P.H. v. Madison County Dept. of Human Res., 2040483.

• Decision Date: 17 February 2006
• Docket Number: 2040490.,2040483.
• Parties: P.H. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES. C.C. v. Madison County Department of Human Resources.
• Court: Alabama Court of Civil Appeals

937 So.2d 525

P.H. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.

C.C. v. Madison County Department of Human Resources.

2040483.

2040490.

Court of Civil Appeals of Alabama.

February 17, 2006.

Patrick O. Miller of Dick & Miller, P.C., Huntsville, for appellant P.H.

E. Patrick Hill, Huntsville, for appellant C.C.

Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellee.

PITTMAN, Judge.

In these consolidated appeals, P.H. ("the mother") and C.C. ("the father") appeal from the juvenile court's judgment terminating their parental rights to their nine-year-old daughter, C.L.C. ("the child"). We reverse the juvenile court's judgment as to the mother (case no. 2040483) and remand the cause for further proceedings, and we affirm that court's judgment as to the father (case no. 2040490).

The record indicates that in March 2001 the Madison County Department of Human Resources ("DHR") filed a dependency petition as to the child and her two half brothers after her half brothers accused the father of physically and sexually abusing the boys.¹ After DHR filed the petition, the half brothers were placed in the home of their maternal grandmother and the child soon began living in the home of her paternal grandmother. Although the record does not specifically indicate the ground for the child's removal from the parents' home, the juvenile court's judgment terminating the mother's and the father's parental rights does disclose some limited information concerning the child's removal. That judgment states, in pertinent part, the following:

"While the evidence is not clear and the facts not agreed upon by all, [the child] was removed when an allegation of physical abuse was investigated. The official version of the incident was that [the child] claimed that her parents had whipped her, and thus the physical abuse allegation coupled with the sexual abuse of the boys called for her removal. The report of the worker clearly stated that no marks were found on the child when the abuse allegations came to light."

In September 2001, after holding a hearing, the juvenile court adjudged the child and her half brothers to be dependent and placed them in DHR's custody. In that order, the juvenile court disapproved of the child's placement in the paternal grandmother's home and directed that the child be removed from her home and placed in foster care. That court also prohibited the mother from allowing the father unsupervised contact with the child and her half brothers and directed that the mother not allow the father to be present during any time that the child and her half brothers were at the mother's residence.

The record indicates that shortly after entering foster care the child began displaying significant behavioral problems, including oppositional behavior and enuresis, i.e., (bed-wetting). Although there may have been other problems related to at least 2 of the child's foster-care placements, the child's behavioral problems in large part prompted the child's placement in at least 5 different foster homes within 16 months. In the latter part of May 2003, DHR recommended that the child be reunited with her mother and provided for in-home parenting assistance by the Family Options organization. However, within two months of that placement, the child's case was assigned to a different juvenile-court judge, who ordered that the child be removed from the mother's home and placed in a therapeutic foster home.²

After the child reentered foster care, the child had to be moved to at least two more foster-care placements. The child's most recent move, which occurred after the child had remained in foster care for approximately three years, occurred just three days before the juvenile court held its first termination hearing in April 2004, one month after DHR had filed a petition to terminate the mother's and the father's parental rights. The juvenile court, after conducting hearings in April 2004 and October 2004, terminated the parental rights of the mother and the father in January 2005. Both parents filed postjudgment motions; those motions were denied by the juvenile court. Both parents appeal.

When a trial court's decision to terminate parental rights is based on evidence presented ore tenus, this court will presume that the judgment is factually correct, and we will reverse the trial court only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. M.H.J. v. State Dep't of Human Res., 785 So.2d 372, 375 (Ala.Civ.App.2000).

The statutory grounds upon which a court can order the termination of parental rights are set forth in Ala.Code 1975, § 26-18-7(a), which provides, in pertinent part, the following:

"(a) If the 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 is such as to render them unable to properly care for the child and that such 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, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

"(1) That the parents have abandoned the child, provided that in such 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 such duration or nature as to render the parent unable to care for [the] needs of the child.

"(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.

"(4) Conviction of and imprisonment for a felony.

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

"(6) 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.

"(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:

"....

"c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent....

"(8) That parental rights to a sibling of the child have been involuntarily terminated."

If a child is not in the physical custody of his or her parent, the trial court "shall also consider such circumstances as whether the parents have provided material needs for the [child], whether the parents have maintained regular, scheduled visits with the [child] and whether the parents have adjusted their circumstances to meet the needs of the [child] according to agreements reached administratively or judicially." L.G. v. State Dep't of Human Res., 603 So.2d 1100, 1101-02 (Ala.Civ.App. 1992); see also Ala.Code 1975, § 26-18-7(b).

In cases such as this, where a nonparent is the petitioner, the trial court's determination is governed by the principles set forth in Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990):

"The two-prong test that a court must apply in a parental rights termination case ... consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. (... [I]f a nonparent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)"

The best interests of the child lie "at the heart of every proceeding to terminate parental rights." L.G., 603 So.2d at 1101.

The Mother (case no. 2040483)

The mother contends that DHR failed to prove by clear and convincing evidence that no viable alternatives existed to the termination of her parental rights. Although we are aware of the presumption accorded a trial court's judgment when it has heard evidence ore tenus, after reviewing the record in this case, we are compelled to conclude that the decision of the juvenile court to terminate the mother's parental rights is not supported by clear and convincing evidence.

The record indicates that the mother, who is herself a former foster child, has been diagnosed as having a full-scale intelligence quotient (IQ) of 80 and is classified as being in the borderline range of intellectual functioning. Although the mother dropped out of high school in the eighth grade, it appears that she worked for quite some time at a pizzeria restaurant until March 2004, shortly after DHR filed its termination petition. At that time, the mother obtained employment as a lab technician making dentures at a dental laboratory. Although the mother previously had been required to work nights and weekends at the restaurant, the mother's new employment allowed her to work during the weekdays. In addition, the mother received primary health-care benefits as a part of her compensation package. The record reflects that by October 2004 the mother had maintained her new employment as a lab technician for approximately seven months. In addition, s...