Y.N. v. Jefferson County Dep't of Human Res..

• Decision Date: 14 January 2011
• Docket Number: 2090832.
• Citation: 67 So.3d 76
• Parties: Y.N.v.JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

67 So.3d 76

Y.N.

v.JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.

2090832.

Court of Civil Appeals of Alabama.

Jan. 14, 2011.

Harry A. Drasutis, Birmingham, for appellant.Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appellee.THOMPSON, Presiding Judge.

This is the second time this matter has been before this court. In Y.N. v. Jefferson County Department of Human Resources, 37 So.3d 836, 837–38 (Ala.Civ.App.2009), this court set forth the procedural history and facts of this matter as follows:

“On December 13, 2007, the Jefferson County Department of Human Resources (‘DHR’) filed complaints alleging that B.N. and W.N. III (hereinafter together referred to as ‘the children’) were dependent children. The dependency complaints alleged that the children's parents, Y.N. (‘the mother’) and W.N., Jr. (‘the father’), were abusing drugs and that the children were not adequately supervised. On December 14, 2007, the juvenile court entered orders finding the children dependent and placing them in the pendente lite custody of K.F., a cousin of the children. The record indicates that the mother and the father were ordered to submit to substance-abuse assessments and psychological evaluations, to submit to random drug tests, and to obtain and maintain stable housing and employment as requirements for family reunification. Both parents were awarded visitation with the children.

“Subsequently entered review orders indicate that the parents were ordered to comply with the recommendations resulting from the substance-abuse assessments, which included treatment for substance-abuse problems. The record indicates that the parents did not comply with the reunification requirements.

“Pursuant to review orders entered in April 2008, pendente lite custody of the children was changed to place them in the pendente lite custody of K.F. and his mother, S.F. References in the record, including statements in a DHR court report, indicate that the children spent a great deal of time with S.F. The record indicates that K.F. and S.F. have residences on the same street.

“Review orders entered with regard to each child on August 21, 2008, specified that the permanency plan for the children was ‘permanent relative placement with transfer of custody to the relative.’ At that time, the children remained in the pendente lite custody of K.F. and S.F. The reunification requirements for the parents remained the same, i.e., submitting to random drug testing, undergoing substance-abuse treatment, and maintaining stable housing and employment. Pursuant to orders entered on December 23, 2008, each parent was ordered to pay child support for the benefit of the children.

“On March 11, 2009, the juvenile court entered orders in which it, among other things, suspended the parents' rights to visitation with the children pending a further order of the court; the record does not indicate the reason that the parents' visitation was suspended. The March 11, 2009, orders indicate that the children's cases were scheduled for an April 9, 2009, ‘review hearing.’

“The record contains the transcript of the April 9, 2009, hearing. The mother was present at the hearing, but the father was not. No testimony was taken at that hearing, but a number of representations and arguments were made by the parties' attorneys, the children's guardian ad litem, and the custodians' attorney. After that hearing, on April 11, 2009, the juvenile court, over the objection of the mother, entered orders awarding custody of the children to K.F. and S.F. and closing the cases. The April 11, 2009, orders specified that the parents have no contact or visitation with the children. The mother timely appealed, challenging those parts of the April 11, 2009, orders that denied her the right to visitation with the children.

“During the hearing before the juvenile court, the arguments of the attorneys indicated that the mother had failed to submit to random drug testing and that she had failed to visit the children. The attorneys' representations indicated that the mother had repeatedly promised to visit the children, but had failed to do so, and that that conduct had had a negative effect on the children. Based on the oral arguments of counsel, the juvenile court, over the objection of the mother, determined the children to be dependent, awarded custody to K.F. and S.F., and denied the mother visitation rights. In doing so, the juvenile court noted that the mother could file a modification petition when she improved her circumstances.”

(Footnotes omitted.) This court concluded that the juvenile court had erred in reaching its dispositional judgment by relying on the representations of counsel and by failing to base its decision on a consideration of evidence. Y.N. v. Jefferson County Dep't of Human Res., 37 So.3d at 838. Accordingly, this court reversed the judgment and remanded the case for the juvenile court to conduct an evidentiary hearing. Id.

On remand, the juvenile court conducted an ore tenus hearing, and, on April 29, 2010, it entered the following judgment:

“After considering the sworn testimony and all exhibits that were properly admitted, the Court finds the following facts:

“These cases were initiated by the filing of a dependency petition by [the Jefferson County Department of Human Resources (‘DHR’) ] on December 13, 2007. By agreement of all parties and attorneys, these children were found dependent on December 14, 2007, and placed in the legal custody of a relative on the same day. That since the finding of dependency the parents have been under the same court orders (submit to a psychological evaluation and participate in suggested treatment plan; submit to substance abuse assessment and comply with recommendations; obtain and maintain housing and employment; successfully complete parenting skills class). On December 17, 2008, the father was ordered to pay $560 per month as per court orders in a separate child support case and the mother was ordered to pay $125 per month beginning January 1, 2009.

“The mother and the father were awarded supervised visitation on December 14, 2007, with their minor children to be supervised by DHR or its designee. That due to the parents' promise to visit with their children and failing to show up and causing both children detriment; including but not limited to, [W.N. III] having developed suicidal thoughts and having to be subjected to a suicidal evaluation, and both children having to attend counseling to deal with their feelings, that on March 10, 2009, this Court suspended the parents' visitation until further order of the court. That after having suspended the visitation, the children were able to process their feelings more, began to do better in school, were not upset anymore, and their behavior began improving in the custodians' home. Furthermore, counseling for the children was stopped as the suicidal thoughts of [W.N. III] had stopped and the progress in the behaviors of both [B.N.] and [W.N. III] had improved. Recently, [W.N. III] has had to return to counseling due to his anxiety [as to] the upcoming court dates. His counselor, Chris Litton Psy.D., has reported that [W.N. III] ‘has extreme anxiety regarding his biological mother.’

“DHR [social worker Waynette Smith] reports that as of the date of this hearing, she has not heard from the mother and/or father in more than a year. That the telephone number supplied to the social worker was not working and that the parents did not offer new numbers or addresses. That the psychological evaluation and substance abuse assessments suggested both parents randomly drug screen and should any screen turn up positive, then the parents shall enter inpatient treatment. That should they test clean, parents should attend outpatient treatment. Furthermore, the parents should attend [Narcotics Anonymous/Alcoholics Anonymous] meetings; attend individual counseling; six (6) months of sobriety; parenting classes; and maintain housing and employment. [Smith] testified that both parents had submitted to approximately three (3) drug screens, the last being in September of 2008, and that each parent had at least one positive screen during that time. That [Smith] has been on this case since at least February 2007, and that the parents have made no attempts to call her in the past year. [Smith] has no knowledge or verification of the parents' home or employment due to her inability to make contact with the parents.

“[S.F.] reports that children are doing well despite their anxiety and that [W.N. III] is back in counseling. She further reports that she has received no child support from the parents.

“In consideration of all facts, the Court Orders and Decrees as follows:

“1. The Court notes the previous order duly entered, finding the above named children to be dependent on December 14, 2007.

“2. That custody of [B.N.] and [W.N. III] shall remain vested in [K.F.] and [S.F.].

“3. That the Mother and Father shall:

“a. Participate in the suggested treatment plan as defined in their individual psychological evaluations;

“b. Comply with recommendations for treatment as directed in their individual substance abuse assessments;

“c. Submit to random drug screens at a program such as TASC on the color ‘peach’;

“d. Obtain and maintain suitable and stable housing and employment;

“e. Successfully complete a parenting skills class;

“....

“4. The Court finds that placement of the above-mentioned children with their parents would be contrary to said children's welfare and interests as the parents have not complied with court orders, have failed to show their sobriety, and have failed to change their lifestyle.

“5. The Court finds that reasonable efforts have been made to reunite said children with family and that such efforts at reunification have not failed as the children are placed with relative placement.

“6. That visitation for the...