J.B. v. Cleburne County Dhr

• Decision Date: 02 May 2008
• Docket Number: 2061083.
• Citation: 992 So.2d 34
• Parties: J.B. and S.M. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

992 So.2d 34

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

2061083.

Court of Civil Appeals of Alabama.

May 2, 2008.

Debra H. Jones, Anniston, for appellants.

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

THOMPSON, Presiding Judge.

J.B. ("the mother") and S.M. ("the father") appeal from a judgment of the trial court refusing their request for the return of custody of their daughter (hereinafter "the child"). We affirm.

On September 28, 2006, the mother took the child, who was one month old at the time, for a routine checkup. During that checkup, the doctor treating the child observed trauma to the child's head. X-rays of the child's head taken that same day revealed skull fractures on the left posterior side of the child's head. The child was immediately transferred to Children's Hospital in Birmingham for further treatment.

On October 2, 2006, the Cleburne County Department of Human Resources ("DHR") filed a petition alleging that the child was a dependent child pursuant to § 12-15-1(10), Ala.Code 1975, and seeking immediate, temporary custody of the child. The trial court entered an order on October 2, 2006, awarding DHR temporary custody of the child. On October 3, 2006, the mother and the father answered DHR's petition and requested that the trial court conduct a shelter-care hearing. Following the shelter-care hearing, the trial court entered an order on October 5, 2006, in which it found that placement of the child in the home of the mother and the father was not in the best interest of the child and transferred custody of the child to DHR. Following a November 7, 2006, dependency hearing, the trial court entered an order finding the child to be dependent and transferring custody of the child to DHR. On March 7, 2007, following a review hearing, the trial court entered an order continuing custody of the child with DHR. In the trial court's October 5, 2006; November 7, 2006; and March 7, 2007, orders, the trial court ordered DHR to continue to make reasonable efforts to reunify the child with the mother and the father.

On March 27, 2007, the mother and the father filed a petition for return of custody of the child. Following an ore tenus hearing on July 10, 2007, the trial court entered an order on August 8, 2007, denying the mother and the father's petition to regain custody of the child and reiterating its finding of dependency. In its August 8, 2007, order, the trial court stated that it was relieving DHR of the requirement that it continue its reunification efforts. The mother and the father timely appealed.

The evidence in the record on appeal reveals the following pertinent facts. At the time of the July 10, 2007, hearing, the child was 10 months old and had been in DHR's custody for 9 months. The child tested positive for methadone at the time of her birth. The mother, who was 37 years old at the time of the June 10, 2007, hearing, has an extensive history of drug and alcohol abuse. The mother began using drugs and alcohol around the age of 16. Over the course of her 20-year addiction to drugs, the mother abused crack cocaine, heroin, and prescription pain medications. At the time the child was placed in DHR's custody, the mother was abusing methadone.¹ The father does not have a history of drug or alcohol abuse.

The record indicates that the father has a criminal record. While going through a divorce with his former wife, the father's former wife accused him of rape and domestic violence. The father was subsequently charged with those crimes. On May 13, 2004, the father pleaded guilty to domestic violence. The father also pleaded guilty to assault in the third degree. The record does not reveal the terms of the sentences imposed on the father following his pleas; however, the father completed a 16-week domestic-violence course in late 2004.

In October 2006, after the trial court had removed the child from the mother and the father's custody, DHR developed an individualized service plan ("ISP") for the parties to follow in order to regain custody of the child. The ISP required both the mother and the father to participate in a psychological evaluation; to participate in counseling for past drug abuse and domestic violence; to participate in random drug screens and to remain drug-free and alcohol-free; to exercise supervised visitation with the child; and to provide an explanation for the fractures to the child's skull.

Lisa Patton, a DHR caseworker, testified that the mother and the father had accomplished most of the goals set for them in the ISP and that they had cooperated with DHR. Patton testified that the mother and the father had completed psychological evaluations and had participated in counseling. According to Patton, the mother and the father had remained drug-free and alcohol-free as requested by DHR. Patton testified that she was satisfied with the mother's progress and participation in a drug- and alcohol-rehabilitation program.

Patton expressed concern regarding the father's attitude during a couple of visits the father and the mother made to Patton's office. Patton testified that on one occasion the father "almost crossed the line of a threat" when he stated that "if he doesn't get his baby back somebody will pay." Patton stated that she believed that the father was referring to taking legal action. Patton testified that a similar incident occurred the week before the final hearing when the mother and the father received letters notifying them that child abuse and/or neglect had been "indicated" following an investigation. According to Patton, the mother tried to nudge the father out of the building when the father became upset and said: "`Don't put your hands on me, I won't put my hands on you.'" Patton testified that the father's comment caused her concern.

Patton testified that the only provision in the ISP that the mother and the father had failed to comply with was offering a plausible explanation for the child's skull fractures. While testifying at the July 10, 2007, hearing, Patton alluded to explanations given by the parents at the November 7, 2006, dependency hearing. On direct examination, Patton testified as follows:

"Q. Have the parents provided explanations for the child's injuries?

"A. They have provided explanations.

"Q. And we went through all of those in the dependency hearing?

"A. Correct.

"Q. Have there been any other explanations provided?

"A. Not to my knowledge no, just the same ones."

On cross-examination, Patton further testified:

"Q. You don't have any direct evidence, but you were present at the prior [dependency] hearing and you heard the testimony there and the parents' explanation.

"A. Correct.

"Q. And you are familiar with Dr. Amyia, the doctor at Children's Hospital, her statement?

"A. Correct.

"Q. You don't have any evidence that otherwise explains the unexplained?

"A. Correct."

The record indicates that Dr. Michelle Amyia² diagnosed the child's skull fractures. It appears from the record that Dr. Amyia's deposition testimony was admitted into evidence at the November 7, 2006, dependency hearing. Patton testified that she did not perform the investigation of the child's head injury. According to Patton, Jennifer Rios, another DHR employee, had investigated the injury and had testified regarding her investigation of the injury at the earlier dependency hearing. The record does not contain a copy of a transcript of the dependency hearing or any documentary evidence offered at that hearing.

According to Patton, if it were not for the unexplained injury to the child, DHR would return the child to the mother and the father's custody. Patton testified that DHR's policy provides that a child cannot be returned to a home if a serious, unexplained injury occurred in the home. Patton testified that DHR is investigating a relative placement for the child pending a plausible explanation from the mother and the father for the child's head injury.

The mother testified that she had met all the goals required by DHR in the ISP. The mother stated that she had been drug-free since December 4, 2006, and that she planned to complete the rehabilitation program offered by Helping Partners, LLC. The mother testified that she had offered DHR an explanation for the child's skull fractures as required in the ISP. The mother explained that the skull fractures could have been the result of actions taken by a babysitter who had babysat the child on four occasions before the child was diagnosed with the skull fractures. The mother denied any knowledge of the child's falling or sustaining injuries in her or the father's presence. The mother denied that the father had committed acts of domestic violence against her.

The father testified that he and the mother were common-law married and had been living together since 2003. The father testified that he had never committed acts of domestic violence against the mother. The father denied doing anything to hurt the child. The father testified that he believed that the fractures to the child's skull were the result of trauma during birth.

Several witnesses testified at the July 10, 2007, hearing regarding the mother's history of drug and alcohol abuse and her treatment for substance abuse. James Hayes, the owner of Helping Partners, testified that his company offers an 18-month rehabilitation program for drug and alcohol addiction. Hayes testified that the mother began "phase one" of the program, also called "early recovery," on December 19, 2006. According to Hayes, the mother had successfully completed phase one and, at the time of the July 10, 2007, hearing, was participating in "phase two," known as "relapse prevention." Hayes testified that he believed that the mother understood that addiction is a "chronic brain disease." On cross-examination, Hayes acknowledged that he was not a licensed...