YM v. JEFFERSON COUNTY DHR

• Decision Date: 24 January 2003
• Citation: 890 So.2d 103
• Parties: Y.M. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

890 So.2d 103

Y.M. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.

2010755.

Court of Civil Appeals of Alabama.

January 24, 2003.

Joe W. Morgan III, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee. On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued on November 22, 2002, is withdrawn, and the following is substituted therefor.

Y.M. ("the mother") appeals from a judgment terminating her parental rights to three of her children: two girls, A.R.H., age 5, and J.K.H., age 3 1/2; and a boy, D.M., age 21 months. On appeal, Y.M. raises four issues: whether the evidence was insufficient to support the termination of her parental rights; whether the trial court erroneously admitted hearsay evidence; whether the termination of her parental rights wrongly punished her for being a victim of domestic violence; and whether, as an alternative to termination of her parental rights, there were available relative resources that the Department of Human Resources ("DHR") did not consider. Because the hearsay issue is dispositive of this appeal, we will not discuss the remaining issues.

Section 26-18-7, Ala.Code 1975, sets out the statutory bases for terminating parental rights. That section provides:

"(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

"(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.

"(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.

"(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.

"(4) Conviction of and imprisonment for a felony.

"(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.

"(6) That reasonable efforts by [DHR] or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.

"(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:

"a. Murder or voluntary manslaughter of another child of that parent.

"b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter of another child of that parent "c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term `serious bodily injury' means bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

"(8) That parental rights to a sibling of the child have been involuntarily terminated.

"(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:

"(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.

"(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.

"(3) Failure by the parents to maintain consistent contact or communication with the child.

"(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.

"(c) In any case where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a rebuttable presumption that the parents are unable or unwilling to act as parents. Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period."

(Emphasis added.)

The children were removed from the mother in May 1999. The petitions for termination of parental rights alleged that the mother had been repeatedly abused by her husband R.H.; that she had taken refuge in various domestic-violence shelters, but that she had repeatedly returned to her abusive husband; that she had failed to protect herself and the children from the husband's abuse; and that she had failed to comply with prior court orders requiring her to attend domestic-violence classes, to maintain stable housing and employment, and to notify DHR of any change of address or telephone number. The petitions further alleged that the mother was not at present, and would not be in the foreseeable future, able or willing to provide a fit and suitable home for the children or to provide for their future support, training, maintenance, and education. The petitions alleged that all reasonable efforts by DHR to rehabilitate the mother had failed and that there were no alternatives to terminating the mother's parental rights. The petitions did not allege that the mother had abandoned the children, see § 26-18-7(a)(1), Ala.Code 1975, that the mother had failed to maintain regular visits with the children, see § 26-18-7(b)(2), Ala.Code 1975, or that the mother had failed to maintain consistent contact or communication with the children, see § 26-18-7(b)(3), Ala.Code 1975.

At trial, DHR presented no evidence in its case-in-chief to support any ground for termination other than the mother's failure to visit the children and the mother's failure to maintain consistent contact and communication with the children. DHR presented evidence that the mother was married to R.H. in 1999. It presented evidence tending to show that, for a three-and-one-half-month period between October 7, 1999, and January 21, 2000, and for a seven-month period between July 17, 2001, and February 13, 2002, the mother did not visit with or contact the children.¹ DHR also presented evidence indicating that it had attempted to locate relatives who were willing to take the children but that it had been unsuccessful.

At the beginning of the parental-rights-termination proceedings on February 28, 2002, counsel for DHR requested, over the mother's objection, that the juvenile court "take judicial knowledge of the ... complete contents of each court file." The court file contained four court reports² submitted by DHR caseworkers, as well as psychological evaluations by mental health professionals, and reports from family-violence shelter personnel. The court reports contained summaries of conversations between DHR caseworkers and the following individuals: the mother's husband, who is the children's legal father; the children's foster mother; family-violence shelter personnel; hospital social workers; the director of a YWCA parenting class the mother had attended; the mother's employers; and the mother's landlords. None of those individuals testified at trial. The trial court agreed to take judicial notice of the contents of the files.

DHR called only one witness — Catherine Denard, who had been the supervising caseworker for the family since November 2000. Ms. Denard testified that her knowledge of the case before that time came from reading the court reports prepared by other DHR social workers and from talking to the three previous caseworkers — Christy Bethune, Gwen Reasor, and Tyshelle Wilson. DHR presented no direct testimony regarding domestic violence between the mother and R.H. On cross-examination by counsel for the mother, Denard stated that she was "aware of several incidents of domestic violence" between R.H. and the mother. She also stated that DHR had "placed [the mother] in several shelters that she left...." She acknowledged that the children's foster parents wanted to adopt them.

When DHR sought to introduce, through Denard, a visitation report showing the times the mother had visited with the children, a report based in part on Denard's conversations with previous caseworkers, counsel for the mother objected on hearsay grounds. Counsel for DHR argued that the evidence was admissible, stating, "This is a dispositional hearing." The juvenile court sustained the objection, stating that the visitation report was cumulative of other admissible evidence. The court explained that the information in the visitation report was contained in the court reports and, the court stated, the court reports had been previously admitted without objection at another proceeding.

Later, when DHR attempted to introduce a July 11, 2001, court report and the mother's counsel...