T.G v. Houston County Dep't Of Human Res.

• Decision Date: 04 December 2009
• Docket Number: 2070841.
• Parties: T.G.v.HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

39 So.3d 1146

T.G.v.HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES.

2070841.

Court of Civil Appeals of Alabama.

April 24, 2009.

Rehearing Denied Dec. 4, 2009.

Scott K. Hedeen, Dothan, for appellant.

Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appellee.

PER CURIAM.

T.G. (“the mother”) appeals from judgments of the Houston Juvenile Court terminating her parental rights to each of her children, N.N.G., T.T.G., and Q.Q.G. (“the children”).

The juvenile court entered its judgments terminating the mother's parental rights as to the children after an ore tenus hearing on petitions to terminate her parental rights filed by the Houston County Department of Human Resources (“DHR”). The evidence adduced at the hearing tended to show the following. The mother was sentenced to prison in 2000 after pleading guilty to five drug-related charges. She was released on parole, but she returned to prison in 2003 on other charges. She was not in prison at the time of the April 2008 termination hearing; however, her parole will not end until 2024. On the day of the termination hearing, the mother tested positive for the use of cocaine and marijuana. She admitted that she had not paid court-ordered restitution, fines, or court costs. Additionally, the mother was in arrears as to her court-ordered child-support obligation. She said that she did not have the money to support her children.

At the time of the trial, the children ranged in age from 14 years old to 10 years old. The eldest child has attempted suicide. None of the children had lived with the mother for the past 10 years. Since her release from prison, the mother had lived in Jefferson County, while the children lived in Houston County. The mother had never consistently visited the children despite DHR's efforts to pay for bus fare or to otherwise arrange visits. The mother had not had an overnight visit with the children since April 2007. DHR ended overnight visitation as well as unsupervised visitation when it learned that the mother had purchased a bottle of Pine-Sol brand cleaning fluid for the eldest child to “huff,” or inhale, as a recreational drug. The mother testified that the child had only been “sniffing” the fluid and that it was not serious. Also, the mother did not engage in regular telephone contact with the children. She had not spoken to them in the month leading up to the trial.

Margaret Riley, a social worker with DHR, testified that the mother had not taken advantage of many of the opportunities that DHR had offered in an effort to rehabilitate her so that she could be reunited with the children. For example, she did not increase her number of visits when the offer was made to do so, and she did not make the trip from Birmingham to Houston County to visit the children until the termination petitions were filed. Riley also testified that the mother had never contacted DHR to check on the children's status or well-being. The children did not express a desire to reunite with the mother.

DHR investigated possible alternatives to termination of the mother's parental rights. None of the mother's relatives were appropriate candidates for taking the children; none of the known relatives ever asked to see the children. The identities of the children's fathers are not known; thus, no paternal relative resources were available.

On appeal, the mother contends that the juvenile court erred in not dismissing the petitions to terminate her parental rights because, she says, DHR filed the petitions outside what she characterizes as a “limitations” period. Specifically, the mother asserts that § 26-18-5, Ala.Code 1975, ¹ establishes a statutory limitation period for filing a termination petition. We disagree.

The title of § 26-18-5 is “Who may file petition.” The statute reads as follows:

“(a) A petition may be filed by the Department of Human Resources, any public or private licensed child-placing agency or parent, with permission of the court, or any interested party.

“(b) In the case of a child who has been in foster care under the responsibility of the department for 15 of the most recent 22 months, or, if a child has been abandoned or the parent has committed murder of another child of that parent, committed voluntary manslaughter of another child of that parent, or has aided, abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or has committed a felony assault that has resulted in serious bodily injury, as defined in Section 26-18-7, to the child or to another child of the parent, the department shall file a petition to terminate the parental rights of the parents of the child, or if the petition has been filed by another party, seek to be joined as a party to the petition, and, concurrently, to identify, recruit, process, and approve a qualified family for adoption unless one of the following occurs:

“(1) The child is being cared for by a relative.

“(2) The department has documented in the case plan, which shall be available for court review, a compelling reason for determining that filing a petition would not be in the best interests of the child.

“(3) The department has not provided to the family of the child, consistent with the time period in the department's case plan, such services as the department deems necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made with respect to the child.”

We will not read into § 26-18-5 language the legislature could easily have included had it chosen to do so, but did not. Ex parte Emerald Mtn. Expy. Bridge, 856 So.2d 834, 840 (Ala.2003); Noonan v. East-West Beltline, Inc., 487 So.2d 237, 239 (Ala.1986) (“It is not proper for a court to read into the statute something which the legislature did not include although it could have easily done so.”). If the legislature had intended § 26-18-5 to operate as a statute of limitations, it would have included language setting forth deadlines for filing termination petitions in the statute.

The mother asserts that, in setting forth the circumstances in which a termination petition must be filed, the use of the word “shall” in § 26-18-5 makes filing a petition mandatory in the 15th month a child has been in foster care of the most recent 22 months. Therefore, she argues, § 26-18-5 establishes a limitation period during which DHR must file a termination petition.

“ ‘The intent of the Legislature is the polestar of statutory construction.’ Siegelman v. Alabama Ass'n of Sch. Bds., 819 So.2d 568, 579 (Ala.2001) (citing Richardson v. PSB Armor, Inc., 682 So.2d 438, 440 (Ala.1996); Jones v. Conradi, 673 So.2d 389, 394 (Ala.1995); and Ex parte Jordan, 592 So.2d 579, 581 (Ala.1992)). We are mindful that ‘the Legislature will not be presumed to have done a futile thing in enacting a statute; there is a presumption that the Legislature intended a just and reasonable construction and did not enact a statute that has no practical meaning.’ Weathers v. City of Oxford, 895 So.2d 305, 309 (Ala.Civ.App.2004) (citing Ex parte Watley, 708 So.2d 890 (Ala.1997), and Ex parte Meeks, 682 So.2d 423 (Ala.1996)).”

Glass v. Anniston City Bd. of Educ., 957 So.2d 1143, 1147 (Ala.Civ.App.2006). Additionally, “ ‘[a] literal interpretation will not be adopted, when it would defeat the purposes of a statute, if any other reasonable construction can be given to the words.’ ” Limestone County Water & Sewer Auth. v. City of Athens, 896 So.2d 531, 537 (Ala.Civ.App.2004) (quoting Harrington v. State, 200 Ala. 480, 482, 76 So. 422, 424 (1917)). “[T]he law is a reasonable master, and it should be so construed in the light of common sense in ascertaining the legislative intent.” Stith Coal Co. v. Sanford, 192 Ala. 601, 606-07, 68 So. 990, 992 (1915).

We conclude that § 26-18-5 does not establish a firm deadline beyond which a petition for termination of parental rights cannot be filed. Similarly, § 26-18-5(b), Ala.Code 1975, does not necessarily establish a “starting point” for DHR to file a petition to terminate parental rights. The starting point is not simply those conditions set out in § 26-18-5(b), but, as always, is triggered by the best interests of the child. See J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1191-94 (Ala.Civ.App.2007) (holding that paramount consideration in termination-of-parental-rights proceeding is best interests of the child). If DHR has sufficient evidence indicating that filing a petition to terminate parental rights is in the best interests of the child, it should file a petition to terminate parental rights regardless of whether the circumstances set out in § 26-18-5(b) are present.

DHR may file a termination petition whenever it determines that the best interests of the child would be served thereby. Even in cases not covered by § 26-18-5(b), DHR may have sufficient reason to file a petition to terminate parental rights before the 15th month of foster care, such as when DHR establishes that further reasonable efforts at reuniting a child with the family would be futile and that it would be in the child's best interests to expedite adoption. See generally M.A.J. v. S.F., 994 So.2d 280, 291-92 (Ala.Civ.App.2008) (holding that DHR properly ended reunification efforts after eight months when previous reunification efforts had failed and the record indicated that further efforts would be unavailing). That is not to say the petition would be granted, but nothing in § 26-18-5(b) prevents DHR from filing a petition to terminate parental rights before the 15th month of the child's stay in foster care.

Moreover, once a child in the legal custody of DHR has been in foster care for 15 out of the most recent 22 months, § 26-18-5(b) requires DHR to either file the petition or establish that a statutory exception to the mandatory filing requirement exists. See In re Clifford M., 261 Neb. 862, 880, 626 N.W.2d 549, 563 (2001) (...