P.S. v. M.S.

• Decision Date: 27 July 2012
• Docket Number: 2110612,and 2110613.,2110611
• Citation: P.S. v. M.S., 101 So.3d 228 (Ala. Civ. App. 2012)
• Parties: P.S. v. M.S.
• Court: Alabama Court of Civil Appeals

101 So.3d 228

P.S.

v.M.S.

2110611, 2110612, and 2110613.

Court of Civil Appeals of Alabama.

July 27, 2012.

Benjamin J. Freeman, Dothan, for appellant.

Submitted on appellant's brief only.

THOMPSON, Presiding Judge.

P.S. (“the mother”) appeals dependency orders awarding custody of her three children to M.S. (“the maternal grandfather”).

On April 22, 2011, the maternal grandfather filed dependency petitions alleging that the mother was incarcerated and seeking custody of the mother's three children. The maternal grandfather testified during the hearing in this matter that he filed those petitions at the urging of a Department of Human Resources (“DHR”) social worker in order to prevent the children from being placed in foster care during the mother's incarceration. Also on April 22, 2011, the juvenile court entered orders placing the children in the custody of the maternal grandfather. Each of those orders specified that the mother receive supervised visitation, that she submit to a psychological evaluation, and that she cooperate with services offered by DHR.

The juvenile court conducted an ore tenus dependency hearing. On March 16, 2012, the juvenile court entered orders finding each of the children dependent and awarding custody of them to the maternal grandfather. The mother timely appealed.

Initially, we note that the maternal grandfather appeared pro se before the juvenile court. During the dependency hearing, the maternal grandfather indicated repeatedly that he did not know how to proceed in the dependency action and that he was having difficulty questioning the mother because he was unfamiliar with the process. The record contains no indication that the maternal grandfather requested the appointment of an attorney to represent him, nor does it reflect that the juvenile court informed him of his right to appointed counsel if he could not afford an attorney. See§ 12–15–305, Ala.Code 1975 (an attorney may be appointed to represent an indigent petitioner in a dependency action, and a child's legal custodian is entitled to appointed counsel if he or she is unable to afford an attorney). The juvenile court attempted to assist the maternal grandfather to some extent, and the evidence from the dependency hearing indicates the following.

When the children were placed in the maternal grandfather's custody, the mother, who was at the time living with the children in Dothan, had been arrested on charges of child endangerment and eluding law enforcement. It is undisputed that, at the time of the dependency hearing, the mother was no longer incarcerated. The mother testified that the charges had been “taken care of” and that she had paid a fine and was on probation.

After the children were placed in the maternal grandfather's custody, DHR offered the mother reunification services, including a psychological evaluation, counseling,and services through FOCUS.¹ The mother testified that she saw a Dr. Lopez at a DHR-recommended mental-health facility for approximately 10 to 15 minutes and that he did not perform any testing on her. The mother stated that she believed that visit with Dr. Lopez satisfied the requirement that she obtain a psychological evaluation. The mother stated that Dr. Lopez did not recommend that she take any medication and that he instead referred her to a counselor. According to the mother, she met with the counselor four times before she moved to Old Town, Florida, in mid to late January 2012.

The mother testified that she had been on the waiting list for FOCUS and had been told in January 2012 that she was the next on the list to receive services. However, the mother admitted that she chose to move to Florida rather than wait to participate in those reunification services.

The mother testified that a DHR social worker advised her to move closer to family members. The mother testified that she moved to Florida to live with her mother so that the maternal grandmother could assist her with the children. The mother presented evidence regarding the adequacy of the maternal grandmother's home for the children. However, at the dependency hearing, the mother testified that she did not intend to live with the maternal grandmother for long and that she was seeking her own residence.

The maternal grandfather testified that the mother had mental-health issues and that she was unemployed. The maternal grandfather was unable to elaborate on his allegations regarding the mother's mental illness, although he did state that the mother had informed him that she had bipolar disorder. The maternal grandfather stated that the children were a “handful” and that he believed the mother needed assistance with taking care of all three children. The maternal grandfather also testified that, when he took custody of the children, the oldest child was accustomed to taking care of the youngest child and that the oldest child told him she had to “do everything” to take care of the youngest child.

The maternal grandfather presented evidence indicating that he had divorced the maternal grandmother when the mother was very young and that he had received custody of the mother at that time because of conduct of the maternal grandmother. The maternal grandfather also testified that the maternal grandmother had mental-health issues and that she had been committed to a treatment facility at some point in the past.

The maternal grandfather also testified that the mother had not visited the children often while they were in his custody. He stated that he had not known the mother's whereabouts in the two months before the March 15, 2012, dependency hearing and that she would not provide the maternal grandfather her telephone number. The maternal grandfather stated that the mother had last visited the children at Christmas. The maternal grandfather testified that, before the Christmas visitation, the mother had last visited the children three to four months earlier. The maternal grandfather also stated that the mother did not bring the children any gifts during the Christmas visit. The mother testified that she had not visited the children more regularly because she was living in Florida and she was concerned about the reliability of her vehicle.

According to the maternal grandfather, the mother had called the children regularlywhen they were first placed in his home, but, he stated, the frequency of those calls had greatly diminished after a period and that the mother eventually called only once every two to three weeks. However, the maternal grandfather testified, the frequency of the mother's telephone calls to the children increased significantly in the weeks before the dependency hearing. The mother's testimony supports the maternal grandfather's testimony that the frequency and regularity of those telephone calls had greatly diminished; she stated that she used to call the children every day but that, later, she called only once a week.

The mother was not employed at the time of the dependency hearing, but she stated that she was looking for a job. The mother receives Social Security disability benefits, although she insisted at the dependency hearing that she did not know the reason she began receiving those benefits. The mother denied telling the maternal grandfather that she was receiving those disability benefits because she had bipolar disorder.

The maternal grandfather also expressed concern that the mother would again take the children to Mexico to live. The record contains little evidence regarding an incident in which the mother took the children to Mexico and returned to the United States without them. The maternal grandfather testified that he “fought hard” to obtain the return of the children from Mexico after they had been there for a period.

The mother first argues on appeal that the evidence did not support a finding that the children are dependent.

“ ‘Our standard of review of dependency determinations is well settled.

“ ‘ “A finding of dependency must be supported by clear and convincing evidence. § 12–15–65(f)[, Ala.Code 1975] ^[3]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court's ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep't of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep't of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).”

“ ‘J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004).’

“____________________

“ ³ The requirement that a finding of dependency must be supported by clear and convincing evidence before the dispositional phase of a dependency proceeding is now codified at § 12–15–311(a), Ala.Code 1975.”

J.L. v. W.E., 64 So.3d 631, 634 (Ala.Civ.App.2010) (quoting L.A.C. v. T.S.C., 8 So.3d 322, 326–27 (Ala.Civ.App.2008)).

The mother is correct that the reason cited in the initial dependency petition for declaring the children dependent was her incarceration and that, at the time of the dependency hearing, she was no longer incarcerated. Rather, at that time, the mother was on probation related to the charges on which she had been incarcerated. However, we conclude that other evidence supported the juvenile court's determination that the children were dependent.

The mother acknowledged some manner of mental-health history, but she denied telling the maternal grandfather that she had bipolar disorder. The mother denied knowing why she receives Social Security disability benefits. Further, she claimed to be unaware that in seeing Dr. Lopez for what the children's guardian ad litem characterized as a “medication check,” she was not complying with the requirement that she submit to a psychological evaluation.

Also, at approximately the same time she could have been offered...