J.C. v. State Department of Human Resources

Facts and Procedural History

On September 22, 2005, the Cullman County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of J.C. (“the mother”) and T.H. (“the father”) to their daughter, G.M.H. (sometimes hereinafter referred to as “the child”). The mother answered, and the termination hearing was continued several times before the matter was heard on September 6, 2006. The juvenile court received ore tenus evidence, and on October 11, 2006, it entered a judgment terminating the parental rights of the mother and the father. The mother filed a timely appeal from the judgment. The father has not appealed.

The evidence presented at the termination hearing shows the following relevant facts, although none of the exhibits admitted into evidence at the hearing were made a part of the record on appeal. The mother has three children: C.R.C., C.C.B., and G.M.H. At the time of the hearing, C.R.C. was seven years old, C.C.B. was five years old, and G.M.H. was nearly three years old. Only the mother’s rights as to G.M.H. are at issue in this appeal.

The mother testified that she was not sure who had legal custody of C.C.B., although she thought that the state of Mississippi might. It is undisputed that the mother’s parental rights to C.C.B. were terminated by the state of Mississippi in 2003, while the mother was pregnant with G.M.H. The record does not indicate the circumstances leading to the termination of the mother’s parental rights to C.C.B. The mother testified that in 2004 she was allowed to visit C.C.B. one hour each week.

The mother and the father both testified that they have extensive histories of illegal drug use. The mother testified that she has lived around illegal drugs all of her life and that she began using marijuana when she was 14 years old, at first periodically and eventually daily. She has also “tried” methamphetamine. When the mother met C.C.B.’s father, she began using methamphetamine four or five times each week. According to the mother, although she did not undergo any treatment, she stopped using drugs during each of her pregnancies.

The mother testified that she did not use drugs for about six months after C.C.B. was born. However, C.C.B.’s father left her, and she began using methamphetamine “to escape or when [she] had to get up and go to work.” Her drug use escalated, and by the time she met the father in 2002, she was using methamphetamine every day. The record shows that at the time of the termination hearing the mother had been arrested at least twice for drug-related charges, but she had never been convicted of a felony.

The father testified that he began using marijuana when he was 15 years old; he eventually used cocaine and methamphetamine. In 2000, the father made money by selling methamphetamine. Before he met the mother, the father either pleaded guilty to or was convicted of at least four felonies, including unlawful possession of controlled substances, unlawful distribution of controlled substances, forgery in the second degree, and possession of burglar’s tools. Before he met the mother, the father had completed two drug-rehabilitation programs — one court-ordered program and one while he was in prison. Although the father had been advised in the rehabilitation programs to attend support programs such as Narcotics Anonymous indefinitely after he completed the rehabilitation programs, he only did so for a few weeks. The father testified that, after the father was released from prison in 2001, he did not use drugs for approximately 10 months.

When the mother and the father met in 2002, the father was again using and selling illegal drugs. The relationship between the mother and the father was unstable. They would stop seeing one another because the mother objected to the father’s drug use, and they would later reconcile based on the father’s promises not to use drugs. The mother testified that, by the time of the termination hearing, she and the father had separated and reconciled more than four times.

The mother became pregnant with the child in the spring of 2003. The child was born six weeks premature in mid-December 2003. The mother was 20 years old when the child was born. The mother and the father testified that they were not working at the time the child was born and that, at that time, the father was not looking for work. Although the mother denied using illegal drugs while she was pregnant with the child, she also testified that she had used drugs in October 2003, just two months before the child was born.

Because she was born prematurely, the child remained in the hospital for two weeks after her birth. The father testified that he and the mother had visited her every day. On December 23, 2003, before the child was released from the hospital, the mother was arrested for possession of a controlled substance. That charge was still pending at the time of the termination hearing because the mother had entered into an agreement under which prosecution was deferred while the mother participated in a substance-abuse treatment program.

The child was released from the hospital on December 29, 2003. The father testified that she was healthy and that he and the mother did not receive special instructions regarding her care. Just a few hours after the child arrived home, police officers executed a search warrant related to a third party whose belongings were at the parents’ home. The father testified that, without the mother’s knowledge, he had illegal drugs in his pocket at the time of the search. When the officers discovered the father’s drugs, they arrested him for unlawful possession of a controlled substance. After the father was released on bond in January 2004, the mother, C.R.C., and the child continued to live with him.

In January 2004, DHR contacted the mother’s family in an attempt to locate C.R.C. and the child. When the mother’s family told her that DHR was looking for the children, the mother hid them for two to three weeks. The father testified that he and the mother voluntarily surrendered custody of the children to DHR on February 2, 2004.

A hearing was held, and the child, who was then seven weeks old, was determined to be dependent and placed in DHR’s custody. The record does not show the factual or legal bases of the dependency determination. The child was placed with a foster mother, P.J.A. (“the foster mother”), who cared for her until the time of the termination hearing nearly three years later. C.R.C. was also placed with the foster mother; however, the record does not show who had legal custody of him at the time of the termination hearing.

A senior social worker with DHR, Jennifer Jackson, testified that she had been the child’s caseworker since the child was determined to be dependent. The mother and the father met with Jackson and the foster mother shortly after the dependency hearing to develop an Individualized Service Plan (“ISP”). According to Jackson, the ISP identified goals that the mother and the father were to satisfy in order to be reunited with the children. The parents testified that, pursuant to the ISP, they were to maintain a stable home, work to become able to support the children financially, and stay “drug free.” Jackson testified that they were also to address the pending criminal charges against them. The juvenile court ordered that the mother and the father have supervised visitation with the child once each week. Jackson testified that visitation was an essential part of the ISP and the reunification process.

The evidence regarding the father’s failure to meet the goals established by the ISP is undisputed. The father and mother married in February 2004, and thereafter the father worked performing freelance carpentry for two to three months. However, in June 2004, the mother and the father separated because of the father’s use of methamphetamine. The mother and the father saw each other occasionally, but they did not reconcile until June 2005. The father moved frequently because he did not have a stable job. He testified that he never visited the child or communicated with DHR about receiving custody of her. Jackson testified that DHR had an “indicated” report from another county against the father regarding abuse and neglect and that the report influenced DHR’s decision not to return the children to the father’s home.

On February 28, 2005, the father pleaded guilty to unlawful possession of a controlled substance and was ordered to spend 12 months in an inpatient drug-rehabilitation program. At the time of the September 6, 2006, termination hearing, the father had not complied with the February 28, 2005, order. The father testified that he understood that he had up to five years to comply with the order and that he did not know how to enter such a program.

The evidence was largely disputed regarding the mother’s actions after the child was determined to be dependent. As part of the deferred prosecution of the mother’s December 23, 2003, possession charge, she participated in the North Central Alabama Substance Abuse Counsel Court Referral Program (“CRP”). The mother stated that she had participated in the CRP for two years and had reported for drug tests that had cost her $20 each week. The mother testified that DHR never helped her enter a drug-treatment or rehabilitation program. Instead, she said, DHR just told her she had to “stay clean.” Jackson testified that, at the time of the initial ISP meeting, the mother was already involved with CRP and DHR advised her to complete the program and comply with the drug tests.

Cindy Keller, a court referral officer (“CRO”) for the CRP, testified that most participants complete the program after six months or a year. The mother still had not completed the program after three or more years. According to Keller, the mother had started with CRP in April 2004, or possibly earlier; one CRP record relating to the mother was dated October 2003. Keller confirmed that the mother had been referred to the program by the courts, stating: “It was a child custody. Then we got her on a deferred prosecution.”

The CRP required the mother to submit to random drug tests, and its records showed that she had not failed any test to which she had submitted. However, Keller testified that the reason the mother had not completed the program in three years was because she had frequently failed to submit to drug tests and to comply with other program requirements. When the mother would fail to comply for a number of weeks and the CROs could not contact her, they would dismiss her from the program and refer her back to the court that had handled her criminal case. Eventually, the mother would be referred back to the CRP, and the pattern would repeat itself. The mother testified that she did not know if she had ever been referred to the court for failing to comply with the CRP requirements.

As one of the ISP goals, DHR had asked the mother to find work so that she could earn enough to support herself and the child. After February 2004, the mother found work, but she voluntarily quit after three or four months because she “really didn’t like it.” The mother then ran out of money and began working with a cleaning service two to three days each week, but she did not earn enough money to support herself and the child. After two months, the mother quit that job because, according to the mother, she did not have transportation and was too busy visiting C.R.C. and the child, visiting C.C.B. in Mississippi, and complying with the CRP requirements.

The mother testified that she was using drugs during that time. She stated that she did not find another job because she was arrested for unlawful possession of a controlled substance in November 2004 and was jailed for three weeks after her arrest. Although the evidence did not show the disposition of this charge, the mother testified that, other than the December 23, 2003, possession charge, no other charges were pending against her.

In November 2004, the CRP referred the mother to an inpatient rehabilitation program known as “A Woman’s Place” for 30 days. The mother stayed at A Woman’s Place for the full 30 days and was released in December 2004. The mother testified that while she was at A Woman’s Place she learned about the addiction process and the importance of post-rehabilitation support. The mother stated that she subsequently attended Narcotics Anonymous meetings for a month, until January 2005.

The evidence conflicted regarding whether DHR had provided sufficient assistance to the mother. The mother testified that DHR did not help her find housing, employment, or transportation. She stated that she had requested transportation vouchers from DHR but never received them. The mother testified that she believed DHR should have forced her to submit to a rehabilitation program when the child was first removed from her care.

Jackson testified that DHR helped the mother and tried to reunite her with the child. DHR helped the mother obtain her general equivalency diploma (“GED”) so that she could attend college or obtain a job. DHR referred her to an organization that helped her with family support and visitation services. Jackson testified that the reason DHR did not help the mother into a drug-rehabilitation program was because she was already participating in the CRP. DHR paid for the mother’s drug tests when she could not afford them. The mother confirmed that DHR had helped her obtain her GED and had provided transportation so that she could visit with C.R.C. and the child. She also attended parenting classes twice after the child was removed from her custody.

The mother testified that after she was released from A Woman’s Place in December 2004, she began attending classes full-time so that she could work toward a degree “in the medical field.” She stated that DHR had approved of her educational plans. The mother completed two semesters of school before she stopped attending.

The mother’s testimony conflicted with the foster mother’s regarding her ability to contact the child. The mother testified that she was not allowed to have the foster mother’s telephone number for a year after C.R.C. and the child were removed from her custody. The mother stated that the children could call her at designated times, but the child was too young to talk. According to the mother, the foster mother gave her a cellular telephone and told her that she could call to check on the children; however, the mother could not afford to activate the cellular telephone.

In contrast, the foster mother testified that she gave the mother her telephone number at the first ISP meeting and told her that she could call the children any time she wanted. When the foster mother later asked the mother why she did not call, the mother replied that she did not have a telephone. In the summer of 2004, the foster mother purchased a prepaid cellular telephone, had useable time put on it, and gave it to the mother. However, the mother never called the children from that cellular telephone. The foster mother testified that, in the three years the child was in her care, the mother had called 8 to 10 times.

The evidence conflicted significantly regarding the mother’s visitation with the child between February 2004 and March 2005. The foster mother testified that, at the first ISP meeting, “I told [the mother] she was welcome at my home any time as long as she wasn’t drinking or under the influence of drugs. That if she could call ahead of time, she could come any time she wanted to see [the children].” The foster mother stated that she did not limit the time the mother could spend with the child at her home. The mother visited the child at the foster mother’s home twice: on Christmas Day 2004, for 2½ hours, and before a supervised visitation, for about 30 minutes. The foster mother stated that she had asked the mother why she did not visit the child more and that the mother had responded that she did not have money. The foster mother also stated that, other than Christmas 2004, the child never received gifts or cards from the mother and that, although they had the opportunity, no other family members had visited the child.

Supervised visitation was scheduled to take place once each week at DHR’s offices. The mother testified that she took full advantage of all the visitation allowed her and that she missed visitation only when she was in jail in November 2004, when she was at A Woman’s Place, and once when she had a virus. Other than that, she stated, she could not recall a time when she had failed to visit the child.

Sherry Trollinger, a family services counselor, supervised the mother’s visits with the child. She testified that the mother had visited the child regularly for a time and that her behavior had been appropriate. Trollinger observed, though, that the child seemed more attached to the foster mother. Jackson testified that the mother’s visits with the child had progressed well and that DHR had soon requested that she be allowed additional visitation in “more normal” settings. Eventually, the mother was allowed to have unsupervised and day-long visits with C.R.C. and the child. Jackson testified that in February 2005 DHR had planned to allow the mother to have overnight visits on the weekend. However, the mother stopped visiting the child in late March 2005. The evidence is disputed as to why the mother stopped visiting the child.

According to the mother, DHR terminated her visitation with the child and, at the time, she did not know why. The mother said that Jackson later told her that visitation had been terminated because she had missed several visits with the child. To the contrary, Jackson testified that at the end of February 2005 the mother had tested positive for the drug propoxyphene and had been “pulled over with drug paraphernalia in her car.” The mother denied ever having a positive drug test. t>HR did not present any evidence to the juvenile court showing the precise nature of the drug propoxyphene. Because of the positive drug test, DHR required that the mother’s visits with the child be supervised again.

When Trollinger again began supervising the mother’s visits with the child pursuant to DHR’s order, she reported that the mother began falling asleep during some visits and that “most of the time her visits didn’t take place.” The mother denied missing visits or sleeping during visits with the child. Jackson stated that she had told the mother that DHR would require a negative drug test before she could visit with the child again. It is unclear from the record whether DHR required that the mother have supervised visits until she had a negative drug test or whether it required a negative drug test before the mother could visit the child at all.

It is undisputed that the mother did not visit or communicate with the child from March to November 2005. The mother did not maintain contact with DHR or the foster mother, did not ask for updates on the child’s well-being, and did not request visitation. During that time, DHR did not know the whereabouts of either parent.

On March 16, 2005, the mother was" dismissed from the CRP for failing to attend meetings and to comply with other program requirements. The mother was reinstated to the CRP in April 2005, but she was dismissed from the program again on June 16, 2005, for fáiling to comply with program requirements. The mother and father reconciled in June 2005.

Jackson made several unsuccessful attempts to contact the mother between March and September 2005. The CRP advised Jackson that it had referred the mother back to the court. Jackson attempted to find alternative resources to care for the child. She contacted each person on a list of possible family resources as well as other family members. Most asserted no interest in helping the child. Jackson stated that those individuals who were interested in helping the child either had criminal backgrounds or histories of illegal drug use. The record showed that DHR had received a letter from C.R.C.’s paternal grandmother, M.S., who was not a direct blood relative of G.M.H., but who offered herself as “a resource.” The record does not demonstrate why DHR did not ultimately consider M.S. a viable alternative for placement of the child.

Jackson stated that she did consider the mother’s sister, M.B., and the father’s mother, J.M.T.,' as possible resources for placement. Jackson attempted to contact M.B. to see if she would be willing to care for the child. Although Jackson left messages with M.B. regarding the purpose of her calls, and although M.B. promised to respond, Jackson never heard back from M.B. Jackson stated regarding M.B., “I can’t force someone to participate.”

The evidence regarding J.M.T. conflicted. According to J.M.T., she attended the first ISP meeting and identified herself as a resource. She stated that she waited to hear back from Jackson, but never did. J.M.T. admitted that she never contacted DHR, even after she learned of the termination petition. J.M.T. worked 32 hours each week and stated that the child would be cared for by her husband while she was at work. J.M.T. testified that her husband had health problems and could not lift more than 39 pounds but that he could care for the child in her absence.

Jackson stated that she had considered J.M.T. but that she had excluded her as a viable alternative resource for placement for several reasons. Jackson stated that because of J.M.T.’s work schedule and the fact that J.M.T. was caring for a sick husband, she was concerned about J.M.T.’s ability to care for the child. Additionally, DHR had records of at least four or five “indicated” reports against J.M.T. from when the father was a child. Those reports showed neglect, domestic violence, and that J.M.T. had locked a child out of her home. J.M.T. denied ever being investigated or reported by DHR. Jackson testified that, because of those reports, DHR decided not to consider J.M.T. as a resource for placement.

Jackson stated that there was no viable alternative resource to care for the child. After no alternative resource could be found, after DHR had received no contact from the mother for six months, and after attempts to locate the mother and the father had failed, DHR decided to file a petition to terminate the parents’ rights. Jackson testified that the decision was based in part on a policy that requires DHR to file a petition for termination of parental rights if a child is in its care for 15 out of 22 months. DHR had had legal custody of the child continually for more than 19 months when DHR filed the petition to terminate the parents’ parental rights on September 22, 2005.,

The mother answered the petition on October 4, 2005. In November 2005, she contacted Jackson to ask about the child. When Jackson inquired of the mother as to why she had not maintained contact with DHR, the mother responded that “she had to get her stuff together, she had to do what she had to do to get her stuff together.” In December 2005, the mother requested visitation with the child.

DHR required the mother to pass a hair-follicle drug test before it allowed her to visit the child. Jackson testified: “The premise of it was we need to make sure that they are clean before visitation.” The mother told DHR that she would not take a drug test until she was allowed to visit the child. The mother eventually took the test in July 2006. The test showed that she had not used drugs during the preceding three months. DHR then allowed the mother to visit the child.

The mother visited the child twice between July 2006 and the September 2006 termination hearing. The father testified that during the 14 months before the hearing, DHR had decided when he and the mother could visit. Jackson testified that the parents were not allowed to visit the child in the months before the hearing because DHR had not “had communication with [the parents], to work with them,” and because DHR did not allow progressive visits after it had filed a petition to terminate.

The mother and the father testified that their relationship had stabilized and that they had not separated since they had reconciled in June 2005. The parents resided together at the time of the termination hearing and had moved to Colbert County 10 months before. The parents rent a house in Colbert County. A home study performed by that county’s Department of Human Resources found the house structurally stable and appropriate for children. Jackson also performed a home study for DHR. She testified that the home was appropriate and safe structurally; however, she was concerned with the parents’ personal histories of drug use.

The father testified that he had had three jobs during the year before the termination hearing and that he had never been unemployed. At the time of the hearing, the father worked at a truck stop pumping gas and doing some mechanic work. At the time of the termination hearing, the father was on probation and would be for four more years. The mother testified that since November 2005 she had worked as a waitress approximately 36 hours each week. The father testified that he and the mother have a 1996 Jeep Grand Cherokee and a 1978 Ford Courier truck that they use for transportation to their jobs. The mother stated that she felt she and the father were financially able to care for the child. Jackson testified that she did not believe the parents were financially stable because the father had $30,000 in unpaid criminal fines and the mother had $1,500 in unpaid criminal fines. The mother did not provide any financial assistance to the child even though she testified that she could have. However, she stated that DHR had never asked her to provide support for the child.

The father testified that he had not used drugs for the 12 months before the termination hearing and that he had had no positive drug tests for the last 14 months. The father stated that he had been able to stop using drugs because he had moved away from the people he knew in Cullman County. The mother testified that she has consistently taken drug tests two to three times each month through the CRP and has never had a positive drug test. She understood that if she maintained negative drug tests for two months after the termination hearing, the criminal charge against her would be dismissed. The mother stated that she had no mental or physical problems that would affect her ability to care for the child.

The mother last attended a Narcotics Anonymous meeting in January 2006. At the time of the termination hearing, neither she nor the father was attending any type of substance-abuse support program. The mother stated that she handled her drug problem by complying with the CRP’s requirements and by working with its counselors. The mother and the father stated that they attend church.

At the time of the hearing, the child had bonded well with the foster mother, who had cared for her for nearly all of her three years of life. Although the child had visited with the mother, she had never lived with the parents. Jackson testified that the child did not know who the parents were and had not developed a bond with them. The foster mother testified that, although the child was born prematurely, by the time of the termination hearing her health was good and she was learning above the normal scale. Jackson testified that she believed the child would be adoptable if the parents’ rights were terminated. Jackson identified the foster mother as a resource for adoption.

Jackson testified that she had reviewed the list of possible resources again two weeks before the termination hearing to make certain that DHR could not locate an appropriate alternative family resource. Jackson stated that she had confirmed that no viable alternative resource existed.

Jackson testified at the termination hearing that she still believed that termination of the parents’ rights was in the best interest of the child and that termination was the least restrictive alternative and would give the child permanency. The child’s guardian ad litem also recommended that the parents’ rights be terminated because no viable family resource had been identified and the parents had a history of returning to drugs after periods of stability.

On October 11, 2006, the trial court entered a written judgment terminating the parents’ rights to the child. The judgment contained written findings of fact that the trial court expressly stated were “based upon clear and convincing evidence.” The judgment stated, in relevant part:

“4. The court finds that the minor child, [G.M.H.], is dependent.

“5. The court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of [the child] are unable or unwilling to discharge their responsibilities to and for the child or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future.

“6. The court finds that parental rights to a sibling of [the child] have been involuntarily terminated. [The mother] is the mother of that child and this evidence has not been considered against [the father], who was not the father of that child.

“7. The court further finds that the mother and father of the minor child have failed to provide for the material needs of the child or to pay a reasonable portion of her support even though they are able to do so.

“8. The court further finds that the father and mother of the minor child have failed to maintain consistent contact or communication with the minor child.

“9. The court finds that the father and mother have exposed the child to a home environment that is unstable, neglectful and that is not suitable to raise a child.

“10. The mother and father have an extensive history of excessive use of controlled substances of such duration or nature as to render them unable to care for the needs of the minor child. The court notes that the father and mother have made some recent efforts to remain drug free since the filing of the petition to terminate parental rights. However, the court also notes that this recent period of drug abstinence follows an all too familiar pattern. The testimony adduced at trial demonstrates that on many previous occasions the parents have also remained drug free for short periods of time only to resume their long-standing pattern of drug abuse.

“11. The court further finds that the father of the minor child has been previously convicted of at least one felony.

“12. [DHR] has exhausted all less restrictive alternatives to termination of parental rights and the court finds that there does not exist any alternative less drastic than termination of parental rights available that would serve the best interest of the said minor child.

“13. The court expressly finds that [DHR] has used diligence to explore other resources for placement of the minor child. The court finds that placement of the minor child with relatives or some other resource is not a viable alternative to termination of parental rights since no appropriate resources exist for either temporary or permanent custody that would be in the best interest of the minor child.

“14. Reasonable efforts of [DHR] to rehabilitate the mother and father of the minor child have failed and the court finds that it is not in the best interest of the minor child to be returned on a temporary or permanent basis to the mother or the father. The court further finds that the minor child is highly adoptable.”

Standard of Appellate Review

This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is “required to apply a presumption of correctness to the trial court’s finding[s]” when the trial court bases its decision on conflicting ore tenus evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002) (emphasis added). Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.

The ore tenus rule, a standard of appellate review, is distinct from the clear-and-convincing-evidenee standard of proof that Alabama juvenile courts have long used in determining whether to terminate parental rights. See, e.g., §§ 12 — 15—65(f) and 26-18-7(a), Ala.Code 1975; and B.M. v. State, 895 So.2d 319, 330-31 (Ala.Civ.App.2004). In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court held that a New York statute that authorized trial courts of that state to terminate parental rights based on a “fair preponderance of the evidence” standard of proof violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 455 U.S. at 768, 102 S.Ct. 1388. As part of its analysis, the Supreme Court noted that Alabama was among the majority of states that required trial courts to use the clear-and-convincing-evidence standard of proof in deciding whether to terminate parental rights. 455 U.S. at 749 n. 3, 102 S.Ct. 1388 (citing Dale County Dep’t of Pensions & Sec. v. Robles, 368 So.2d 39, 42 (Ala.Civ.App.1979)).

This court has stated that clear and convincing evidence is

“ ‘[ejvidence 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.’

“§ 6-11-20[ (b) ] (4), Ala.Code 1975.”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (emphasis added). That description of clear and convincing evidence presumes that the clear-and-convincing-evidence standard is a standard of proof to be utilized by a jury or a trial court, i.e., a trier of fact, in weighing evidence, not a standard of review to be used by an appellate court. As the Supreme Court explained in Santosky:

“ ‘The function of a standard of proof ... is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” ’ ”

Santosky, 455 U.S. at 754-55, 102 S.Ct. 1388 (quoting Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), quoting in turn In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)) (emphasis added).

The Alabama Supreme Court has stated that “the law is settled that weighing evidence is not the usual function of an appellate court. This is especially true where ... the assessment of the credibility of witnesses is involved.” Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92, 102 (Ala.2001) (citation omitted). Accordingly, appellate courts in this state generally do not review evidence in order to make factual conclusions; instead, they review judgments in order to determine whether the trial court committed reversible error. Because our appellate courts do not act as fact-finders, they do not utilize standards of proof but, instead, apply standards of appellate review.

Standards of proof utilized by trial courts in weighing evidence and standards of review applied by appellate courts in reviewing judgments are necessarily different. The United States Supreme Court explained this difference in Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). Although Judge Moore quotes from the Supreme Court’s explanation in Woodby in his special writing, he quotes only a portion of the following excerpt:

“The elementary but crucial difference between burden of proof and scope of review is, of course, a commonplace in the law. The difference is most graphically illustrated in a criminal case. There the prosecution is generally required to prove the elements of the offense beyond a reasonable doubt. But if the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. In other words, an appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence.”

385 U.S. at 282, 87 S.Ct. 483 (footnotes omitted).

Like the example in Woodby, in cases involving the termination of parental rights our appellate courts do not apply the clear-and-convincing-evidence standard of proof utilized by trial courts but, instead, use a settled standard of appellate review — the ore tenus rule. See Ex parte State Dep’t of Human Res., 834 So.2d at 122. Because appellate courts do not weigh evidence, particularly when “the assessment of the credibility of witnesses is involved,” Knight, 820 So.2d at 102, we defer to the trial court’s factual findings. “The ore tenus rule reflects this deference; it accords a presumption of correctness to the trial court’s findings because of that court’s unique ability to observe the demeanor of witnesses.” Id.; see also Fitzgerald v. Jeter, 428 So.2d 84, 85 (Ala.Civ.App.1983), and Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

Judge Moore argues in his special writing that our appellate courts should not afford such deference to juvenile courts’ findings of fact in cases involving the termination of parental rights. This court considered and rejected this argument 20 years ago in Columbus v. State Department of Human Resources, 523 So.2d 419 (Ala.Civ.App.1987), a case Judge Moore cites for its supposed “irony.” In Columbus, a case involving the termination of parental rights, this court stated:

“The mother contends that the ore tenus rule should not be applied when determining whether parental rights should be terminated. We do not find merit in this argument. The ore tenus rule is merely a standard of review that the appellate courts use to review factual determinations of the trial court and not the burden of persuasion. The burden of proof required is clear and convincing evidence as mandated by statute in Alabama. See, §§ 12-15-65(e) and 26-18-7(a), [Ala.] Code 1975. The appellate court must find, within the record, sufficient evidence that is clear and convincing in order to affirm.”

523 So.2d at 421. As this court did in Columbus, we again reject the argument that the ore tenus rule does not apply in cases involving the termination of parental rights.

We do not believe, as Judge Moore argues, that Santosky requires a different standard of appellate review or that the ore tenus rule undermines the safeguards of the clear-and-convincing-evidence standard of proof. The Supreme Court’s decision in Santosky addressed only whether the “fair preponderance of the evidence” standard of proof utilized by New York trial courts violated parents’ due-process rights. See Santosky, supra. It did not speak to the proper standard of appellate review; in fact, it cited with approval an Alabama case in which this court deferred to the trial court’s factual findings because the decision was based on ore tenus evidence. Santosky, 455 U.S. at 749 n. 3, 102 S.Ct. 1388 (citing Dale County Dep’t of Pensions & Sec. v. Robles, 368 So.2d at 42).

Additionally, when properly applied, the ore tenus rule does not undermine the function of the clear-and-convincing-evidence standard of proof. Rather, the ore tenus rule affords a correct and necessary deference to the tri^l court’s factual findings, recognizing th¿t an appellate court sees only a written record and does not observe the appearance, behavior, and demeanor of live witnesses. The ore tenus rule simultaneously requires the appellate court to review the trial court’s judgment to determine if it is supported by the appropriate level of evidence. The rule thus preserves the safeguards of the standard of proof that was utilized by the trial court without improperly usurping the trial court’s role as fact-finder. Consequently, in several areas of the law, our appellate courts apply the ore tenus rule when reviewing judgments in which the trial court has utilized the clear-and-convincing-evidence standard of proof. See, e.g., Knight, 820 So.2d at 102 (review of a denial of request to enjoin a nursing home from removing a patient’s feeding tube); Henderson v. Dunn, 871 So.2d 807, 810 (Ala.Civ.App.2001) (review of a judgment granting title based on adverse possession); Gray v. Bush, 835 So.2d 192, 194 (Ala.Civ.App.2001) (recognizing that the ore tenus rule applied to appellate review of a judgment determining that a common-law marriage existed); Herbert v. Haggermaker, 53 Ala.App. 15, 19, 296 So.2d 915, 917-18 (Ala.Civ.App.1974) (review of judgment determining that a decedent had not made an inter vivos gift); and Bastian-Blessing Co. v. Gewin, 217 Ala. 592, 117 So. 197 (1928) (review of a judgment granting a petition for relief from a judicial decree).

Accordingly, as this court did in Columbus, 523 So.2d at 421, and based on the authority of Ex parte State Department of Human Resources, 834 So.2d at 122, we reject Judge Moore’s argument regarding the appropriate standard of appellate review. We will, therefore, presume that the trial court’s factual findings in this case were correct, and we will not reverse the trial court’s judgment unless the record demonstrates that the judgment is not supported by clear and convincing evidence.

Settled Law Regarding the Termination of Parental Rights

The law governing the termination of parental rights is well settled. Where, as here, the petitioner is a nonparent, our courts use a two-pronged test to determine whether to terminate parental rights:

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

B.M., 895 So.2d at 331. Alabama courts have applied these two factors to termination-of-parental-rights cases since at least 1978.

In 1984, our legislature enacted the 1984 Child Protection Act (“CPA”), §§ 26-18-1 to 26-18-11, Ala.Code 1975. In § 26-18-2, the legislature stated the purposes of the CPA as follows:

“It is the purpose of this chapter to provide meaningful guidelines to be used by the juvenile court in cases involving the termination of parental rights in such a manner as to protect the welfare of children by providing stability and continuity in their lives, and at the same time to protect the rights of their parents.”

(Emphasis added.) Section 26-18-7 of the CPA provides:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

“(1) That the parents have abandoned the child ....

“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for the needs of the child.

“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.

“(4) Conviction of and imprisonment for a felony.

“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.

“(6) That reasonable efforts by the Department of Human Resources ... leading toward the rehabilitation of the parents have failed.

“(7) That the parent has been convicted by a court of competent jurisdiction of [certain crimes.]

“(8) That parental rights to a sibling of the child have been involuntarily terminated.

“(b) Where a child is not in the physical custody of its parent ..., the court, in addition to the foregoing, shall also consider, but is not limited to the following:

“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.

“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department ... and agreed to by the parent.

“(3) Failure by the parents to maintain consistent contact or communication with the child.

“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

Soon after the CPA was enacted, and consistently thereafter, our courts have utilized the two-pronged test, applying the provisions of § 26-18-7 as “meaningful guidelines” pursuant to § 26-18-2. See Brown v. Alabama Dep’t of Pensions & Sec., 473 So.2d 533 (Ala.Civ.App.1985) and Clemons v. Alabama Dep’t of Pensions & Sec., 474 So.2d 1143 (Ala.Civ.App.1985).

Section 26-18-4 of the CPA states that, “[ujnless otherwise provided herein, proceedings to terminate parental rights shall be governed by Title 12, Chapter 15, Article 3 and by the Alabama Rules of Juvenile Procedure,” which governed termination-of-parental-rights proceedings before the CPA was enacted. Accordingly, in Brown, 473 So.2d at 534-35, this court stated:

“Under this act, proceedings to terminate parental rights are to be conducted much as they had been prior to the passage of the act in accordance with juvenile court procedures provided by §§ 12-15-50 to -76, Code 1975. See § 26-18-4, Code of Alabama 1975.

“The [CPA] enumerates only some of the many factors this court has long taken into consideration in making determinations concerning the termination of parental rights. Among the factors we have emphasized are the conduct of the parents toward the child, the parent’s love or interest in the child, activities of the parents that could be detrimental to the safety and welfare of the child, and whether there are less drastic alternatives available than the permanent removal of parental custody. Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ. App.1979). See Glover v. Alabama Department of Pensions Security, 401 So.2d 786 (Ala.Civ.App.1981).”

Regarding § 26-18-7 of the CPA, in Clemons, 474 So.2d at 1145, decided nearly two months after Brown, this court stated:

“It is important to note two things about this section. First, the factors listed are nonexclusive, so that a court may also consider any other factors that are relevant to the child’s welfare. Brown v. Alabama Department of Pensions and Security, 473 So.2d 533 (Ala.Civ.App.1985). Second, the section is actually a codification of only one of the possible grounds upon which a court may find a child dependent, and thus in need of an order concerning his welfare. The legislation is not intended to restrict such a determination of dependency to the circumstance in which the parents are unwilling or unable to discharge their responsibilities. See §§ 26-18-4, -7, Code of Alabama 1975; Brown v. Alabama Department of Pensions and Security, supra. As such, the basic principles for consideration for a parental rights termination case are not changed.”

The court in Clemons then applied the two-pronged test stated above.

In 1990, our supreme court decided whether the dependency requirement of the two-pronged test applied to all termination-of-parental-rights cases or only to those cases in which a nonparent seeks the termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). The supreme court held that the dependency requirement applied in cases in which a nonparent seeks termination but that the CPA does not require a parent seeking to terminate the rights of the other parent to prove dependency. 564 So.2d at 954. Recognizing that the CPA did not expressly require a finding of dependency, the supreme court noted that the two-pronged test was drawn, in part, “from § 12-15-1 et seq. (‘the Juvenile Act’) and Rule 25, [Ala.] R. Juv. P.” 564 So.2d at 953. Pursuant to § 26-18-4, the legislature did not intend the CPA and the Juvenile Act to be mutually exclusive. Accordingly, regarding the two-pronged test, the supreme court in Beasley stated:

“The Juvenile Act and Rule 25, implicitly, though necessarily, speak in the context of the State’s (or a nonparent’s) petitioning for a termination of parental rights. The[ ] holdings [in the Court of Civil Appeals’ cases that set forth the two-prong test] are not incorrect in light of the context in which they were decided. ...

“... [A] distinction must be drawn between the State’s seeking to terminate parental rights and a parent’s seeking to terminate the other parent’s parental rights. Where the State seeks to terminate parental rights, the ‘finding of dependency’ necessarily applies to the State to protect against an unwarranted intrusion into parental rights and to comply with the requirements of due process. Parental rights are indeed cherished and deserve the law’s utmost protection against unwarranted interference.

“In viewing the ‘dependency1 issue in the context of the State’s attempt to terminate parental rights, the State would have standing only where both parents are found to be unfit or otherwise unable to discharge the responsibilities of parenthood. Therefore, a finding of ‘dependency5 would be warranted, and the State would have a duty to act in accordance with that child’s best interest.

“... (As earlier discussed, if a non-parent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)”

564 So.2d at 953-54 (first emphasis in original; other emphasis added).

Because the issue in Beasley was whether the dependency requirement of the two-pronged test applies in all termination-of-parental-rights cases or only in those cases in which a nonparent seeks a termination of parental rights, we do not believe, as Judge Moore asserts in his special writing, that the supreme court’s analysis regarding the application of the dependency prong in cases involving nonparents is dicta. However, even if the statement of the two-pronged test in Beasley were dicta, the test was subsequently adopted by our supreme court and is, therefore, binding precedent. See, e.g., Ex parte J.R., 896 So.2d 416, 423 (Ala.2004); Ex parte State Dep’t of Human Res., 890 So.2d 114, 116—17 (Ala.2004); and Ex parte State Dep’t of Human Res., 624 So.2d 589, 592-93 (Ala.1993). We are bound by the supreme court’s holding in Beasley and its progeny, and we agree with its reasoning.

The two-pronged test, which applies when the state seeks to terminate parental rights, ensures that the minimum requirements of due process and standing are satisfied before a court can terminate a parent’s rights. See, e.g., T.S. v. J.P., 674 So.2d 535, 537 (Ala.Civ.App.1995). “The right to parent one’s child is a fundamental right, and the termination of that right should occur ‘ “only in the most egregious of circumstances.” ’ L.M. v. D.D.F., 840 So.2d 171, 172 (Ala.Civ.App.2002) (quoting Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990)).” K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003). Our courts must at least begin by determining that the child is dependent upon the state; otherwise, the state’s interest in the child could not be sufficient to overcome the parent’s fundamental rights. The dependency requirement, therefore, is a minimum threshold that ensures that the state has standing to pursue termination of parental rights and that the parent’s due-process rights are not violated. See Beasley, 564 So.2d at 954. We therefore disagree with Judge Moore’s assertion that the state need not show evidence of dependency before a parent’s rights may be terminated.

Additionally, our courts must consider whether viable alternatives to termination of parental rights exist. See, e.g., Columbus, 523 So.2d at 420; Clemons, 474 So.2d at 1145; Shivers v. State Dep’t of Pensions & Sec., 440 So.2d 1081, 1083-84, (Ala.Civ.App.1983); Glover v. Alabama Dep’t of Pensions & Sec., 401 So.2d 786, 789 (Ala.Civ.App.1981); Miller v. Alabama Dep’t of Pensions & Sec., 374 So.2d 1370, 1374 (Ala.Civ.App.1979); and Lovell v. Department of Pensions & Sec., 356 So.2d 188, 190 (Ala.Civ.App.1978). To hold otherwise would allow our courts to terminate parental rights when viable alternatives to termination exist and thus, we believe, violate the parents’ due-process rights. “ ‘The termination of parental rights is a drastic measure, and the courts gravely consider such action.’ K.A.C. v. Jefferson County Dep’t of Human Res., 744 So.2d 938, 940 (Ala.Civ.App.1999) (citing Ex parte Beasley, 564 So.2d 950 (Ala.1990)).” B.G. v. State Dep’t of Human Res., 875 So.2d 305, 307 (Ala.Civ.App.2003). Accordingly, the viable-alternative requirement of the two-pronged test is likewise necessary in termination-of-parental-rights cases.

After Beasley was decided, Alabama courts consistently applied the two-pronged test, using the provisions of § 26-18-7 as “meaningful guidelines” in their analyses. Our legislature has amended the CPA twice since the supreme court’s holding in Beasley. In 1997, the legislature amended §§ 26-18-6 and 26-18-7, and in 1998, it amended §§ 26-18-5 and 26-18-7 and added § 26-18-11, “without altering the effect of [Beasley and its progeny].” Ex parte HealthSouth Corp., 851 So.2d 33, 41 (Ala.2002).

“ ‘It is an ingrained principle of statutory construction that “[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute. Ex parte Louisville & N.R.R., 398 So.2d 291, 296 (Ala.1981).” ’ Ex parte Fontaine Trailer Co., 854 So.2d 71, 83 (Ala.2003) (quoting Carson v. City of Prichard, 709 So.2d 1199, 1206 (Ala.1998)). In adopting statutes and amendments thereto ‘ “ ‘the Legislature is presumed to have known the fixed judicial construction preexisting statutes had received, and the substantial reenactment of such statutes is a legislative adoption of that construction.’ ” ’ Ex parte Fontaine Trailer Co., 854 So.2d at 83 (quoting Wood-Dickerson Supply Co. v. Cocciola, 153 Ala. 555, 557, 45 So. 192, 192 (1907), quoting in turn Morrison v. Stevenson, 69 Ala. 448, 450 (1881)). ‘[Wjhere a statute is reenacted without material change, “it must be assumed that the Legislature was familiar with its interpretation by [the supreme] court and was satisfied therewith.” ’ Jones v. Conradi, 673 So.2d 389, 392 (Ala.1995) (quoting Nolen v. Clark, 238 Ala. 320, 321, 191 So. 342, 343 (1939)).”

Wright v. Childree, 972 So.2d 771, 778-79 (Ala.2006). Therefore, we can presume that the two-pronged test and the application of the provisions of § 26-18-7 as meaningful guidelines “are in fact consistent with legislative intent.” HealthSouth, 851 So.2d at 42.

Based on the foregoing, we reject Judge Moore’s assertion that the two-pronged test is improper under the CPA and that our courts should not be required to find that a child is dependent before terminating a parent’s rights. Likewise, we reject Judge Moore’s assertion that our courts should not consider the child’s best interest in determining whether to terminate a parent’s rights.

Section 26-18-2 of the CPA provides that the guidelines established by the CPA are to be “used ... in such a manner as to protect the welfare of children by providing stability and continuity in their lives .... ” (Emphasis added.) This expressed legislative policy of protecting “the welfare of children” in cases involving the termination of parental rights mirrors a longstanding judicial policy of considering the child’s best interest in such cases.

Our consideration of the child’s best interest pursuant to judicial precedent and express legislative intent does not, as Judge Moore suggests, improperly elevate the child’s interest above the parent’s rights. This court has long recognized:

“The right to maintain family integrity is a fundamental right protected by the due process standards of the Constitution. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). In recognition of this right, the Alabama courts indulge a presumption that parental custody will be in the best interests of a child. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).”

Hamilton v. State, 410 So.2d 64, 66 (Ala.Civ.App.1982). See also McDonald v. Watkins, 18 Ala.App. 131, 132, 89 So. 306, 307 (1921) (“all things being equal, the parent should clearly be entitled to the possession and custody of the child or children, unless some good cause is shown why the parent should not be awarded the custody, for the law presumes that the best interest of a child is subserved by the parent having the custody and possession thereof’). However, this presumption is not absolute. Robles, supra, the custody case that the United States Supreme Court cited in Santosky regarding Alabama’s use of the clear-and-convincing-evidence standard of proof, explains the manner in which our courts consider the rights of parents and their children.

“ “Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interests and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).

“ ‘Ordinarily there is no conflict between these two principles, since it is presumed to be in the child’s best interests to place custody in the parent. Kennedy v. State Department of Pensions and Security, 277 Ala. 5, 166 So.2d 736 (1964); Smith v. Jones, 275 Ala. 148, 153 So.2d 226 (1963). However, when the parent’s fitness for custody is challenged, the principle of the best interests of the child outweighs parental rights. White v. Appleton, 53 Ala.App. 702, 304 So.2d 206 (1974); Borsdorf v. Mills, supra. To remove custody from the natural parent in such a case, there must be clear and convincing evidence that it would be against the best interests of the child to remain with the natural parent. Caine v. Caine, 51 Ala.App. 607, 288 So.2d 147 (1973); Borsdorf v. Mills, supra.’ ”

Robles, 368 So.2d at 42 (quoting Ely v. Casteel, 341 So.2d 730, 734 (Ala.Civ.App.1977)) (emphasis added).

In other words, the parent’s rights and the child’s interest are not, as Judge Moore argues, adverse. Santosky states that, “[a]t the factfinding [stage], the State cannot presume that a child and his parents are adversaries.” 455 U.S. at 760, 102 S.Ct. 1388. Rather, our courts presume the reverse, i.e., that the child’s best interest is served by remaining with the parents.

Additionally, the language from Santo-sky on which Judge Moore relies regarding the child’s best interest relates specifically to the New York statute at issue in Santosky and is premised on the idea that the state should not be allowed to terminate a parent’s rights absent a showing that the parent is somehow unfit. The Supreme Court stated:

“The factfinding [stage] does not purport — and is not intended — to balance the child’s interest in a normal family home against the parents’ interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents.... Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children.10

«i°The Family Court Judge in the present case expressly refused to terminate petitioners’ parental rights on a ‘non-statutory, no-fault basis.’ App. 22-29. Nor is it clear that the State constitutionally could terminate a parent’s rights without showing parental unfitness. See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (‘We have little doubt that the Due Process Clause would be offended “[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest,” ’ quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-863 (1977) (Stewart, J., concurring in judgment)).”

Santosky, 455 U.S. at 759-60, 102 S.Ct. 1388.

We agree with the United States Supreme Court that the state should not be permitted “ ‘ “to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” ’ ” Santosky, 455 U.S. at 760 n. 10, 102 S.Ct. 1388. Similarly, we do not believe, as Judge Moore suggests, that the state should be allowed to terminate a parent’s rights merely so the child may “be adopted by a better family.” 986 So.2d at 1210. Our established analysis, as stated above, does not allow such an outcome.

In Alabama, as discussed above, juvenile courts may not terminate parental rights except on clear and convincing evidence that the child is dependent and that no viable alternatives to termination exist. Pursuant to § 26-18-2, juvenile courts should consider the welfare of the children “and at the same time ... protect the rights of their parents.” (Emphasis added.) Merely considering the welfare and best interest of the child in accordance with our judicial precedent and the express intent of our legislature does not remove from a proper analysis the requirements of the two-pronged test or the § 26-18-7 factors. Accordingly, our analysis, as it has been applied for decades, does not offend the parents’ constitutional rights as Judge Moore suggests.

In T.S. v. J.P., 674 So.2d 535 (Ala.Civ.App.1995), which Judge Moore cites as holding that “a juvenile court cannot simply terminate parental rights based on the best interests of the child,” 986 So.2d at 1209, this court actually considered whether the CPA or the Alabama Adoption Code (“AAC”), § 26-10A-1 et seq., Ala.Code 1975, governed the termination of parental rights in conjunction with an adoption proceeding. This court held that the AAC and the CPA were to be read in pari materia and that the CPA governed the termination of parental rights, even in adoption proceedings. The court stated the appropriate rules to be applied in termination-of-parental-rights cases as follows:

“In the CPA, our legislature clearly provided guidelines and standards for terminating parental rights based upon clear and convincing evidence. Ala. Code 1975, § 26-18-7. Mindful of the serious nature of cases involving the termination of parental rights and the need to comply with the requirements of due process, our Supreme Court established a two-pronged test to be applied. Ex parte Beasley, 564 So.2d 950 (Ala.1990). The court must determine whether grounds for termination exist, including, but not limited to, those specifically listed in § 26-18-7, and must also determine whether all viable alternatives to the termination of parental rights have been considered. Beasley, 564 So.2d 950. Paramount in a determination regarding the termination of parental rights is a consideration of the child’s best interest. Beasley, 564 So.2d 950. Furthermore, where the State or a nonparent seeks to terminate parental rights, the court must find that the child is dependent. Beasley, 564 So.2d 950. Additionally, we note that the United States Supreme Court has held that, in a termination of parental rights proceeding, a ‘clear and convincing evidence’ standard of proof satisfies the requirements of due process, while a lesser standard does not. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).”

674 So.2d at 537 (emphasis added). Accordingly, T.S. addressed the juvenile court’s failure to apply the appropriate analysis under Beasley and the CPA, not its consideration of the child’s best interests. Indeed, the correct analysis in termination-of-parental-rights cases, as set forth in T.S., includes a “consideration of the child’s best interest.” Id.

Therefore, we will review the juvenile court’s judgment to determine whether clear and convincing evidence showed that the child was dependent and that no viable alternatives to termination existed. We will apply the provisions of § 26-18-7 as meaningful guidelines, and we will consider the best interests of the child.

Analysis

The mother raises two issues on appeal. First, she argues that the juvenile court erred in concluding that the child was dependent because, she argues, the juvenile court did not properly consider evidence related to her current situation. Second, the mother argues that viable alternatives to termination of her parental rights existed. Specifically, she argues that J.M.T. and M.B. were viable alternatives for placement of the child.

“This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 489, 444 (Ala.Civ.App.2003). See also P.H. v. Madison County Dep’t of Human Res., 987 So.2d 525, 531 (Ala.Civ.App.2006) (quoting D.O.). The mother bases her argument regarding the juvenile court’s determination of dependency on this language from D.O. and P.H. She argues that the juvenile court did not properly consider evidence indicating that, at the time of the termination hearing, she and the father had “made significant progress towards overcoming [their] addictions,” that they had a suitable home, that she had never been convicted of a felony, and that she and the father had transportation and had been employed for 12 months.

The record shows that the juvenile court received extensive evidence regarding the current situation of the mother and the father at the time of the termination hearing, including the evidence the mother discusses on appeal. Additionally, the juvenile court received evidence indicating that the mother had not attended Narcotics Anonymous or any other support program since January 2006 and that the mother was “handling” her addiction solely through her relationship with the CRP, which was set to terminate two months after the termination hearing. The mother is married to and lives with the father, who, at the time of the hearing, was also not in any kind of support program and had failed to comply with a court order to submit to inpatient rehabilitation. The evidence also showed that both the mother and the father had unpaid criminal fines. On the other hand, the relevant current circumstances as they relate to the child are these: she is learning and developing well; she has lived in a stable foster home under the foster mother’s care from the time she was seven weeks old; and she has developed a close bond with the foster mother, who wants to adopt her. See J.L. v. State Dep’t of Human Res., 961 So.2d 839, 850 (Ala.Civ.App.2007).

The juvenile court’s written judgment shows that it, in fact, considered the evidence of the parents’ recent efforts. Paragraph 10 of the judgment states:

“The mother and father have an extensive history of excessive use of controlled substances of such duration or nature as to render them unable to care for the needs of the minor child. The court notes that the father and mother have made some recent efforts to remain drug free since the filing of the petition to terminate parental rights. However, the court also notes that this recent period of drug abstinence follows an all too familiar pattern. The testimony adduced at trial demonstrates that on many previous occasions the parents have also remained drug free for short periods of time only to resume their long-standing pattern of drug abuse.”

“In deciding to terminate parental rights, a trial court may consider the past history of the family as well as the evidence pertaining to current conditions.” T.B. v. Lauderdale County Dep’t of Human Res., 920 So.2d 565, 570 (Ala.Civ.App.2005). The juvenile court also had the advantage of observing witnesses, including the mother, as they testified, and, therefore, it was able to assess their demeanor and credibility.

Much of the evidence regarding the family’s past history was disputed. Based on the ore tenus rule, the juvenile court’s factual findings based on that evidence are entitled to a presumption of correctness. See F.I., 975 So.2d at 972; Ex parte State Dep’t of Human Res., 834 So.2d at 122; and G.L.C. v. State Dep’t of Human Res., 777 So.2d 706, 709 (Ala.Civ.App.1999). The undisputed evidence regarding the family’s past history supported the juvenile court’s findings regarding several of the § 26-18-7 factors. The evidence showed that the mother had a history of abstaining from drugs for extended periods of time only to use drugs again months later. Specifically, the mother testified that she had once refrained from using drugs for 15 months, during her pregnancy with C.C.B. and 6 months thereafter, only to return to using drugs when C.C.B.’s father left her. Based on that evidence, and evidence indicating that the mother’s treatment through the CRP was near its end and she was not participating in any support program, the juvenile court did not err in concluding that the mother had an extensive history of using controlled substances of such duration and nature as to render her unable to care for the needs of the child. See § 26-18-7(a)(2).

Regarding other § 26-18-7 factors, the evidence showed that the mother’s rights to C.C.B., a sibling of the child, had been involuntarily terminated, see § 26-18-7(a)(8); that the mother had failed to maintain regular visits with the child, see § 26-18-7(b)(2); that the mother had failed to maintain contact and to communicate with the child for eight months, between March and November 2005, see § 26-18-7(b)(3); and that the mother had an extensive history of failing to adjust her circumstances to meet the needs of the child, see § 26-18-7(b)(4).

Additionally, the mother is married to and lives with the father, whose parental rights to the child have been terminated. Allowing the child to be placed with the mother would, in effect, place her with the father, a parent who has been determined to be unable or unwilling to discharge his parental responsibilities and whose conduct or condition renders him unable to properly care for the child and whose conduct or condition is unlikely to change in the foreseeable future. The juvenile court could properly have considered the mother’s residing with the father as a factor rendering her unable to properly care for the child. Cf. D.H. v. Calhoun County Dep’t of Human Res., 837 So.2d 313, 315 (Ala.Civ.App.2002)(paternal grandfather not a viable alternative resource because he resided with the father whose parental rights had been terminated and with an uncle accused of sexual abuse); Moore v. State Dep’t of Pensions & Sec., 470 So.2d 1269, 1271 (Ala.Civ.App.1985) (“The grandmother and the mother live in the same apartment. Thus, placing [the child] with the grandmother would in effect be placing him with his mother, and would thereby defeat the purposes of removing the child from her.”).

We applaud the mother’s attempts to free herself from her drug addiction and her efforts to stabilize her life. However, because the juvenile court’s factual findings are presumed to be correct, we cannot say that the juvenile court’s judgment determining that the child was dependent was not supported by clear and convincing evidence.

We next consider the second issue the mother raises on appeal, i.e., whether J.M.T. and M.B. were viable alternatives for placement of the child under the second prong of the two-pronged test. Regarding J.M.T., DHR presented clear and convincing evidence indicating that she had a significant documented history of neglect and domestic violence. J.M.T. denied the reports. “ ‘The trial court, as the finder of fact, is required to resolve conflicts in the evidence.’ Ethridge v. Wright, 688 So.2d 818, 820 (Ala.Civ.App.1996).” D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1214 (Ala.Civ.App.2005). Because the juvenile court had the responsibility and the opportunity to observe the witnesses and assess their demeanor and credibility, see Jeter, 428 So.2d at 85; Farm, 810 So.2d at 633, its decision that J.M.T. was not a viable alternative for placement of the child is presumed to be correct. Regarding M.B., the evidence showed that, although Jackson had contacted her several times, she never showed a willingness to care for the child and did not testify at the termination hearing. The mother did not present any evidence to dispute Jackson’s testimony.

No other evidence in the record shows that a viable alternative for placement of the child existed, and the mother does not argue on appeal that any other alternatives existed. Accordingly, the juvenile court properly considered and rejected all viable alternatives to the termination of the mother’s parental rights. See Beasley, 564 So.2d at 952.

Because the juvenile court’s determination that the child was dependent and that J.M.T. and M.B. were not viable alternatives for placement were supported by clear and convincing evidence, we affirm the judgment terminating the mother’s parental rights to the child.

AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

MOORE, J., concurs in the result, with writing.

THOMAS, J., recuses herself.

. This case was originally assigned to another judge on this court. It was reassigned to Judge Thompson on July 26, 2007.

. Although the termination of the father's parental rights is not at issue in this appeal, we will nonetheless consider the factual circumstances surrounding the termination of his rights because he lives with the mother.

. See § 13A-12-212, Ala.Code 1975.

. See § 13A-12-211, Ala.Code 1975.

. See § 13A-9-3, Ala.Code 1975.

. See § 13A-7-8, Ala.Code 1975.

. Prosecution of the charge was apparently deferred pursuant to § 12-23-5, Ala.Code 1975, which provides, in part:

"Any person arrested or charged with the violation of a controlled substance offense as set forth in Section!] 13A-12-212 ... may file a request with the district attorney having jurisdiction over the offense to enroll in a drug abuse treatment program in lieu of undergoing prosecution.”

. Section 26 — 18—5(b), a part of the 1984 Child Protection Act, states, in part: "In the case of a child who has been in foster care under the responsibility of the department for 15 of the most recent 22 months, ... the department shall file a petition to terminate the parental rights of the parents of the child.” Additionally, under the federal Adoption and Safe Families Act, unless specific conditions exist, "in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, ...[DHR must] file a petition to terminate the parental rights of the child's parents.” 42 U.S.C. § 675(5)(E).

. See also J.S. v. St. Clair County Dep’t of Human Res., 969 So.2d 918, 922 (Ala.Civ.App.2007); T.C. v. Cullman County Dep't of Human Res., 899 So.2d 281, 291 (Ala.Civ.App.2004); B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004); E.Z. v. Calhoun County Dep’t of Human Res., 828 So.2d 332, 334 (Ala.Civ.App.2002); T.T. v. State Dep’t of Human Res.; 796 So.2d 365, 367 (Ala.Civ.App. 2000); W.F. v. State Dep’t of Human Res., 704 So.2d 483, 485 (Ala.Civ.App.1997); R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995); K.M. v. Shelby County Dep’t of Human Res., 628 So.2d 812, 813 (Ala.Civ.App.1993); Jones v. Hutchins, 474 So.2d 1152, 1154 (Ala.Civ.App.1985); Gaddy v. Alabama Dep’t of Pensions & Sec., 428 So.2d 91, 93 (Ala.Civ.App.1983); Fitzgerald v. Jeter, 428 So.2d 84 (Ala.Civ.App.1983); and Phillips v. Alabama Dep’t of Pensions & Sec., 394 So.2d 51, 53 (Ala.Civ.App.1981).

. See also note 9, supra.

. In Robles, this court stated: "Where, as here, the case is heard ore tenus and there is legal evidence to support the decree, this court will not substitute its judgment for that of the trial court.” 368 So.2d at 42.

. See, e.g., Ex parte J.R., 896 So.2d 416, 423 (Ala.2004); Ex parte Beasley, 564 So.2d 950, 952-54 (Ala.1990); S.E. v. State Dep’t of Human Res., 862 So.2d 664, 673 (Ala.Civ.App.2003); M.C. v. K.M., 788 So.2d 166, 173-74 (Ala.Civ.App.1999); T.P. v. S.P., 681 So.2d 624, 625 (Ala.Civ.App. 1996); Clemons v. Alabama Dep’t of Pensions & Sec., 474 So.2d 1143, 1145 (Ala.Civ.App.1985); Burnett v. Alabama Dep't of Pensions & Sec., 469 So.2d 627, 628 (Ala.Civ.App.1985); Redmon v. Alabama Dep’t of Pensions & Sec. for Jefferson County, 460 So.2d 1317, 1318-19 (Ala.Civ.App.1984); and Lovell v. Department of Pensions & Sec., 356 So.2d 188, 189-90 (Ala.Civ.App.1978).

. Sections 26-18-1 to 26-18-10 were part of the original 1984 CPA; § 26-18-11 was added in 1998.

. See also note 12, supra, and Columbus, 523 So.2d at 420.

. See notes 12 and 14, supra.

. See, e.g., R.P. v. State Dep’t of Human Res., 937 So.2d 77, 80 (Ala.Civ.App.2006); Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988); Wishinsky v. State Dep't of Human Res., 512 So.2d 122 (Ala.Civ.App.1987); Wallace v. Jefferson County Dep’t of Pensions & Sec., 501 So.2d 473, 476 (Ala.Civ.App.1986); Brown, 473 So.2d at 534 (citing Moore v. State Dep’t of Pensions & Sec., 470 So.2d 1269, 1270 (Ala.Civ.App.1985); Gaddy v. Alabama Dep’t of Pensions & Sec., 428 So.2d 91, 93 (Ala.Civ.App.1983); Jeter, 428 So.2d at 84; Vinson v. AGAPE of Cent. Alabama, Inc., 416 So.2d 1075, 1077 (Ala.Civ.App.1982); and Phillips v. Alabama Dep’t of Pensions & Sec., 394 So.2d 51, 53 (Ala.Civ.App.1981)); and McDonald v. Watkins, 18 Ala.App. 131, 131-32, 89 So. 306, 307 (1921). Cf. R.B. v. State Dep’t of Human Res., 669 So.2d 187, 190 (Ala.Civ.App. 1995); Wix v. State Dep’t of Pensions & Sec., 464 So.2d 118, 119 (Ala.Civ.App.1985); Henderson v. Lessley, 387 So.2d 201, 202 (Ala.Civ.App.1980); Strickland v. Osborn, 333 So.2d 582, 584 (Ala.Civ.App.1976); Montgomery v. Hughes, 4 Ala.App. 245, 249, 250, 58 So. 113, 115 (1911)(citing Brown v. Brown, 2 Ala.App. 461, 466, 56 So. 589, 591 (1911); Saunders v. Saunders, 166 Ala. 351, 52 So. 310 (1910); Pearce v. Pearce, 136 Ala. 188, 33 So. 883, 884 (1903); and Woodruff v. Conley, 50 Ala. 304 (1874)).

. See also Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993); Fitzgerald v. Fitzgerald, 490 So.2d 4, 6 (Ala.Civ.App.1986); Johnson v. State, 485 So.2d 1185, 1186 (Ala.Civ.App.1986); Haag v. Cherokee County Dep’t of Pensions & Sec., 489 So.2d 586, 588 (Ala.Civ.App.1986); and Witcher v. Motley, 417 So.2d 208, 209 (Ala.Civ.App.1982).