Summary
In P.M. v. Lee County Department of Human Resources, 335 So. 3d 1163 (Ala. Civ. App. 2021), the mother in that case had substance-abuse issues, and the Lee County Department of Human Resources ("the Lee County DHR") determined that the mother was unable to care for her child.
Summary of this case from C.C. v. C.T.Opinion
2190735
04-02-2021
P.M. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES
Mallory K. Harper, Montgomery, for appellant. Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. att'y gen., Department of Human Resources, for appellee.
Mallory K. Harper, Montgomery, for appellant.
Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. att'y gen., Department of Human Resources, for appellee.
PER CURIAM.
P.M. ("the mother") is the mother of G.M. ("the child"), who was born in August 2015. In January 2016, the Lee County Department of Human Resources ("DHR") first became involved with the mother and the child when the mother was involved in a physical altercation with her older son, Ga.M. ("the son"). After that incident, the son and the mother's daughter, Gw.M. ("the daughter"), were placed in the custody of their father, C.M. Although the mother was married to C.M. at the time of the child's birth, the child's father was later determined to be B.C. ("the father").
A 2016 dependency petition filed by DHR in the Lee Juvenile Court ("the juvenile court") averred that the mother was clearly intoxicated at the time law-enforcement officers arrived at her home after receiving a domestic-violence report concerning the mother's altercation with the son. According to a January 15, 2016, judgment entered by the juvenile court, the mother admitted to the allegations in the petition, and the child was declared dependent and was placed in the legal custody of DHR; DHR placed the child in foster care with J.W. In February 2017, DHR returned the child to the custody of the mother, subject to its supervision for a period of three months. DHR concluded its initial involvement with the family in May 2017.
In August 2017, DHR again removed the child from the custody of the mother after the mother was involved in an automobile accident in the front yard of her house. The mother was injured, resulting in her being hospitalized and having to have hip-replacement surgery, and she was later arrested and charged with driving while under the influence of alcohol ("DUI"). DHR filed a second dependency petition regarding the child in September 2017. Two separate safety plans were implemented between August 2017 and December 2017, after which DHR placed the child in the custody of P.C. and J.C. ("the relative foster parents") in Georgia. The relative foster parents are the brother and sister-in-law of the father, who is incarcerated in a federal penitentiary in Mississippi. In April 2018, the juvenile court again declared the child to be dependent. The juvenile court found in its judgment that, in August 2017, the mother had "left [the child] in the house alone late at night and was out driving drunk," that the mother was "so drunk that upon her return [home], she ran off the road, through the neighbors’ yards, and into her own house," resulting in a wreck that "collapsed the front end of her car, bent her steering wheel with her head, and crushed her hip." The juvenile court further noted that the mother had given differing stories about the occurrences of that night, including how much she had to drink, and stated that her "explanation [of the incident] is so implausible that it denies her almost any indicia of credibility and truthfulness."
The mother was found guilty of DUI in the Lee District Court in March 2018; it was the mother's third DUI conviction within a five-year period. She appealed that conviction to the Lee Circuit Court, and she was subsequently found guilty of DUI by a jury in July 2018 and was sentenced to one year in jail. The mother appealed that conviction to the Alabama Court of Criminal Appeals. She was incarcerated from July 30, 2018, to August 27, 2018, when she posted an appeal bond. During the pendency of the appeal in the Court of Criminal Appeals, the mother was released on bond; as a condition of her release, she was required to use an alcohol sensor.
The child remained in the custody of the relative foster parents pursuant to a border-care agreement, pending approval of their home under the Interstate Compact for the Placement of Children ("ICPC"), from December 2017 until September 26, 2018, when the ICPC process was terminated because the relative foster parents, who were not represented by counsel, decided to terminate the ICPC process in hopes of seeking legal custody of the child through the court system. DHR then placed the child back into foster care with J.W. Pursuant to an order entered by the juvenile court on October 4, 2018, the relative foster parents were awarded weekly visitation with the child from "Monday morning to Friday afternoon." The relative foster parents changed their position on the ICPC process, and the ICPC process was instituted again in November 2018. The ICPC process was completed and the relative foster parents’ home was approved in October 2019. In November 2019, the juvenile court awarded the relative foster parents physical custody of the child effective December 20, 2019; DHR retained legal custody. The mother's appeal to the Court of Criminal Appeals was unsuccessful, and she began her year-long jail sentence in November 2019.
In March 2020, DHR filed a petition in the juvenile court seeking to terminate the parental rights of the mother and of the father. After a trial, which was held over three days in May 2020, the juvenile court entered a judgment on June 10, 2020, terminating the parental rights of the mother and of the father. The mother appeals.
The father did not appeal from the judgment terminating his parental rights, and we will therefore not discuss those facts relevant to the juvenile court's decision to terminate his parental rights.
The termination of parental rights is governed by Ala. Code 1975, § 12-15-319. That statute reads, in part:
Section 12-15-319 was amended effective March 11, 2020. In this particular case, the only relevant change to the statute was the addition of § 12-15-319(a)(13), which requires a juvenile court to consider the child's relationship with his or her foster parents when making the decision to terminate parental rights. No party has contended that the amendment to the statute was not applicable to this matter based on the filing date of the petition or otherwise, and the mother does not make any argument related to the juvenile court's application of subsection (a)(13). We therefore apply the statute as amended.
"(a) 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[ ]. In a hearing on a petition for termination of parental rights, the court shall consider the best interests of the child. In determining whether or not the parent[ ] [is] unable or unwilling to discharge [his or her] responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
"....
"(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for the needs of the child.
"....
"(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parent[ ] have failed.
"....
"(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child where the parent is able to do so.
"....
"(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, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.
"(13) The existence of any significant emotional ties that have developed between the child and his or her current foster parent or parents, with additional consideration given to the following factors:
"a. The length of time that the child has lived in a stable and satisfactory environment.
"b. Whether severing the ties between the child and his or her current foster parent or parents is contrary to the best interest of the child.
"c. Whether the juvenile court has found at least one other ground for termination of parental rights."
The test a juvenile court must apply in an termination-of-parental-rights action is well settled:
"A juvenile court is required to apply a two-pronged 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. Ex parte Beasley, 564 So. 2d 950, 954 (Ala. 1990)."
B.M. v. State, 895 So. 2d 319, 331 (Ala. Civ. App. 2004). A juvenile court's judgment terminating parental rights must be supported by clear and convincing evidence. P.S. v. Jefferson Cnty. Dep't of Hum. Res., 143 So. 3d 792, 795 (Ala. Civ. App. 2013). "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.’ " L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002) (quoting Ala. Code 1975, § 6-11-20(b)(4) ). Although a juvenile court's factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct, K.P. v. Etowah Cnty. Dep't of Hum. Res., 43 So. 3d 602, 605 (Ala. Civ. App. 2010), "[t]his court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing." K.S.B. v. M.C.B., 219 So. 3d 650, 653 (Ala. Civ. App. 2016). That is, this court
" ‘must ... look through ["the prism of the substantive evidentiary burden," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 [106 S.Ct. 2505, 91 L.Ed.2d 202] (1986),] to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would "produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion." ’ "
K.S.B., 219 So. 3d at 653 (quoting Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008), quoting in turn Ala. Code 1975, § 25-5-81(c) ).
The grounds for termination alleged in DHR's petition included that the mother had engaged in the excessive use of alcohol of such a duration or nature as to render her unable to care for the child, that the mother had failed to provide for the material needs of the child, and that the mother had failed to adjust her circumstances to meet the needs of the child. DHR presented numerous exhibits at trial, including the mother's July 2018 DUI conviction arising out of the August 2017 incident, the individualized service plans ("ISPs") entered into by DHR and the mother, ICPC documentation, and pleadings and orders from the dependency cases. DHR also presented the testimony of five DHR social workers who had been involved in the family's case during its pendency: Tarnesha Johnson, James Mayers, William Ramirez, Donna McLeod, and Jordan Reinwald.
Johnson testified that she had been the caseworker on the family's case between February 2016 and July 2016. She also testified that she was, at the time of the trial, a DHR supervisor and that the family's case was in her caseload. Johnson explained, as noted above, that the child had been removed from the mother's home in January 2016 after the domestic-violence incident involving the mother and the son. Johnson said that the mother had been cooperative with DHR and that the mother had, in compliance with the ISPs that she had entered with DHR, completed alcohol-treatment classes at "Bradford," had attended parenting classes, had attended Alcoholics Anonymous ("AA") meetings, had participated in drug and alcohol screenings, had participated in mental-health medication monitoring at "Russell County Mental Health," and had participated in in-home services provided by "CFS Services." Because the mother had been compliant with services and had tested negative for alcohol, Johnson said, DHR had initially recommended reunification of the mother and the child in May 2016; however, Johnson explained that DHR then requested that reunification be delayed pending resolution of a domestic-violence charge that had resulted from the January 2016 incident because, she said, the mother could possibly have been sentenced to serve jail time had she been found guilty. Johnson's only other recollections of the mother's conduct during the DHR's initial involvement with the family were that, on two occasions, the mother had been irrational and had sounded inebriated when on the telephone. Johnson explained that the mother had tested negative for alcohol on both of those occasions but that concerns that her mental-health medications might be the cause of her irrational behavior had resulted in the mother's being referred to Russell County Mental Health for monitoring of those medications.
Mayers testified that he had been the family's caseworker from August 2016 to May 2017. He described the mother as having been cooperative with DHR "for the most part." He indicated that there had been two incidents that had caused him to suspect that the mother had been drinking; he described the first incident as being the January 2016 incident that had precipitated DHR's involvement with the family. He also recalled an occasion when the mother had sent him incoherent text messages late at night; he said that she had first blamed the daughter for sending them but had later admitted that she might have sent them while under the influence of her mental-health medications. Mayers testified that the mother had completed the services required by her ISPs, including completing substance-abuse counseling, attending AA meetings, having negative alcohol screens, and cooperating with in-home services. He said that the child had been returned to the mother in February 2017 and that DHR had continued to supervise the family until May 2017 when the case was closed.
Ramirez testified that, in August 2017, he was a child-abuse-and-neglect investigator with DHR when he was assigned to investigate the August 2017 incident involving the mother. He said that the mother had been accused of being intoxicated, of leaving the child alone in the house, and of driving while in her intoxicated state, resulting in the accident in the front yard of her house. Ramirez testified that the mother had explained to him that she had to move the car in the driveway to cut her grass and that she had admitted only to having taken hydrocodone, Klonopin, and cough syrup. According to Ramirez, DHR and the mother had entered into a safety plan allowing the child to stay with a family friend while the mother was in the hospital recovering from surgery necessitated by the accident. He said that the safety plan was later revised to allow the mother to reside with the child in the home of another family friend who was to provide supervision during the mother's convalescence. Ramirez testified that his investigation had resulted in the mother's being found indicated for neglect and inadequate supervision of the child.
McLeod testified that she was assigned to the family's case between mid-January 2018 and mid-March 2019. She explained that, at the time she took over as the caseworker, the child was living in the home of the relative foster parents. During her tenure as caseworker, she said, the mother had lived in Smith's Station and then had moved to Albany, Georgia, when she remarried C.M. McLeod commented that the mother had visited the child regularly, that the visitations had been "appropriate," and that the mother and the child appeared to have a bond.
Although it is not entirely clear from the record, it appears that the mother and C.M. were married when the child was born but that they lived apart in 2016, when DHR first became involved with the mother and the child. The mother mentioned in her testimony that she had gone through a divorce in "2016, 2017," which, we assume, was a divorce from C.M.
According to McLeod, the mother was required, by a "to-do list" issued in conjunction with a May 2018 amended dependency order, to remain alcohol-free, to undergo random color-code drug testing, to undergo hair-follicle drug testing at DHR's request, to complete a drug assessment and any recommended treatment at Opelika Addiction Center ("OAC") or another court-approved addiction center, to attend at least two recovery-focused meetings sponsored by AA or a similar group per week, to obtain a mental-health assessment at "East Alabama Mental Health" or a psychological evaluation with a licensed psychologist, and to comply with all recommendations and treatment plans of her mental-health professional. McLeod testified that the mother did not complete the items on the "to-do list" and that she was often argumentative and uncooperative with DHR. McLeod specifically testified that the mother had not completed treatment at OAC and that she had not provided sufficient proof of her attendance at AA meetings.
Regarding the mother's treatment at OAC, McLeod explained that the mother had been "kicked out" of that program. McLeod testified that the mother had moved to Georgia and had indicated that she had enrolled in a program referred to as "Journey," but, McLeod said, the mother had not signed a release allowing "Journey" to disclose information, and, thus, McLeod had not received any information from "Journey" while she was still the caseworker. McLeod further explained that the mother had provided some information regarding her attendance at AA meetings, but, McLeod said, that information did not amount to proof of the mother's attendance. According to McLeod, the mother had insisted that she could not provide any proof of attendance because of the confidential nature of AA meetings. The court report authored by McLeod indicated that the mother had "acknowledged" that she did not have an AA sponsor. McLeod admitted that, to her knowledge, the mother had never failed an alcohol test or tested positive when using her alcohol sensor.
Reinwald testified that she had been the final caseworker assigned to the family's case. She explained that, during her tenure as caseworker, the child had been in two separate foster-care placements before he was placed back in the home of the relative foster parents in December 2019. She noted that, during the child's foster-care placements, the relative foster parents had regularly visited the child to maintain their bond. Reinwald also spoke very briefly about the child's not being allowed to visit in the relative foster parents’ home in August 2019 because of allegations made against P.C.; the specific details of those allegations do not appear in the record, but they were determined to be "not indicated."
Reinwald explained that the mother had not completed the OAC program and had not provided proof that she had completed another substance-abuse program. Like McLeod, Reinwald testified that the mother had provided some information regarding her attendance at AA meetings but that the information the mother had provided had not been sufficient to verify the mother's attendance. Reinwald admitted that she had finally received information from "Journey" indicating that the mother had participated in its services between August 2019 and November 2019. However, Reinwald maintained that the mother had not completed a substance-abuse program. Reinwald also testified that the mother was behind in paying her child-support obligation and that she had been behind in those payments several times throughout the pendency of the case.
Lillian Snipes, a supervisor in DHR's child-support division, testified that the mother had been ordered to pay child support in 2016 when the child was first removed from her custody. Snipes said that the mother was over $1,300 in arrears by September 2016 and that she had been held in contempt for failing to pay child support. According to Snipes, DHR had seized the mother's 2016 income-tax refund to pay the accumulated arrearage. Snipes testified that the mother was again ordered to pay child support in December 2018 and that, as of November 2019, the mother's arrearage totaled over $2,300. She explained that DHR had seized the mother's government-issued stimulus check related to the COVID-19 pandemic and that, as of the date of the trial, the mother owed $606.20 in past-due child support and $113.83 in interest.
The mother testified that, in late summer 2018, she remarried C.M. and moved to Georgia, where, at the time of the termination trial, she was working as a cosmetologist and barber. Although she testified that she had completed "classes" at OAC, the mother admitted that she had not received a certificate of completion from OAC. She explained that she had not been able to do "aftercare" with OAC because of her relocation to Georgia but that she had begun attending a program that she referred to as "Journey" in September 2018. The mother indicated that "Journey" was a program similar to one offered by OAC and that she had attended 55-minute sessions with a counselor at "Journey" at least once a month.
The mother admitted that she had been convicted of DUI three times since 2014. She also admitted that she was an alcoholic and that she had realized that in 2016 and 2017. She indicated that she did not know how to answer the question whether she had a problem with alcohol but said that she had learned in AA that, "once you're an alcoholic, you're always an alcoholic." According to the mother, she had not had an alcoholic drink in over two years as of the date of the trial, she had never failed an alcohol test administered after the August 2017 incident, and she had never had a positive alcohol reading on her alcohol sensor.
On cross-examination, DHR's counsel questioned the mother about a letter from OAC indicating that she had tested positive for alcohol in November 2017 and December 2017. The mother denied any recollection of that letter, which was then admitted into evidence. During the mother's later testimony, she was also asked about whether she recalled testimony presented in an April 2018 hearing regarding positive results on her alcohol sensor. The mother said that she did not recall that testimony. After some discussion, the juvenile court stated on the record that it would "take judicial notice of the testimony of Matthew Iannarelli on April 19, 2018," but neither the mother nor DHR ensured that Iannarelli's testimony was made a part of the record on appeal.
DHR presented the testimony of Sonia Martin, the director of Lifeline Children's Services for Central Alabama. Martin testified that, at DHR's request, she had performed a "bonding assessment" on the child and the relative foster parents. She explained that she had considered four factors in her assessment: the time the child had spent with the relative foster parents, the behavior of the child, the reciprocity of emotion between the child and the relative foster parents, and the child's family identification. According to Martin, the child had been comfortable around the relative foster parents, had sought closeness with them (evidenced by such things as climbing in their laps and engaging in activities with them), had perceived the relative foster parents as parental authorities, and had appeared "innately grounded in a reciprocal relationship with them." She opined that the child and the relative foster parents were "exceedingly bonded" and that breaking that bond "would be significant to [the child's] outcome." Martin admitted that she had not been asked to assess the bond between the child and the mother and that she could not say that the child was not bonded with the mother. She indicated, however, that, when asked to show drawings of his family, the child had not included his mother and had never mentioned his mother.
Both relative foster parents testified. P.C. testified that he was willing to adopt the child, who, he said, had become a part of his family. Although he stated that he desired permanency for the child, he said that he would be available to maintain custody of the child if the juvenile court denied the petition to terminate the mother's parental rights. He commented that the child's best interest would not be served by his being at risk of moving around more than he already had. Regarding visitation with the mother, P.C. testified that he and J.C. had been able to coordinate a schedule that had worked well for all parties. He also noted that the child had a relationship with the mother and that he was excited to visit her and the daughter.
Similarly, J.C. testified that she desired to adopt the child. She, too, said that she felt it was time to make a decision for the child that would lead to permanency. J.C. explained that the child's repeated moving around between their home and the other foster parents’ homes had created some issues with the child's mood and behavior and that he benefits from consistency. However, she noted that the child knew the mother was his biological mother and commented that she wanted the mother to have continued involvement with the child. She also testified that, in her opinion, "permanency doesn't take away who his biological mother or father are." J.C. further commented that the mother had made progress and that, in her opinion, the mother should have additional chances to maintain the parent-child relationship with the child.
Although J.C. admitted that she and P.C. expected that the mother would have some continued involvement with the child in the future even if her parental rights were terminated, she explained that, in her opinion, a mere award of legal and physical custody had "too many variables" and would not be subject to their control. She described her idea of "permanency" as the child's "need[ing] to know that today, tomorrow, six months from now, six years from now, this is where his room is; ... this is where he is going to bed at night, and knowing where his home was." She said that she desired the stability of adoption for the child, but, like P.C., she said that she would take custody of the child if DHR's termination petition was not granted.
The mother argues on appeal that the juvenile court lacked clear and convincing evidence establishing a valid ground for the termination of her parental rights. She also contends that, although DHR established the mother's past conduct, the record lacks clear and convincing evidence indicating that her current conditions at the time of the entry of the judgment were such that she is unable or unwilling to care for the child or that her conduct or condition is unlikely to change in the foreseeable future. Finally, she argues that the juvenile court erred in determining that no viable alternatives to the termination of her parental rights existed.
We find the mother's final argument dispositive of this appeal. We cannot agree that the juvenile court had sufficient evidence to support the conclusion that no viable alternatives to the termination of her parental rights existed. The mother contends that maintenance of the status quo was a viable alternative in the present case. She argues that placement of the child in the custody of the relative foster parents while awarding her continued visitation would permit her to maintain what she characterizes as "a significant relationship and bond" and a "beneficial relationship" with the child.
The mother admitted that the child was bonded to the relative foster parents. She also admitted that removing the child from their care was not in the child's best interest. However, because the relative foster parents testified that, if termination of parental rights did not occur, they would be willing to exercise custody of the child, the mother contends that continued placement with the relative foster parents is a viable alternative to the termination of her parental rights. We agree.
The relative foster parents might desire to adopt the child, but they clearly indicated that they both intended and expected the mother to have continued involvement in the child's life. J.C. specifically commented that the mother had "made steps in the right direction" and remarked that she felt that the mother deserved additional "chances" to establish and maintain her progress toward rehabilitation. Although there was no bonding assessment performed to determine the level of bonding between the mother and the child, Martin testified that she could not opine that the mother and the child lacked a bond, and McLeod testified that she had observed what appeared to be a bond between the mother and the child. The relative foster parents both testified that they would be there to provide care to the child and to give him the stability he needed for as long as was necessary. Thus, the evidence supports a conclusion that continued placement with the relative foster parents would serve the child's best interest while also maintaining the mother's relationship with the child. See Ex parte A.S., 73 So. 3d 1223, 1228 (Ala. 2011) (determining that continued custody with a grandmother was a viable alternative to termination of parental rights when the grandmother had indicated that she would want the mother to have visitation with the children). The evidence does not clearly and convincingly support the juvenile court's conclusion that no viable alternative to the termination of the mother's parental rights existed or establish a basis for rejecting continued placement with the relative foster parents.
Because we have determined that clear and convincing evidence does not support the juvenile court's conclusion that no viable alternative to the termination of the mother's parental rights existed, we reverse the judgment of the juvenile court and remand the cause for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Moore and Fridy, JJ., concur.
Edwards and Hanson, JJ., concur in the result, without writings.