue in this case is whether the juvenile court's finding

that the father lacked protective capacity is supported by sufficient

evidence. 1

Because the judgment was based in part on ore tenus evidence, we

presume that the juvenile court correctly found that the father lacked the

ability or willingness to protect the child from the mother. We are bound

by the findings of the juvenile court if the record contains substantial

evidence from which the juvenile court reasonably could have been

clearly convinced of the facts contained in those findings. See C.C. v. L.J.,

176 So. 3d 208, 211 (Ala. Civ. App. 2015). A juvenile court may be clearly

convinced from

" ' "[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. 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." ' "

1The father does not argue that the juvenile court failed to exhaust

viable alternatives to the termination of his parental rights or that the
termination of his parental rights was not in the best interests of the
child, so those arguments are waived. See J.K. v. Jefferson Cnty. Dep't
of Hum. Res., 114 So. 3d 835, 842 n.7 (Ala. Civ. App. 2012).
3
CL-2025-0065

J.C. v. State Dep't of Hum. Res., 986 So. 2d 1172, 1184 (Ala. Civ. App.

2007) (quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002),

quoting in turn Ala. Code 1975, § 6-11-20(b)(4)). On appeal, this court

does not reweigh the evidence but, rather, determines whether the

findings of fact made by the juvenile court are supported by evidence that

the juvenile court could have found to be clear and convincing. See Ex

parte T.V., 971 So. 2d 1, 9 (Ala. 2007).

The evidence before the juvenile court showed that the mother has

four children. The mother had lost custody of her three older children

before the child was born. When her oldest child was an infant, the

mother said in a social-media post that she had exposed that child to

marijuana to help that child sleep. After family friends took custody of

her oldest child, the mother had two other children ("the middle

children"). The mother has been investigated by child-protection

agencies in Tennessee, Mississippi, and Montana regarding her alleged

abusive treatment of the middle children, and she threatened to kill the

middle children rather than allow them to be vaccinated. In 2021, the

Mobile County Department of Human Resources ("DHR"), upon learning

of that threat and discovering the middle children living in poor

4
CL-2025-0065

conditions with no running water, removed the middle children from the

mother's custody. DHR made an "indicated" finding that the mother had

committed child abuse and neglect regarding the middle children.2

DHR referred the mother to Dr. Jack Carney for a psychological

evaluation. The mother informed Dr. Carney that she had sometimes

resided with one of her children in an automobile or a hotel. After

conducting a battery of psychological tests, Dr. Carney concluded that the

mother was emotionally unstable and prone to poor parenting behavior

that would place the middle children at risk of physical and emotional

abuse and neglect while depriving them of a secure and stable

environment. Dr. Carney, who considered the mother to be a "child

physical abuse perpetrator, child psychological abuse perpetrator, [and]

child neglect perpetrator," diagnosed the mother with cyclothymia, a

form of bipolar disorder characterized by impulsivity and random, brief

mood swings, and antisocial personality disorder with narcissistic

features. Dr. Carney opined that the mother represented a danger to the

middle children because she could not control her anger and aggression,

2An "indicated" finding is made "[w]hen credible evidence and
professional judgment substantiates that an alleged perpetrator is
responsible for child abuse or neglect." Ala. Code 1975, § 26-14-8(a)(1).
5
CL-2025-0065

despite her having completed an anger-management program, and

because her personality disorder would likely persist in the foreseeable

future.

The mother began a romantic relationship with the father at some

point in 2022. The child was born on April 18, 2023. Eric Hadley, the

DHR social worker assigned to the child's case, testified that, on June 1,

2023, DHR removed the child from the mother's custody and placed the

child into the same foster home in which the middle children had been

placed because, Hadley said, the mother was not progressing with

rehabilitation efforts regarding the middle children. Although the child

was removed from the mother's custody, DHR arranged for the mother to

visit the child and the middle children and to attend their medical

appointments. Hadley testified that, when attending medical

appointments, the mother had acted aggressively and that, on one

occasion, she had acted so aggressively that he had filed a police report

against her. He said that, on another occasion, she had endangered the

child by attempting to snatch the child from Hadley while the child was

in a car seat, which had resulted in the medical staff contacting law-

enforcement officials, who, he said, had appeared and calmed the mother

6
CL-2025-0065

down. According to Hadley, DHR obtained a court order prohibiting the

mother from further attending the child's and the middle children's

medical appointments.

The mother also regularly disrupted the individualized-service-

plan ("ISP") meetings designed to craft the case plan regarding the child.

Hadley testified that the mother had attended an ISP meeting by

telephone on April 27, 2023, and that she had been argumentative and

combative during that meeting. According to Hadley, although DHR does

not allow an ISP meeting to be recorded, the mother had attempted to

record the meeting, and the meeting had to be cut short as a result of that

attempt and the mother's behavior. On September 13, 2023, the mother

personally attended another ISP meeting at which she exhibited

aggressive and threatening conduct that resulted in security guards

escorting her from the meeting before it ended. On December 6, 2023,

the mother refused to attend an ISP meeting unless it was moved from

the courthouse to a public library; the mother raised her voice and

became very confrontational, causing court police to intervene.

Additionally, on January 3, 2024, the mother was arrested for disorderly

conduct at the courthouse, and she later pleaded guilty to that charge.

7
CL-2025-0065

At trial, the mother testified that she had developed her own

personal religion that guided her moral decisions and her rearing of the

child and the middle children. The mother stated that DHR had no

legitimate reason to be involved with her family. The mother believed

that DHR had kidnapped her children and that DHR and the other state

child-protection agencies who had investigated the family were involved

in a large-scale conspiracy to traffic children. The mother maintained an

unfounded belief that her children had been subjected to sexual abuse

while staying in the foster-care system. The mother became excited

during her testimony and had to be told to calm down by the bailiff. After

completing her testimony, the mother bolted down the hallway

screaming that she was being abused. Dr. Carney testified that the

mother's courtroom behavior was consistent with his diagnoses.

From the foregoing evidence, the juvenile court was clearly

convinced that, because of her emotional and mental-health issues, the

mother could not safely parent the child. Notably, the mother did not

appeal the judgment terminating her parental rights to the child.

Accordingly, the juvenile court's finding that the mother is dangerously

unfit to raise the child because of her mental illness has become the law

8
CL-2025-0065

of the case. See generally S.B. v. Lauderdale Cnty. Dep't of Hum. Res.,

142 So. 3d 716, 720 (Ala. Civ. App. 2013). The question for our review is

whether the juvenile court received sufficient evidence indicating that

the father could not or would not protect the child from the mother to

justify terminating his parental rights.

The juvenile court heard evidence indicating that the father has

another child, who was born in 2018 ("the older child"). The father

testified that he had agreed to relinquish custody of the older child to a

maternal relative after the mother of the older child "got into legal

trouble" and the house in which they were residing was determined to be

unsuitable for the older child. The father stated that he had intended the

surrender of custody of the older child to be temporary "until we could

get on our feet," but, he said, the maternal relative ended up adopting the

older child. The father admitted that he never attempted to regain

custody of the older child and that he had accumulated a child-support

arrearage of $11,545 relating to the older child. The father had not

voluntarily paid any part of that arrearage. At the time of the

termination-of-parental-rights trial, the father owed $2,803.14 in

9
CL-2025-0065

interest in addition to the principal balance of his child-support

arrearage.

When the child was born in April 2023, the mother was under DHR

supervision relating to the cases involving the middle children. The

mother testified that, before the child was born, she and the father had

discussed what their living situation would be and that they had agreed

that the child would stay with the father most of the time but that they

would raise the child together as a family. Hadley testified that he had

sent letters to all the local hospitals asking that, if the mother gave birth

at the hospital, DHR be notified so that it could retrieve the child;

however, unbeknownst to DHR, the mother gave birth to the child at a

hospital in Sylacauga. The mother did not inform DHR of the birth of the

child. After the Sylacauga hospital discharged the child, the father

assumed custody of the child and began raising the child in his mother's

house in Alexander City while the mother resided in Wilmer. However,

at some point, the father allowed the mother to take the child to her house

in Wilmer. DHR found the child there when the mother was being

evicted from her house, and deputies informed DHR that the child was

in her custody.

10
CL-2025-0065

The father attended the June 15, 2023, ISP meeting, which was

terminated early because of the mother's misconduct, by telephone.

During that ISP meeting, DHR informed the father that it wanted to

conduct a home study to determine if the child could be safely placed with

the father in Alexander City. The father agreed to a home study being

conducted on September 8, 2023, but he canceled the home study only 15

minutes before it was scheduled to take place. The father personally

attended the September 13, 2023, ISP meeting, during which DHR

repeated its request for a home study of the father's home, but the father

refused to sign a document memorializing that plan, indicating that he

did not agree with the plan. The father witnessed the mother's behavior

at that ISP meeting, and he joined the mother when she was escorted out

by security guards. Hadley testified that, despite numerous requests, the

father had refused to reschedule the home study.

In October 2023, the mother and the father cosigned a lease of a

mobile home in Shelby, and they moved in together; they did not,

however, inform DHR of that development. The mother said that she had

not wanted her new landlord to be harassed. Neither the mother nor the

father informed DHR of the address of their shared residence until the

11
CL-2025-0065

termination-of-parental-rights trial in October 2024. The father testified

that he shared the mother's concern that some child-protection agencies

were kidnapping and trafficking children, and he agreed with her that

they should not disclose the address of their residence to avoid

harassment.

On December 6, 2023, the father left with the mother when

courthouse security was called to respond to the mother's disruptive

behavior, and he did not attend the ISP meeting scheduled for that day.

DHR proceeded with the ISP meeting scheduled for that day, and DHR

developed a new plan calling for the father to submit to a psychological

evaluation and drug testing. The mother testified that she had advised

the father of his "rights" to refuse drug testing because the child had not

been removed from his custody because of substance abuse. The mother

testified that DHR could not require the father to submit to evaluation

or testing because DHR had not made any allegations against him

leading to the removal of the child. The father did not agree to the

psychological evaluation. The juvenile court later ordered the father to

undergo drug testing, but the father did not comply with that court

12
CL-2025-0065

order.3 The father also failed to comply with a juvenile-court order

requiring him to undergo genetic testing. The father did not

communicate with DHR for a long period after December 2023. The

father visited with the child consistently, but he did not attend any of the

child's medical appointments.

Despite the evidence to the contrary, the father denied having

witnessed any incidents raising concerns regarding the mental health of

the mother. After hearing how the mother lost custody of her oldest child

and the middle children and listening to Dr. Carney describe her poor

parenting history and prospects, the father testified that he believed that

the mother was fit to parent the child and that she was "a very good

mother." He testified that he planned to marry the mother. The father

and the mother lived together, shared their finances and a motor vehicle,

jointly visited the child, and were employed by the same employer. The

mother said that, if the child was returned to their custody, she and the

3The father testified that he had attempted to undergo drug testing

on one occasion, but, he said, the door to the drug-testing facility had
been locked, and he had been unable to gain entry. The father did
eventually obtain a drug test on his own initiative that produced negative
results.

13
CL-2025-0065

father planned to take turns caring for the child. Hadley testified that,

when one parent is significantly troubled, the other parent may be able

to protect the child when the parents live apart, but not when they are

living "together under one roof."

The foregoing evidence was sufficient to establish that the father

had a poor parenting history that suggested that he would not properly

support the child and that he would cede the care of the child to others.

See G.L. v. State Dep't of Hum. Res., 646 So. 2d 81, 84 (Ala. Civ. App.

1994) ("It was not error for the trial court to consider the mother's

previous loss of custody of other children. ... Such evidence may be

properly admitted to show the mother's general inability to care for her

children and her lack of ability to progress in learning parenting skills.");

W.W. v. Clay Cnty. Dep't of Hum. Res., 656 So. 2d 870, 872 (Ala. Civ.

App. 1995) ("In determining whether to terminate parental rights, the

juvenile court can consider the fact that the parent has lost custody of

her other children."); Hayes v. State Dep't of Hum. Res., 563 So. 2d 1035,

1036 (Ala. Civ. App. 1990) ("A party's success in raising other children is

also a factor for the trial court's consideration."). Additionally, the

juvenile court received sufficient evidence to determine that the father

14
CL-2025-0065

disbelieved any criticism of the mother and her parenting ability, that he

had allowed her unsupervised access to the child when the child was an

infant, and that he would continue giving the mother such access to the

child if his parental rights were not terminated. Although the father

testified that he was generally capable of protecting the child, the

juvenile court inferred that the father would not protect the child from

the mother because, as the juvenile court put it, "[h]e fails to see anything

wrong with the mother." Sufficient evidence shows that the father clearly

did not perceive the mother to be a threat to the child.

In B.M. v. State, 895 So. 2d 319 (Ala. Civ. App. 2004), this court

considered whether a juvenile court had properly terminated the

parental rights of a father who refused to believe that his wife had

Munchausen's syndrome by proxy ("MBP") and had perpetrated "MBP

abuse" upon one of their children. In affirming the judgment, this court

relied on expert testimony indicating that a faultless coparent who fails

to acknowledge the MBP abuse of the perpetrating parent likely cannot

protect the child from the perpetrator. 895 So. 2d at 334. This court said,

in pertinent part:

"In light of the trial court's determination that the mother was
the perpetrator of MBP abuse and the father's admitted

15
CL-2025-0065

disbelief of this fact, the trial court had ample evidence to
support its determination that the father was 'unable or
unwilling to discharge [his] responsibilities to and for the
child[ren] ... and that such conduct or condition [was] unlikely
to change in the foreseeable future' because of the father's
inability to protect the children from future MBP abuse at the
hands of the mother."

Id. B.M. illustrates that the parental rights of a parent may be

terminated if clear and convincing evidence shows that the parent

displays a lack of protective capacity by refusing to believe that the

coparent presents a danger to the child. See also J.B.B. v. Alabama Dep't

of Hum. Res., 120 So. 3d 517, 531 (Ala. Civ. App. 2013) ("A fortiori,

because the mother refused to believe that the father had abused the

children, she was unable to protect the children from the abuse."); C.W.

v. State Dep't of Hum. Res., 826 So. 2d 171, 173 (Ala. Civ. App. 2002).

By contrast, in L.M. v. Shelby County Department of Human

Resources, 86 So. 3d 377 (Ala. Civ. App. 2011), this court reversed a

judgment terminating the parental rights of a father because he would

not sever his relationship with an alcoholic and drug-addicted mother.

This court determined that the "judgment terminating the father's

parental rights can be affirmed if clear and convincing evidence shows

that the father was unable to protect the children from the danger

16
CL-2025-0065

presented by the mother's alleged inability to remain alcohol and drug

free." 86 So. 3d at 388. This court noted that the record contained no

evidence indicating that the father had ever failed to protect his children

from the mother when she was under the influence of drugs or alcohol

and that the father had testified "that he recognized the danger

presented to the children if the mother continued to abuse alcohol" and

had stated that "he was willing to sever his relationship with the mother

if the mother continued on a path of substance abuse." Id. (emphasis

added). This court concluded in L.M. that there were no grounds for

terminating the parental rights of the father, and we reversed the

judgment terminating his parental rights. We further held that, because

the father could adequately supervise the children and protect them from

any risk of harm arising from the mother's substance-abuse issues, the

children could be safely placed back into the family home, and we

reversed the judgment terminating the mother's parental rights.

Although it is not a case in which the rights of a parent were

terminated, C.S. v. Morgan County Department of Human Resources,

412 So. 3d 651 (Ala. Civ. App.), cert. quashed sub nom. Ex parte J.R., 412

So. 3d 673 (Ala. 2024), also addressed a situation in which an otherwise

17
CL-2025-0065

faultless parent was accused by the state of failing to adequately protect

a child from a coparent. In that case, the mother experienced a severe

mental-health breakdown that endangered the child, leading to the

dependency of her child. When the father learned of his paternity of the

child and of the plight of the child, he urgently sought to obtain custody

of the child; however, the Morgan County Department of Human

Resources and the child's guardian ad litem expressed concern that the

father would allow the mother unsupervised access to the child because

he did not seem to comprehend the nature and depth of the mother's

mental-health problem and because he intended to pursue a romantic

relationship with the mother. The record showed that the father and the

mother did not live together; that the father understood that the erratic

behavior of the mother could endanger the child; and that the father

acknowledged that, until the mother was rehabilitated, her visitation

with the child should be supervised. The record also showed that the

father possessed normal parental instincts that would lead him to protect

the child from the mother. Because the record in that case contained no

evidence indicating that the father was unable or unwilling to recognize

that the mother could harm the child and would not take necessary

18
CL-2025-0065

protective measures toward the child, this court determined that the

father did not lack protective capacity, and, thus, we held that the child

was not dependent as to him.

We agree with the Supreme Court of South Dakota that "where one

parent's rights are properly terminated, the other parent's parental

rights could also be terminated where the parents live together and

returning a child to [one] parent would not protect the child from neglect

or abuse by the [other] parent." In re J.W.W., 334 N.W.2d 513, 517 (S.D.

1983). In this case, like in B.M. and unlike in L.M. and C.S., clear and

convincing evidence showed that the father intended to continue living

with the mother and that he was unable or unwilling to recognize the

danger that the mother presented to the child, the most basic element of

protective capacity. 4

Section 12-15-319(a) provides, in pertinent part, that, "[i]f the

juvenile court finds from clear and convincing evidence, competent,

4The dissent argues that the failure of DHR to promptly notify the

father that it considered his relationship with the mother to be a barrier
to reunification supports a reversal of the judgment; however, the father
did not argue this specific point in the proceedings below or in his brief
to this court, so we cannot consider it. See T.J. v. Winston Cnty. Dep't of
Hum. Res., 233 So. 3d 361, 367 (Ala. Civ. App. 2007).
19
CL-2025-0065

material, and relevant in nature, that the parent[] of a child [is] unable

or unwilling to discharge [his or her] responsibilities to and for the child,

... it may terminate the parental rights of the parent[]." One of the basic

responsibilities a parent owes a child is to protect the child, see D.H.E. v.

W.D., 330 So. 3d 506, 516 (Ala. Civ. App. 2020), especially from the threat

of emotional or physical abuse from the other parent. See B.M., supra.

The juvenile court received sufficient evidence to be clearly convinced

that the father had already put the child in harm's way by allowing the

mother to have unsupervised custody of the child when the child was only

weeks old and that, because he did not consider the mother a safety

threat to the child, he would not protect the child from the risk of neglect

or abuse by the mother, whose parental rights had been terminated.

Therefore, we conclude that the juvenile court had sufficient grounds to

terminate the father's parental rights. 5

5The father argues that the juvenile court erred in relying on other

factors in determining grounds for termination; based on our disposition,
we pretermit any discussion of those other factors. See K.A.P. v. D.P., 11
So. 3d 812, 819 (Ala. Civ. App. 2008) (holding that judgment terminating
parental rights was sufficiently supported by evidence associated with
imprisonment of parent, obviating any need to consider abandonment
and other factors); cf. J.M. v. Marshall Cnty. Dep't of Hum. Res., 399 So.
3d 280 (Ala. Civ. App. 2024) (reversing judgment terminating parental
rights when determining that primary factors upon which juvenile court
20
CL-2025-0065

For the foregoing reasons, we affirm the judgment of the juvenile

court terminating the parental rights of the father.

AFFIRMED.

Edwards, Hanson, and Fridy, JJ., concur.

Bowden, J., dissents, with opinion.

had relied were not proven by clear and convincing evidence and that
error in relying on those factors was not harmless because this court
could not discern whether juvenile court would have reached the same
conclusion absent those unproven factors).
21
CL-2025-0065

BOWDEN, Judge, dissenting.

I respectfully dissent.

The termination of parental rights is the severance of all rights of

a parent to a child. § 12-15-301(18), Ala. Code 1975. It is a " ' "drastic

measure," ' " Ex parte T.V., 971 So. 2d 1, 10 (Ala. 2007), and a "permanent

form of governmental interference with parental rights." M.P. v. DeKalb

Cnty. Dep't of Hum. Res., 394 So. 3d 1080, 1086 (Ala. Civ. App. 2023).

Other state courts have characterized the termination of parental rights

as the " 'civil death penalty.' " M.E. v. Shelby Cnty. Dep't of Hum. Res.,

972 So. 2d 89, 102 (Ala. Civ. App. 2007)(citing cases from Nevada,

Missouri, and North Carolina). Alabama recognizes that parents have a

fundamental right to control the education, upbringing, care, and

supervision of their children, see § 26-1-6(a)(1), Ala. Code 1975, and

reserves the termination of parental rights only for the most egregious

cases.

To that end, the people of Alabama require the state, before it

enacts the "civil death penalty," to rebut -- with clear and convincing

evidence -- the well-settled presumption that a parent has "protective

capacity"; in other words, we presume that a parent can and will protect

22
CL-2025-0065

his or her child from harm until the state proves otherwise. C.S. v.

Morgan Cnty. Dep't of Hum. Res., 412 So. 3d 651, 662 (Ala. Civ. App.

2024)("It is well settled that Alabama law presumes that a parent

possesses all the natural instincts needed to properly raise his or her

child, which presumption may be overcome only by clear and convincing

evidence to the contrary.").

"So strong is [the presumption that a parent's right to custody
is in the best interest of a child] … that it can be overcome
only by a finding, supported by competent evidence, that the
parent seeking custody is guilty of such misconduct or neglect
to a degree which renders that parent an unfit and improper
person to be entrusted with the care and upbringing of the
child in question."

Ex parte Mathews, 428 So. 2d 58, 59 (Ala. 1983)(emphasis added).

What was the strongest evidence offered by the state to rebut the

presumption that R.D. ("the father") will protect his child?

(1) Testimony that A.W. ("the mother") is a safety risk to L.D. ("the

child")

(2) Testimony that the father believes that the mother is a good

mother.

(3) Testimony that the father remained in a relationship with the

mother at the time of trial.

23
CL-2025-0065

Under our caselaw, that evidence is simply not sufficient to overcome the

strong and well-settled presumption that the father can and will protect

the child from harm.

No witness testified that the father could not protect the child from

the mother, if the mother was not living in his home, and no witness

testified that the father would not protect the child from the specific

safety risk posed by the mother's psychiatric condition, if the mother was

living in his home. Cf. L.M. v. Shelby Cnty. Dep't of Hum. Res., 86 So. 3d

377, 388 (Ala. Civ. App. 2011). No witness testified that the father would

or might give the mother access to the child if the mother's parental

rights were terminated. See C.S., supra. 6 And no witness testified that

the father had remained in a relationship with the mother over the state's

request that he end his relationship with the mother. See C.W. v. State

Dep't of Hum. Res., 826 So. 2d 171 (Ala. Civ. App. 2002). In fairness, the

6The majority opinion emphasizes what the mother planned to do
if the child was returned to her custody. It is unclear to me how the
mother's testimony about what she planned to do, in the event that the
child was returned to her custody (which it will not be), supports any
inference about what the father might do now that the mother's parental
rights have been terminated. It remains that no witness has testified
about what the father might do now that the mother's parental rights
have been terminated.
24
CL-2025-0065

state could not present such testimony, because the state did not identify

the father's relationship with the mother as a barrier to reconciliation

before it commenced an action to terminate the father's parental rights.

If the state failed to even identify the relationship with mother as

a barrier to reconciliation, then evidence of the father's continuing in that

relationship is clearly not sufficient to overcome the strong and well-

settled presumption that the father can and will protect his child from

harm. 7

7The state's failure to inform the father, before commencing its
action to terminate the father's parental rights, that his relationship with
the mother was a danger to the child is indicative of the overall
insufficiency of the evidence to support the termination of the father's
parental rights, an issue that was preserved and adequately argued on
appeal.

If the state considered the father's relationship with the mother to
be so dangerous and, indeed, a reason for terminating the father's
parental rights, why did the state wait until "January 2024," i.e., until
the discovery phase of the trial, which followed three individualized
service plans and the filing of the termination-of-parental-rights petition,
to raise that relationship as an issue?

Even then, in January 2024, the state still did not identify the
father's relationship with the mother as a problem because of the
mother's being perceived as a safety risk to the child. In its discovery
responses, the state said only the following with respect to the father's
relationship with the mother: "Termination of parental rights is
necessary due to the father's lack of cooperation with the [state]. … The
father remains in a relationship with the mother and may be living with
25
CL-2025-0065

In lieu of relying on evidence to overcome the presumption that the

father possesses protective capacity, the majority opinion appears to rely

on inferences upon inferences to support the judgment of the Mobile

Juvenile Court ("the juvenile court"), even relying on factors that are not

relevant to the issue of the father's protective capacity. 8 We must resist

her, and she also will not cooperate with the [state]." Stating that the
"father remains in a relationship with the mother" and pointing out that
she will not cooperate with the state is clearly different than informing
the father that he must separate from the mother because she is a safety
risk to the child. Thus, the state's discovery response clearly does not
demonstrate that the state had informed the father that it considered the
mother to be a safety risk to the child before the trial to terminate his
parental rights commenced.

Finally, when asked at trial if the father's relationship with the
mother was "an extremely significant concern," the representative for the
state responded only "[p]ossibly."

8For instance, the majority opinion states that there was sufficient

evidence "to establish that the father had a poor parenting history"
because the father had voluntarily ceded custody of an older child and
had failed to pay child support for that child. ___ So. 3d at ___. However,
the father's voluntarily ceding custody of and failing to financially
support another child are not relevant to whether the father is unable or
unwilling to protect the child from harm by the mother. And the cases
cited by the majority opinion, which pertain to parents who involuntarily
lost custody of their children, do not show that a parent's voluntarily
ceding custody bears on a parent's protective capacity either.

"There is nothing wrong with a case built around sufficient
circumstantial evidence, provided the circumstances are proved and not
merely presumed." Folmar v. Montgomery Fair Co., 293 Ala. 686, 690,
26
CL-2025-0065

the inclination to rely on speculation to affirm a judgment that

terminates a parent's fundamental right to his or her child. And we set a

concerning precedent by doing so in this case.

I. The cases relied upon in the majority opinion are clearly

distinguishable.

The main case relied upon in the majority opinion, B.M. v. State,

895 So. 2d 319 (Ala. Civ. App. 2004), is wholly distinguishable from this

case. B.M. concerned a parent's inability to recognize past abuse, and, in

B.M., the state produced two expert witnesses who testified about the

effect that the inability to recognize past abuse would have on the ability

of a father, M.F., to protect his child in the future. At trial, two experts

testified that B.M., M.F.'s wife, had Munchausen's syndrome by proxy

("MBP") and was perpetrating "MBP abuse" on their oldest child. In

affirming the Montgomery Juvenile Court's judgment terminating M.F.'s

parental rights, this court noted that the two experts' testimony was

309 So. 2d 818, 821 (1975)(emphasis added). "There is conjecture only
where there are two or more plausible explanations of causation, and the
evidence does not logically point to one any more than the other." Id.
(emphasis added).

27
CL-2025-0065

"unequivocal" that a person who does not believe that MBP abuse has

occurred cannot protect a child from the perpetrator and that M.F. did

not believe that B.M. had abused the couple's oldest child. Accordingly,

this court held that the Montgomery Juvenile Court had ample evidence

to support its determination that M.F. was "unable or unwilling" to

discharge his responsibilities, which is required to terminate parental

rights, under § 12-15-319.

This case is wholly unlike B.M. The mother in B.M. had perpetrated

abuse on the child, and the father in B.M. had refused to believe that the

abuse had occurred. In this case, the state presented no evidence

indicating that the mother had abused the child or that the father had

failed to recognize abuse of the child by the mother. In fact, the child had

been summarily removed from the father's and the mother's custody.

Thus, "[t]he father never had an occasion to respond to any safety threat

the mother posed to the child and, consequently, never failed to protect

the child from the mother." C.S., 412 So. 3d at 662. This case further

differs from B.M. because, in B.M., the state provided clear and

convincing evidence -- in the form of expert testimony -- about how M.F.'s

beliefs about B.M.'s condition and past abuse of the child rendered him

28
CL-2025-0065

unable to care for or protect the child. In this case, the state presented

testimony that the father believes that the mother is a "good mother."

There is no testimony that such a belief renders him incapable of

protecting his own child from the mother, which we must presume that

he is able to do.

An examination of our other protective-capacity cases similarly

exposes the dearth of evidence in this case with respect to the father's

alleged lack of protective capacity. The majority opinion relies on J.B.B.

v. Alabama Department of Human Resources, 120 So. 3d 517, 531 (Ala.

Civ. App. 2013). But J.B.B., like B.M., concerns evidence of a parent's

inability to recognize past abuse. In that case, we held that because

J.B.B. refused to believe that J.W.B. had abused the parties' children,

"[a] fortiori" J.B.B. was unable to protect the parties' children from future

abuse.

In its brief, the state cites J.W.M. v. Cleburne County Department

of Human Resources, 980 So. 2d 432, 436 (Aa. Civ. App. 2007), which

involved a father who was deemed "codependent." But the similarities

between this case and J.W.M. end there. In J.W.M., the Cleburne County

Department of Human Resources ("the Cleburne County DHR") provided

29
CL-2025-0065

expert and lay testimony about the relationship of the father, J.W.M.,

with the mother, K.P., and how J.W.M.'s codependency would affect his

ability to parent their child, J.B. For instance, the Cleburne County DHR

elicited extensive testimony about J.W.M.'s protective capacity from a

licensed professional counselor who had counseled both J.W.M. and K.P.

and had overseen their drug testing.

Unlike in J.W.M., in this case the state did not present expert or

lay testimony concerning the effect that the father's codependency would

have on his ability to protect the child from abuse. The state did not

present evidence, such as testimony or documents, indicating that, like

in J.W.M., the father's codependency on the mother so interfered with his

ability to protect the child that the state had asked the father to

terminate his relationship with the mother, or no longer reside with the

mother, or that the juvenile court had ordered any similar action

requiring the father's physical or emotional separation from the mother.

The state had not even identified the father's relationship with the

mother as "a conduct" or "a condition" rendering him unable to parent

the child, until after the commencement of the termination-of-parental-

rights action.

30
CL-2025-0065

"Because there was no evidence of how the [f]ather living with
the [m]other would actually prevent him from properly caring
for the child, the trial court could not have reached a firm
conviction that the [f]ather was so emotionally dependent on
the [m]other as to render him unable or unwilling to discharge
his responsibilities to and for the child."

The father's reply brief, p. 4-5 (emphasis in original).

II. The majority opinion appears to conflict with at least one prior

decision of this court and our supreme court.

Our state's deference afforded to the fundamental rights of a parent

does not allow us to speculate our way into severing a parent's rights to

his or her child -- and doing so in this case appears to conflict with cases

requiring the state to overcome the presumption of a parent's protective

capacity by clear and convincing evidence. C.S., 412 So. 3d at 662 ("See

Griggs v. Barnes, 262 Ala. 357, 359, 78 So. 2d 910, 912 (1955) (holding

that evidence of 'a shabby and uncompelling nature' is insufficient to

prove that a parent lacks the capacity to properly raise his or her child).").

In C.S., the Morgan County Department of Human Resources ("the

Morgan County DHR") and the foster parents of a child, A.J.S., alleged

that A.J.S. was dependent as to his father, J.B., because, they alleged,

J.B. lacked "protective capacity." Specifically, witnesses testified that

they were concerned that J.B. would not protect A.J.S. from being

31
CL-2025-0065

harmed by C.S., A.J.S.'s mother. The Morgan Juvenile Court agreed,

finding A.J.S. dependent as to J.B. This court noted that the Morgan

Juvenile Court, concluding that J.B. lacked protective capacity, had

relied almost exclusively on the evidence indicating that J.B. had

maintained a relationship with C.S. over the objections of the Morgan

County DHR.

On appeal, this court reversed the judgment finding A.J.S.

dependent as to J.B. and held that the Morgan County DHR and the

foster parents had therefore failed to prove any ground upon which to

terminate J.B.'s parental rights. C.S., 412 So. 3d at 668. We reasoned

that J.B. had not committed any act or exhibited any behavior indicating

that he had or would jeopardize the safety of A.J.S. Id. at 665. We noted

that, "[a]t best, [the Morgan County DHR and the foster parents had]

presented testimony only speculating that [J.B.] would give [C.S.]

unsupervised access to [A.J.S.]." Id. (emphasis added).

"At trial, [the Morgan County DHR] conceded … that it
would have recommended that [J.B.] be awarded custody
except for his continuing contacts with [C.S.], which it deemed
to jeopardize the safety of [A.J.S.]. … Because the child was
never present during any of the contacts between [J.B.] and
[C.S.], [A.J.S.] was not endangered in any way by the
relationship between [J.B.] and [C.S.], which, in fact, had no
proven effect on [A.J.S.]. The mere fact that [J.B.] regularly

32
CL-2025-0065

associated with [C.S.] does not permit an inference that, if
given the opportunity, he would expose [A.J.S.] to [C.S.]
without proper supervision or allow [C.S.] to interact with
[A.J.S.] in a manner that would endanger the health and
safety of [A.J.S.]. Indisputably, [J.B.] did not follow [the
Morgan County DHR's] no-contact edict, and [J.B.] did not
heed [the Morgan County DHR's] warnings that it would
oppose his custody claim if he did not disassociate from [C.S.];
however, [J.B.'s] 'violation' of the no-contact directive, which,
we note, was never incorporated into any juvenile-court order,
does not in any way prove that [J.B.] lacks the ability or
willingness to protect [A.J.S.]. Clearly, a parent does not
'forfeit' his or her custodial rights simply by failing to comply
with the terms of an [individualized service plan] as requested
by [the Morgan County DHR]."

C.S., 412 So. 3d at 664 (emphasis added).

Like in C.S., the majority opinion in this case has identified the

"question for our review [as] whether the juvenile court received

sufficient evidence indicating that the father could not or would not

protect the child from the mother to justify terminating his parental

rights." 9 And like in C.S., there is no evidence indicating that the father

9Although we did not reverse a judgment terminating parental
rights in C.S., its holding remains in conflict with the present case
because of the relationship between a finding of dependency and the
termination of parental rights when the state is involved. In fact, in C.S.,
we concluded that the Morgan County DHR and the foster parents could
not prove any ground to terminate J.B.'s parental rights because we had
reversed the judgment finding the child in that case to be dependent as
to J.B.
33
CL-2025-0065

failed to protect the child from abuse by the mother in the past. The state

likewise failed to produce evidence -- through testimony or documents --

indicating that the father would jeopardize the safety of the child in the

future or indicating that the father's "emotional dependence" on the

mother rendered him incapable of protecting his child from abuse by the

mother. There is likewise no evidence -- from any witness -- who feared

that the father's belief in the mother's sanity or his desire to marry the

mother puts the child at risk of abuse by the mother. As the father

argues, "[t]hat the [m]other and [f]ather are in a relationship does not

prove, per se, that the [f]ather is incapable of protecting the child from

the [m]other." The father's brief, p. 48.

In C.S. "[the Morgan County DHR and the foster parents] presented

testimony only speculating that [J.B.] would give [C.S.] unsupervised

access to [A.J.S.]." 412 SO. 2d at 665. We have even less evidence here.

Not a single witness testified that the father would give the mother

unsupervised access to the child. And unlike in C.S., in which J.B.

violated a no-contact order, the state failed to even request that the

father separate from the mother. The direct and circumstantial evidence

of the father's lack of protective capacity that the state produced at trial

34
CL-2025-0065

is of a "shabby," "uncompelling nature," insufficient to overcome our well-

settled presumption in favor of the father's protective capacity. See

Griggs v. Barnes, 262 Ala. 357, 359, 78 So. 2d 910, 912 (1955) (holding

that evidence of "a shabby and uncompelling nature" is insufficient to

prove that a parent lacks the capacity to properly raise his or her child)."

III. Remand is required because there is no indication that lack of

protective capacity is a "primary factor," and no other finding by

the juvenile court supports termination.

The majority declines to analyze the remaining arguments of the

father. It does not clearly explain why it will not do so, stating, instead,

that its decision not to analyze the father's remaining arguments is

"based on our disposition" and providing citations to a case involving an

imprisoned parent and to J.M. v. Marshall County Department of Human

Resources, 399 So. 3d 280 (Ala. Civ. App. 2024). ___ So. 3d at ___ n.5.

From what I can infer, it appears that the majority declines to analyze

the father's remaining arguments because it considers the father's

protective capacity to be a "primary factor" upon which the juvenile court

relied to terminate his parental rights. See ___ So. 3d at ___ n.5.

(comparing K.A.P. v. D.P., 11 So. 3d 812 (Ala. Civ. App. 2008), and J.M.

35
CL-2025-0065

and noting that the judgment in J.M. was reversed because the "primary

factors upon which juvenile court had relied were not proven by clear and

convincing evidence"). But there is no indication in the juvenile court's

judgment in this case that the juvenile court believed that the father's

lack of protective capacity was more significant than any of the other four

factors that it cited when terminating the father's parental rights. In

addition to finding that the father had "failed to provide for the material

and financial needs of the child since the child has been in care," the

juvenile court's judgment states:

"The father is unable to discharge his parental
responsibilities for the child and said conduct is unlikely to
change in the foreseeable future as evidenced by the following:

"i. The father appears to be emotionally
dependent on the mother. The father is unable or
unwilling to protect the child from the mother. He
and the mother have lived together in a rental
house in Shelby County, Alabama for at least one
year. He fails to see anything wrong with the
mother. He and the mother plan to marry. ...

"ii. The father has only participated
minimally in the case plan in order to have his
daughter returned to his care. He has had no
contact with the social worker outside the mother's
presence. Although he attended one [of the three]
ISP meeting[s] in person and one by phone he

36
CL-2025-0065

testified that he could not remember what he has
been asked to complete.

"iii. Although court ordered to take a DNA
test after a court hearing, the mother and the
father refused to participate.

"iv. The father has not tried to adjust his
circumstances for the benefit [the child]. The
father refused to let the social worker visit the
home he occupied with the mother echoing the
mother's claim that they were afraid of being
harassed if [the state] knew their address."

Nothing in the above text of the judgment suggests that the father's lack

of protective capacity was more or less significant than any other factor

that the juvenile court relied upon to terminate the father's parental

rights. And I can see no statements from the juvenile court expounding

on the weight of the factors that it relied upon in rendering its judgment.

Because there is no evidence as to which findings -- if any -- are the

"primary factors" relied upon by the juvenile court, we should follow J.M.

and analyze the father's remaining arguments. This is especially

necessary because, after my review, I believe that those arguments have

merit. If the court were to analyze the father's arguments and conclude,

as I believe, that the factors relied on by the juvenile court lack merit, we

would reverse the juvenile court's judgment for it to consider whether it

37
CL-2025-0065

would still terminate the father's parental rights, despite the father's

lack of protective capacity, pursuant to the practice we established in

J.M.

Conclusion

We require more than speculation to terminate a parent's

fundamental right to raise his or her child, and " ' "[t]he fear of harm to

the child ... must be a real one predicated upon hard evidence; it may not

be simply gut reaction or even a decision to err-if-at-all on the side of

caution." ' " C.S., 412 So. 3d at 665 (quoting T.J. v. Calhoun Cnty. Dep't of

Hum. Res., 116 So. 3d 1168, 1175 (Ala. Civ. App. 2013)). The father

testified that the mother is a good mother, but where is the evidence --

from lay witnesses or experts -- that such a belief would overcome his

natural and presumptive capacity to protect his own child from abuse?

What I am trying to demonstrate in this dissent, stated in the

simplest terms possible, is that the father had the rights to his own child

permanently severed without a shred of evidence that he had ever

harmed the child, put the child in harm's way, or failed to protect the

child. Or for that matter there is no evidence that he ever harmed any

38
CL-2025-0065

child. If the state is allowed to take a child from a parent based on the

evidence in this case, then we have gone too far.

Accordingly, I respectfully dissent.

39