KB v. CLEBURNE COUNTY DEPT. OF HUMAN RES.

Citation897 So.2d 379
PartiesK.B. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES and intervenors, L.S. and A.S.
Decision Date01 October 2004
CourtAlabama Court of Civil Appeals

Joshua J. Lane, Anniston, for appellant.

Debra H. Jones, Anniston, for appellees/intervenors L.S. and A.S THOMPSON, Judge.

In February 2002, the Cleburne County Department of Human Resources ("DHR") removed A.C., T.N., and K.N. from the home of K.B. ("the mother") and J.B. ("the stepfather") based on allegations that the children had been left alone with a mentally retarded friend or relative who had physically abused them. At that time, A.C., a daughter, was 11 years old; T.N., a son, was 9 years old; and K.N., a daughter, was 5 years old. T.N. and K.N. are A.C.'s half siblings.1 The record indicates that DHR obtained custody of the children and placed the children in the home of A.S. and L.S., the children's maternal aunt and uncle; the aunt and uncle have a child of their own, a son ("the cousin"), who was approximately 8 years old at the time the children were placed with them. The record further indicates that the trial court adjudicated the children to be "dependent" within the meaning § 12-15-1(10), Ala.Code 1975.

In May 2002, the aunt and uncle simultaneously filed a motion for temporary custody of A.C. and a petition for custody of or, in the alternative, placement of A.C. The aunt and uncle did not seek custody of T.N. and K.N.; instead, they sought to be relieved of custody of T.N. and K.N. due to their characterization of those children as "special needs" children. The aunt and uncle alleged, among other things, that they had a "special relationship" with A.C., that A.C. had spent a significant amount of time with them during her lifetime, and that the mother was unfit to have custody of A.C.2 The mother filed a motion to dismiss the aunt and uncle's petition for custody. The mother alleged, among other things, that DHR intended to return all three children to her and that she was fit to have custody of A.C.

The record indicates that T.N. and K.N. were returned to the mother's home in May 2002 and that the trial court later transferred custody of T.N. and K.N. to the mother. The trial court entered an order on May 30, 2002, ordering that A.C. remain in the home of the aunt and uncle pending an emergency hearing to determine the temporary placement of A.C.

Over the next 18 1/2 months, the trial court held four hearings and ruled on a number of motions in this matter before entering a judgment on December 17, 2003, transferring custody of A.C. to the aunt and uncle. The record on appeal includes transcripts from hearings held on July 17, 2002, August 22, 2002, December 13, 2002, and September 5, 2003; the trial court received ore tenus evidence at all of the hearings except the August 22, 2002, hearing. The mother, the aunt and uncle, and DHR were represented by counsel at all of the hearings; A.C.'s guardian ad litem attended all of the hearings. A detailed recitation of the testimony offered at those hearings is not necessary or appropriate for the disposition of this appeal; however, we briefly summarize the most pertinent testimony below.

At the July 17, 2002, hearing, the following witnesses testified: A.C., A.C.'s father, DHR caseworker Lisa Camp, and the uncle. A.C. testified that she had spent a significant amount of time during her lifetime with the aunt and uncle and that she wanted to continue to live with them because they loved her and took good care of her. A.C. also testified that she did not get along with the mother, that she did not feel comfortable in the mother's home, that she was afraid of getting head lice in the mother's home, and that she did not want to visit with the mother under any circumstances.

A.C.'s father testified that he believed that the aunt and uncle's home was a good place for A.C. A.C.'s father also testified that the stepfather "pulls guns on the children"; the uncle testified that the stepfather was a "big issue." A.C.'s testimony indicated that the stepfather had acted somewhat abusively and violently in the past and that A.C. was afraid of the stepfather.

All the parties agreed to admit the report of Dr. David Wilson, a psychologist, into evidence. In that report, Dr. Wilson recommended that A.C. not be forced to live with the mother and opined that it was in A.C.'s best interests to remain in the home of the aunt and uncle at the present time.

DHR caseworker Lisa Camp testified that DHR's goal was to reunite all three children with the mother; however, she admitted on cross-examination that based on Dr. Wilson's report, DHR did not recommend that A.C. be returned to the mother at the time of the July 17, 2002, hearing. Camp further testified that although T.N. and K.N. initially did not want to return to live with the mother, they were presently "doing fine" in the mother's home. Camp also testified that she believed the aunt and uncle were alienating A.C. from the mother and that there had been problems arranging visitation between A.C. and the mother. The uncle agreed that there had been problems arranging visitation.

At the close of the July 17, 2002, hearing, the trial court orally entered an order continuing temporary placement of A.C. with the aunt and uncle; the trial court also admonished the aunt and uncle for failing to cooperate with DHR and advised them that their continued failure to do so could possibly result in A.C. being transferred to a foster home. The trial court also addressed with the mother the seriousness of the deterioration of the mother/daughter relationship and encouraged the mother to work with the psychologist to rebuild that relationship. The trial court ordered that visitation between A.C. and the mother be resumed gradually. The record indicates that DHR subsequently arranged weekly one-hour supervised-visitation sessions at their offices on Friday afternoons.

Counsel for all of the parties and the guardian ad litem updated the trial court regarding the status of the case at the August 22, 2002, hearing. The record indicates that most of the discussion at that hearing involved visitation issues and the necessity for counseling to help rebuild the shattered mother/daughter relationship. The record indicates that visitation had been occurring weekly at DHR's offices, and that, although DHR and the guardian ad litem believed the visitation sessions had been going well, the aunt and uncle believed that the visitation sessions had not been going well. On the same date as that hearing, the trial court entered an order that, among other things, continued temporary placement of A.C. with the aunt and uncle and ordered counseling to help rebuild the mother/daughter relationship.3 In September 2002, DHR filed a motion to be relieved of custody of A.C. In its motion, DHR alleged, among other things, that its reunification efforts regarding the mother and A.C. had been frustrated and that it believed A.C. would be "safe, and have her needs met" in the custody of either the mother or the aunt and uncle. The record also indicates that sometime before the December 13, 2002, hearing, the mother requested that the trial court remove A.C. from the aunt and uncle's home and place her in a different foster home in order to facilitate A.C.'s reunification with the mother.

The following witnesses testified at the December 13, 2002, hearing: Carol Windom, A.C.'s teacher; Dr. James Robert Reaves, Jr., A.C.'s therapist; Darlene Davis, a licensed counselor; A.C.; A.C.'s father; the mother; and other family members and friends. Carol Windom testified that she had known the aunt all of her life and that she and the aunt taught at the same school where Windom was currently A.C.'s teacher. Windom testified that A.C. was an excellent student. Windom's testimony indicated that she believed the aunt exhibited good parenting skills with A.C.

Dr. Reaves, A.C.'s therapist, testified that he had had 9 or 10 one-hour counseling sessions with A.C. Dr. Reaves opined that to remove A.C. from the aunt and uncle's home at the time of the December 13, 2002, hearing would be incredibly detrimental to A.C.'s health. Dr. Reaves testified that A.C. was extremely close to her cousin and that A.C. perceived her family unit to be the aunt and uncle and the cousin. Dr. Reaves further testified that A.C. had been traumatized by witnessing her previous stepfather's suicide, that A.C. was resentful of the way she perceived the mother had treated her over the years, that she was fearful of her current stepfather and fearful that the mother would not protect her from the stepfather. Although Dr. Reaves discussed parental alienation syndrome, he stated that he had not found any evidence that the aunt or uncle were alienating A.C. from the mother.

A.C. testified that she was 12 years old at the time of the December 13, 2002, hearing and that although she loved the mother she still did not want to visit with the mother. A.C. further testified that she was afraid of visiting with the mother at the mother's home because she was fearful of the stepfather and of being contaminated with head lice. A.C. also testified that she had been visiting with the mother and T.N. and K.N. on Friday afternoons at DHR. A.C. claimed that the mother had brought a friend to several of the visitation sessions and that the friend had hit her on one occasion; that friend testified later during the hearing and denied hitting A.C. On cross-examination by counsel for DHR, A.C. agreed the she would be willing to visit with the mother if the aunt and uncle were awarded custody of her and the "whole court thing" was over. A.C. confirmed that position when questioned by the trial court.

Both A.C.'s father and A.C.'s paternal grandfather testified that they believed the aunt and uncle's home was a good placement for A.C.; they requested that the trial court permit A.C. to remain in the aunt and uncle's home. The paternal aunt...

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