S.J. v. Jackson Cnty. Dep't of Human Res.

• Decision Date: 13 September 2019
• Docket Number: 2180313,2180312
• Citation: 294 So.3d 804
• Parties: S.J. v. JACKSON COUNTY DEPARTMENT OF HUMAN RESOURCES
• Court: Alabama Court of Civil Appeals

294 So.3d 804

S.J.

v.JACKSON COUNTY DEPARTMENT OF HUMAN RESOURCES

2180312

2180313

Court of Civil Appeals of Alabama.

September 13, 2019

Payton Edmiston of Edmiston Law Office, Scottsboro, for appellant.

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

MOORE, Judge.

In appeal number 2180312, S.J. ("the mother") appeals from a judgment entered by the Jackson Juvenile Court ("the juvenile court"), in case number JU-09-274.05, terminating her parental rights to M.F., whose date of birth is November 25, 2001. In appeal number 2180313, the mother appeals from a separate, but almost identical, judgment entered by the juvenile court, in case number JU-14-91.03, terminating her parental rights to L.F., whose date of birth is July 13, 2011. We affirm the juvenile court's judgments.

Procedural History

On November 3, 2017, the Jackson County Department of Human Resources ("DHR") filed separate petitions to terminate the parental rights of the mother to M.F. and L.F. ("the children").¹ After a trial on November 27, 2018, the juvenile court entered separate judgments on December 27, 2018, terminating the mother's parental rights to the children. On January 9, 2019, the mother filed a single notice of appeal, referencing both case number JU-09-274.05 and case number JU-14-91.03.

Standard of Review

A judgment terminating parental rights must be supported by clear and convincing evidence, which 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." ’ "

C.O. v. Jefferson Cty. Dep't of Human Res., 206 So. 3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6–11–20(b)(4) ).

" ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.’

" KGS Steel[, Inc. v. McInish,] 47 So. 3d [749] at 761 [ (Ala. Civ. App. 2006) ].

"... [F]or trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented 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) ]; thus, the appellate court must also look through a prism 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.’ "

Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008). This 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. See Ex parte T.V., 971 So. 2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So. 3d 878, 879 (Ala. Civ. App. 2011).

Facts

Jennifer Mason, a social worker for DHR, testified that the most recent protective-services case relating to this family had been opened in 2012 and that the children were ultimately removed from the mother's home and placed in foster care in 2014. According to Mason, the children were removed because of concerns that the children lacked supervision and that the children's needs were not being met and because officials from the school M.F. was attending were frequently contacting DHR with complaints that M.F. was defecating on himself and the school officials either could not reach the mother or could not get her to retrieve M.F. from the school.² Elizabeth Neely, a child-welfare supervisor with DHR, testified that DHR had also been concerned that another child of the mother's, G.F., instead of the mother, was the primary caretaker of the children and that the mother had left medications within the reach of L.F. G.F., who was 19 years old at the time of the termination-of-parental-rights trial, was also removed from the mother's home in 2014. At the time of the trial, G.F. was living in an independent-living apartment through a program called "Gateway." The mother's parental rights to G.F. are not at issue in these cases.

Lois Patrella, a clinical psychologist, conducted a psychological evaluation on the mother in 2014. She diagnosed the mother with generalized anxiety disorder, adjustment disorder with depressed mood, and dependent personality disorder. She testified that the mother's overall intelligence quotient was at a "Low/Average" level with a working memory at a "Borderline" level, which, she stated, was a "pretty low score." She testified that the mother had not been capable of parenting the children at that time.

According to Mason, the children's father had pleaded guilty to sexually abusing G.F. She testified that the mother had been in a subsequent relationship for a period but that she had not had a boyfriend in the four years preceding the trial. According to Mason, the mother had participated in services and had maintained stable housing and employment during the four years preceding the trial. With regard to services, Mason testified that DHR had provided multiple providers of in-home services and counseling for the mother. Mason testified, however, that the providers of the mother's services had reported that the mother had made very little progress.

Neely testified that DHR had been concerned about the mother's parenting capabilities and that the mother had not made any progress in that area. Neely testified that the mother lacked protective capacity and a knowledge of her full responsibilities. According to Neely, the mother had failed to develop necessary parenting skills, and, she said, it was her opinion that the mother lacks the mental capacity to parent.

The children were initially placed in foster homes. M.F., however, eventually had to be placed in a more intensive placement and, at the time of the trial, was in a group home because of emotional and behavioral issues. According to Mason, M.F. had had visits with the mother, which, she said, had mostly gone "okay." She indicated that the visitations had been beneficial at times. Mason testified that M.F. was in the "moderate program" at the group home and that he had to complete that program level before he could step down from that placement level to a less restrictive placement. She testified that M.F. was no longer defecating on himself.

Mason testified that, when L.F. was removed from the mother's home, he had had speech issues and could not form basic words. According to Mason, L.F. received speech services through "Early Intervention" and, later, through another provider. At the time of the trial, L.F. was with his long-term foster parents and was doing well in that placement; his foster parents wanted to adopt him. Mason testified that L.F. is very bonded to his foster parents and was fearful of having to leave them. Mason testified that it would be detrimental to take L.F. from his foster home, but, she said, it would not be detrimental for him to stop visiting the mother. Jessica Howell, a therapist who had conducted therapy with L.F., also testified that it would be detrimental to remove L.F. from his foster home. Mason testified that L.F. had visited unsupervised in the home of the mother on Fridays after school and every other Saturday for three hours.

The mother's sister, B.J., had presented as a resource. There was disputed evidence about the time line of when she presented herself, but the mother admitted that she had initially not wanted B.J. as a resource because she had been willing to take only M.F. and L.F. and not G.F. However, at the time of the trial, G.F. was an adult and the mother was willing for B.J. to take custody of the children. B.J.'s home was approved by Tennessee's Department of Child Services; however, DHR was still concerned about placing the children with B.J. Specifically, Neely testified that there had been an allegation of physical abuse with regard to one of B.J.'s own children, although, she said, that allegation had been found "not indicated." Neely also testified that there was an allegation that B.J. had been arrested after attempting to run over her former husband with an automobile.

Discussion

The mother first argues that DHR failed to prove grounds to terminate her parental rights.

Section 12-15-319(a), Ala. Code 1975, provides, 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 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

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