Montgomery Cnty. Dep't of Human Res. v. A.S.N.

• Decision Date: 15 April 2016
• Docket Number: 2140891.
• Parties: MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES v. A.S.N. and J.E.C.
• Court: Alabama Court of Civil Appeals

206 So.3d 661

MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES

v.A.S.N. and J.E.C.

2140891.

Court of Civil Appeals of Alabama.

April 15, 2016.

Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellant.

Juliana Taylor, Montgomery, for appellee A.S.N.

Joshua B. James, Montgomery, for appellee J.E.C.

THOMAS, Judge.

In July 2011, the Montgomery County Department of Human Resources ("DHR") obtained custody of T.C., J.N., and A.C. (hereinafter referred to collectively as "the children") after T.C., who was two weeks old at that time, was admitted to Children's Hospital of Alabama ("Children's Hospital") for treatment for a skull fracture

and an oblique fracture of the his left femur.¹ A.S.N. ("the mother") reported that she had left T.C. in the middle of the bed while she went to the bathroom; she surmised that T.C. might have been injured when J.N., who was then two years old, jumped on the bed. J.E.C.² ("the father") was not in the home when the injuries occurred. Although T.C. was injured on a Wednesday, the mother did not take T.C. to see a physician until Friday because, she reported, she lacked transportation. DHR conducted a child-abuse-and-neglect ("CA/N") investigation, which resulted in a finding of "indicated" against the parents for inadequate supervision. See Ala.Code 1975, § 26–14–8(a)(1). The children were found dependent in October 2011.

On October 28, 2012, DHR filed petitions in the Montgomery Juvenile Court ("the juvenile court") to terminate the parental rights of the parents to the children.³ DHR amended those petitions to assert abandonment as a ground for termination of the father's parental rights in June 2014. For reasons unclear from the record, the termination-of-parental-rights trial was not held until February 5, 2015, over two years after the petitions were initially filed.⁴ After the trial, at which the parents failed to appear, the juvenile court entered an identical judgment in each case on July 9, 2015.⁵ In those judgments, the juvenile court declined to terminate the parental rights of the parents.

DHR timely appealed. On appeal, DHR seeks our review of whether the juvenile court's judgments declining to terminate the parents' parental rights are plainly and palpably wrong or unsupported by the evidence. After careful consideration of the entire record, we reverse the judgments and remand the cause with instructions to the juvenile court to enter judgments terminating the parental rights of both the mother and the father to the children.

"A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)."

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court's judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep't of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). "Clear and convincing evidence" is " ‘[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ " L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6–11–20(b)(4) ). "[A juvenile] court's decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong." Ex parte State Dep't of Human Res., 624 So.2d 589, 593 (Ala.1993). Put another way, "the [juvenile] court's determination on these matters is presumed correct on appeal, and we will not reverse absent a determination that the judgment of the [juvenile] court is so unsupported by the evidence as to be plainly and palpably wrong." H.M.W. v. Mobile Cty. Dep't of Human Res., 631 So.2d 1049, 1050 (Ala.Civ.App.1993).

The termination of parental rights is governed by Ala.Code 1975, § 12–15–319. That statute reads, in part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:

"(1) That the parents have abandoned the child, provided that in these cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.

"(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.

"....

"(6) Unexplained serious physical injury to the child under those circumstances as would indicate that the injuries resulted from the intentional conduct or willful neglect of the parent.

"(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.

"....

"(10) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources, or any public or licensed private child care agency, and agreed to by the parent.

"(11) Failure by the parents to maintain consistent contact or communication with the child.

"(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review."

DHR presented the testimony of three witnesses at the trial: LaToya Harrell, the DHR caseworker assigned to the family; S.C., the foster parent of T.C.; and A.M.L., the former foster parent of J.N. and A.C. The testimony of A.M.L. and S.C. was brief. A.M.L. testified that she desired to again serve as a foster or adoptive parent to J.N. and A.C.; she said that J.N. had developed some behavioral problems, which, she said, had been addressed with medication and therapy. S.C. testified that T.C. required special care for autoimmune neutropenia

and that he had frequent medical appointments to address his injuries and his autoimmune disorder, including at least two appointments per month at Children's Hospital. S.C. also testified that the parents had not attended any of T.C.'s doctor's appointments or surgeries. He further testified that T.C. visited with J.N. and A.C. regularly and that he intended to continue to foster a relationship between T.C. and his siblings.

Harrell testified at much greater length regarding DHR's efforts to rehabilitate the parents. She testified that the children first came into DHR's care because of T.C.'s injuries. She explained that the parents were not charged with abusing T.C. but that, as a result of the C/AN investigation, they had been found "indicated" for inadequate supervision of the children. See § 26–14–8(a)(1). Harrell said that DHR had provided several services to the parents, including random drug testing, referral to drug-treatment programs, "FOCUS" services to aid in reuniting the family, parenting classes, transportation to visitation, and visitation with the children. She explained that the initial individualized service plan ("ISP") for the parents required them to seek drug assessment and treatment, to complete parenting classes, to find and maintain employment, to secure stable housing, and to undergo a domestic-violence assessment.

According to Harrell, the parents last visited with T.C. in September 2013, and they last visited with J.N. and A.C. in April 2014. The August 22, 2012, ISP indicates that the parents' visitation with the children was suspended in August 2012 because of the parents' noncompliance with their drug screens; none of ISPs from the following months indicate when the parents' visitation rights were reinstated, but the February 13, 2014, ISP indicates that visitation with the children would "continue" on certain days and times, indicating that visitation had resumed.⁶ Although the ISPs contained in the record reflect that DHR had undertaken to provide transportation to the parents to visitations with the children beginning in October 2011, Harrell testified that DHR had stopped providing the parents transportation to visitations "around March of 2012" because the parents had missed several recent visits; the April 18, 2012, ISP contained in the record indicates that transportation services for visitations were actually terminated on April 18, 2012.⁷ According to Harrell, DHR terminated transportation services for the parents because the parents were not availing themselves of the services as indicated by three consecutive missed visits and because of a shortage of case aides available to provide transportation.

In addition, although Harrell did not testify to this fact, the ISP dated April 18, 2012, added as a goal for the parents securing "access to reliable transportation." The ISP states specifically that the goal was added because of the parents' transportation difficulties and indicates that "[r]eliable transportation...