D.M. v. Walker County Dhr

Decision Date08 July 2005
Docket NumberNo. 2040108.,No. 2040107.,No. 2040109.,2040107.,2040108.,2040109.
PartiesD.M. and M.M. v. WALKER COUNTY DEPARTMENT OF HUMAN RESOURCES. C.W.H. v. Walker County Department of Human Resources. P.H. v. Walker County Department of Human Resources.
CourtAlabama Court of Civil Appeals

Nath T. Camp, Jr., Jasper, for appellants D.M. and M.M.

John Wesley Trice, Jasper, for appellant C.W.H.

Bryon McMath, Jasper, for appellant P.H.

Troy King, atty. gen., and Lynn S. Merrill and Elizabeth L. Hendrix, asst. attys. gen., Department of Human Resources, for appellee.

PER CURIAM.

C.W.H. ("the mother") and P.H. ("the father") appeal from a judgment terminating their parental rights to their two sons, four-year-old B.H. and two-year-old M.H. The children's maternal great aunt and great uncle, M.M. and D.M. (hereinafter referred to as "the aunt" and "the uncle," respectively), appeal from the same judgment, which also denied a joint petition in which the aunt and the parents had sought custody of the children.

The record on appeal and the testimony elicited at a September 13, 2004, final hearing in this matter revealed the following facts and procedural history. The Walker County Department of Human Resources ("DHR") became involved with the family in 2001 when DHR received a child abuse/neglect report regarding the parents' care of B.H., who was 14 days old at that time. The testimony presented at the September 13, 2004, final hearing did not indicate whether DHR determined whether that report had merit.

Tracy Norwood, a DHR social worker, became involved with the family on an ongoing basis in October 2002.1 At that time, she investigated an incident in which B.H.'s safety had been jeopardized when the mother and father engaged in a physical altercation while the mother was holding B.H. That incident resulted in the father's arrest on a charge of domestic violence; the father was later convicted on that charge. Norwood devised a safety plan on October 22, 2002, requiring the mother and B.H. to live with a relative and to stay away from the father until DHR could implement services for the family. The mother agreed to the safety plan but violated its terms only three days later, on October 25, 2002, by leaving her relative's home and walking in the rain to meet the father with B.H., who was then approximately 16 months old. Subsequently, with the mother's consent, DHR placed the child in a temporary shelter and later with another relative of the mother's.

Both parents have limited intellectual functioning. The father's IQ is in the 60s; the evidence pertaining to the mother's IQ indicated that it was in the range of the 70s to the mid-80s.

DHR provided the parents with parenting classes, psychological evaluations, and housekeeping and hygiene training approximately two to three times per week. In addition, DHR provided financial services, including the payment of rent and utilities, and arranged for people in the community to donate various household items to assist the parents in furnishing their home. Norwood testified that the parents were initially very cooperative with DHR and that they completed the parenting classes, participated in psychological evaluations, and were referred to counseling.

B.H. was returned to the parents' custody approximately one week before the mother went into premature labor with her second child, M.H., who was born on December 12, 2002. M.H. spent almost two months in the hospital after his birth. After observing the interaction between the parents and their premature infant son, hospital personnel recommended to DHR that M.H. not be released into the parents' care.

Norwood initially contacted the aunt and uncle about whether they might provide a home for M.H. upon his release from the hospital because of his medical condition and his specialized health-related needs. During the time that M.H. was in the hospital following his birth, DHR received another report concerning B.H.; in January 2003, while unsupervised, B.H. had been burned when he fell against a heater. During the same time period, the father was arrested for nonpayment of a fine imposed pursuant to his 2002 conviction on the domestic-violence charge. On January 19, 2003, before M.H. was released from the hospital, Norwood asked the aunt and uncle to take B.H., and the aunt and uncle agreed to do so. On February 4, 2003, M.H. was released from the hospital into the care of the aunt and uncle. Following a May 19, 2003, hearing, the juvenile court determined on June 10, 2003, that the children were dependent and awarded custody of them to the aunt and uncle.

Norwood testified that throughout the summer of 2003, both the aunt and the uncle had often expressed doubts about whether they could provide long-term care for the children. On September 23, 2003, in response to the aunt and uncle's requests that the children be removed from their home, DHR petitioned the juvenile court for custody of the children. Following a hearing, the juvenile court determined that the children were dependent, awarded legal custody to DHR, ordered that the parents receive one hour of weekly visitation with the children, and set the case for a permanency hearing. The children were placed with a foster mother whose husband was deployed overseas in military service. DHR asked the aunt to assist the foster mother in caring for the children; according to the aunt, she did so by keeping the children for the foster mother three or four times. The children were in that initial foster-care placement for only a couple of weeks.

Following that initial foster-care placement, the children were placed with another family for approximately a week while a DHR social worker attempted to locate a more permanent placement. According to the aunt, she asked that the children be returned to her home at that time, but she stated that DHR refused to do so. On October 25, 2003, the children were placed with their present foster parents, R.V. and A.V.

On October 16, 2003, the aunt and uncle moved to set aside the court's dependency order, alleging that they had not received notice of the permanency hearing and seeking to be heard in the matter. The juvenile court denied the motion on October 23, 2003, noting that the case was before it "to determine future plans of permanency" and concluding that

"after reviewing all the documents, reviews, and hearing the testimony of qualified social work staff at [DHR], [DHR] ha[s] made every effort to work with this family to rehabilitate and work toward reunification, to consider relative resources, and provide all available services to avoid the minor children coming into foster care. Therefore, the Court finds that [DHR] has exhausted all possible efforts to work with this family for reunification and is excused from working with this family and excused from providing any further services. It is the recommendation of the Court that [DHR] continue to finalize their plans for permanency."

The mother filed a motion for a new trial; the juvenile court denied that motion.

On November 10, 2003, the aunt and uncle filed a petition seeking to intervene; on that same date, they also filed a petition seeking custody of the children. The juvenile court conducted a hearing on the aunt and uncle's petition for custody of the children. On February 3, 2004, the juvenile court entered an order in which it did not specifically rule on the motion to intervene, but in which it denied the aunt and uncle's petition for custody of the children. In that order, the juvenile court reiterated the findings it made in the October 23, 2003, order and stated that the best interests of the children would be served by the termination of the parents' parental rights so that the children might be adopted. The aunt and uncle moved the juvenile court to alter, amend, or vacate the February 3, 2004, order denying their petition for custody of the children; the juvenile court denied that motion.

On April 14, 2004, the mother, the father, and the aunt filed a joint petition for custody and immediate visitation with the children; the uncle was not a party to that petition. Two days later, DHR filed a petition to terminate the parents' parental rights to the children. On September 13, 2004, the juvenile court held a hearing on DHR's petition and on the joint petition for custody and visitation filed by the parents and the aunt. In addition to the facts and procedural history already set forth in this opinion, the evidence presented at that hearing reveals the following.

The parents have a history of frequent separations. The mother testified that during their four-year marriage, the parents had separated on one occasion for three months and on another occasion for nine months. The parents also have a history of using poor judgment with respect to financial-management issues. For example, a great deal of testimony concerned the parents' practice of acquiring rent-to-own entertainment items such as video-game players, big-screen televisions, and videocassette recorders instead of paying their rent, utilities, and municipal court fines, or providing for their children. The evidence indicated that the parents had failed to pay utility bills and that, at one point, a relative acquired electric service for the parents' home in his name. Further, Norwood testified that "there was always minimal or limited food in the [parents'] house." Norwood also described an incident in which she had helped the mother become recertified for the WIC2 food program and had taken her grocery shopping, after which, Norwood learned, the mother gave a gallon of milk she had just purchased for B.H. to a neighbor.

During the seven months that the children were in the custody of the aunt and uncle, the father visited them weekly, often riding his bicycle to travel to the aunt and uncle's home. The mother visited the children only sporadically and sometimes as much as...

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