J.C. v. State Department of Human Resources

• Decision Date: 12 October 2007
• Docket Number: 2060091.
• Citation: 986 So.2d 1172
• Court: Alabama Court of Civil Appeals
• Parties: J.C. v. STATE DEPARTMENT OF HUMAN RESOURCES.

986 So.2d 1172

J.C. v. STATE DEPARTMENT OF HUMAN RESOURCES.

2060091.

Court of Civil Appeals of Alabama.

October 12, 2007.

Brandon C. Little, Cullman, for appellant.

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

THOMPSON, Presiding Judge.¹

Facts and Procedural History

On September 22, 2005, the Cullman County Department of Human Resources ("DHR") filed a petition to terminate the parental rights of J.C. ("the mother") and T.H. ("the father") to their daughter, G.M.H. (sometimes hereinafter referred to as "the child"). The mother answered, and the termination hearing was continued several times before the matter was heard on September 6, 2006. The juvenile court received ore tenus evidence, and on October 11, 2006, it entered a judgment terminating the parental rights of the mother and the father. The mother filed a timely appeal from the judgment. The father has not appealed.

The evidence presented at the termination hearing shows the following relevant facts, although none of the exhibits admitted into evidence at the hearing were made a part of the record on appeal. The mother has three children: C.R.C., C.C.B., and G.M.H. At the time of the hearing, C.R.C. was seven years old, C.C.B. was five years old, and G.M.H. was nearly three years old. Only the mother's rights as to G.M.H. are at issue in this appeal.

The mother testified that she was not sure who had legal custody of C.C.B., although she thought that the state of Mississippi might. It is undisputed that the mother's parental rights to C.C.B. were terminated by the state of Mississippi in 2003, while the mother was pregnant with G.M.H. The record does not indicate the circumstances leading to the termination of the mother's parental rights to C.C.B. The mother testified that in 2004 she was allowed to visit C.C.B. one hour each week.

The mother and the father both testified that they have extensive histories of illegal drug use. The mother testified that she has lived around illegal drugs all of her life and that she began using marijuana when she was 14 years old, at first periodically and eventually daily. She has also "tried" methamphetamine. When the mother met C.C.B.'s father, she began using methamphetamine four or five times each week. According to the mother, although she did not undergo any treatment, she stopped using drugs during each of her pregnancies.

The mother testified that she did not use drugs for about six months after C.C.B. was born. However, C.C.B.'s father left her, and she began using methamphetamine "to escape or when [she] had to get up and go to work." Her drug use escalated, and by the time she met the father in 2002, she was using methamphetamine every day. The record shows that at the time of the termination hearing the mother had been arrested at least twice for drug-related charges, but she had never been convicted of a felony.

The father testified that he began using marijuana when he was 15 years old;² he eventually used cocaine and methamphetamine. In 2000, the father made money by selling methamphetamine. Before he met the mother, the father either pleaded guilty to or was convicted of at least four felonies, including unlawful possession of controlled substances,³ unlawful distribution of controlled substances,⁴ forgery in the second degree,⁵ and possession of burglar's tools.⁶ Before he met the mother, the father had completed two drug-rehabilitation programs — one court-ordered program and one while he was in prison. Although the father had been advised in the rehabilitation programs to attend support programs such as Narcotics Anonymous indefinitely after he completed the rehabilitation programs, he only did so for a few weeks. The father testified that, after the father was released from prison in 2001, he did not use drugs for approximately 10 months.

When the mother and the father met in 2002, the father was again using and selling illegal drugs. The relationship between the mother and the father was unstable. They would stop seeing one another because the mother objected to the father's drug use, and they would later reconcile based on the father's promises not to use drugs. The mother testified that, by the time of the termination hearing, she and the father had separated and reconciled more than four times.

The mother became pregnant with the child in the spring of 2003. The child was born six weeks premature in mid-December 2003. The mother was 20 years old when the child was born. The mother and the father testified that they were not working at the time the child was born and that, at that time, the father was not looking for work. Although the mother denied using illegal drugs while she was pregnant with the child, she also testified that she had used drugs in October 2003, just two months before the child was born.

Because she was born prematurely, the child remained in the hospital for two weeks after her birth. The father testified that he and the mother had visited her every day. On December 23, 2003, before the child was released from the hospital, the mother was arrested for possession of a controlled substance. That charge was still pending at the time of the termination hearing because the mother had entered into an agreement under which prosecution was deferred while the mother participated in a substance-abuse treatment program.⁷

The child was released from the hospital on December 29, 2003. The father testified that she was healthy and that he and the mother did not receive special instructions regarding her care. Just a few hours after the child arrived home, police officers executed a search warrant related to a third party whose belongings were at the parents' home. The father testified that, without the mother's knowledge, he had illegal drugs in his pocket at the time of the search. When the officers discovered the father's drugs, they arrested him for unlawful possession of a controlled substance. After the father was released on bond in January 2004, the mother, C.R.C., and the child continued to live with him.

In January 2004, DHR contacted the mother's family in an attempt to locate C.R.C. and the child. When the mother's family told her that DHR was looking for the children, the mother hid them for two to three weeks. The father testified that he and the mother voluntarily surrendered custody of the children to DHR on February 2, 2004.

A hearing was held, and the child, who was then seven weeks old, was determined to be dependent and placed in DHR's custody. The record does not show the factual or legal bases of the dependency determination. The child was placed with a foster mother, P.J.A. ("the foster mother"), who cared for her until the time of the termination hearing nearly three years later. C.R.C. was also placed with the foster mother; however, the record does not show who had legal custody of him at the time of the termination hearing.

A senior social worker with DHR, Jennifer Jackson, testified that she had been the child's caseworker since the child was determined to be dependent. The mother and the father met with Jackson and the foster mother shortly after the dependency hearing to develop an Individualized Service Plan ("ISP"). According to Jackson, the ISP identified goals that the mother and the father were to satisfy in order to be reunited with the children. The parents testified that, pursuant to the ISP, they were to maintain a stable home, work to become able to support the children financially, and stay "drug free." Jackson testified that they were also to address the pending criminal charges against them. The juvenile court ordered that the mother and the father have supervised visitation with the child once each week. Jackson testified that visitation was an essential part of the ISP and the reunification process.

The evidence regarding the father's failure to meet the goals established by the ISP is undisputed. The father and mother married in February 2004, and thereafter the father worked performing freelance carpentry for two to three months. However, in June 2004, the mother and the father separated because of the father's use of methamphetamine. The mother and the father saw each other occasionally, but they did not reconcile until June 2005. The father moved frequently because he did not have a stable job. He testified that he never visited the child or communicated with DHR about receiving custody of her. Jackson testified that DHR had an "indicated" report from another county against the father regarding abuse and neglect and that the report influenced DHR's decision not to return the children to the father's home.

On February 28, 2005, the father pleaded guilty to unlawful possession of a controlled substance and was ordered to spend 12 months in an inpatient drug-rehabilitation program. At the time of the September 6, 2006, termination hearing, the father had not complied with the February 28, 2005, order. The father testified that he understood that he had up to five years to comply with the order and that he did not know how to enter such a program.

The evidence was largely disputed regarding the mother's actions after the child was determined to be dependent. As part of the deferred prosecution of the mother's December 23, 2003, possession charge, she participated in the North Central Alabama Substance Abuse Counsel Court Referral Program ("CRP"). The mother stated that she had participated in the CRP for two years and had reported for drug tests that had cost her $20 each week. The mother testified that DHR never helped her enter a drug-treatment or rehabilitation program. Instead, she said, DHR just told her she had to "stay clean." Jackson testified that, at the time of the initial ISP meeting, the mother was already involved with CRP and DHR advised her to complete the program and comply with the drug tests.

Cindy Keller, a...