J.L. v. State Dept. of Human Resources

• Decision Date: 12 January 2007
• Docket Number: No. 2050681.,2050681.
• Citation: 961 So.2d 839
• Parties: J.L. v. STATE DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

961 So.2d 839

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

No. 2050681.

Court of Civil Appeals of Alabama.

January 12, 2007.

Elizabeth A. Halbrooks, Athens, for appellant.

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

PER CURIAM.

J.L. appeals from a judgment of the trial court terminating his parental rights to his daughter, D.T. ("the child"). We affirm.

J.L. ("the father") was adjudicated to be the father of the child on November 13, 2003, after DNA testing had been performed. On July 13, 2005, the State of Alabama, acting through the Limestone County Department of Human Resources ("DHR"), filed a petition to terminate the father's parental rights. DHR alleged, among others things, that the father had abandoned the child, that the father was incarcerated out of state for a felony offense, and that no reasonable alternatives to termination existed. The parental rights of the child's mother ("the mother") had been previously terminated by the trial court on July 12, 2004.

On December 9, 2005, the trial court held a hearing at which the father entered a stipulation that the child was dependent. Subsequently, on the same day, the trial court issued an order declaring the child to be dependent, pursuant to § 12-15-1(10), Ala.Code 1975. On April 6, 2006, the trial court held a termination hearing at which it heard ore tenus evidence. On May 1, 2006, the trial court issued a judgment terminating the father's parental rights.

After the trial court entered its judgment, the father timely appealed to this court. The relevant facts are as follows.

At the termination hearing, the father testified that the child was born on March 8, 1999, and that he and the mother had lived together off and on after the child was born until April 2002. The father explained that when he and the mother were living together, both provided care for the child. However, during the short periods when the father and mother were separated, the mother provided the primary care for the child with the father providing monetary support. The paternal grandfather of the child ("the grandfather") and his wife ("the stepgrandmother") both testified that the father had a good relationship with the child before the father was incarcerated and that they never observed the father act inappropriately with the child.

The father testified that in 2001 and 2002 he was convicted of three separate felony charges, specifically theft, automobile theft, and burglary. The father committed these felonies in three separate states, Maryland, Tennessee, and Alabama. The father stated that the last time he spent any significant time with the child was in April 2002, shortly before he was incarcerated. After the father was convicted of the three crimes, he was incarcerated for approximately three and a half to four years. The father testified that he first spent close to three years in prison in Maryland; that he was then transferred to Tennessee, where he spent approximately one year in prison; and that after the year in Tennessee, he spent one month in an Alabama prison. The father was released from prison in December 2005. The father stated that he is currently serving portions of several probation terms: a four-year term of supervised probation from Tennessee, a three-year term of supervised probation from Maryland, and a two-year unsupervised term from Alabama.

Tracy Sherrill, the child's DHR caseworker, testified that the child first came into the care of DHR in June 2002. DHR received reports of neglect regarding the child and the child's half brother ("the brother")¹ that DHR investigated but did not confirm. However, DHR did discover that the mother was using illegal drugs and had no income and that there was no food in the mother's home. Additionally, DHR noticed that the child was acting out sexually. Sherrill testified that, at some point during DHR's investigation, the mother placed the child and her brother with an acquaintance and moved to Tennessee. Because both children were living in Alabama without a legal guardian, DHR placed the children under DHR care in a foster home, where they remained at the time of the termination hearing. Sherrill stated that the mother's parental rights to the brother had been terminated and that the foster family had adopted the brother a little more than a year before the termination hearing. The foster family also wants to adopt the child.

Sherrill testified that DHR initially attempted to place the child with relatives of both the mother and the father. Inquiries and home studies conducted on the mother's family revealed that no one in her family was a willing and suitable placement for the child. Once the paternity of the father was established, DHR also inquired into the paternal grandfather and stepgrandmother (hereinafter collectively "the grandparents") of the child as a possible placement for the child. Initially, DHR allowed the grandparents periodic visits with the child over a period of about five or six months starting in late 2002 and ending in 2003. However, Sherrill testified that when DHR asked the grandparents whether they were interested in having a home study done to investigate the possibility of their taking custody of the child, they stated that they were not interested and felt that the child needed to be in foster care. Although the grandparents both testified that they had told DHR that they were not interested in adopting the child, they both claimed that DHR had never asked them about performing a home study and that they would have been willing to take temporary custody of the child until the father was able to support the child himself. After the child was placed in foster care and paternity was established, Sherrill began to write the father in prison concerning the child's status. Sherrill recalled that she wrote a letter to the father approximately every three months to keep the father apprised of major events. Sherrill stated that the father typically wrote back promptly and expressed interest in the child's welfare. During the father's time in prison, he never contacted the child directly, nor did he instruct DHR or anyone else to communicate on his behalf with the child. The father explained that he wanted to contact the child but did not know what to say to her. The father testified that for Christmas 2003 he sent the child a baseball glove as a present via his parents. Sherrill also testified that the father contacted her shortly before his release from prison inquiring about visitation with the child; however, at that time DHR had already filed a petition for termination of the father's parental rights. At the time of the hearing, the father had only seen the child once since the time he was incarcerated, namely when he went for DNA testing.

The father testified that after his release from prison he moved in with his father and stepmother in Elkmont. The father stated that he obtained a job in Huntsville as a construction worker within a week of his release, and he still had the same job at the time of the termination hearing. At the time of the termination hearing, the father was working 40 hours per week and was earning $8.50 per hour with $0.50 per hour raises every 90 days. The father has stayed with the grandparents on the weekends and with his brother in Huntsville during the week while working at his job. The father stated that he had been staying with his brother during the week because he did not have a driver's license and needed help with transportation to his job. On the day of the termination hearing, the father obtained a driver's license. The father has no permanent housing of his own.

Both the father and the grandparents testified that the father has matured significantly since being incarcerated and has developed into a responsible individual. The father testified that before his release from prison he obtained a high-school-equivalency diploma in Maryland. The father testified that he has never had a drug or alcohol problem. The father also stated that he has not missed any of his scheduled probation calls or meetings since he was released and has made all restitution payments on time as required under his felony sentences. The paternal grandfather testified that he has not seen the father intoxicated on alcohol or illegal drugs and that he has not seen the father fighting or acting angry or "out of control" since the father's release. The paternal grandfather also testified that the father has been able to provide for his own financial needs. However, the father paid no support for the child to the foster parents in the five months between his release and the termination hearing. Also the father has not contacted the child since his release from prison.

Sherrill testified that when the father was in jail DHR was unable to set up an Individualized Service Plan ("ISP") for potential placement of the child with the father because of his imprisonment. Sherrill also testified that the typical DHR policy for children placed under DHR care was to find a permanent-custody solution within 12 months of DHR's taking over a child's care. By June 2003, the child had already been in DHR's care for 12 months. DHR's plan was to have the child adopted. The foster family with which DHR had initially placed the child and her brother had already adopted the brother, and the foster family wanted to adopt the child as well. Sherrill explained that DHR waited until July 13, 2005, to file the petition to terminate the father's parental rights because, she stated, the father had to be present at the termination hearing. DHR had no way of securing the father's presence at a hearing because of his incarceration in Maryland.² Sherrill further stated that because DHR had filed its petition for termination before the father was released from prison, DHR did not attempt to set up any ISP...