J.B. v. Cleburne County Dept. of Human Res.

• Decision Date: 21 March 2008
• Docket Number: 2060710.,2060709
• Parties: J.B. and M.B. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

991 So.2d 273

J.B. and M.B. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.

2060709

2060710.

Court of Civil Appeals of Alabama.

March 21, 2008.

Joshua J. Lane, Anniston, for appellants.

Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellee.

MOORE, Judge.

J.B. ("the mother") and M.B. ("the father") appeal from judgments entered by the Cleburne Juvenile Court on March 23, 2007, terminating their parental rights as to C.B. and the mother's parental rights as to M.W.¹

The Evidence

The mother was previously married to M.M. and R.W. She had a child with R.W. named Ch.W. The mother then gave birth to M.W. on May 30, 1991, while she was legally married to, but separated from, R.W.² The mother testified that M.M. was the biological father of M.W.³ M.W. was born with Down Syndrome and mental retardation. R.W.'s name was placed on M.W.'s birth certificate as the father. Until their divorce in approximately 1996, the mother and R.W. raised Ch.W. and M.W. together. In the divorce judgment, R.W. was awarded custody of Ch.W. and M.W.; however, about two years later, after paternity testing revealed that R.W. was not the biological father of M.W., the mother was awarded custody of M.W. The mother subsequently married the father and later gave birth to C.B. on February 11, 1998.

The mother testified that when C.B. was born, M.W. had been excited about the new baby and had wanted to help the mother in any way she could. As C.B. aged, however, their roles reversed. C.B. became a caretaker for M.W. because of M.W.'s disability. The mother testified that C.B. did not seem to mind caring for M.W. but that C.B. would sometimes complain about M.W. just like any normal sister would.

Beginning in 2003, the Cleburne County Department of Human Resources ("DHR") began providing assistance to the mother and the father ("the parents") for reasons unstated in the record. Pursuant to DHR policy, the parents submitted to drug testing in February 2003. The tests revealed that the parents both had a substance-abuse problem. DHR did not remove C.B. and M.W. ("the children") from the custody of the parents at that time, however.

On January 4, 2005, DHR received reports of domestic violence at the mobile home of the parents. The record is vague on the details, but it appears that the father had broken the windshield of the family's automobile. DHR also received a report that the parents had left the children alone at a neighbor's mobile home and that M.W. had wandered out of that home unattended. DHR picked up the children and placed them in foster care.

DHR immediately planned to reunite the children with the parents. DHR identified several obstacles to reunification. Primarily, DHR was concerned about the parents' drug use, but DHR also indicated that the parents needed to provide a suitable and stable home environment for the children.⁴

The father testified that he had regularly used marijuana since he was 17 years old and that he had occasionally used cocaine since the 1970s. He explained that he had developed an anxiety problem dating back to his stay in foster care when he was a teenager. He had been prescribed Valium and Xanax for this problem, but those medications rendered him drowsy and affected his alertness; therefore, as an alternative, he used marijuana three or four times a month to relax himself. The father testified that he had never used drugs in front of the children; he said that he waited until after they were asleep and smoked on the front porch. The father testified that he did not believe children were safe in a home in which drug use was ongoing, that he did not want the children to use drugs, and that he understood that he had to stop using drugs in order to regain custody of the children.

The mother testified that she had a drug problem. Based on the positive drug tests, it appears the mother used cocaine on a regular basis. Apparently, she had undergone drug-rehabilitation treatment some time before 2005, but the record contains no details of that treatment. The mother understood that DHR wanted her to quit using drugs before she could regain custody of the children.

In September 2005, the children were transferred to the United Methodist Children's Home for placement in therapeutic foster care. Kathleen Waelti, who was the program supervisor of the Children's Home at that time, testified that C.B. was a defiant and disobedient child who needed the special care offered by a therapeutic foster home and that M.W. needed heightened care because of her mental disability. The children were placed in separate foster homes not long thereafter. Nikki Wynn, the DHR caseworker assigned to the case since July 2005, testified that it was unusual for DHR to separate siblings but that the DHR "team" had decided it would be in the children's best interests to separate them. At some point, DHR had received reports that the children were sexually acting out together. It was determined that M.W. had originally started the sexual conduct but that C.B. had since become the initiator. According to Wynn, the children were separated mainly because of this problem.

In April 2006, DHR indicated its intent to change its permanency plan from reunification to termination of parental rights. Before that date, the parents had participated in some drug counseling sessions provided by DHR, but, according to Wynn, they had not been consistent with their efforts to stop using drugs. Within two months of that date, Kelly Mizic, a licensed professional counselor, began providing weekly in-home family and substance-abuse counseling for the parents. Mizic testified that the parents were very compliant and consistent with the counseling, attending regularly and performing all the assignments she gave them. According to Mizic, the father generally accepted responsibility for his drug behavior and wanted to stop it. The mother, on the other hand, did not take responsibility for having a drug problem. Neither parent felt they needed inpatient drug rehabilitation, and neither parent asked for assistance beyond counseling to end their drug use. Despite some sporadic progress, Mizic testified that the parents had not made any real progress toward ending their drug use. DHR placed into evidence numerous positive drug screens for both parents throughout 2006. In addition, the mother admitted to Mizic that she had twice used another person's prescription medication in the fall of 2006. Mizic opined that the stress from the termination-of-parental-rights proceedings had exacerbated the stress on the parents and that the parents had coped with that stress by using drugs. Mizic testified that, even without their family problems, it would be difficult for the parents to quit using drugs altogether, especially the father.

At trial, the father testified that he and the mother had moved into a rental home that he had repaired and that the home was suitable for the children, a fact to which DHR agreed. However, he admitted that he had not stopped using marijuana; in fact, he admitted that he had smoked a marijuana "joint" only four days before the hearing.⁵ He testified that he felt he was progressing towards abstinence but that he had not yet met that goal. He testified that he would not want the children to return to his home until he had stopped using drugs for at least six months and that, in the meantime, he believed it would be in the children's best interests to live with G.H., their maternal grandmother. The father stated that he had no relatives who could take the children. The father denied that he had ever said that the maternal grandmother should not care for the children. He testified that he did not believe the children's other relatives could properly care for them but that he had never felt that way about the children's grandparents. The father testified that he believed the maternal grandmother's home would be "highly" appropriate for the children and that they would be safe there.

The mother testified that she had also been unable to stop using drugs. The mother testified that she also believed it would be in the children's best interests to live with the maternal grandmother until she and the father could completely rehabilitate. At one time, the mother had been concerned about S.H., her brother, being present in the maternal grandmother's home because the mother was afraid her brother would steal M.W.'s Social Security check and use the money to buy drugs. After S.H. moved in with his boss, the mother no longer believed that he would be a problem. She testified that the maternal grandmother would provide a safe place for the children. The mother testified that it would not be in the children's best interests to be separated and that the maternal grandmother could care for both children because the maternal grandmother had cared for the mother's sister's children for years. The mother also testified that the maternal grandmother had no idea that the mother was using drugs and that the maternal grandmother would not allow the mother around the children so long as she was using drugs. The mother testified that she would listen to the maternal grandmother if the maternal grandmother told her to stay away from the children.

The maternal grandmother testified that, from the beginning, she had informed DHR that she was interested in taking custody of the children as a relative resource. Wynn, therefore, requested a home study on the maternal grandmother.

Because the maternal grandmother lived in Bowden, Georgia, the Georgia Division of Family and Children's Services ("DFCS") had to conduct a home study on the maternal grandmother through the Interstate Compact for the Placement of Children ("the ICPC"). The home study was conducted by Spectrum Community Services, Inc., on December 12, 2005. At that time, and up to the date of the trial, the maternal...