Opinion
CL-2022-0573 CL-2022-0574 CL-2022-0575
06-16-2023
S.M. v. Madison County Department of Human Resources S.M. v. Madison County Department of Human Resources S.M. v. Madison County Department of Human Resources
Appeals from Madison Juvenile Court (JU-18-1398.02, JU-18-1399.02, and JU-18-1400.02)
HANSON, JUDGE.
S.M. ("the mother") appeals from three judgments of the Madison Juvenile Court entered in March 2022 terminating the parental rights of the mother and D.M. ("the father") to three of their six minor children, i.e., H.M. (a son born in 2013), P.M. (a son born in 2011), and J.M. (a son born in 2009) (collectively referred to as "the children"), in response to petitions filed by the Madison County Department of Human Resources ("DHR") in August 2020 and following ore tenus proceedings held in May 2021 and February 2022 that were transcribed by a court reporter (see generally Rule 28(A)(1)(c)(ii), Ala. R. Juv. P., regarding this court's appellate jurisdiction). We affirm.
DHR also filed petitions to terminate parental rights of the father and the mother as to three daughters, i.e., W.M., A.M., and T.M. The mother has not appealed from the juvenile court's judgments terminating her rights to those daughters; moreover, the father has not appealed from the judgments as to any of the parties' six children.
"[W]e will reverse a juvenile court's judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I.[ v. State Dep't of Hum. Res.], 975 So.2d [969,] 972 [(Ala. Civ. App. 2007)]." J.C. v. State Dep't of Hum. Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007). "Clear and convincing" evidence 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. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt."
"'§ 6-11-20[(b)](4), Ala. Code 1975.'
"L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002)."J.C., 986 So.2d at 1184 (emphasis omitted). Furthermore, "'[t]he trial court's decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.'"A.K. v. Henry Cnty. Dep't of Hum. Res., 84 So.3d 68, 69 (Ala. Civ. App. 2011) (quoting Ex parte State Dep't of Hum. Res., 624 So.2d 589, 593 (Ala. 1993)). Legal conclusions, however, are reviewed without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala. Civ. App. 2011).
Under B.M. v. State, 895 So.2d 319 (Ala. Civ. App. 2004), a juvenile court presiding over actions with termination-of-parental-rights petitions filed by nonparents such as DHR "is required to apply a twopronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights." 895 So.2d at 331 (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990)). The mother challenges on appeal the propriety of the juvenile court's judgments only as to the first prong.
"Concerning the first prong of the test [i.e., dependency], the petitioner must prove by clear and convincing evidence that grounds for termination exist." J.S. v. Etowah Cnty. Dep't of Hum. Res., 72 So.3d 1212, 1219 (Ala. Civ. App. 2011) (citing § 12-15-319, Ala. Code 1975, and Bowman v. State Dep't of Hum. Res., 534 So.2d 304, 305 (Ala. Civ. App. 1988)). Numerous factors to be considered in assessing whether a parent is "unable or unwilling to discharge ... responsibilities to and for [a] child" -- the touchstone of whether termination is an appropriate measure under § 12-15-319(a) -- are legislatively specified in that subsection, including, in pertinent part:
"(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
....
"(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached ... in an administrative review or a judicial review."
The factors specified by the legislature in that statute are, however, not exclusive, and this court has held that evidence of, for example, a parent's loss of custody of other children (such as, in this matter, the mother's daughters, see n.1, supra) is material "to show [a] general lack of concern for the welfare" of that parent's children. In re Shivers, 440 So.2d 1081, 1084 (Ala. Civ. App. 1983).
Counsel for the mother posits that the juvenile court's judgments were erroneous because, she says, the children were not "dependent" at the time that those judgments were entered. In light of J.S., supra, that contention is properly viewed as a challenge to the existence of grounds warranting termination of the mother's parental rights. As to that issue, we quote the juvenile court's pertinent findings and conclusions in its judgments:
"The parent(s) of the child are unable or unwilling to discharge their responsibilities to the child[ren]. The conduct and condition of the parent(s) evidences a lack of effort ... to adjust his/her circumstances to meet the needs of the child ..
"The family has been involved with the Madison County Department of Human Resources since September 7, 2018 amid allegations of domestic violence in the home. Since said time, the [children] and siblings have been removed from the physical care and custody of [their] parents on three (3) occasions. The [children] and siblings have remained in the temporary legal custody of [DHR] and in a foster care placement since June 2019 ..
"The Court finds that the [m]other . was provided services as offered by [DHR] and outlined in the Individualized Service Plan ['ISP']. Services offered include supervised visitation as coordinated and supervised by [DHR;] a referral [to] parenting classes as facilitated by Family Services Center; a psychological evaluation as administered by Dr. Lois Petrella; random drug [tests]; and domestic violence counseling as facilitated by Angela Gurley with Crisis Services of North Alabama ..
"The Court also finds that the [m]other has failed to adjust her circumstances to meet the needs of the [children]. During the pendency of the [termination actions], the [m]other relocated to the State of Kansas and lives with her
paramour and newborn son. The [m]other has failed to provide any documentation of her continuation of services, namely domestic violence counseling[,] in Kansas, her current state of residence ...."
The record of the trial contains testimony from an attorney who had been first appointed as the children's guardian ad litem during a protection-from-abuse proceeding initiated in October 2018 by the mother in which she had alleged that the father "had been belligerently drunk," had "struck her in the leg," and had then "slapped" one of the children. Although that proceeding was later dismissed at the finalhearing stage because of the mother's having recanted her abuse allegations, the children's former guardian ad litem became aware -through out-of-state court filings, other revelations by the mother, discovery of domestic-violence damage located at the parents' home, and the mother's concealment of the father's continued cohabiting with the mother after she had been directed not to allow the children to have contact with the father -- that the mother had engaged in a pattern of "minimizing" the magnitude of the abuse committed by the father and of failing to be honest with administrative and judicial officials about her protective capacity. That witness opined, without objection, that he did "not believe that [the mother] ha[d] the appropriate protective capacity to put the children above her own needs," a view he reiterated on cross-examination by the mother's counsel when he testified that he had observed "that [the mother] ha[d] put the people that she is involved in a romantic relationship with above the needs of her own children" between the time of the children's placement in DHR's custody and the institution of termination proceedings.
In connection with the removal of the children from the parents' home incident to findings of dependency, an Individualized-Service-Plan ("ISP") meeting was held in late October 2018 involving representatives of DHR, the mother and her counsel, and the father; the ISP that resulted from that meeting included an agreement that the mother would undergo a domestic-violence assessment and follow recommendations generated as a result of that assessment. The mother was referred to domesticviolence classes after that assessment, and the matter of her continued participation in such classes was consistently included in subsequent ISPs. Even after the mother was determined by DHR to have relocated to Kansas in early 2020, the mother was directed to "continue participating in domestic violence counseling where she resides," and the final ISP admitted into evidence, dated December 2021, included a requirement that the mother was to "provide ... updates on domestic violence classes in Kansas." Nevertheless, DHR representatives did not receive confirmation from professionals assisting the mother that she had completed counseling as to that issue, and there was testimony from DHR representatives that the mother was no longer seeing her Kansasbased counselor as a patient.
The juvenile court was clearly concerned about the mother's protective capacity given her failure to adhere to the ISP provisions regarding domestic violence, as evidenced by the court's remarks made at a hearing on the mother's postjudgment motions:
"This domestic violence -- this domestic violence training was required from day one. It was a necessary part because she had shown a history of failing to protect herself and the children from domestic violence. She just didn't do it. The mere fact that she may have gotten the father's probation revoked is a totally separate issue from her having the skills and the ability and show the wherewithal to protect these children from domestic violence."Although counsel for the mother points out in her brief that evidence was adduced indicating that her client had managed to make vocational and educational progress during the pendency of the dependency cases involving the children and that Kansas child-protection authorities had approved the home that she shared with her current paramour as a placement for the children, no explanation for the mother's having failed to follow through with domestic-violence counseling or classes has been suggested. Whereas the dissenting opinion would, in effect, excuse the mother from that noncompliance, we readily conclude that the juvenile court could properly have determined, as it did, that the mother's tendency to minimize the importance of domestic violence on the part of her partners -- the prime concern that had led to the removal of the children from the mother's care in the first instance -- had not been fully addressed and alleviated so as to prevent her from again placing them in a harmful home setting in the future, and the mother cites no authority that would support the proposition that another state's approval of the mother's housing would compel a determination that the mother was not unable or unwilling to discharge her responsibilities as a parent. In fact, this court, in V.G. v. Madison County Department of Human Resources, 989 So.2d 550 (Ala. Civ. App. 2008), affirmed a judgment finding a child dependent notwithstanding evidence of ancillary personal improvement on the part of the child's parent:
"To address the mother's anger-management and domesticviolence issues, DHR had offered the mother counseling. However, the evidence established that the mother had failed to consistently attend counseling sessions. Although the
mother stated that the sessions conflicted with her work schedule, the mother later admitted that she had failed to attend because she believed that she was not 'getting [anything] out of it.' Although the mother had obtained housing and had maintained employment, the juvenile court could have concluded that the mother's unwillingness to obtain counseling to address DHR's primary concern, i.e., the mother's domestic-violence issues, rendered her unable to properly care for the child. On this basis, the juvenile court could have concluded that the child is a dependent child ...."989 So.2d at 555. See also, e.g., H.F. v. Elmore Cnty. Dep't of Hum. Res., [Ms. 2210190, Aug. 19, 2022]___ So. 3d___, ___(Ala. Civ. App. 2022) (evidence that parent had not completed parenting classes or utilized intensive in-home services supported proposition that parent had not made a reasonable effort to achieve rehabilitation), and M.H.S. v. State Dep't of Hum. Res., 636 So.2d 419, 421 (Ala. Civ. App. 1994) (holding that juvenile court's dependency determination was supported by, among other things, evidence that both parents of four minor children had refused to attend parenting classes).
Having determined that, in light of the evidence tending to show that the mother had failed to exert reasonable efforts to rehabilitate herself, the mother's sole appellate contention, i.e., that the children at issue were not shown to be dependent, is not factually or legally sound, we conclude that the judgments of the juvenile court terminating her parental rights are due to be affirmed.
CL-2022-0573 -- AFFIRMED.
CL-2022-0574 -- AFFIRMED.
CL-2022-0575 -- AFFIRMED.
Thompson, P.J., and Fridy, J., concur. Moore, J., dissents, with opinion, which Edwards, J., joins.
MOORE, Judge, dissenting.
I respectfully dissent.
The Madison Juvenile Court ("the juvenile court") terminated the parental rights of S.M. ("the mother") to her three children, J.M., P.M., and H.M., in a judgment entered on March 30, 2022. In her appeals to this court, the mother argues, among other things, that the juvenile court did not receive sufficient evidence of grounds for termination. I agree.
The only grounds for termination are contained in Ala. Code 1975, § 12-15-319(a), Ala. Code 1975, which provides, in pertinent part:
"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[]."This court has consistently construed § 12-15-319 to authorize termination of parental rights only in cases in which clear and convincing evidence shows that the parent "'is currently unable to discharge his or her parental duties properly, ... and that the conduct or condition that prevents the parent from assuming or exercising proper care will likely persist in the foreseeable future.'" A.A. v. Jefferson Cnty. Dep't of Hum. Res., 278 So.3d 1247, 1252 (Ala. Civ. App. 2018) (quoting S.U. v. Madison Cnty. Dep't of Hum. Res., 91 So.3d 716, 720 (Ala. Civ. App. 2012)). "'[T]he test is whether [the Department of Human Resources] has presented clear and convincing evidence demonstrating that the parental conduct or condition currently persists to such a degree as to continue to prevent the parent from properly caring for the child.'" B.L. v. Elmore Cnty. Dep't of Hum. Res., 324 So.3d 829, 838 (Ala. Civ. App. 2020) (quoting M.G. v. Etowah Cnty. Dep't of Hum. Res., 26 So.3d 436, 442 (Ala. Civ. App. 2009) (construing the predecessor to § 12-15-319(a)).
In this case, the record shows that D.M. ("the father") perpetrated egregious acts of domestic violence against the mother when he was married to her and while they were exercising custody of the children. Despite those acts, the mother allowed the father to have contact with the children after she entered into an agreement with the Madison County Department of Human Resources ("DHR"), pursuant to which she agreed that she would not allow the father such contact. At one point, it appeared that the mother could not extricate herself from her relationship with the father, thus imperiling the children and requiring their removal from her care. However, at the time of trial on DHR's petitions to terminate them other's parental rights the mother had divorced the father and had not communicated with him since June 2020. The mother had, in fact, moved to Kansas, where she had entered into a stable, romantic relationship with T.A.F., whom, she said, she had first met when she was six years old, and with whom she has a child. The Kansas equivalent of DHR conducted a home study on the house that the mother shared with T.A.F. and their child and approved it for placement for the children.
Nevertheless, the juvenile court terminated the mother's parental rights, expressly determining that reasonable efforts by DHR to reunite the children with the mother had failed, see § 12-15-319(a)(7), and that the mother had failed to adjust her circumstances to meet the needs of the children, see § 12-15-319(a)(12). The evidence in the record shows, however, that the condition that had led to the separation of the family had been resolved. In fact, the record indicates that DHR was in the process of transitioning the children back into the home of the mother when she moved to Kansas. Nothing in the record indicates that the transition should not have been completed once DHR received the approval of the home for placement of the children by the Kansas childwelfare authorities.
It appears that the juvenile court was concerned that, after she moved to Kansas, the mother did not complete the domestic-violence counseling that DHR had requested she complete. The juvenile court specifically found in its judgments that the mother had "failed to provide any documentation of her continuation of services, namely domestic violence counseling, in Kansas." The point of such counseling was, of course, to assure that the children would not be subjected to the threat of domestic violence while in the care of the mother. However, DHR presented no evidence indicating that the counseling sessions that the mother did attend for several months had been insufficient to adequately inform the mother of the methods she could use to safely protect the children from domestic violence. More to the point, DHR presented no evidence indicating that the children would be at risk of domestic violence based on the mother's current, adjusted circumstances at the time of the trial. If the conduct or condition that prevents a parent from properly caring for a child resolves through other means, the mere fact that the parent does not comply with the services offered by the Department of Human Resources is not a ground for termination. See, e.g., S.K. v. State Dep't of Hum. Res., 993 So.2d 15 (Ala. Civ. App. 2008) (concluding that, where parents had completed independent counseling rather than specific counseling recommended by the Department of Human Resources, evidence indicated that the parents had made efforts to adjust their circumstances to meet the needs of their children); and S.U. v. Madison Cnty. Dep't of Hum. Res., 91 So.3d 716, 722 (Ala. Civ. App. 2012) (concluding that, where the circumstances underlying the Department of Human Resources' involvement had changed, the determination that the parent had failed to adjust her circumstances to meet the needs of her children was unsupported by the evidence).
The record shows that the parental deficiencies that had led to the separation of the family did not persist to such a degree at the time of trial so as to prevent the mother from properly parenting the children. The mere fact that the mother failed to provide documentary evidence indicating that she had completed domestic-violence counseling does not constitute clear and convincing evidence of either ground for termination. Therefore, I would reverse the judgments terminating the mother's parental rights to the children.
Edwards, J., concurs.