Rel: May 10, 2024

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, 2023-2024

_________________________

CL-2023-0102

_________________________

M.G.S.

v.

Lee County Department of Human Resources

Appeal from Lee Juvenile Court

(JU-19-311.02)

HANSON, Judge.

In 2018, D.G.-L. ("the father") came to the United States from 

Guatemala and brought with him D.G. ("the child"), the oldest child born 

of his marriage to M.G.S. ("the mother").1 The mother and the father's

1In the record, the mother is alternately identified as "M.S.G."
CL-2023-0102

2

two younger children remained in Guatemala. In September 2019, the 

father caused a motor-vehicle accident while the child was a passenger 

in the vehicle. It does not appear that the child was injured in that motorvehicle accident. However, as a result of that accident, the father was 

arrested on several charges, including driving under the influence. At the 

time of the accident, the mother was in Guatemala and there were no 

other relatives in the United States with whom the child could reside, so 

the Lee County Department of Human Resources ("DHR") filed in the Lee 

Juvenile Court ("the juvenile court") a petition seeking to have the child 

declared dependent and seeking an award of pendente lite custody of the 

child. 

In the dependency action, the juvenile court entered an order on 

October 15, 2019, in which it found the child dependent. DHR provided 

reunification services to the father, and in the summer of 2020, the 

reunification plan was for the child to be returned to the father's custody. 

However, for reasons not made clear in the record, that reunification plan 

changed in September 2020. The new reunification plan for the child was 

to return the child to the mother in Guatemala, and attempts were made 

to conduct a home study on the mother's home. In August 2022, the 
CL-2023-0102

3

juvenile court entered an order in the dependency action in which it, 

among other things, approved another change in the reunification plan 

for the child to a concurrent plan of either returning the child to the 

mother's custody or for the child to be adopted by her foster parents. 

On March 31, 2022, DHR filed a petition in the juvenile court in 

which it sought to terminate the parental rights of the mother and the 

father. The juvenile court conducted a final hearing in the terminationof-parental-rights action on January 6, 2023, at which it received ore 

tenus evidence. The mother attended the final hearing from Guatemala 

via teleconferencing using a social-media application. The father, who 

was incarcerated at the time, did not attend the final hearing. 

On February 10, 2023, the juvenile court entered in the 

termination-of-parental-rights action a judgment in which it terminated 

the parental rights of the mother and of the father and awarded 

permanent custody of the child to DHR. The mother filed a timely notice 

of appeal from the February 10, 2023, judgment to this court. 

Before the mother's appeal was submitted to this court, DHR 

sought permission in this court to file in the juvenile court a motion 

seeking relief pursuant to Rule 60(b), Ala. R. Civ. P., from the February 
CL-2023-0102

4

10, 2023, judgment. See Rule 60(b), Ala. R. Civ. P. ("Leave to make the 

motion need not be obtained from any appellate court except during such 

time as an appeal from the judgment is actually pending before such 

court."); S.J. v. Henry Cnty. Dep't of Hum. Res., 367 So. 3d 1111, 1113 

(Ala. Civ. App. 2022) ("[T]he mother and the father were each required to 

obtain leave of this court in order to file a Rule 60(b)[, Ala. R. Civ. P.,] 

motion challenging the judgment that was before this court for appellate 

review."). This court granted DHR's motion and reinvested the juvenile 

court with jurisdiction to enter a ruling on the Rule 60(b) motion.

In its Rule 60(b) motion, DHR alleged that the juvenile court's 

judgment was void for want of due process because it had not provided 

the mother a translator in her native language. Thus, DHR's motion 

sought relief under Rule 60(b)(4). See Ex parte R.S.C., 853 So. 2d 228, 

235-36 (Ala. Civ. App. 2002) ("A judgment is void under Rule 60(b)(4)[, 

Ala. R. Civ. P.,] only if the court that rendered the judgment lacked 

subject-matter jurisdiction, personal jurisdiction, or if it acted in a 

manner inconsistent with due process of law."). On October 10, 2023, the 

juvenile court entered a detailed judgment denying the Rule 60(b) 

motion. No appeal was taken from the October 10, 2023, judgment.
CL-2023-0102

5

The record sets forth the following facts and legal arguments. The 

mother is a native of and continues to live in Guatemala, and her first 

and primary language is Mam. During the time that the child has been 

in foster care, the mother has communicated with the juvenile court 

during hearings and in visits with the child using a videoconferencing 

application and the assistance of two Spanish-language interpreters. The 

mother appeared at the final hearing from Guatemala using a 

videoconferencing application available through social media. At the 

beginning of the final hearing, the mother had difficulty accessing the 

social-media application that the juvenile court had ordered to be used 

during that hearing. While the Spanish-language translators assisted 

the mother in using that application, the mother's attorney raised several 

arguments before the juvenile court, including that Spanish was not the 

mother's primary language and that fairness required that the mother 

be provided an interpreter who spoke her primary language. The juvenile 

court stated that it had been unable to locate an interpreter who spoke 

Mam.

In his arguments before the juvenile court, the mother's attorney 

briefly asserted that he was unable to render the mother effective 
CL-2023-0102

6

assistance of counsel. The mother's attorney first explained that he was 

"new to the case" and had only attended one previous hearing, which had 

been a permanency hearing. The case-action-summary sheet provided by

the State Judicial Information System indicates that the mother's 

attorney was appointed to represent the mother in the termination-ofparental-rights action on August 31, 2022. The mother's attorney also 

represented to the juvenile court that, when he had spoken with the 

mother, Cici Melius, a Court Appointed Special Advocate ("CASA")

worker, and Joanne Camp, the mother's former attorney, had interpreted 

the conversation for the mother in Spanish and English. The mother's 

attorney contended that the mother could not effectively communicate in 

Spanish, which, he said, he knew "from speaking to the mom on the one 

occasion that I talked to her and we had somebody trying to translate 

Spanish to her." In support of his contention that the mother did not 

speak Spanish well, the mother's attorney also stated that the mother 

had been unaware of the date of the hearing because, he said, she could 

not understand the Spanish-language notice with which she was served.2

2The record contains no information regarding whether the mother 

could read Spanish.
CL-2023-0102

7

In response to a question from the juvenile court regarding whether he 

was able to communicate with the mother, the mother's attorney 

responded, "Can I communicate with [the mother] on a first-grade level 

like I am talking to a client who is in first grade, or can I communicate 

with her like she's a [25]-year-old mother who is about to have her 

[parental] rights terminated? No, I cannot." DHR's attorney maintained 

that the mother has only a second- or third-grade education, which might 

impact her understanding of the proceedings; later evidence presented 

by DHR indicates that the mother had an education level consistent with 

that of a second-grade student. During the initial arguments in the final 

hearing, the mother's attorney also argued that he was unable to 

effectively represent the mother because, he said, he could not ask her 

questions while witnesses were testifying. When asked whether he had 

any supporting authority on the issues he was arguing, the mother's 

attorney answered, "[n]o, sir, I do not."

"The unsworn statements, factual assertions, and arguments of 

counsel are not evidence." Ex parte Russell, 911 So. 2d 719, 725 (Ala. Civ. 

App. 2005). Therefore, given the arguments and factual assertions of the 

parties' attorneys regarding whether the mother spoke Spanish 
CL-2023-0102

8

sufficiently well to understand and communicate effectively with the 

court and with her attorney, the juvenile court commenced the final 

hearing by receiving evidence on the issue of the mother's ability to 

communicate in Spanish. Isis Fulgham, a state-certified interpreter of

the Spanish language, informed the juvenile court that she does not 

speak Mam, the mother's primary language. Fulgham served as the 

mother's interpreter during the final hearing. The juvenile court 

questioned the mother regarding whether she understood the juvenile 

court's and the attorneys' questions concerning her ability to understand 

and communicate. In response, the mother stated that she speaks "a 

little" Spanish. However, she stated that she had not had problems 

communicating with the Spanish-language interpreters in this case and 

that she was satisfied that she could continue to do so. The juvenile court 

then questioned the mother about the basic facts of the case, such as the 

identities and respective locations of the father and the child. 

The juvenile court also received testimony from Claudia Medrano, 

another Spanish-language interpreter who had worked with the mother. 

Medrano stated that she had interpreted for the mother approximately 

60 to 70 times, including interpreting so that the child could 
CL-2023-0102

9

communicate with the mother during videoconferencing visitation; 

evidence was later presented indicating that the child can no longer 

communicate in Mam and that the mother and child needed an 

interpreter to communicate. Medrano stated that she had been able to 

adequately communicate in Spanish with the mother, had not had 

difficulty enabling the mother to understand concepts, and that the 

mother's ability to communicate in Spanish at the time of the hearing 

was consistent with her ability to communicate at the time Medrano was 

first assigned to this matter approximately one-and-a-half years before 

the final hearing. According to Medrano, the mother asked for 

clarifications only because of her education level. Medrano explained that 

if she is interpreting and a person uses "big words, like college words," 

the mother often does not understand, and Medrano must provide a 

definition of the word for the mother. When asked by DHR's attorney 

whether "the difficulty [in communicating with the mother] is 

[attributable] more [to] an education level, not language," Medrano 

answered in the affirmative.

Based on the foregoing evidence, the juvenile court overruled the 

objections raised by the mother's attorney, explaining:
CL-2023-0102

10

"It appears to me that [the mother] is able to adequately 

communicate. The mother has been involved in prior hearings 

in this case, and this case has been going on for a while with 

her participating both in court and out of court. And even in 

the process of trying to set up the virtual [videoconferencingapplication] links this morning, it appears that she has been 

able to understand, and we were actually able to walk her 

through logging in to Zoom [(a videoconferencing 

application)], which apparently was new for her. And 

although we were not able to use that means because of other 

technical difficulties, it appeared that we were able to 

adequately communicate. So, we will proceed forward."

After that decision, the mother's attorney asked permission, which 

was granted, to explain to the mother that if she did not understand 

something at any point during the hearing, she could ask questions. The 

juvenile court also instructed the mother that "[i]f at any time you need 

to speak to [the mother's attorney] privately, if you will, let us know that 

as well." Those instructions, as well as the remainder of the testimony, 

arguments, and comments during the hearing, were interpreted for the 

mother by Fulgham. 

During the final hearing, the mother provided testimony and 

answered questions from her attorney, DHR's attorney, the child's 

guardian ad litem and the juvenile-court judge regarding the merits of 

DHR's termination-of-parental-rights petition. Later, during the hearing 

on DHR's Rule 60(b) motion, Fulgham testified that she believed that the 
CL-2023-0102

11

mother had understood and communicated effectively in Spanish during 

the final hearing. Fulgham further stated there had been no point during 

the final hearing in which she thought that the mother had not 

comprehended what was being asked or said during that hearing.

With regard to the merits of DHR's petition seeking to terminate 

the mother's parental rights, the record reveals the following facts.3 The 

mother and the father are married and have three children. The child, 

who was nine years old at the time of the final hearing, is the parents' 

oldest child. The two younger children, who were seven and three years 

old, respectively, live in Guatemala with the mother. The mother testified 

that in 2018, the father and the child traveled through "the desert" to 

reach the United States. The initial immigration status of the father and 

the child was not clear, but at the time of the final hearing, the father 

was incarcerated by the Immigration and Customs Enforcement agency, 

and he faced deportation to Guatemala. The record indicates that, at the 

3The father has not appealed the judgment terminating his 

parental rights. Accordingly, we set forth evidence pertaining to the 

father only as it might impact the resolution of the issues raised in the 

mother's appeal.
CL-2023-0102

12

time of the final hearing, the child was an undocumented foreign 

national.

Three officers from the Opelika Police Department testified 

regarding incidents in which the father was arrested. That evidence 

indicates that the father was arrested for driving under the influence on 

September 14, 2019; that incident resulted in the child being placed in 

DHR's custody. The father was also arrested for driving under the 

influence on February 18, 2021. On November 22, 2022, the father was 

arrested on an outstanding failure-to-appear warrant after a routine 

traffic stop. The record does not indicate whether those arrests formed 

the basis for DHR's decision in August 2022 to change its permanency 

plan for the child from a return to the father's custody to a return to the 

custody of the mother. 

Samantha Colyer, the DHR social worker assigned to the child's 

case in August 2020, testified that after a review hearing conducted on 

September 2, 2020, DHR began attempting to identify means by which 

the child could be returned to the mother's custody in Guatemala. It is 

undisputed that the mother was not capable of traveling to Alabama from 

Guatemala to retrieve the child; Colyer cited both financial reasons and 
CL-2023-0102

13

the mother's lack of a visa as reasons the mother could not travel to 

Alabama. Therefore, DHR asked that the mother submit to a home study. 

Also at that time, DHR arranged videoconferencing visits between the 

mother and the child to occur every two weeks. As has been already 

mentioned, Medrano served as an interpreter for the mother and the 

child during those videoconferencing visits.

Three attempts were made to obtain a home study on the mother's 

home. Colyer testified that a CASA worker arranged the first home 

study, which was to be conducted by a Guatemalan social-services agency 

and was scheduled to occur in December 2020. The mother did not appear 

for that initial home study. Latasha Durr, a CASA worker, testified that 

her agency arranged another home study in 2021 through the 

Guatemalan embassy in Atlanta, Georgia; she stated that embassy 

personnel had been instrumental in attempting to have the home study 

performed. The home-study report from the child-services agency in 

Guatemala revealed that the Guatemalan social workers discovered that 

the mother did not live in the house she sought to have evaluated; 

instead, that home belonged to other people who were not related to the 

mother. In her testimony, the mother admitted that she had sought to 
CL-2023-0102

14

have a house that was not hers evaluated. Medrano testified that, after 

that second home study, she verified that the mother had the telephone 

number of the Guatemalan embassy so that the mother could arrange for 

a home study to be conducted on the home in which the mother was 

actually living.4

In response to a question whether a third attempt had been made 

to conduct a home study, Durr testified that in 2022, the Guatemalan 

social-services agency had interviewed the mother in its offices but that 

no attempt at traveling to and evaluating the mother's home was made. 

Durr stated that she did not know why the third attempt at visiting the 

mother's home had not been completed. At the time of the final hearing, 

there was no home study that approved the placement of the child in the 

mother's home. Britt-nae Dowdell, another DHR social worker, stated 

that DHR could not approve placing the child in the mother's custody in 

the absence of an approved home study. 

4We note that Durr also provided testimony that she had worked on 

a case in the past in which a child in DHR's custody had been returned 

to Guatemala. She explained that, in that case, the Guatemalan socialservices agency had approved the home study for the mother of that child 

and that the Guatemalan embassy had provided an escort to accompany 

that child in his or her travels from the United States to Guatemala.
CL-2023-0102

15

At the time of the final hearing, the mother testified that she was 

living with her two younger children in the paternal grandparents' home. 

However, Medrano testified that during a teleconferencing visit with the 

child that occurred approximately one month before the final hearing, the 

mother had showed the child images of a home that, the mother said, she 

was constructing for the family. Medrano stated that, during the 

videoconferencing visit that occurred in the week before the final hearing, 

the mother stated that she had been living in that still uncompleted 

home. In describing that home, Medrano stated: "it wasn't a house. It was 

basically, like, a box made out of blocks with no windows, you know, no 

doors and basically just a little bit -- some dishes and a curtain and a 

radio, you know, a few things." Medrano also said that there were no beds 

in the home. From statements made by the attorneys during arguments 

before the juvenile court and during the questioning of witnesses, it 

appears that the mother's home had dirt floors. 

Medrano testified that the alternating weekly videoconferencing 

visits between the mother and the child, in which she served as an 

interpreter, were brief and typically lasted only 10 to 15 minutes. She 

said that during her conversations with the child, the mother often 
CL-2023-0102

16

repeated the same questions. According to Medrano, the child was often 

not interested in the conversations with the mother and would terminate 

the videoconference call. Medrano testified that although the child could 

sometimes see her younger siblings in the background during the 

videoconference calls with the mother, she and her siblings never spoke 

to each other. Medrano also stated that the mother would sometimes ask 

the child inappropriate questions and that she would have to redirect the 

conversation to appropriate topics. Dowdell, a DHR social worker, also 

testified about that nature and brevity of the mother's videoconference 

visits with the child; she said that the child would often respond to the 

mother by saying only "yes" or "no."

The mother testified that when the father traveled with the child 

to the United States, the father had planned to purchase land in the 

United States. She said that she did not know whether the family's plan 

had been for the entire family to relocate to the United States or to 

resume living together in Guatemala. However, she said, at the time of 

the final hearing, she wanted the child return to Guatemala to live with 

her. When asked how she planned to have the child return to her home 

in Guatemala, the mother responded that she did not know. She then 
CL-2023-0102

17

stated that she needed assistance from the juvenile court in paying for 

the child to return to Guatemala and to purchase clothes and other 

supplies for the child. The mother stated that, upon the child's return, 

she would "get a new house" in which the family could live. The mother 

also said that, if the child returned to Guatemala, she intended to ask the 

father to purchase clothes, a television, and other items that the child 

might need.

At the time of the final hearing, the mother said that she and the 

two younger children were living in the paternal grandparents' threebedroom home with seven other family members. She stated that that 

home has access to clean water. The mother denied that the father had 

sent her money or financial support from the United States. However, 

Dowdell testified that the mother had reported to her that the father had 

sent money to her on a monthly basis while he has been in the United 

States. The mother said that she supports herself and the parents' two 

younger children through her jobs; she cuts coffee beans and works as a 

household cleaner. The mother also stated that the father's father ("the 

paternal grandfather") gave her money toward her support. On crossexamination on the issue of how she financially supports herself and her 
CL-2023-0102

18

children, the mother conceded that the paternal grandfather had died in 

June 2022, more than six months before the final hearing.

The child has been in the same foster home since she was placed in 

foster care in August 2019. Durr acknowledged that previous CASA 

workers had recommended that the child be returned to the custody of 

either the father or the mother. However, at the final hearing, Durr 

recommended that the parents' parental rights be terminated so that the 

child could be adopted by her foster parents. As bases for her 

recommendation, Durr cited the length of time that the child had been in 

foster care, the fact that no favorable home study had been completed in 

the two-and-a-half years that DHR had attempted to reunite the mother 

and the child, and the fact that the mother had lied about where she lived 

during the 2021 attempt at obtaining a home study. According to Durr, 

the child also repeatedly expressed that she wants to stay in the foster 

parents' home, where, according to Durr, she is happy and thriving. 

Dowdell testified that the child wanted to stay in the United States, that 

the child was happy with the foster parents, and that she wanted to be 

adopted by the foster parents. 
CL-2023-0102

19

The mother acknowledged that the child no longer speaks Mam and 

that the two must communicate through an interpreter. She also 

admitted that the child does not want to return to Guatemala. However, 

the mother said, the child is her only daughter, and she loves and misses 

the child.

After the first day of testimony, the juvenile court conducted 

another brief hearing at which it received ore tenus evidence on the issue 

of the impact on the child's immigration status with regard to various 

rulings the juvenile court might make on DHR's termination-of-parentalrights petition. Rebecca Salmon, the executive director of the Access to 

Law Foundation, testified that in order to begin the process for the child 

to obtain legal status within the United States, the juvenile a court must 

enter an order awarding permanent custody of the child to DHR or to 

another custodian. Salmon explained that the length of the process for a 

child to obtain legal status and/or citizenship in the United States is 

impacted by the foreign national's home country. In this case, she said, 

within approximately six months to one year after a permanent custody 

award, the child could obtain documentation allowing the child to apply 

for residency within the United States and for a social security number. 
CL-2023-0102

20

The residency requirement for Guatemalan foreign nationals was 

approximately five years at the time of the final hearing. Salmon 

explained that, if the child had that residency status after five years and 

had been adopted by the foster parents before she reached the age of 16, 

the child would automatically become a United States citizen. However, 

if the child were not adopted and remained in the permanent custody of 

DHR or the foster parents, the child would remain under that initial 

residency status and would have to apply for lawful residency status, 

often referred to as a "green card," on her own after she reached the age 

of majority. 

Salmon also testified regarding the medical benefits to which the 

child might be entitled in the United States. Salmon explained that, even 

under the pendente lite custody order, DHR could have sought Medicaid 

coverage for the child that would cover catastrophic injuries or 

conditions. However, she explained, within approximately eight months 

or one year of a permanent custody order, the child could obtain full 

benefits under Medicaid. Neither party discussed whether any healthinsurance coverage might be provided through the foster parents if the 
CL-2023-0102

21

parents' parental rights were terminated and the foster parents adopted 

the child.

The child's foster mother testified that the child is thriving in the 

foster parents' home, where the child had resided since June 2019. The 

foster mother stated that she and her family love the child, that the child 

loves them, and that she considers the child to be a part of the family. 

The foster parents want to adopt the child. The foster mother testified 

that the foster parents would be willing to continue having the child in 

their home in foster care if the juvenile court did not terminate the 

parents' parental rights, but she expressed concern that leaving the child 

in foster care might impact the child's path to obtain citizenship in the 

United States. She also said that, even if the juvenile court terminated 

the parents' parental rights, she would allow the child to maintain 

contact with the mother if the child wanted to do so.

Due-Process Issues

On appeal, the mother first argues that the juvenile court's 

judgment terminating her parental rights was fundamentally unfair 

because, she says, she received ineffective assistance of counsel. In the 

first part of her argument that she received ineffective assistance of 
CL-2023-0102

22

counsel, the mother contends that DHR failed to properly notify the 

Guatemalan Consulate General pursuant to the requirements of the 

Vienna Convention on Consular Relations and Optional Protocol on 

Disputes ("the Convention"), opened for signature Apr. 24, 1963, 21 

U.S.T. 77 (entered into force with respect to the U.S. Dec. 24, 1969). 

Article 37 of the Convention addresses information state authorities 

must provide to a foreign national's embassy "in cases of deaths, 

guardianship or trusteeship, wrecks and air accidents." See also In re 

Adoption of Peggy, 436 Mass. 690, 700, 767 N.E.2d 29, 38 n.12 (2002) 

(Noting that the Convention imposes a duty to notify the "appropriate 

consular post of any case involving appointment of guardian for minor 

who is 'a national of the sending State.'") (quoting Article 37 of the 

Convention).

The mother raises her argument that DHR failed to comply with 

Article 37 of the Convention for the first time on appeal. Recently, this 

court reversed A.B. v. A.A., 334 So. 3d 223 (Ala. Civ. App. 2021), in which 

this court had held that because a lack of due process can render a 

judgment void, an argument concerning due process could be raised for 

the first time on appeal. This court explained:
CL-2023-0102

23

"We note, though, that the holding in A.B. [v. A.A., 334 

So. 3d 223 (Ala. Civ. App. 2021),] is contrary to wellestablished precedents from this court and from our supreme 

court. In Yeager v. Lucy, 998 So. 2d 460, 463 (Ala. 2008), our 

supreme court held that an appellant's argument that 'the 

trial court violated Art. I, § 10 of the Constitution of Alabama 

1901, which provides "[t]hat no person shall be barred from 

prosecuting or defending before any tribunal in this state, by 

himself or counsel, any civil cause to which he is a party "'

was not preserved for review. The supreme court explained:

" '"The rule is well settled that a 

constitutional issue must be raised at 

the trial level and that the trial court 

must be given an opportunity to rule on 

the issue, or some objection must be 

made to the failure of the court to issue 

a ruling, in order to properly preserve 

that issue for appellate review. This 

Court succinctly stated this rule as 

follows:

"'"'In order for an appellate 

court to review a 

constitutional issue, that 

issue must have been raised 

by the appellant and 

presented to and reviewed 

by the trial court. 

Additionally, in order to 

challenge the 

constitutionality of a 

statute, an appellant must 

identify and make specific 

arguments regarding what 

specific rights it claims 

have been violated. '
CL-2023-0102

24

" '"Alabama Power Co. v. Turner, 575 

So. 2d 551 (Ala. 1991) (citations 

omitted)."

"'Cooley v. Knapp, 607 So. 2d 146, 148 (Ala. 1992).'

"Yeager, 998 So. 2d at 463. Additionally, in Elliott Law Group, 

P.A. v. Five Star Credit Union, 297 So. 3d 1148, 1153 n.6 (Ala. 

2019) (Per Mitchell, J., with Sellers and Stewart, JJ., 

concurring), it was held that, because the appellants failed to 

raise the issue of due process with the trial court, that issue 

was waived. 

"In C.F. v. State Department of Human Resources, 218 

So. 3d 1246, 1248 (Ala. Civ. App. 2016), C.F. argued to this 

court that the juvenile court's denial of her motion for a 

continuance violated her due-process rights. This court noted, 

though, that the due-process argument had not been raised to 

the trial court. Quoting Smith v. State Department of 

Pensions & Security, 340 So. 2d 34, 37 (Ala. Civ. App. 1976), 

this court explained: '" It has long been the law in this state 

that constitutional questions not raised in the court below will 

not be considered for the first time on appeal."' C.F., 218 So. 

3d at 1248. Therefore, we did not address C.F.'s due-process 

argument. Multiple other opinions from this court similarly 

hold that issues of due process must be preserved for appellate 

review. See, e.g., Docen v. Docen, 294 So. 3d 767, 770 (Ala. 

Civ. App. 2019); Smith v. Smith, 196 So. 3d 1191, 1198 (Ala. 

Civ. App. 2015); A.F. v. Madison Cnty. Dep't of Hum. Res., 58 

So. 3d 205, 213 (Ala. Civ. App. 2010); and Wu v. Wu, 37 So. 3d 

792, 796-97 (Ala. Civ. App. 2009).

"We also note that our supreme court has recently 

recognized that a party may attack, as void, a judgment that 

was entered in a manner that is inconsistent with due process 

by filing with the trial court a motion pursuant to Rule 

60(b)(4), Ala. R. Civ. P. See Crowder v. Blevins, [Ms. SC-2023-

0445, Mar. 22, 2024] ___ So. 3d ___, ___ (Ala. 2024). Therefore, 
CL-2023-0102

25

a party has a procedural vehicle through which to challenge, 

in the first instance, a denial of due process in the trial court.

"We conclude that the precedents requiring 

preservation of issues of due process are well-established and 

well-reasoned, and the inconsistent reasoning set forth in A.B.

was incorrect. Therefore, to the extent that A.B. holds that an 

appellant is not required to preserve a due-process argument 

for appellate review, A.B. is hereby expressly overruled. We 

unequivocally hold, in accordance with the other wellestablished precedents, that issues of due process must be 

first presented to a trial court to be preserved for appellate 

review."

J.M.L. v. Tuscaloosa Cnty. Dep't of Hum. Res., [Ms. CL-2023-0765, Apr. 

26, 2024] ___ So. 3d ___, ____ (Ala. Civ. App. 2024).

The mother did not argue before the juvenile court that DHR's 

purported failure to comply with the Convention was error or that it 

violated her due-process rights. She may not raise that argument for the 

first time on appeal. J.M.L. v. Tuscaloosa Cnty. Dep't of Hum. Res., 

supra. Accordingly, we do not address that argument.

The mother next contends that the juvenile court's judgment should 

be reversed because, she says, she did not receive effective assistance of 

counsel in the juvenile court. This court has explained that a parent's 

right to his or her child is fundamental and is protected by the dueprocess protections set forth in the Fourteenth Amendment to the United 
CL-2023-0102

26

States Constitution. Crews v. Houston Cnty. Dep't of Pensions & Sec., 

358 So. 2d 451, 454-55 (Ala. Civ. App. 1978). 

"'Our Supreme Court has noted that in termination-ofparental-rights cases, "a parent has a right to appointed 

counsel."' D.A. v. Calhoun County Dep't of Human Res., 976 

So. 2d 502, 505 (Ala. Civ. App. 2007) (quoting Ex parte E.D., 

777 So. 2d 113, 115 (Ala. 2000)). 'Inherent in that right to 

legal representation is the right to effective assistance of 

counsel.' D.A. v. Calhoun Count[y] Dep't of Human Res., 976 

So. 2d at 505."

A.S.H. v. State Dep't of Hum. Res., 991 So. 2d 755, 757 (Ala. Civ. App. 

2008).

The mother argues that the termination-of-parental-rights action 

was fundamentally unfair because, she says, a language barrier 

prevented her from communicating adequately with her attorney in the 

juvenile court. As mentioned earlier, the attorney who represented the 

mother was appointed in late August 2022. There is no argument that 

the mother's previous attorney had been unable to effectively 

communicate with the mother during the underlying dependency action 

or in the first five months that the termination-of-parental-rights action 

was pending. Regardless, as a part of her argument on this issue, the 

mother points out that the juvenile court was required to appoint an 
CL-2023-0102

27

interpreter to assist her in communicating with the court and her 

attorney. 

"(a)(1) If at any stage of a criminal proceeding, protection from 

abuse proceeding, or juvenile court proceeding or during the 

juvenile court intake process conducted pursuant to Sections 

12-15-118 and 12-15-120[, Ala. Code 1975,] and Rule 12 of the 

Alabama Rules of Juvenile Procedure, the defendant, 

juvenile, complainant, petitioner, or a witness informs the 

court that he or she does not speak or adequately understand 

the English language, the court may appoint an interpreter.

"(2) The defendant, juvenile, complainant, petitioner, or 

witness shall inform the appropriate court of his or her need 

for an interpreter immediately upon receiving notice to 

appear in the court.

"(3) If the court determines that due process 

considerations require an interpreter, the court shall appoint 

a qualified person to interpret the proceedings for the 

defendant, juvenile, complainant, petitioner, or witness 

requesting assistance. The interpreter shall also interpret the 

testimony or statements of the defendant, juvenile, 

complainant, petitioner, or witness, and, where applicable, 

assist in communications with counsel.

"(4) If the court has reason to believe that the defendant, 

juvenile, complainant, petitioner, or witness requesting an 

interpreter is capable of speaking and understanding the 

English language, the court may require that the requestor 

provide reasonable proof to the court of his or her inability to 

speak or understand the English language."
CL-2023-0102

28

§ 15-1-3(a), Ala. Code 1975.5

The juvenile court appointed two Spanish-language interpreters for 

the mother to assist her during court proceedings and in her contacts 

with the child. In addition, one of the CASA workers also spoke Spanish 

and appears to have been the interpreter for the mother and her attorney 

when they spoke during the week before the final hearing. The mother 

contends on appeal that she did not comprehend or speak Spanish 

sufficiently well that she could effectively communicate with her 

attorney, even with the assistance of the Spanish-language interpreters. 

The mother argues that in order to comply with § 15-1-3(a), the juvenile 

court was required to locate and obtain for her an interpreter who spoke 

Mam, her primary language, and that its failure to do so rendered the 

assistance provided by her attorney ineffective.

"The United States Court of Appeals for the Eleventh 

Circuit has held:

5Section 15-1-3, Ala. Code 1975, is a part of a title governing 

criminal procedure. However, § 15-1-3 states that it applies to a "juvenile 

court proceeding." In V.G.J. v. Tuscaloosa County Department of Human 

Resources, 368 So. 3d 886, 889 (Ala. Civ. App. 2022), this court applied § 

15-1-3 in the context of a termination-of-parental-rights appeal. Neither 

party has argued that § 15-1-3 does not govern the appointment of an 

interpreter in this matter, and, therefore, we do not address that issue. 
CL-2023-0102

29

"'As a constitutional matter, the 

appointment of an interpreter is within the trial 

court's discretion. Valladares v. United States, 

871 F.2d 1564, 1566 (11th Cir. 1989); see also

Perovich v. United States, 205 U.S. 86, 91, 27 S. 

Ct. 456, 51 L. Ed. 722 (1907) .... The basic inquiry 

is whether the failure to provide an interpreter 

made the trial fundamentally unfair. [United 

States v.] Edouard, 485 F.3d [1324,] 1337 [(11th 

Cir. 2007)]; Valladares, 871 F.2d at 1566.'

"Jimenez v. Secretary, Florida Dep't of Corr., 450 F. App'x 

826, 828 (11th Cir. 2012); see also United States v. Tapia, 631 

F.2d 1207, 1210 (5th Cir. 1980) ('If the Court below 

determines, after a hearing, that [the] defendant ... was 

inhibited from such comprehension of the proceedings or the 

testimony given against him in English to such an extent as 

to have made the trial fundamentally unfair, [it] should grant 

him a new trial.'). Consistent with that standard, this court 

has recognized that, when determining whether an indigent 

party has received effective assistance of appointed counsel in 

juvenile-court proceedings, 'the test ... is whether an 

examination of the entire record demonstrates that the 

complaining party was afforded a fair trial.' Crews v. Houston 

Cnty. Dep't of Pensions & Sec., 358 So. 2d at [451,] 455 [(Ala. 

Civ. App. 1978).]"

V.G.J. v. Tuscaloosa Cnty. Dep't of Hum. Res., 368 So. 3d 886, 891 (Ala. 

Civ. App. 2022). This court has further explained with regard to the "fair 

trial" such as that referenced in V.G.J., supra, that

"procedural due process contemplates the basic requirements 

of a fair proceeding including an impartial hearing before a 

legally constituted court; an opportunity to present evidence 

and arguments; information regarding the claims of the 

opposing party; a reasonable opportunity to controvert the 
CL-2023-0102

30

opposition's claims; and representation by counsel if it is 

desired."

Crews v. Houston Cnty. Dep't of Pensions & Sec., 358 So. 2d at 455. 

The record demonstrates that although the juvenile court 

attempted to obtain an interpreter who spoke Mam, it was unable to 

locate any interpreter who spoke that language. However, the record also 

indicates that the mother spoke at least some Spanish, and, therefore, 

the juvenile court appointed the Spanish-language interpreters for the 

mother. In addition, one of the CASA workers also spoke Spanish and 

interpreted for the mother when she spoke with her attorney before the 

final hearing. The juvenile court also received ore tenus evidence on the 

issue of the mother's ability to communicate in Spanish. 

In its February 10, 2023, final judgment, the juvenile court found, 

in pertinent part, that "it was clear that the interpreter was able to 

communicate effectively with the mother." In its October 10, 2023, 

judgment denying DHR's Rule 60(b) motion, the juvenile court 

specifically determined:6

6Although no appeal was taken from the October 10, 2023, 

judgment denying DHR's motion made pursuant to Rule 60(b), Ala. R. 

Civ. P., that judgment is included in a supplement to the record on appeal 

in this matter.
CL-2023-0102

31

"The court observed the mother's interaction with the 

court through the interpreter and was -- and is -- convinced 

that the mother was able to adequately communicate with 

English-speaking persons through a Spanish-language 

interpreter. Furthermore, the Spanish-language interpreter 

did not indicate any problem communicating with the mother. 

It is this court's finding that the mother was able to 

communicate as well as any person of her ability and 

circumstances would be. (The circumstances were difficult, as 

the mother participated virtually on her telephone, and she 

chose to do other things while the hearing was going on .... 

Furthermore, this court has looked to a Mam-to-English 

interpreter in the past and has been unable to find one.

"It appears that this is a very different situation than 

the one is V.G.J. v. Tuscaloosa County Department of Human 

Resources, 368 So. 3d 886 (Ala. Civ. App. 2022), as in this 

case, the mother showed that she was able to communicate 

through a Spanish-language interpreter. The mother had a 

Spanish interpreter both at trial and in preparation for trial. 

Although the mother did intimate that she spoke 'a little 

Spanish,' the evidence made it clear, and the court found, that 

the mother in this case is fluent in spoken Spanish. Having 

another termination-of-parental-rights trial with a different 

interpreter would do nothing other than delay permanency for 

the child without any valid reason for doing so."

Thus, the juvenile court concluded, in essence, that the performance of 

the mother's attorney had not been ineffective because of the purported 

language barrier. The juvenile court determined that, although it could 

not locate an interpreter in the mother's native language, the mother was 

sufficiently fluent in Spanish to effectively communicate with the court 

and her attorney. 
CL-2023-0102

32

The juvenile court relied on ore tenus evidence and its own 

observation of the mother and other witnesses in determining that the 

mother was sufficiently fluent in Spanish that the use of Spanishlanguage interpreters during the pendency of the termination-ofparental-rights action and during the final hearing did not render the 

proceedings so fundamentally unfair as to constitute a deprivation of her 

due-process rights. Such a determination is within the discretion of the 

juvenile court. See, generally, V.G.J., supra; see also United States v. Da 

Silva, 725 F.2d 828, 831 (2d Cir. 1983) (holding that when a criminal 

defendant's native language was Portuguese but the evidence established 

that he also spoke Spanish and was provided a Spanish-language 

interpreter, the trial court's finding that the defendant "was able to 

communicate effectively in Spanish" could be "disregard[ed] only on a 

showing of clear error"); Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. 

App. 2009) ("Therefore, the trial judge -- having the defendant in his 

presence, observing his level of comprehension, and asking him 

questions, has wide discretion in determining the adequacy of 

interpretive services.").
CL-2023-0102

33

Moreover, nothing in the language of § 15-1-3 requires that an 

interpreter who speaks the person's primary language be provided. In the 

context of providing an interpreter in a criminal action, the Texas Court 

of Appeals has recently explained:

"If a defendant cannot understand the proceedings, 

fundamental fairness and due process require that the court 

provide an interpreter. See Linton[ v. State], 275 S.W.3d 

[493,] 500 [(Tex. Crim. App. 2009)]. Whether an accused 

receives adequate interpretation is a matter within the trial 

court's discretion because it depends on 'a potpourri of factors.' 

Id. 'The question on appeal is not whether the "best" means 

of interpretive services were employed, but whether the 

services ... were constitutionally adequate such that the 

defendant could understand and participate in the 

proceedings.' Id."

Tolentino v. State, [No. 01-22-00442-CR, Apr. 23, 2024] ___ S.W.3d ___, 

___ (Tex. App. 2024). 

The record supports the juvenile court's findings that the mother 

communicated sufficiently well in Spanish through her interpreters that 

the juvenile court's inability to locate an interpreter fluent in her primary 

language did not impair her ability to communicate with her attorney. 

Moreover, the evidence also demonstrates that the mother understood 

the termination-of-parental-rights proceedings. During the final hearing, 

the mother was told that she could ask questions during the hearing if 
CL-2023-0102

34

she did not understand something that was said. In addition, during the 

final hearing, the juvenile court informed the mother that she could ask 

her attorney questions or speak with him at any point.7 The record does 

not indicate that the mother or her attorney ever asked for a pause in the 

final hearing to consult each other. We cannot say that the mother has 

demonstrated that, because of the interpreter services she received in the 

juvenile court, she received ineffective assistance of counsel such that the 

proceedings below were a violation of her due-process rights or were 

fundamentally unfair. See State v. Lopez-Ramos, 913 N.W.2d 695, 709 

(Minn. Ct. App. 2018) (rejecting a defendant's argument that the 

appointment of a Spanish-language interpreter was insufficient because, 

"while [the defendant's] first language is Mam, the video recording and 

trial transcript show that he had a sufficient mastery of Spanish to 

effectively communicate" using a Spanish-language interpreter).

Termination-of-Parental-Rights Issues

7The mother's attorney did not request or arrange for a method by 

which he could communicate separately and in real time with the mother 

during the final hearing; such separate communication may be achieved 

through the videoconferencing application initially recommended by the 

juvenile court and similar to the one the mother elected to utilize during 

the final hearing.
CL-2023-0102

35

The mother also argues that the evidence does not support the 

juvenile court's judgment terminating her parental rights. In an action 

involving a claim seeking the termination of parental rights, a juvenile 

court must apply a two-pronged test to determine whether to terminate 

a parent's parental rights. Ex parte T.V., 971 So. 2d 1, 4 (Ala. 2007) 

(citing Ex parte Beasley, 564 So. 3d 950, 945-55 (Ala. 1990)). This court 

has often stated that that that two-pronged test requires that a juvenile 

court determine whether a child is "dependent" and whether there are 

viable alternatives to termination. See, e.g., B.M. v. State, 895 So. 2d 319, 

331 (Ala. Civ. App. 2004). However, in the context of a termination-ofparental-rights action, the use of the term "dependent" does not refer to 

that term as defined under the Alabama Juvenile Justice Act, § 12-15-

101 et seq., Ala. Code 1975, in § 12-15-102(8), Ala. Code 1975. Instead, 

"[i]n order for the juvenile court to make a finding that a child is 

dependent in a case involving termination of parental rights, the juvenile 

court must first determine by clear and convincing evidence that grounds

[under § 12-15-319(a), Ala. Code 1975,] for termination of parental rights 

exist." Talladega Cnty. Dep't of Hum. Res. v. J.J., 187 So. 3d 705, 711 

(Ala. Civ. App. 2015). See also Ex parte T.V., 971 So. 2d at 4 ("For a 
CL-2023-0102

36

finding of dependency, the court must consider whether there are 

grounds for terminating the parental rights, including but not limited to 

the grounds specified in [former] § 26-18-7[, Ala. Code 1975, now § 12-15-

319, Ala. Code 1975].").

"'Once the court has complied with this two-prong test 

-- that is, once it has determined that the petitioner has met 

the statutory burden of proof and that, having considered and 

rejected other alternatives, a termination of parental rights is 

in the best interest of the child -- it can order the termination 

of parental rights . '"

Ex parte T.V., 971 So. 2d at 5 (quoting Ex parte Beasley, 564 So. 2d at 

945-55). A judgment that orders the termination of a parent's parental 

rights must be supported by "clear and convincing" evidence, which is: 

" '[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.'"

L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002) (quoting § 6-11-

20(b)(4), Ala. Code 1975).

The mother argues that the juvenile court erred in determining that 

the evidence supported a finding that there were grounds under § 12-15-
CL-2023-0102

37

319(a), Ala. Code 1975, for the termination of her parental rights. Section 

12-15-319(a) provides, in part:

"(a) If the juvenile court finds from clear and convincing 

evidence, competent, material, and relevant in nature, that 

the parents of a child are unable or unwilling to discharge 

their responsibilities to and for the child, or that the conduct 

or condition of the parents renders them unable to properly 

care for the child and that the conduct or condition is unlikely 

to change in the foreseeable future, it may terminate the 

parental rights of the parents. In a hearing on a petition for 

termination of parental rights, the court shall consider the 

best interests of the child. In determining whether or not the 

parents are unable or unwilling to discharge their 

responsibilities to and for the child and to terminate the 

parental rights, the juvenile court shall consider the following 

factors including, but not limited to, the following: ...."

The mother points out that, in its termination-of-parental-rights 

petition, DHR made allegations pertaining only to certain portions of § 

12-15-319(a), and that the juvenile court did not refer to any of those 

provisions in reaching its February 10, 2023, judgment. Specifically, 

DHR alleged that the parents had failed to provide any financial support 

for the child, see § 12-15-319(a)(9); that they had failed to maintain 

regular visits with the child, see § 12-15-319(a)(10); that they had failed 

to maintain consistent contact or communication with the child, see § 12-

15-319(a)(11); and that they had failed to adjust their circumstances to 

meet the needs of the child, see § 12-15-319(a)(12). The mother contends 
CL-2023-0102

38

that the evidence does not support the termination of the mother's rights 

under any of the bases cited by DHR in its petition, and, therefore, she 

argues that the juvenile court's judgment is not supported by the 

evidence in the record on appeal.

The mother is correct that, in its February 10, 2023, judgment, the 

juvenile court did not make any specific finding citing any of the grounds 

listed in § 12-15-319(a). Instead, the juvenile court stated in that 

judgment that "[t]he court finds that termination of parental rights is 

substantiated in this case on multiple grounds and by clear and 

convincing evidence, material and substantive in nature." The juvenile 

court made many detailed findings concerning the facts of the case. 

Although the juvenile court did not connect any of those specific factual 

findings to the grounds set forth under § 12-15-319(a), this court may 

presume that the juvenile court made those determinations necessary to 

support its judgment and that are supported by the evidence. Ex parte 

A.S., 73 So. 3d 1223, 1228 (Ala. 2011); D.M. v. Walker Cnty, Dep't of Hum. 

Res., 919 So. 2d 1197, 1210 (Ala. Civ. App. 2005). 

Although there was some evidence that the mother missed some 

videoconferencing visits with the child, the evidence supports a 
CL-2023-0102

39

conclusion that the mother's contact with the child was somewhat 

consistent. Thus, we agree with the mother that the evidence would not 

support the termination of her parental rights on the bases that she failed 

to visit and that she failed to maintain consistent contact with the child. 

We note, however, that nothing in the juvenile court's February 10, 2023, 

judgment indicates that the juvenile court relied on those grounds in 

reaching its decision.

The mother points out that the failure to financially support a child 

should be considered in a termination-of-parental-rights action only 

when the parent is capable of providing financial support; she contends 

that she was unable to make any financial contribution to the child's 

support. See § 12-15-319(a)(9). This court has stated that poverty alone

is not a sufficient basis for the termination of a parent's parental rights. 

D.S.R. v. Lee Cnty. Dep't of Hum. Res., 348 So. 3d 1104, 1109 (Ala. Civ. 

App. 2021) (citing C.B. v. State Dep't of Hum. Res., 782 So. 2d 781, 785 

(Ala. Civ. App. 1998)). There is nothing in the record that indicates that 

the mother was asked to contribute financially for the support of the child 

or that the juvenile court considered that basis in reaching its judgment. 

Further, while poverty cannot be the sole basis for terminating parental 
CL-2023-0102

40

rights, as is discussed below, the juvenile court's judgment indicates that 

the juvenile court relied on other grounds in terminating the mother's 

parental rights. 

Among other things, the juvenile court found in its February 10, 

2023, judgment:

"The child is a native of Guatemala who was brought to 

the United States by the father without objection by the 

mother. ... Neither the father nor the mother have made the 

necessary efforts to relieve [the child] of her dependency.

"The mother remains in Guatemala and has made little 

if any efforts to regain custody of the child. She has not seen 

the child in person in years and has made no efforts to support 

the child. There were extraordinary efforts to conduct a home 

study of the mother's home in Guatemala, but even that was 

undermined by the mother. It does not appear that she has a 

very strong bond with this child. Their conversations are 

reportedly not very involved and not very engaging. There is 

almost no engagement between [the child] and her siblings 

when electronic communications take place. The [mother and 

the child] do not understand each other very much, and as 

[the child] has gotten older, she has steered away from her 

native language to the extent that she now must have an 

interpreter to even speak with the mother. 

"The court further notes that the mother's demeanor 

throughout these court hearing -- which obviously are of the 

highest importance -- where in the mother did not appear very 

interested in what was going on or being said in the 

proceedings. She often seemed distracted by other things and 

was doing such things as riding a bus, walking around, and 

speaking when off camera while the proceedings were doing 

on. Furthermore, it came to the court's attention that the 
CL-2023-0102

41

mother was posting still shots of the proceedings on social 

media with comments and markups unbecoming of a court 

proceeding. The mother's overall demeanor and her manner 

of testimony indicated that she viewed this child as more of a 

possession to be held onto than a child to sacrifice for."

We note that this court must rely on the juvenile court's determinations 

with regard to the demeanor and credibility of the mother during the 

final hearing. See Ex parte Bryowsky, 676 So. 2d 1322, 1326 (Ala. 1996) 

("The trial court is in the better position to evaluate the credibility of the 

witnesses ... and the trial court is in the better position to consider all of 

the evidence, as well as the many inferences that may be drawn from that 

evidence ...."). 

In its final judgment, the juvenile court also determined that DHR 

and the CASA workers had made "extraordinary" efforts to reunite the 

mother and the child when, in addition to providing an interpreter for the 

mother's visitations with the child, they arranged for three separate 

home studies for the mother. None of those attempts resulted in an 

approved home study, and in one, the mother attempted to mislead 

Guatemalan social-services personnel and the juvenile court by having 

the home study performed at another person's residence. The record does 

not indicate that the mother had a suitable home at the time of the final 
CL-2023-0102

42

hearing. During the week before the final hearing, the mother informed 

the child and Medrano that she was living in a partially constructed 

home. However, the mother testified that she was living with the 

paternal grandparents at the time of the final hearing and that she 

planned to relocate from that residence if the child were returned to her 

custody. At the time of the final hearing, DHR had been working to 

reunite the mother and the child for two-and-a-half years, and the mother 

did not have a stable residence to which the child could return. Therefore, 

the evidence supports a conclusion that the mother had not adjusted her 

circumstances to meet the child's needs. See § 12-15-319(a)(12). 

Moreover, the child was unable to communicate with the mother in 

her native language and had not seen the mother in person for at least 

four years. At the time of the final hearing, there was no feasible plan in 

place that would allow the child to return to Guatemala. The child had 

been in foster care for three-and-a-half years at the time of the final 

hearing and had been in the same foster home for all that time. In its 

judgment, the juvenile court also found that the child had formed a 

significant and important emotional bond with her foster parents and 

that it would not be in the child's best interests to sever that bond. See § 
CL-2023-0102

43

12-15-319(a)(13); see also A.D. v. R.P., 345 So. 3d 657, 665 (Ala. Civ. App. 

2021) (holding that an issue not alleged in a party's petition may be 

considered by the juvenile court if that issue is tried by the implied 

consent of the parties under Rule 15(b), Ala. R. Civ. P.); Herring v. 

Madison Cnty. Dep't of Hum. Res., 279 So. 3d 1151, 1162 (Ala. Civ. App. 

2018). We conclude that the evidence in the record and the findings in 

the juvenile court's judgment support the conclusion that the mother was 

either unwilling or unable to discharge her responsibilities to and for the 

child and support the juvenile court's finding that the mother's 

circumstances and condition were unlikely to change in the foreseeable 

future. See § 12-15-319(a). 

The mother last argues that the juvenile court erred in determining 

that there were no viable alternatives to the termination of her parental 

rights. See Ex parte T.V., 971 So. 2d at 5. The mother contends that 

maintaining the "status quo" by leaving the child in DHR's custody in 

foster care and allowing the mother to continue videoconference visits 

with the child was a viable alternative to termination.

In general, leaving a child in foster care indefinitely is not a viable 

alternative to termination because doing so does not provide the child 
CL-2023-0102

44

with permanency. T.W. v. Calhoun Cnty. Dep't of Hum. Res., [Ms. CL2022-0694, June 2, 2023] ___ So. 3d ___, ___ (Ala. Civ. App. 2023); B.M. 

v. Jefferson Cnty. Dep't of Hum. Res., 183 So. 3d 157, 161 (Ala. Civ. App. 

2015). See also K.A.P. v. D.P., 11 So. 3d 812, 820 (Ala. Civ. App. 2008) 

("[T]he appellate courts generally hold that maintaining an indefinite 

custody arrangement with a third party is not in the best interests of the 

child."). An exception to that general rule exists for situations in which 

maintaining the status quo would allow the parent and child to maintain 

a beneficial relationship and where the evidence demonstrates that 

preserving that relationship would be in the child's best interests. S.N.W. 

v. M.D.F.H., 127 So. 3d 1225, 1230 (Ala. Civ. App. 2013). 

With regard to whether there was a viable alternative to 

termination in this case, the juvenile court found that "given the overall 

circumstances, including [the child's] immigration and medical-care 

situation, being adopted by her foster parents is a far better option for 

her than them just being custodians." It then stated that it had 

considered and rejected all possible alternatives to termination as not 

being viable. "The determination of whether a viable alternative to 

termination of parental rights exists is a question of fact to be decided by 
CL-2023-0102

45

the juvenile court." J.B. v. Cleburne Cnty. Dep't of Hum. Res., 991 So. 2d 

273, 282 (Ala. Civ. App. 2008).

In the two-and-a-half years that DHR worked to reunite the mother 

and the child, the mother did not obtain a favorable home study, and on 

one occasion, she had Guatemalan social-service workers evaluate a 

home in which she did not reside. Neither the mother nor DHR set forth 

a plan pursuant to which the child might ever be reunited with the 

mother.

Moreover, the juvenile court determined that the bond between the 

mother and the child is not strong. The child has not seen the mother in 

approximately four years, and she no longer speaks her primary 

language and requires a translator to speak with the mother. The 

interpreter's description of the conversations between the mother and the 

child indicate that they are superficial and that the child often grows 

bored and terminates the videoconference visit with the mother. Thus, 

there is no evidence of a bond between the mother and the child that is 

so beneficial to the child that preserving the relationship and leaving the 

child in foster care indefinitely would be in the child's best interests.
CL-2023-0102

46

The child has been in foster care for three-and-a-half years, and in 

that time, she has formed loving relationships with the members of her 

foster family. The child's foster parents want to adopt her and provide 

her permanency. The record also demonstrates that, if the child is 

adopted, she has a years' long, but clear, path to obtaining United States

citizenship. However, if the child remains indefinitely in foster care, she 

will leave foster care when she reaches the age of majority with only 

residency status and without a green card. The juvenile court determined 

that, under the facts of this case, it was not in the child's best interests 

to be returned to Guatemala and her mother's custody. In an action 

involving the possible termination of a parent's parental rights, "the 

paramount consideration of the [juvenile] court, and of this court, is the 

best interests of the children involved." A.R.E. v. E.S.W., 702 So. 2d 138, 

140 (Ala. Civ. App. 1997). Given the facts of this case, we cannot say that 

the mother has demonstrated that the juvenile court erred in 

determining that there were no viable alternatives to the termination of 

the mother's parental rights.

We affirm the juvenile court's February 10, 2023, judgment.

AFFIRMED.
CL-2023-0102

47

Moore, P.J., and Fridy and Lewis, JJ., concur. 

Edwards, J., concurs in the result, without opinion.