P.M. v. Lee County Department of Human Resources

• Decision Date: 02 April 2021
• Docket Number: 2190735
• Citation: 335 So.3d 1163
• Parties: P.M. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES
• Court: Alabama Court of Civil Appeals

335 So.3d 1163

P.M.

v.LEE COUNTY DEPARTMENT OF HUMAN RESOURCES

2190735

Court of Civil Appeals of Alabama.

April 2, 2021

Mallory K. Harper, Montgomery, for appellant.

Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. att'y gen., Department of Human Resources, for appellee.

PER CURIAM.

P.M. ("the mother") is the mother of G.M. ("the child"), who was born in August 2015. In January 2016, the Lee County Department of Human Resources ("DHR") first became involved with the mother and the child when the mother was involved in a physical altercation with her older son, Ga.M. ("the son"). After that incident, the son and the mother's daughter, Gw.M. ("the daughter"), were placed in the custody of their father, C.M. Although the mother was married to C.M. at the time of the child's birth, the child's father was later determined to be B.C. ("the father").

A 2016 dependency petition filed by DHR in the Lee Juvenile Court ("the juvenile court") averred that the mother was clearly intoxicated at the time law-enforcement officers arrived at her home after receiving a domestic-violence report concerning the mother's altercation with the son. According to a January 15, 2016, judgment entered by the juvenile court, the mother admitted to the allegations in the petition, and the child was declared dependent and was placed in the legal custody of DHR; DHR placed the child in foster care with J.W. In February 2017, DHR returned the child to the custody of the mother, subject to its supervision for a period of three months. DHR concluded its initial involvement with the family in May 2017.

In August 2017, DHR again removed the child from the custody of the mother after the mother was involved in an automobile accident in the front yard of her house. The mother was injured, resulting in her being hospitalized and having to have hip-replacement surgery, and she was later arrested and charged with driving while under the influence of alcohol ("DUI"). DHR filed a second dependency petition regarding the child in September 2017. Two separate safety plans were implemented between August 2017 and December 2017, after which DHR placed the child in the custody of P.C. and J.C. ("the relative foster parents") in Georgia. The relative foster parents are the brother and sister-in-law of the father, who is incarcerated in a federal penitentiary in Mississippi.

In April 2018, the juvenile court again declared the child to be dependent. The juvenile court found in its judgment that, in August 2017, the mother had "left [the child] in the house alone late at night and was out driving drunk," that the mother was "so drunk that upon her return [home], she ran off the road, through the neighbors’ yards, and into her own house," resulting in a wreck that "collapsed the front end of her car, bent her steering wheel with her head, and crushed her hip." The juvenile court further noted that the mother had given differing stories about the occurrences of that night, including how much she had to drink, and stated that her "explanation [of the incident] is so implausible that it denies her almost any indicia of credibility and truthfulness."

The mother was found guilty of DUI in the Lee District Court in March 2018; it was the mother's third DUI conviction within a five-year period. She appealed that conviction to the Lee Circuit Court, and she was subsequently found guilty of DUI by a jury in July 2018 and was sentenced to one year in jail. The mother appealed that conviction to the Alabama Court of Criminal Appeals. She was incarcerated from July 30, 2018, to August 27, 2018, when she posted an appeal bond. During the pendency of the appeal in the Court of Criminal Appeals, the mother was released on bond; as a condition of her release, she was required to use an alcohol sensor.

The child remained in the custody of the relative foster parents pursuant to a border-care agreement, pending approval of their home under the Interstate Compact for the Placement of Children ("ICPC"), from December 2017 until September 26, 2018, when the ICPC process was terminated because the relative foster parents, who were not represented by counsel, decided to terminate the ICPC process in hopes of seeking legal custody of the child through the court system. DHR then placed the child back into foster care with J.W. Pursuant to an order entered by the juvenile court on October 4, 2018, the relative foster parents were awarded weekly visitation with the child from "Monday morning to Friday afternoon." The relative foster parents changed their position on the ICPC process, and the ICPC process was instituted again in November 2018. The ICPC process was completed and the relative foster parents’ home was approved in October 2019. In November 2019, the juvenile court awarded the relative foster parents physical custody of the child effective December 20, 2019; DHR retained legal custody. The mother's appeal to the Court of Criminal Appeals was unsuccessful, and she began her year-long jail sentence in November 2019.

In March 2020, DHR filed a petition in the juvenile court seeking to terminate the parental rights of the mother and of the father. After a trial, which was held over three days in May 2020, the juvenile court entered a judgment on June 10, 2020, terminating the parental rights of the mother and of the father.¹ The mother appeals.

The termination of parental rights is governed by Ala. Code 1975, § 12-15-319.² That statute reads, in part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[ ] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[ ] renders [him or her] 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 parent[ ]. In a hearing on a petition for termination of parental rights, the court shall consider the best interests of the child. In determining whether or not the parent[ ] [is] unable or unwilling to discharge [his or her] 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:

"....

"(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 the needs of the child.

"....

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

"....

"(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child where the parent is able to do so.

"....

"(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.

"(13) The existence of any significant emotional ties that have developed between the child and his or her current foster parent or parents, with additional consideration given to the following factors:

"a. The length of time that the child has lived in a stable and satisfactory environment.

"b. Whether severing the ties between the child and his or her current foster parent or parents is contrary to the best interest of the child.

"c. Whether the juvenile court has found at least one other ground for termination of parental rights."

The test a juvenile court must apply in an termination-of-parental-rights action is well settled:

"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. P.S. v. Jefferson Cnty. Dep't of Hum. Res., 143 So. 3d 792, 795 (Ala. Civ. App. 2013). "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) ). Although a juvenile court's factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct, K.P. v. Etowah Cnty. Dep't of Hum. Res., 43 So. 3d 602, 605 (Ala. Civ. App. 2010), "[t]his court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing." K.S.B. v. M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App. 2016). That is, this court

" ‘must ... look through ["the prism of the substantive evidentiary burden," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 [106 S.Ct. 2505, 91 L.Ed.2d 202] (1986),] to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would "produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion." ’ "

K.S.B., 219 So. 3d at 653 (quoting Ex parte McInish, 47 So. 3d...