C.O. v. Jefferson Cnty. Dep't of Human Res., 2140752

• Decision Date: 01 April 2016
• Docket Number: 2140752,2140756.
• Citation: 206 So.3d 621
• Parties: C.O. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES. M.M.O. v. Jefferson County Department of Human Resources.
• Court: Alabama Court of Civil Appeals

206 So.3d 621

C.O.

v.JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.

M.M.O.

v.Jefferson County Department of Human Resources.

2140752

2140756.

Court of Civil Appeals of Alabama.

April 1, 2016.

Seth D. Stringer, Birmingham, for appellant C.O.

Edward A. Merrell and Kenneth J. Baumann, Jr., of Merrell Law Firm, LLC, Hoover, for appellant M.M.O.

Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.

Matthew T. Jackson, Birmingham, guardian ad litem.

DONALDSON, Judge.

M.M.O. ("the mother") and C.O. ("the father") separately appeal from judgments entered by the Jefferson Juvenile Court ("the juvenile court") finding their two children, P.O. (juvenile-court case no. JU–13–2135.01) and Ca.O. (juvenile-court case no. JU–13–2136.01), to be dependent and placing the children in the custody of M.O., a paternal aunt of the children. The mother also appeals from a judgment entered by the juvenile court finding her other child, J.M. (juvenile-court case no. JU–13–2134.01), to be dependent and placing that child in the custody of M.O. We affirm the judgments in case nos. JU–13–2135.01 and JU–13–2136.01, relating to the juvenile court's findings of dependency and permanency determinations regarding P.O. and Ca.O. Because the mother failed to file a timely notice of appeal in case no. JU–13–2134.01, we dismiss the mother's appeal insofar as it relates to the judgment pertaining to J.M.

Background

On September 5, 2013, the Jefferson County Department of Human Resources ("DHR") filed three separate petitions in the juvenile court alleging that the children were dependent. At the time of the filing of the petitions, the mother had custody of the children. On November 22, 2013, the juvenile court entered pick-up orders authorizing law enforcement to remove the children from the mother's custody. Following a shelter-care hearing, the juvenile court entered orders on November 25, 2013, directing that the children be placed in the custody of a maternal aunt. Following a second shelter-care hearing, the juvenile court entered orders on January 2, 2014, directing that the children be placed in the custody of M.O. The juvenile court granted the mother and the father supervised visitation with the children, to occur every Saturday for a two-hour period at M.O.'s home.

On January 13, 2014, the juvenile court entered orders setting the trial for April 10, 2014. After a hearing on April 10, the juvenile court continued the trial indefinitely. The juvenile court then entered orders on May 2, 2014, setting the trial for August 1, 2014. On July 28, 2014, DHR filed a motion to quash a subpoena it had received from the mother or the father that sought production of documents in DHR's possession. The record does not show what specific records DHR sought to be protected by the court, but, pursuant to arguments raised by the parties at trial and on appeal, it is apparent that, at some point, the mother requested certain hospital records that DHR had obtained relating to the mother's medical treatment. In the alternative, DHR sought a protective order from the juvenile court authorizing an in camera inspection of the records by the juvenile court "to determine if the records contain evidence material and relevant to this case which should be released to the parties."

On August 1, 2014, the mother filed a motion to dismiss the dependency petitions, alleging that DHR had failed to respond to discovery requests, had produced no witness list, and had failed to produce evidence that the mother is not a suitable parent for the children. The juvenile court denied the motion at the commencement of the trial. On August 1, 2014, the juvenile court granted the father's motion to continue the trial and scheduled the matter for trial on October 24, 2014.

On August 4, 2014, the juvenile court entered an order denying DHR's motion to quash but granting DHR's motion for a protective order. In that order, the juvenile court stated as follows: "The Court, pursuant to the motion, has reviewed the said DHR records and documents in camera and has determined that certain portions thereof are relevant and material to the issues in this cause and are not otherwise reasonably available to the parties hereto. The record is hereby ordered to be made available to the Court by DHR immediately for inspection and use for trial purposes as may be appropriate under the rules of evidence." On October 24, 2014, the juvenile court entered an order stating, among other things, that the "matter [is] set for trial on 5/1/2015 @ 1:30pm."

On May 1, 2015, the juvenile court called the matter for trial. The mother and the father failed to appear, although their attorneys appeared on their behalf. The mother's attorney filed a motion to continue the trial, stating that the mother was incarcerated in the Birmingham City Jail. The juvenile court denied the mother's motion to continue and proceeded to hear testimony, including the testimony of various witnesses employed by DHR and of M.O.

Candace Sykes, a child-abuse and neglect worker with DHR, testified that the father suffered from schizophrenia

and that he had been recently released from the psychiatric unit of the University of Alabama at Birmingham Hospital. Sykes testified that the father had tested positive for methadone, that he did not have a prescription for that drug, and that the father had reported that he had obtained the drug from a friend while the father was hospitalized. Sykes testified that she had investigated the mother after DHR received a report that the mother had exhibited drug-seeking behavior during her pregnancy with P.O. Sykes testified that the mother had reported that she had taken only medication that had been prescribed for her for health issues that were causing her pain. Under cross-examination, Sykes testified that she could not recall whether the mother had taken any medication that was not prescribed for her. Sykes could not recall whether the mother had tested positive for anything other than methadone, which had been prescribed for her.

M.O., the children's paternal aunt, testified that she has served as the children's custodian since December 2013. M.O. testified that she is ready, willing, and able to maintain custody of the children. She testified that the father suffers from mental-health issues, including paranoia. She testified that the father last visited the children a month before the trial. Before that, she said, he had visited the children during the Thanksgiving and Christmas holidays in 2014. She testified that the mother had last visited the children in September 2014. M.O. testified that she had known the mother for approximately three years. M.O. testified that she has witnessed the mother intoxicated. She testified that the father drinks alcohol heavily and that she did not believe that he was ready to have custody of the children. M.O. testified that the father is sometimes homeless when he is not living with his mother. M.O. testified that the father sometimes comes to her home when he is intoxicated and that he sometimes exhibits "crazy behavior" around the children. M.O. testified that the father does not take his prescribed medication and that he does not attend his medical appointments.

M.O. testified that the mother is not stable, that the mother does not have a job, and that the mother has not proven that she is ready to have custody of the children. M.O. testified that, in the summer of 2013, the mother had been prescribed methadone

to help combat an addiction to Lortab. M.O. testified that she had personally witnessed an episode when the mother had acted strangely, was "talking out of her head," was foaming at the mouth, and was nonresponsive. M.O. testified that the mother would resort to begging for money at gas stations. M.O. testified that, one night in August 2013, the mother was found passed out at a red light in the driver's seat of a vehicle with the children inside the vehicle.

Monica Whitsey, a social worker with DHR, testified that she has worked on the family's case since July 2014 and that she has worked with the children, the mother, and the father. Whitsey testified that she did not have an opportunity to have an Individualized Service Plan meeting with the mother or the father. Whitsey testified that the mother was in the Birmingham City Jail on the date of trial, where she had been since February 2, 2015, on charges related to a traffic violation.

Whitsey testified that the mother had several other outstanding warrants for her arrest. Whitsey stated that the mother last visited the children in September 2014 and that the father last visited the children the month before trial. Whitsey testified that the mother had been intoxicated around the children. Whitsey testified that the mother had not complied with DHR's request that she provide the children's birth certificates, Social Security cards, and other personal documentation. Whitsey testified that she had talked to the mother concerning her need for drug treatment and that the mother had denied that she needed help.

During the trial, the juvenile court concluded in open court that it found from clear and convincing evidence that the children are dependent and in need of supervision of the state. The juvenile court then proceeded to the dispositional phase to determine matters pertaining to permanent placement of the children. The mother's attorney and the father's attorney made oral motions to continue the dispositional phase of the trial on the basis that they did not receive notice that the juvenile court would address permanency at the May 1, 2015, trial. The juvenile court denied the motions to continue.

On May 11, 2015, the juvenile court entered judgments finding the children to be dependent. In addition, the juvenile court granted permanent custody of the children to M.O., subject to the mother's and the father's visitation rights.

On May 13, 2015, the...