Opinion
CL-2022-0970
06-30-2023
K.B. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
William T. Fortune, Jr., Birmingham, for appellant. Steve Marshall, att’y gen., and Felicia M. Brooks, chief legal counsel, and Kimberly J. Dobbs, asst. att’y gen., Department of Human Resources, for appellee. R. Jeannette Thompson, Birmingham, guardian ad litem.
William T. Fortune, Jr., Birmingham, for appellant.
Steve Marshall, att’y gen., and Felicia M. Brooks, chief legal counsel, and Kimberly J. Dobbs, asst. att’y gen., Department of Human Resources, for appellee.
R. Jeannette Thompson, Birmingham, guardian ad litem.
THOMPSON, Presiding Judge.
On May 3, 2021, the Jefferson County Department of Human Resources ("DHR") filed in the Jefferson Juvenile Court ("the juvenile court") petitions seeking to terminate the parental rights of A.L. ("the mother") to four of her minor children, Mar.L., May.L., B.L., and A.B. In its May 3, 2021, termination-of-parental-rights petitions, DHR also sought to terminate the parental rights of K.B. ("the father"), the legal father of A.B. ("the child"), and of the unknown fathers of the mother’s other three children.
The juvenile court conducted a hearing over the course of two days; it received evidence ore tenus and documentary evidence. On August 10, 2022, the juvenile court entered a judgment in each action ordering that the mother’s parental rights be terminated. In its August 10, 2022, judgment entered in the action pertaining to the child, the juvenile court also terminated the father’s parental rights to the child. The father timely appealed.
The mother filed timely notices of appeal with regard to the judgments entered in each of the four termination-of-parental-rights actions. This court assigned appeal numbers CL-2022-0943, CL-2022-0944, CL-2022-0945, and CL-2022-0946 to the mother’s appeals. Today, we affirmed each of those appeals without an opinion, which will be reported separately.
Only a brief recitation of the pertinent facts is necessary for the resolution of the father’s appeal. The record indicates that the child resided in a home shared by the mother, the father, and the child’s half siblings in October 2019, when DHR became involved with the family. Dr. Shameza Boyd, the pediatrician for the child and the child’s half siblings, testified that she had received an anonymous report raising concerns about the mother’s care of the children. Based on that report, Dr. Boyd immediately contacted DHR, which investigated the family. In mid-October 2019, DHR filed dependency petitions seeking the removal of the child and the child’s half siblings from the custody of the mother and the father based on concerns of neglect and the mother’s alleged physical abuse of at least some of the children. After a shelter-care hearing, the juvenile court ordered that the children be placed in DHR’s custody and in foster care.
Also, on February 13, 2020, the juvenile court, on the motion of the child’s guardian ad litem, entered an order prohibiting contact between the mother and her children and between the father and the child. In that order, the juvenile court found that the mother and the father posed "a credible threat of harm" to the child. The February 13, 2020, order specified that it was effective until further orders were entered by the juvenile court. The record indicates that the father did not file any motions seeking to establish or reinstate his visitation with the child.
The record also indicates that, as a result of the investigation initially conducted by DHR, the mother was charged with child abuse and domestic violence. The record contains no information regarding whether the father faced criminal charges as a result of the incidents or conditions that had resulted in the removal of the children from the mother and father’s home. During the pendency of these termination-of-parental-rights actions, the mother filed motions to stay the final hearing pending the resolution of those criminal charges against her. The mother’s allegations in her motions to stay alleged that the criminal charges pending against her were related to the reasons that the children had been placed in DHR’s custody. Initially, the juvenile court entered orders granting a stay of the termination-of-parental-rights actions.
[1] On November 30, 2021, DHR moved to lift the stay, arguing that the children needed permanency. The juvenile court conducted a hearing on the issue of the continuation of the stay. On February 4, 2022, the juvenile court entered orders granting DHR’s motions to lift the stay and scheduling the termination-of-parental -rights actions for a final hearing. In its February 4, 2022, orders, the juvenile court made detailed findings addressing the test for balancing a party’s Fifth Amendment right against self-incrimination against the interest in avoiding a delay and the factors that a trial court or juvenile court must consider. See Ex parte Baugh, 530 So. 2d 238, 241 (Ala. 1988), and Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003). We note that in his statement of issues in his appellate brief, the father indicated that he was challenging the juvenile court’s ruling lifting the stay of the termination-of-parental-rights action pertaining to the child. However, the father did not mention that purported issue in the argument portion of his appellate brief; his brief contains no argument or citations to supporting authority concerning that issue. Accordingly, any argument by the father concerning the juvenile court’s lifting of the stay has been waived. White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008); Gonzalez v. Blue Cross/Blue Shield of Alabama, 689 So. 2d 812, 819 (Ala. 1997).
At the termination-of-parental-rights hearing, DHR presented the testimony of Dr. Boyd, the children’s pediatrician; Dr. Michael Taylor, a doctor with University of Alabama at Birmingham Pediatrics; Tre’Shon Cain, a DHR social worker; Delilah Sweeney, a supervisor for the therapeutic foster-care agency that placed the child and her half siblings; and the mother. The record indicates that the father left the courtroom before testimony began during the first day of the termination-of-parental-rights hearing and that he did not return to the courtroom. The father failed to attend the second day of the hearing. We also note that, in addition to the initial, October 18, 2019, shelter-care hearing, the juvenile court conducted four review hearings pertaining to the child. The record indicates that the father had attended only the initial shelter-care hearing and one of the review hearings.
Cain testified that she was assigned to the child’s case in February 2022 and that she was unable to contact the father by telephone thereafter. Cain stated that she had received return receipts indicating that the father had received two letters that she had sent notifying him of upcoming Individualized-Service-Plan ("ISP") meetings. However, she said, the father had not attended either of the ISP meetings conducted since she had been assigned to the children’s cases in February 2022. According to Cain, neither the mother nor the father contributed to the child’s support during the time the child had been in foster care. In her testimony, Cain explained that the mother had provided to DHR a list of possible relative placements for the children and that DHR had also conducted its own independent search for possible relative resources through a database called "Accurint." Cain said that DHR had rejected all the proposed relative placements offered by the mother and all the relatives that DHR had located through its search of the Accurint database as either unwilling or unable to take the children or because those named relatives were unsuitable placements for the children. Cain explained that most of those possible relative placements had not responded to DHR’s attempts to contact them.
Cain initially testified that the father had not submitted to DHR or to the juvenile court a list of possible relative placements for the child. However, the father submitted into evidence a list of relatives he had provided to DHR in October 2019, when the child was first placed in foster care. Cain stated on cross-examination that she had not found the father’s relative-resource form in DHR’s file. Regardless, Cain stated, all the relatives listed by the father on the October 2019 form had also been identified in DHR’s own search of the Accurint database. She stated that each of those relatives had either failed to respond to DHR’s attempts to contact them or had been rejected as a suitable placement for the child by DHR. Therefore, Cain stated, DHR had not failed to attempt to contact the relatives the father had identified as possible placements for the child.
According to Cain, DHR considers all the mother’s children, including the child at issue, to be adoptable. Cain reported that all the children were making great progress in overcoming their trauma and that their counseling was going well. However, Cain testified, it was DHR policy not to begin searching for possible adoptive resources for a child until after a court had terminated the parental rights of that child’s parents.
In its August 10, 2022, judgments, the juvenile court found that the father was unwilling or unable to adjust his circumstances to meet the needs of the child, that his circumstances were not likely to change in the foreseeable future, and that there were no viable alternatives to the termination of his parental rights. That judgment contained the same findings with regard to the mother.
[2, 3] In deciding whether the termination of a parent’s parental rights is warranted, a juvenile court must determine whether the child is dependent and whether there are viable alternatives to the termination of the parent’s parental rights. B.M. v. State, 895 So. 2d 319, 331 (Ala. Civ. App. 2004) (citing Ex parte Beasley, 564 So. 2d 950, 954 (Ala. 1990)). "For a finding of dependency, the court must consider whether there are grounds for terminating the parental rights, including but not limited to the grounds specified in [former] § 26-18-7[, Ala. Code 1975]." Ex parte T.V., 971 So. 2d 1, 4 (Ala. 2007). Former § 26-18-7 is now § 12-15-319, Ala. Code 1975, of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975, which sets forth a list of grounds pursuant to which a juvenile court may determine whether to terminate a parent’s parental rights.
" ‘Once the court has complied with this two-prong test — that is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child — it can order the termination of parental rights.’ "
Ex parte T.V., 971 So. 2d at 5 (quoting Ex parte Beasley, 564 So. 2d at 945-55).
"DHR had the burden of proof at trial to establish by clear and convincing evidence that the termination of the mother’s and the father’s parental rights was warranted. § 12-15-319(a), Ala. Code 1975. ‘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.’ § 6-11-20(b)(4), Ala. Code 1975. This court’s role is to determine whether the record contains evidence that a fact-finder reasonably could find clearly and convincingly established the fact sought to be proved. Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008)."
D.J. v. Etowah Cnty. Dep’t of Hum. Res., 351 So. 3d 1067, 1074 (Ala. Civ. App. 2021).
[4] The father contends that the evidence in the record on appeal does not support the termination of his parental rights. We agree. The record indicates that DHR presented very little evidence pertaining to the father before the juvenile court. DHR presented evidence that the father failed to contribute to the support of the child, and, after our review of the relevant documentary evidence, it is clear that the father attended only two of the five hearings pertaining to the child. The record also demonstrates that the father essentially failed to attend the termination-of-parental-rights hearing.
Dr. Boyd and Dr. Taylor each testified, based on the reports of some of the children and his or her examination of the children, that the mother physically abused the children and that that abuse caused the removal of her children from her custody. However, DHR did not present any evidence concerning the father’s role, if any, in the incidents that resulted in the removal of the child and the child’s half siblings from the family’s home. DHR did not present any evidence regarding whether, with regard to the father, the child was dependent. See § 12-15-102(8), Ala. Code 1975 (defining the term "dependent child").
Section 12-15-312, Ala. Code 1975, requires that, if a child is removed from a parent’s custody and placed in DHR’s custody, DHR must make reasonable efforts to reunite a parent with his or her child. In this case, the record contains no indication whether DHR formulated reunification goals for the father or offered the father any services designed to reunite him with the child. Similarly, DHR presented only minimal evidence regarding whether the father had made himself available for reunification services or whether he had taken part in such services. In response to a question as to why DHR had never conducted a court-ordered home evaluation on the father’s home, Cain testified that the father had failed to cooperate and follow up with DHR’s attempts to conduct that home evaluation.
We note that DHR might not be required to make reasonable efforts when a juvenile court determines that a parent has subjected a child to aggravating circumstances, such as chronic abuse. See § 12-15-312(c)(1), Ala. Code 1975.
[5] A determination whether DHR made such reasonable efforts toward reunification is an issue of fact to be resolved by the juvenile court. D.M. v. Limestone Cnty. Dep’t of Hum. Res., 164 So. 3d 1164, 1170 (Ala. Civ. App. 2014). However, as to the issue whether DHR made reasonable efforts to reunite the father and the child in this case, given the lack of evidence in this matter, there is no factual issue to be resolved. Similarly, other than the evidence that the father did not contribute financially to the support of the child, DHR presented no evidence concerning grounds for termination, such as those set forth in § 12-15-319.
[6] The party seeking to terminate a parent’s parental rights has the burden of proof. Ex parte T.V., 971 So. 2d 1, 4 (Ala. 2007); P.O. v. Calhoun Cnty. Dep’t of Hum. Res., 859 So. 2d 439, 443 (Ala. Civ. App. 2003). "In this case, DHR failed to meet its evidentiary burden." A.R.H.B. v. Madison Cnty. Dep’t of Hum. Res., 378 So.3d 543, 551 (Ala. Civ. App. 2022). Given the lack of evidence regarding the father presented by DHR in support of its petition seeking to terminate the father’s parental rights to the child, we reverse. A.R.H.B. v. Madison Cnty. Dep’t of Hum. Res., supra; C.H. v. Franklin Cnty. Dep’t of Hum. Res., 171 So. 3d 32, 37 (Ala. Civ. App. 2015).
REVERSED AND REMANDED.
Edwards, Hanson, and Fridy, JJ., concur.
Moore, J., concurs in the result, without opinion.