KW v. JG
| Decision Date | 07 March 2003 |
| Citation | 856 So.2d 859 |
| Parties | K.W. v. J.G. and D.G. and State Department of Human Resources. (In the Matter of D.W.). |
| Court | Alabama Court of Civil Appeals |
Kenneth J. Lay and Helen Ball, Legal Services of Metro Birmingham, Inc., Birmingham, for appellant.
William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., for appellee Department of Human Resources. W. Davis Lawley, Jr., Birmingham, for appellees J.G. and D.G.
K.W. ("the mother") appeals the termination of her parental rights to her son, D.W. ("the child"). In its termination judgment, the trial court also terminated the parental rights of E.G. and L.S., two men who were named by the mother as possible fathers of the child. The trial court also terminated the parental rights of any unknown father of the child.
We note that much of the factual history of this case is derived from a series of reports (hereinafter "court reports" or "DHR court reports") prepared by the Department of Human Resources ("DHR") and submitted to the trial court; those court reports were admitted into evidence during the termination hearing, which took place on March 28 and 29, 2002. Much of the witnesses' testimony at the termination hearing was based on those court reports. The court reports were admitted into evidence without any objection, and the parties referenced various facts in the court reports in support of their positions. On appeal, the mother has contended that the trial court's reliance on those court reports deprived her of her due-process rights. As will be discussed later in this opinion, given the facts of this case, we find the mother's argument on this issue to be without merit; therefore, we have referenced those court reports in setting forth the facts and procedural history of this case.
The record indicates that on May 27, 1998, W.P. and M.P., the parents of E.G., filed a petition seeking to have the child declared dependent and seeking custody of the child. In their petition, W.P. and M.P. alleged that the child had lived with them since his birth in June 1997 and that the mother had agreed to let them raise the child. The record indicates that before the child was born, the mother signed documents evidencing her intention to allow W.P. and M.P. to adopt the child; those documents were never formally acted upon, apparently because the mother changed her mind about the adoption when the child was born. In response to W.P. and M.P.'s petition, the mother moved for custody of the child.
It appears that the child remained in the custody of W.P. and M.P. until the trial court conducted a hearing on January 25, 1999. At that hearing, custody of the child was restored to the mother, and the child left the courthouse with the mother. The morning after that order was entered, however, the child, who was one and a half at that time, was found alone on W.P. and M.P.'s doorstep; the mother maintained that E.G. had taken the child from her at gunpoint the night before.
As a result of that incident, DHR filed a new dependency petition, and the child was taken into protective custody and placed in a foster home. W.P. and M.P. moved to intervene in the dependency action that had been initiated by DHR; that motion was denied. The child has remained in DHR's custody in foster care since January 26, 1999. The child spent approximately three weeks in his first foster home, and he was then transferred to the home of J.G. and D.G., who were the child's foster parents at the time of the March 2002 termination hearing.
The trial court granted numerous continuances in the scheduling of the hearing of DHR's January 1999 dependency petition. During that time, W.P. and M.P. and the mother had weekly supervised visitation with the child.
Also, in between DHR's filing its dependency petition and the trial court's hearing on that petition, DHR continued to submit court reports. The DHR court reports dating from September 1998 all indicate that DHR social workers were concerned because the child did not seem to have a bond with or emotional attachment to the mother. An October 8, 1998, court report indicated that the mother was employed and raising another child, a daughter. The mother had graduated from high school and was attending a college nursing program. The report concluded that the mother's home was an appropriate placement for the child.
A court report dated September, 2, 1999,1 indicates that the child was doing well in his foster home; that the mother had "missed several of the visits for various reasons"; and that the social workers were still concerned that the child had not bonded with the mother. DHR recommended that the mother attend parenting classes, counseling, and that she complete a psychological evaluation.
The December 16, 1999, court report states that the mother had asked that visitation times or the times for meetings to develop Individualized Service Plans ("ISPs") be changed to accommodate her schedule. It also indicated that the mother had on occasion failed to visit the child or had been late to the scheduled visitations and that she had been rude to the child's foster parents. The report also indicates that as requested in the September court report the mother had completed a psychological evaluation. The report noted that the child did not seem to be emotionally attached to the mother.
The first court hearing on DHR's dependency petition was conducted on April 13, 2000. On that same date, the trial court entered a dependency order.2 The trial court's April 13, 2000, order, which was based upon an agreement by the parties, provided that the mother would have weekly, supervised visitation with the child; that she maintain stable housing and employment; that she obtain counseling; and that she cooperate with DHR and all other service providers. The trial court also ordered the mother to submit to a drug test; the results of that test were negative. In its April 13, 2000, order, the trial court also granted W.P. and M.P. visitation with the child. We note that in March 2001, the trial court consolidated the dependency action W.P. and M.P. had filed with the action filed by DHR.
In an October 18, 2000, order, the trial court, among other things, terminated W.P. and M.P.'s visitation with the child and ordered that the mother's supervised visitation continue. It does not appear from the record on appeal that W.P. and M.P. took any further action with regard to this case. They did not testify at the termination hearing, and they are not parties to this appeal.
On December 15, 2000, the child's foster parents, J.G. and D.G. ("the foster parents"), filed a petition seeking to terminate the mother's parental rights so they could adopt the child. The foster parents later moved the trial court to compel DHR to join their petition to terminate the mother's parental rights. On April 10, 2001, the trial court entered an order noting that DHR had elected not to join the petition. DHR ultimately joined the petition to terminate the mother's parental rights in December 2001. At the March 2002, termination hearing, the foster parents modified their petition to state that they wanted the mother's parental rights terminated, but that they were not asking to adopt the child. The foster parents' attorney stated that the foster parents were "doing that to preserve any funding for the child regarding federal legislation in the future."
We note that throughout the trial of this matter, the trial court stated repeatedly that if there was a conflict between the oral testimony and the written documentation submitted into evidence, the trial court would rely on the accuracy of the written documentation in resolving those conflicts. Neither party objected to the trial court's decision with regard to the manner in which it would resolve conflicts in the evidence. In fact, during the course of the termination hearing, each party objected to certain evidence presented by the other on the basis that the documentary evidence was more reliable.
Brandon Hardin, who had been a social worker for two years at the time of the termination hearing, testified on behalf of DHR. He also submitted a court report, dated February 26, 2002, that summarized in chronological order the facts as set forth in the DHR court reports. The February 26, 2002, court report also contains certain highlighted sentences, many of which are the same as those highlighted in the some earlier court reports, and it contains a summary of the mother's visitations with the child. In that report, Hardin stated that because of "missed visits," DHR had elected to join the foster parents' petition to terminate the mother's parental rights. The record indicates that the trial court relied to a great extent on that February 26, 2002, court report in reaching its judgment.
Hardin had taken over this case as its social worker on August 25, 2000. At the March 2002 termination hearing, Hardin testified that when he first became the social worker for this case in August 2000, DHR's plan was to reunify the mother and the child. The mother has maintained stable housing since DHR has been monitoring her progress. Although she changed jobs several times, the mother has been consistently employed throughout the pendency of this matter; all of the DHR court reports indicate that Hardin or the earlier social workers were aware of the mother's various jobs and the names of her employers. Hardin testified at trial, however, that he had asked the mother for income verification but that she had not provided it.
Hardin testified that the mother has made only one child-support payment of $40 or $50 while the child has been in foster care. Although the mother was never ordered to pay child support, the record establishes that, although not a proper substitute for paying child support, the mother has established a savings account for the...
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