A.H. v. Madison Cnty. Dep't of Human Res., 2150160

Citation215 So.3d 560
Decision Date01 July 2016
Docket Number2150160,2150201.
Parties A.H. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES. J.P., Sr. v. Madison County Department of Human Resources.
CourtAlabama Court of Civil Appeals

Brian D. Clark, Huntsville, for appellant A.H.

Melissa Skipper Liebrecht, Huntsville, for appellant J.P., Sr.Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.

THOMPSON, Presiding Judge.

On June 11, 2015, the Madison County Department of Human Resources ("DHR") filed in the Madison Juvenile Court ("the juvenile court") four separate petitions seeking to terminate the parental rights of A.H. ("the mother") and J.P. ("the father") to their four minor children, all of whom were born between 2011 and January 2015. The juvenile court consolidated the four actions and conducted an ore tenus hearing on DHR's petitions on October 28, 2015.

On November 2, 2015, the juvenile court entered four virtually identical judgments in which it ordered that the mother's and the father's parental rights be terminated to each of their four children. On November 9, 2015, the mother filed a "motion to reconsider," and on November 10, 2015, she filed a motion requesting a new trial in each of the four actions. The father filed a postjudgment motion in each action on November 10, 2015. The juvenile court entered orders on November 10, 2015, denying the mother's postjudgment motions, and it denied the father's postjudgment motions on November 12, 2015. Both parents timely appealed to this court; this court consolidated the appeals.

The grounds warranting a termination of parental rights are set forth in § 12–15–319, Ala.Code 1975. With regard to the consideration of a petition seeking to terminate parental rights, this court has explained:

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

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990) ) (emphasis added). The appellate courts must apply a presumption of correctness in favor of the juvenile court's judgment in a termination-of-parental-rights action. J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007). "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." Id.

In their briefs submitted to this court, each parent argues only that the juvenile court erred in determining that there were no viable alternatives to the termination of his or her parental rights. See Ex parte Beasley, supra. Neither the mother nor the father argues that the juvenile court erred in its dependency determinations or in determining that grounds existed under § 12–15–319 warranting the termination of their parental rights. Arguments not asserted on appeal are deemed to have been waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.").

The juvenile court made the following relevant factual findings in its judgments:

"Matters pertaining to the custody and welfare of the children of [the mother] came to the attention of [DHR] when a report was received on or about December 6, 2013, indicating that on December 5, 2013, she had given birth to [M.K.P.] in a toilet at her residence. The maternal grandmother was present in the home when that child was born.
"The reporter expressed concern that the mother and/or the maternal grandmother delayed seeking medical attention for the newborn. Apparently the child was still in the toilet, with the umbilical cord still attached to the mother, when emergency medical personnel were summoned.
"[M.K.P.], who was born prematurely, was hospitalized for several weeks. During that time [DHR] investigated the initial report and began monitoring the welfare of his siblings. [DHR] and the mother entered into a safety-plan agreement, under the terms of which [M.K.P.] and his siblings, [A.H.] and [J.P., Jr.,] were permitted to remain in the home with the mother, under the supervision of maternal relatives. (The fourth child, [J.K.H.1 ] had not yet been born.) Thereafter the maternal grandmother was incarcerated for reasons not apparent from the testimony, and [DHR] began to have concerns about the willingness and capability of other relatives to monitor and protect the children.
"During this period of time, the local Health Department was also involved with the family with regard to tuberculosis

. (The testimony did not indicate who in the household suffered from that illness, but such diagnosis apparently led to a Health Department employee monitoring the family and reporting to [DHR] concerns about the welfare of the children.) The Health Department employee reported that the mother yelled at the children, that she was not holding the infant properly, and that her interactions with the children were ‘negative.’

"In or about February 2014, [M.K.P.] was again hospitalized, with a diagnosis of failure to thrive, and [J.P., Jr.,] was hospitalized for respiratory difficulties.

"As a result of concerns over the safety and welfare of the three children, [DHR] eventually effected a summary removal of them from the home and filed petitions in this Court alleging that they were dependent. Following a shelter care hearing conducted on March 10, 2014, those children were placed in the pendente lite custody of [DHR]. Following an adjudicatory hearing on the dependency petitions conducted on June 19, 2014, those children were placed in the temporary legal custody of [DHR]. Immediately upon the birth of [J.K.H.] in January 2015, he, too, was removed from the care of the mother and placed in the pendente lite custody of [DHR]. He was placed in [DHR's] temporary legal custody following an adjudicatory hearing on April 23, 2015. Since the summary removals and shelter care hearings, the children have remained in foster care, and none has been returned to the custody of a parent. [J.K.H.] has never been in the custody of a parent since his birth.

"In order to assess the parenting capabilities of the mother, [DHR] arranged and paid for a psychological evaluation which was completed by Dr. Lois Petrella. Dr. Petrella's testing revealed the mother has a full-scale Intelligence Quotient of 62. Dr. Petrella found the mother's prognosis to be ‘poor due to low intelligence.’ She opined that ‘results of this assessment suggest that [the mother] does not possess adequate levels of intelligence, insight and judgment required for raising children.’ She recommended that the children remain in [DHR's] care.

"In an effort to facilitate possible reunification with the mother, [DHR] offered reunification services which included parenting training. [DHR's] worker testified that the mother attended some training sessions but missed others. In her testimony, the mother candidly acknowledged that she had not completed parenting training because she ‘did not want to’ do so.
"During the time the child and the child's siblings have been in the care of [DHR], the mother has paid no child support, although she is employed. She and the maternal grandmother have, however, provided gifts, including clothing, for the children. The mother has also exercised visitation with the children.
"The Court finds, from clear and convincing evidence, that the mother is unable or unwilling to discharge her responsibilities to the children. The Court further finds that the conduct and condition of the mother is such as to render her unable or unlikely to change in the foreseeable future.
"The mother of the children is not now, and has never been, married. DNA paternity testing completed in July 2015, establishes a 99.99% probability that [the father] is the biological father of all four children, and the parties have stipulated that he is the father. The Court now adjudicates [the father] to be the father of all four of the above-named children.
"Despite undisputed evidence that the father was aware of the mother's pregnancies and the birth of the children; despite his own belief that he was the father of one or more of the children; and despite placement of the children in foster care in March 2014, the father made no apparent effort for more than one year to contact [DHR], to visit the children, to inquire into their well-being, or to otherwise fulfill his duties as a parent.
"[DHR's] social worker testified that she first met the father in September 2014. After that date, the social worker made numerous and diligent efforts to arrange DNA paternity testing. She spoke with the father by telephone on several occasions and had him provide her several convenient dates for testing. She set up the testing, but the father repeatedly failed to appear to give a DNA sample and failed to communicate with the social worker. DNA samples were taken from the mother and each of the children, but the father did not submit to paternity testing until July 14, 2015, some sixteen months after the three older children were brought into [DHR's] care.
"The father acknowledges in his testimony that he has been convicted of possession of cocaine, a felony, on two occasions, and that a third felony charge of possession of cocaine is now pending in the Circuit Court of Madison County, Alabama.
"The father lacks stable housing and employment. He testified that he had spent recent nights at the home of a relative in the Mason Court public housing development. He acknowledged that he is not on the lease for that apartment, and he is likely ineligible to lawfully reside in public housing due to his felony drug convictions.
"During the time the children have been in the care of
...

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