P.S. v. Jefferson Cnty. Dep't of Human Res.

• Decision Date: 15 November 2013
• Docket Number: 2111222.
• Citation: 143 So.3d 792
• Parties: P.S. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

143 So.3d 792

P.S.

v.JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.

2111222.

Court of Civil Appeals of Alabama.

June 28, 2013.

Certiorari Quashed Nov. 15, 2013

Alabama Supreme Court 1121180.

Keith E. Brashier of Gregory, Burns & Brashier, LLC, Birmingham, for appellant.

Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua G. Lane, asst. atty. gen., Department of Human Resources, for appellee.

THOMAS, Judge.

P.S. (“the mother”) appeals the judgment of the Jefferson Juvenile Court terminating her parental rights to M.S. (“the child”) on August 23, 2012.¹ We reverse the judgment and remand the cause for further proceedings consistent with this opinion.

In 2008, the Jefferson County Department of Human Resources (“DHR”) became involved with the mother, and she lost custody of her two older children, R.O. and K.F. (sometimes referred to collectively as “the siblings”), after DHR initiated dependency proceedings relating to the siblings.² DHR reported that the mother had failed to protect the siblings when the mother's then boyfriend hit K.F. with a belt, leaving severe bruises on his legs, arms, face, and back. In 2011, DHR became aware that the mother was pregnant with the child. It had “an alert” sent to the University of Alabama at Birmingham Hospital for it to inform DHR when the mother gave birth to the child. The child was born on April 19, 2011.

On April 22, 2011, DHR filed a complaint in the juvenile court, alleging that the child was dependent. DHR reported that the mother had “failed to inform her DHR worker that she was pregnant,” that her “past issues suggest she will not be able to properly care for the child,” and that the mother had lost custody of the siblings. The juvenile court issued a pickup order on April 22, 2011, and, that same day, DHR took custody of the child.

A shelter-care hearing was held on April 25, 2011, and, in an order signed by Judge W. Alan Summers that same day, custody of the child was awarded to the child's maternal great-aunt and supervised visitation was awarded to the mother. The order included a specific finding that reasonable efforts to prevent the removal of the child from the mother had been unsuccessful. Those efforts were described as “investigation of allegations; in-home services; counseling; relative resources; [and] home evaluation.”

An order signed by Judge Elise Barclay indicates that a “preliminary hearing” was held June 1, 2011. The mother and her attorney were present. Apparently DHR and the mother submitted a “memorandum agreement” regarding the child and R.O.³ The memorandum agreement is not included in the record on appeal. The child was again adjudicated dependent, and he remained in the custody of his maternal great-aunt. The mother retained a right to supervised visitation, and she was required to participate in counseling, to complete a parenting-skills class, and to obtain stable housing and employment. According to DHR, the child's maternal great-aunt relinquished custody of the child to DHR on June 27, 2011.

A dispositional hearing was held on September 14, 2011, regarding the child and the siblings. An order signed by Judge Barclay and dated September 14, 2011, indicates that the child remained dependent and that the mother retained her right to supervised visitation with the child. In that same order, DHR was relieved of the responsibility to make reasonable efforts to reunite the child with the mother. At that time the child was five months old.

On November 18, 2011, DHR filed a petition seeking the termination of the mother's parental rights to the child. At that time the child had been in foster care for less than five months. DHR asserted that the mother had failed to provide for the material needs of the child, to obtain and maintain stable housing and employment, to attend parenting classes, or to visit the child.⁴ DHR further asserted that the mother's parental rights should be terminated because the child was dependent, the mother was not a fit and suitable parent, DHR had made reasonable efforts to reunite the mother and the child, which were unsuccessful, and no viable alternatives to the termination of the mother's parental rights existed.

On February 28, 2012, a permanency hearing was held by Judge Sandra Storm. ⁵ An order dated February 28, 2012, indicates that the mother was required to participate in counseling, to complete parenting classes, and to obtain or maintain suitable housing and employment. The order specifically notes that “DHR was relieved of Reasonable Efforts on Sept. 15, 2011[,] due to lack of cooperation and progress with the [Individualized Service Plan] process.” The permanency plan for the child was “permanent relative placement” or “adoption with no identified resource”; the order indicates that the child's foster parents did not intend to pursue adoption. The mother retained a right to supervised visitation and was not required to pay child support.

The termination-of-parental-rights trial was held on June 19, 2012. On August 23, 2012, the juvenile court entered a judgment terminating the mother's parental rights. The judgment reads, in pertinent part:

“The court does find, pursuant to Title 12–15–319, Code of Alabama, 1975, that [the mother is] unable to discharge [he]r responsibilities to and for the child[ ]; that the conduct and condition of [the mother is] such as to render [her] unable to properly care for the child, and that such conduct and condition [is] unlikely to change in the foreseeable future.

“[The mother has] failed to adjust [her] circumstances to meet the child's needs, pursuant to Title 12–15–319, Code of Alabama, 1975 and Title 12–15–301, Code of Alabama, 1975.

“The court also finds that there are no suitable relative resources willing or able to receive custody of the child[ ]. The court finds there is no viable alternative to termination of parental rights in this case.”

The mother filed a motion to alter, amend, or vacate the judgment on August 28, 2012, arguing that DHR had not provided clear and convincing evidence demonstrating that the mother's parental rights should be terminated or that maintaining the status quo was not a viable alternative; she also argued that the date of the trial was incorrectly stated in the judgment. On August 29, 2012, the juvenile court rendered an order granting the mother's postjudgment motion in part by correcting the date of the trial; in all other respects, it denied the mother's motion. The order was not entered on the State Judicial Information System (“SJIS”) Case Detail Sheet. The mother filed an amended postjudgment motion seeking the termination of her parental responsibilities on September 6, 2012.⁶ The juvenile court rendered an order denying the mother's amended postjudgment motion on September 11, 2012; that order was not entered in SJIS. The mother filed a notice of appeal on September 10, 2012.

The juvenile court's orders on the mother's postjudgment motions were not entered in SJIS as required by Rule 58(c), Ala. R. Civ. P. SeeRule 1(A), Ala. R. Juv. P. However, because the juvenile court had timely rendered its orders pursuant to Rule 58(a)(1)-(4), Ala. R. Civ. P., the orders on the mother's postjudgment motions were not denied by operation of law on the 14th day after their filing. See Committee Comments to the Amendment to Rule 59.1, Ala. R. Civ. P., effective October 24, 2008. On remand from this court, the juvenile-court clerk entered the August 29, 2012, and the September 6, 2012, postjudgment orders in SJIS. The mother's appeal became effective when the juvenile-court clerk entered the rulings in SJIS on May 22, 2013. SeeRule 4(a)(4), Ala. R.App. P. (“A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the date thereof.”).

The mother seeks our review of two issues: whether the juvenile court's findings of fact are supported by clear and convincing evidence and whether the juvenile court failed to consider a continuation of the status quo as a viable alternative to the termination of the mother's parental rights to the child.

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)).⁷

At the termination-of-parental-rights trial, the mother testified that she had completed a parenting class in 2009, that she had submitted to a psychological evaluation, and that she had maintained housing for three years in an apartment provided by “the government.” The mother said that she had participated in, but had never completed, counseling. She admitted that she did not provide support for the child, and she testified that she did not have any income because she was not able to obtain employment. According to the mother, she could not work because she was disabled.⁸ The mother admitted that she had not informed DHR that she was pregnant with the child, but she testified that she had been unaware that she was pregnant because symptoms of a severe abdominal herniahad masked the signs of pregnancy. The mother further testified that until March 2012 she had visited the child twice a month, but she admitted that she had not visited the child since that time. According to the mother she had not exercised her supervised visitation with the child because the telephone number and address for DHR had changed and she did not have DHR's contact information.

Heather Shugart, a DHR employee, testified that DHR had...