B.H. v. Marion County Dhr

• Decision Date: 13 June 2008
• Docket Number: 2070055.
• Citation: 998 So.2d 475
• Parties: B.H. v. MARION COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

998 So.2d 475

B.H. v. MARION COUNTY DEPARTMENT OF HUMAN RESOURCES.

2070055.

Court of Civil Appeals of Alabama.

June 13, 2008.

Tim R. Wadsworth, Sulligent, for appellant.

Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth L. Hendrix, asst. attys. gen., for appellee Department of Human Resources.

THOMAS, Judge.

In January 2007, the Marion County Department of Human Resources ("the Marion County DHR") petitioned for and received custody of C.N.H. ("the child") after his birth to N.H. ("the mother"). B.H., the mother's great-aunt ("the maternal great-aunt"), contacted the Marion County DHR within two weeks of the child's birth to request to be considered by the Marion County DHR as a relative resource for the child. The Marion County DHR declined to initiate any investigation of the maternal great-aunt as a potential relative resource, so she petitioned to intervene in the pending dependency case. She also filed a petition for custody of the child; that case was assigned case number JU-07-13.03.

After being ordered to do so by the trial court, the Marion County DHR completed a home study on the maternal great-aunt's home. The study indicated the house itself to be suitable and indicated that the maternal great-aunt and her husband T.T.H. had both been appropriate parents to their now grown children. However, the home-study evaluator expressed concern over a potential placement with the maternal great-aunt because, at the time of the home study, the mother lived next door to the maternal great-aunt and because the maternal great-aunt suffered from back problems that required her to take the narcotic pain reliever Lortab on a daily basis, which, according to the home-study report, raised issues about who would care for the child if the maternal great-aunt took three Lortab in one day, as she had reported doing on occasion. In addition, the home-study report reflected that the maternal great-aunt was on medications for emphysema and chronic obstructive pulmonary disease, depression, high blood pressure, irritable bowel syndrome, psoriasis, and gastroesophageal reflux disease. Based on the concerns about the possibility of future contact with the mother and the maternal great-aunt's ability to care for the child when taking several doses of a narcotic pain reliever, the home-study evaluators did not approve placement of the child in the maternal great-aunt's home.

After securing a finding from the juvenile court that reasonable efforts to rehabilitate the mother were not required, the Marion County DHR petitioned to terminate the mother's parental rights; that case was assigned the case number JU-07-13.04. The juvenile court took evidence on both the Marion County DHR's termination petition (JU-07-13.04) and the maternal great-aunt's custody petition (JU-07-13.03) on September 28, 2007.¹ After the conclusion of the trial, the juvenile court terminated the mother's parental rights² and denied the maternal great-aunt's custody petition. Only the maternal great-aunt appealed from the judgments in both the custody case (JU-07-13.03) and the termination case (JU-07-13.04).

We will first address the maternal great-aunt's appeal insofar as it attempts to attack the judgment terminating the mother's parental rights in case number JU-07-13.04. See D.M. v. Walker County Dep't of Human Res., 919 So.2d 1197, 1205-06 (Ala.Civ.App.2005) (holding that an aunt seeking custody of a dependent child could not assert the rights of the parents, whose rights were terminated, on appeal from the denial of her custody petition); see also State v. Property at 2018 Rainbow Dr., 740 So.2d 1025, 1027 (Ala.1999) (indicating that standing is a jurisdictional prerequisite). "Standing ... turns on `whether the party has been injured in fact and whether the injury is to a legally protected right.'" Property at 2018 Rainbow Dr., 740 So.2d at 1027 (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)). The maternal great-aunt lacks standing to appeal from the termination judgment because that judgment did not result in an injury in fact to any of the maternal great-aunt's legally protected rights. Only the mother's rights were impacted by the termination judgment, and only she could make the arguments asserted by the maternal great-aunt regarding the termination judgment—i.e., whether the appropriate quantum of evidence established the child's dependency and whether the juvenile court erred by determining that there existed no viable alternatives to the termination of the mother's parental rights. D.M., 919 So.2d at 1206. We therefore dismiss the maternal great-aunt's appeal from the termination judgment, and we will not address her arguments regarding that judgment in this opinion. Id.

The maternal great-aunt does, however, have standing to appeal the denial of her petition for custody in case number JU-07-13.03. Her argument is premised on the purposes of the Juvenile Justice Act, which include "[t]o preserve and strength the child's family whenever possible," Ala.Code 1975, § 12-15-1.1(1), and the requirement that the goals of the act be achieved "with a preference at all times for the preservation of the family ...." § 12-15-1.1(8). The maternal great-aunt argues, based on these stated legislative purposes, that the juvenile court should have granted her petition for custody because of her biological relation to the child. She relies on Ex parte W.T.M., 851 So.2d 55 (Ala.Civ.App.2002) (plurality opinion), as further authority for her argument that her biological relationship to the child should result in a reversal of the juvenile court's judgment denying her custody petition.

The maternal great-aunt is 47 years old. She suffers from emphysema but admittedly smokes on occasion. In addition, the maternal great-aunt testified that she suffers from migraine headaches, for which she takes Tylenol, a nonprescription pain reliever; although she did state that she had gone to the emergency room for treatment of a migraine on at least one occasion, she did not explain how often she had to seek emergency treatment for her headaches. The maternal great-aunt also suffers from high blood pressure, psoriasis, and is on hormone-replacement therapy. As noted above, the maternal great-aunt takes numerous medications. She takes the narcotic pain reliever Lortab on a daily basis for a back problem; she receives Social Security disability benefits because of her back pain and is not able to perform even sedentary work. She also admitted that she was on a prescription antidepressant medication because she became depressed in 1996, after the death of her father. According to her testimony, the maternal great-aunt had suffered increased depression since the death of her sister (the mother's mother) only a few months before the termination trial and was in the process of having her dosage of antidepressant medication increased.

Despite her health issues, the maternal great-aunt testified that she was able to care for young children like her three-year-old grandchild and a neighbor's toddler. The neighbor, J.H., testified that the maternal great-aunt had assisted her with child care on a regular basis for approximately one year; J.H.'s child was almost one year old when the maternal great-aunt began keeping him. J.H. testified that the maternal great-aunt had been a good caregiver.

Both of the maternal great-aunt's adult children, A.O. and K.H., testified that the maternal great-aunt had assisted them in caring for their children at times and that she was a very good caregiver. A.O. testified that the maternal great-aunt had assisted her regularly with her children and that the maternal great-aunt had always had the children fed, bathed, and dressed when she came to collect them. A.O. said that the maternal great-aunt's health issues never interfered with her ability to provide quality care for the children.

The maternal great-aunt's husband, T.T.H., also testified that her health issues did not interfere with her ability to rear children. In fact, he commented that she had always had her own children up, fed, and ready every morning. He admitted that he worked long hours and that he would not be available to assist the maternal great-aunt most days. In addition, T.T.H. testified that he was illiterate and that the maternal great-aunt had always been the one to assist their children with homework. He said that he fully supported the decision to seek custody of the child.

The maternal great-aunt argues that the Marion County DHR discounted her as a relative resource solely on the basis that she takes a prescribed narcotic pain reliever on a daily basis. She states that the proper use of prescription medication should not disqualify an otherwise suitable caregiver from consideration as a relative resource. While we do not necessarily disagree that the proper use of prescription medication should not automatically disqualify one from consideration as a potential caregiver, we do not agree that the juvenile court's decision not to place the child in the custody of the maternal great-aunt was based solely on her use of a prescription medication. The home-study report stated that the maternal great-aunt reported taking up to three Lortab per day, depending on the level of her pain. Because Lortab is a combination of acetaminophen and hydrocodone, a narcotic pain reliever, the home-study evaluators expressed concern over the maternal great-aunt's ability to care for the child if she was taking that level of medication. The ability to care for the needs of the child, who was still an infant and would become an active toddler, was the proper focus of the home study, and we cannot agree that the concern raised in the home-study report was an invalid one.

Likewise, we are not convinced that the maternal great-aunt's biological relationship to the child requires a reversal of the...