T.J. v. Calhoun Cnty. Dep't of Human Res.

• Decision Date: 11 January 2013
• Docket Number: 2110794.
• Parties: T.J. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

116 So.3d 1168

T.J.

v.CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.

2110794.

Court of Civil Appeals of Alabama.

Jan. 11, 2013.

Adrienne Michele LaBudde of LaBudde & Russell, Anniston, for appellant.

Luther Strange, atty. gen., and Sharon E. Ficquette, chief counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources.

PER CURIAM.

Following an investigation conducted by the Calhoun County Department of Human Resources (“DHR”), the Calhoun Juvenile Court (“the juvenile court”) entered a shelter-care order on January 24, 2012, awarding the legal custody of Jo.J. and Ja.J. (“the children”) to DHR, who immediately placed the children in the care of S.J. (“the father”). That same date, the juvenile court entered an order authorizing law-enforcement officials to assist DHR in procuring from the home of the children's mother, T.J. (“the mother”), certain personal items and furniture used by or belonging to the children. The juvenile court subsequently entered a judgment on April 4, 2012, declaring the children dependent, awarding custody of the children to the father, and ordering DHR to supervise the family pending further orders.¹ The mother appeals from that judgment.

Although the mother attacks the dependency judgment on numerous grounds, we find one issue raised by the mother—whether the evidence is sufficient to sustain a finding of dependency—dispositive. We agree with the mother that the record does not contain sufficient evidence indicating that the children are dependent.

Section 12–15–102(8)a., Ala.Code 1975, defines a “dependent child” as

“[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:

“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12–15–301[, Ala.Code 1975,] or neglect as defined in subdivision (4) of Section 12–15–301, or allows the child to be so subjected.

“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.

“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.

“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.

“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12–15–301.

“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.

“7. Who has been placed for care or adoption in violation of the law.

“8. Who, for any other cause, is in need of the care and protection of the state.”

In the dependency petition, DHR asserted that the children were dependent because it “appears” that the mother has “some serious mental health issues” for which “[s]he is currently not receiving any treatment.” We interpret the petition as alleging that, due to the mother's existing mental-health problems, the mother was “unable or unwilling to discharge ... her responsibilities to and for the child[ren].” See§ 12–15–102(8)a.6., Ala.Code 1975.

The evidence in the record shows that, during an initial investigation regarding a report against the father,² Robin McNeal, a child-abuse-and-neglect investigator for DHR, developed a suspicion that the mother was suffering from a mental-health problem. When McNeal questioned the mother on that point, the mother informed McNeal that, “at one time,” she had received counseling from “the mental health center” but that she had stopped going because she did not believe she needed it. The mother clarified at the adjudicatory hearing that eight or nine years earlier she had voluntarily sought counseling in Jacksonville at a mental-health center because, she said, “I thought I needed somebody to talk to, and it didn't work out.” The mother testified that she had never been diagnosed with a mental-health problem or taken any medication for a mental-health problem. McNeal testified that, after meeting with the mother, she concluded that the mother was not receiving any mental-health treatment at the time of the investigation.

DHR initially attempted to present evidence through McNeal's testimony regarding its basis for questioning the mother's current mental-health status, but the juvenile court sustained a hearsay objection to that testimony. McNeal then testified as follows:

“Q. (By [counsel for DHR] ) What was the concern that you identified, Ms. McNeal, as to requiring the mother to have a mental health assessment? What did you base that on?

“A. Behaviors of the mother to the child and the child's reaction.

“Q. Did you have an opportunity to observe those behaviors by the mother?

“A. Those behaviors to the child?

“Q. Did you have an opportunity to observe the behavior of the mother?

“A. I have.

“Q. When you observed the behavior of the mother, what concerns did you have?

“A. Denial. She denied that any of that happened, and her explanation for what occurred was not feasible, in that she explained ... the hole in the wall at the bottom of the floor [as] being from her trying to get to the pipes approximately three and a half to four feet up to tighten pipes to prevent a sink from falling that was on the other side of the wall, and this was not feasible. You would have to go in from three and a half feet to—a plumber would have to do that.”

DHR removed the children from the mother's home based primarily on the mother's refusal to submit voluntarily to a mental-health assessment. McNeal testified as follows:

“Q. [By counsel for DHR] Was there any other concern[ ] while you were investigating this case that you had with the mother that would, in your opinion, put the children at risk?

“A. Her refusal in sharing mental health information [and] in having an evaluation was concerning.”

According to McNeal, after informing the mother of her “concerns” and after the mother refused to consent to DHR's request for a mental-health assessment, she “had to assume protective custody of the children.” At that point, DHR instituted shelter-care proceedings and obtained legal custody of the children.

DHR continued to separate the mother and the children based solely on the mother's refusal to voluntarily cooperate with DHR by providing mental-health records and by submitting to a mental-health assessment. McNeal testified that, following the shelter-care hearing, DHR held an Individualized Service Plan meeting at which it again requested that the mother agree to a DHR-sponsored mental-health assessment, which the mother refused. McNeal testified as follows:

“Q. [By counsel for DHR] Now, in your opinion, as the [child-abuse/neglect] investigator regarding safety of [the children], would [DHR] recommend that those children be placed back without the necessary mental health assessment?

“A. No.

“Q. Why is that?

“A. Due to the—the mother has not cooperated in any way with mental health assessments. [DHR] wants to ensure the children's safety through those mental health assessments.

“....

“Q. Last question. Is the mother's refusing to participate in any services to alleviate [DHR's] involvement a remaining concern today?

“A. Yes.”

Fagan Ponder, the DHR foster-care worker who took over the case from McNeal as of January 26, 2012, testified as follows:

“Q. [By counsel for DHR] Let me ask you, Mr. Ponder, from reviewing the case, what would you identify that would be barriers that would need to be remove[d] if the children were placed back with the mom?

“A. First off, just the cooperation with DHR....”

Ponder additionally testified that the mother had sought visitation with the children through her attorney but that, as a condition to “getting visits,” the mother would have had to comply “with services or comply with mental health,” which the mother refused to do. Ponder testified that DHR could not ensure the safety of the children without “the appropriate mental health assessments to address the stability of the mother.”

The mother testified that DHR's representatives had not requested that she undergo a mental-health assessment but, rather, had told her that, unless she did, she could not see the children. The mother testified that she would not agree to a DHR-sponsored mental-health assessment because, she said, “the way that they have done me, I don't trust their employees.” The mother stated that she would agree to having a mental-health assessment by a doctor of her own choosing. The mother testified that she had sought an assessment through a mental-health facility in Tulloma, Tennessee, but the facility would not accept her method of payment, i.e., Alabama Medicaid; ³ as a result, the mother had not obtained a mental-health assessment. The mother testified that she had moved to Tennessee on the Saturday following the shelter-care hearing and that her medical insurance has since been “frozen.” The mother stated that she would obtain a mental-health assessment as soon as her insurance allowed. At the adjudicatory hearing, the mother maintained that she would not agree to a mental-health assessment that was sponsored by DHR and would take place in Calhoun County.

The record establishes that, when it initially removed the children and thereafter prevented any contact between the mother and the children, DHR only suspected that the mother might have a mental-health problem. Regarding the basis for those suspicions, McNeal did not provide the juvenile court with any information she had obtained from other sources as to how...