J.P. v. S.S.

• Decision Date: 15 February 2008
• Docket Number: 2060877.
• Parties: J.P. v. S.S. and C.S.
• Court: Alabama Court of Civil Appeals

989 So.2d 591

J.P. v. S.S. and C.S.

2060877.

Court of Civil Appeals of Alabama.

February 15, 2008.

Sheila C. Field of Field & Field, LLC, Anniston, for appellant.

Wendy Ghee Draper of Ghee & Draper, Anniston, for appellees S.S. and C.S.

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

THOMPSON, Presiding Judge.

J.P. ("the father") appeals from a judgment of the Calhoun Juvenile Court ("the trial court") awarding custody of his infant son, A.P. ("the child"), to S.S. and C.S., the child's maternal aunt and uncle (hereinafter "the aunt and uncle").

M.S. ("the mother") and the father were never married. The child was born on May 15, 2006. The child remained in the hospital for approximately one month following his birth, after which the mother took the child to her home. The record indicates that the Calhoun County Department of Human Resources ("DHR") became involved in monitoring the mother and the child shortly after the child was born because the mother was on methadone and had tested positive for marijuana at the time of the child's birth.

In August 2006, the mother contacted the aunt and uncle and requested that the child be placed in the aunt and uncle's care. The aunt and uncle took the child into their home at that time. The mother testified that she notified DHR of the fact that she had asked the aunt and uncle to take the child.

On October 24, 2006, DHR instituted in the trial court proceedings in which it sought to have the child declared dependent, pursuant to § 12-15-1(10), Ala.Code. 1975. On October 26, 2006, the trial court entered an order in which it adjudicated the child to be dependent and transferred custody of the child to DHR. That order indicated that the trial court had heard evidence at a shelter-care hearing and that, at that hearing, the mother and the father had each consented to the declaration of dependency. Although DHR had legal custody of the child as a result of the October 26, 2006, order, it allowed the child to remain in the home of the aunt and uncle as a relative placement for the child. The child has remained in the custody of DHR and in the home of the aunt and uncle throughout the pendency of this matter.

On March 16, 2007, the aunt and uncle initiated the present case by filing a petition to intervene in the dependency action and a petition seeking custody of the child. On that same day, the trial court granted the aunt and uncle's petition to intervene in the action. The trial court also appointed a guardian ad litem for the child.

An April 5, 2007, order entered by the trial court shortly after the aunt and uncle filed their petitions indicates that the court had conducted a review hearing. See C.L. v. D.H., 916 So.2d 622, 625 (Ala.Civ.App. 2005) (noting that, in that case, as "in most dependency cases," the matter was periodically reviewed by the trial court). The order noted that the aunt and uncle had intervened in the action, that efforts to reunite the parents and the child had failed, and that the permanency plan for the child was either "relative placement" or "relative custody." In that order, the trial court ordered that custody of the child remain with DHR. No appeal was taken from that order. See C.L. v. D.H., supra (discussing precedent holding that dependency orders are appealable).

The trial court held a hearing on June 6, 2007, on the aunt and uncle's petition for custody of the child. The relevant facts presented at that hearing are as follows. The mother testified that she contacted the aunt and uncle in approximately August 2006 concerning the child. The mother explained that she told the aunt and uncle that she would be unable to provide for the child and that she wanted the aunt and uncle to have custody of the child because she knew that they could provide for him. Describing the child's relationship with the aunt and uncle, the mother stated at the June 6, 2007, hearing: "That's [sic] his mom and dad."

The mother testified that the father had acted violently toward her on several occasions. She stated that one time the father had pushed her head through a wall at the house in which they were living. The mother explained that on another occasion the father broke her arm by grabbing it with both hands and twisting, resulting in it being "snapped in two." The mother stated that the break in her arm required surgery to repair. The mother also testified that the father frequently pushed and "slammed" her into walls. The mother stated that she and the father had used various illegal or illegally obtained drugs together, including marijuana, benzodiazepines, pain medication, and heroin.

The father admitted that he had used various illegal or illegally obtained drugs, such as marijuana and prescription pain medication, in the past, but he stated that he had not used any illegal drugs since March 2006. The father also claimed that he had not engaged in any domestic violence since 2004.

The father conceded that, in December 2006, he told DHR he was willing to let the aunt and uncle have custody of the child, provided that he could have visitation with the child. However, he later changed his mind. The father testified at the June 6, 2007, hearing that he objected to the aunt and uncle's receiving custody of the child at that time because, in his opinion, DHR had not yet "given [him] a chance" to regain custody of the child. The father stated that he was disabled due to back injuries sustained or aggravated in a traffic accident that had occurred on March 7, 2007. The father admitted that, due to his injuries, he is unable to sufficiently care for the child on his own, but he stated that he would have sufficient help from his family and his live-in girlfriend, E.R. The father stated that he was unemployed and that, at the time of the hearing, he had only worked five days in 2007 due to difficulty in finding a job and as a result of his injuries from the March 7, 2007, accident. He testified that the last time he had sufficient income to support himself and the child without aid from others was November 2006. The father stated that he would soon begin receiving Social Security disability benefits because of his injuries and that those benefits would total approximately $1,200 per month. The father claimed that his Social Security disability benefits, combined with the money earned by E.R. at her job and support from his family, would give him sufficient financial resources to support the child.

Fred Mays, a counselor licensed by the State of Alabama who owns and operates Mays Counseling in Anniston, testified at the hearing. Mays stated that he had personally conducted regular counseling sessions with the father. Mays's treatment notes, which were admitted into evidence, indicated that those counseling sessions dated back to at least September 11, 2006. Mays and his staff also supervised DHR-authorized visits that the father attended with the child after the child was adjudicated dependent on October 26, 2006. Mays explained that the father had confessed in counseling sessions to the use of "crack" cocaine, marijuana, methamphetamine, and other illegal or illegally obtained drugs during the time he was living with the mother but before the child's birth. Mays stated that during "a few" counseling sessions, one of which occurred in November 2006, the father's speech had been slurred. Mays stated that the father explained at least one of those occurrences as being attributable to his taking Valium prescribed by a doctor. Mays also stated that, given the father's substance-abuse history, he was concerned that the father was taking that medication.

The father told Mays that he had shoved the mother a few times and that he had been arrested for domestic violence on at least one occasion. Mays stated that he had been providing anger-management counseling to the father. At a counseling session conducted on December 7, 2006, the father informed Mays that he was unemployed and did not have a vehicle. Mays also stated that the father told him at that session that he was in favor of giving custody of the child to the aunt and uncle and that, at that time, the father was excited about a proposed standard schedule of visitation with the child.

Mays explained that the father had made significant progress in his visits with the child but that he had "a good ways to go" regarding his mental-health issues. Mays stated that the father had "always been cooperative" during his counseling sessions but that the father had had an inappropriate outburst at an individualized service plan ("ISP") meeting conducted with DHR in February 2007. Mays concluded that, based on his observations of the father, he did not think that an award of custody to the father would be appropriate.¹

Jennifer Edwards, a DHR employee and a former employee of Mays Counseling, testified that she supervised some of the visits that the father had had with the child that were conducted at Mays Counseling. Edwards testified that she was concerned about the father's ability to care for the child by himself. Edwards stated that during a November 17, 2006, visit with the child, the father exhibited erratic behavior. At that visit, the father was "stumbling around" and acting very tired. Edwards stated that she had been concerned that the father had low blood sugar or was under the influence of narcotics. Edwards administered a drug test to the father at that visit. Edwards testified that the father tested positive for methadone and Valium; according to the father's testimony, he has prescriptions for both of those medications.

Edwards testified that the November 17, 2006, visit was the only visit at which the father displayed erratic behavior. Edwards stated that in subsequent visits the father's interaction with the child improved and that he and the child had begun to bond. Edwards also stated that...