Opinion
2210177
06-30-2022
T.B. v. Jefferson County Department of Human Resources
Appeal from Jefferson Juvenile Court (JU-19-56.03)
FRIDY, Judge.
T.B. ("the mother") appeals from a judgment of the Jefferson Juvenile Court terminating her parental rights to her six-year-old child M.B. ("the child"). We reverse the judgment and remand this cause to the trial court for further proceedings.
Background
The mother testified that the Jefferson County Department of Human Resources ("DHR") first became involved with her, the child, and the child's putative father, M.H., in early January 2019. It is undisputed that M.H. is not the child's legal father and that he failed to obtain a paternity test that the juvenile court had ordered to establish paternity. In January 2019, the mother said, the three of them lived in a house that belonged, or had belonged, to her parents. It is unclear from the record whether the mother's parents were still living at that time; the mother said that she tried "not to remember" how long her own mother had been dead but estimated it had been approximately two years. In January 2019, DHR filed a dependency petition seeking to remove the child from the home based in part on the house's "deplorable" condition, which included holes in the walls and trash and clutter throughout the house, which, according to the petition, looked as if it had not been cleaned in months. The mother testified that her mother had been a hoarder, which, she said, accounted for the house being in disarray. Because of the condition of the house, DHR employees asked the mother to submit to a drug screen, which was positive for the use of cocaine, marijuana, and benzodiazepine. M.H. tested positive for the use of marijuana. In August 2020, DHR filed a petition seeking to terminate the mother's parental rights to the child.
Under this court's holding in J.R.C. v. Mobile County Department of Human Resources, [Ms. 2190975, June 18, 2021] __So. 3d__ (Ala. Civ. App. 2021), the juvenile court's judgment is void insofar as it purported to terminate M.H.'s parental rights; however, it is not void insofar as it terminated the parental rights of the mother. Because M.H. did not appeal from the judgment, we will discuss the evidence relating to him only to the extent that it also involves the mother.
Three months before the November 2021 trial, the mother testified, she was arrested because of what she said was a "mistaken identity." She said that she did not know the charges against her because, when she was released on bond, she "didn't read the paper," but then she said that she was aware that they were gun and drug charges. It appears from the record that no gun charges were pending against the mother at the time of the trial. Instead, she had been charged with the unlawful possession of drug paraphernalia, the unlawful possession of cocaine, and distribution of heroin. When asked about the status of the charges pending against her, the mother said that she did not know what that meant and that her lawyer dealt with that.
At the time of the trial, the mother said that she lived with her aunt, M.A.L., in a three-bedroom house. However, Angie Todd, the DHR social worker handling the child's case at the time of the trial, testified that the mother had recently told her that she was living at a certain hotel. M.A.L. testified that the mother did not live with her at the time of the trial but that the mother had stayed with her "off and on" during the year. She said that the mother might stay two or three weeks with her, then be gone for months at a time. Before living with M.A.L., the mother said, she had lived with M.H. in a hotel in Birmingham for three to five months, but it was a different hotel from the one Todd and M.A.L. named. The mother said that she left the hotel after her arrest.
The mother said that she had worked as a security officer as recently as four or five months before the trial but that she had quit that job because, she said, she had not had dependable transportation. The mother said that she had not wanted her supervisor to have to keep picking her up for work. She said that she had worked as a security officer for about a year and that, before that, she had worked as a caregiver for about eight years. The mother said that she had obtained a vehicle about two months before the trial and that she had a valid driver's license. The mother said that, although she was unemployed, she received Social Security benefits and Supplemental Security benefits in the amount of $814 each month. She said that she did not provide monthly financial support for the child.
The mother testified that she and M.H. had been in a relationship for almost seven years and that she still saw him frequently. The mother acknowledged that she and M.H. had a history of domestic violence but stated that they had taken a domestic-violence course at the Northern Learning Institute and that she and M.H. "followed their protocol." The mother also acknowledged that she had told employees of DHR that she had been afraid of M.H., but, she said, that was before they had taken the course. She could not remember when they had taken the domestic-violence course. The mother also agreed that she had sent an e-mail to DHR employees saying that M.H. was bipolar and unstable, that he sold drugs, and that his family was heavily involved in "running" drugs. She also said that M.H. had tried to choke her and had said that he would kill her. Nonetheless, she testified that she believed that the domestic-violence course they had taken had helped to resolve their relationship issues and that they no longer argued or fought. She also said that she would be comfortable allowing M.H. to be around the child.
The mother said that she had completed the services that the juvenile court had ordered her to take part in at a shelter-care hearing, including counseling, submitting to a drug assessment, attending parenting classes and anger-management classes, and obtaining stable housing and employment. The mother said that she had completed the classes through the Northern Learning Institute, and she produced certificates showing that she had completed a four-hour course on drug and alcohol awareness and a sixteen-hour course on parent education and family stabilization. She also produced a certificate showing that she had completed an eight-hour domestic-violence course and that M.H. had completed a four-hour domestic-violence course, although there is no evidence in the record indicating that DHR had asked that the parents take such a course. She said that she had sent every certificate she had received to DHR.
The mother testified she had not always participated in court-ordered drug testing. In fact, evidence indicated that the mother had participated in only four out of the forty-eight tests for which she had been scheduled. On the four tests to which she did submit, the mother tested positive for marijuana, cocaine, benzodiazepine, and/or amphetamines. The mother said that, although DHR had provided her with all the bus passes she needed to participate in the drug screens and other services it had offered to her, she had health issues that made standing in a bus line difficult. She also said that she had used the passes to find housing. The mother added that she was tired of fighting with people to take her places, claiming that M.H.'s family had beaten her so badly, apparently for asking them to take her some place, that she "was bleeding internally for almost six months." In addition to saying that DHR had provided her with adequate bus passes, the mother said that she believed that DHR had adequately responded to her health issues, adding that she felt like DHR had done as much as it could do for her.
The mother submitted to a drug assessment through the Northern Learning Institute, the results of which indicated that the mother should receive counseling. The mother said that she had participated in a drug-treatment program in 2009 but that she was not currently enrolled in a substance-abuse-treatment program. She testified at trial that she did not currently have a substance-abuse issue, but she conceded that if she were tested for drugs that day, she would be positive for marijuana use. The mother explained that she took benzodiazepine for anxiety but that, because benzodiazepine affected her liver, she preferred to smoke marijuana. The mother also said that she had attended all the court hearings in this matter. However, the record indicates that she had missed court on two occasions. The mother said that her failure to appear at those hearings was not her fault.
Todd, the DHR social worker, said that she had been involved with the family for about four or five months but that the mother's testimony regarding the background and history of the case was generally correct. She said that DHR was concerned about the mother's continued drug use and recent drug arrest, explaining that those indicated that the mother had not learned from her drug-awareness class. DHR was also concerned that the mother had returned to her relationship with M.H., who allegedly had abused her, and with the mother's lack of stable housing. Todd testified that DHR had no other services to offer to the mother to enable her to parent the child.
It is undisputed that the mother consistently exercised visitation every other Friday with the child. She was aware of the child's extracurricular activities, such as gymnastics and ballet. The mother said that the child liked to color and paint. The mother also said that the child had given her a list of things she would like and that the mother had tried to bring items from that list to her visits. She and Todd both testified that the mother and the child have maintained a close and loving relationship since the child was removed from the mother's custody. The child kisses the mother on the cheek and calls her "Mommy 2." Todd said that she had been able to observe the mother and the child during their visits and that their relationship still appeared to be that of a mother and child. The mother said that she believed that terminating her parental rights would result in emotional or psychological harm to the child.
The mother testified that she named M.A.L. as the only relative resource she would consider appropriate for the child. The mother said that if the juvenile court required her to move out of M.A.L.'s house in order to place the child with M.A.L., she would do so and probably would live with her cousin and her cousin's son. Todd testified that DHR did not consider M.A.L. to be a viable relative resource based on her age and illness, although she was not able to name M.A.L.'s illness. The mother testified that M.A.L. was in her late seventies. M.A.L. testified that, although she had been willing to take the child when the case began, she was unable to do so by the time of the trial.
The mother said that DHR had asked her about M.H.'s sister, V.S., as a possible relative resource but that, then, DHR had learned that V.S. had been in jail. Another woman, T.C., had been suggested as a possible relative resource, but, the mother said, T.C. had also had issues with DHR, and the mother said that she did not want to put the child at risk by placing her with T.C. Moreover, it was learned that T.C. was not a relative and thus could not serve as a placement for the child. Todd testified that a family member named B.A. had been identified as a possible relative resource but that B.A. had informed DHR that she no longer wished to be considered. No other family member came forward to serve as a relative resource. Todd testified that the child had lived with her foster family since being removed from the mother's custody in January 2019.
On November 9, 2021, the juvenile court entered a judgment terminating the mother's parental rights. The juvenile court found that, based on the evidence presented, the mother was not willing or able to provide for the child's support, training, and education; that the mother was not willing or able to discharge her responsibilities to and for the child; and that the mother's conduct or condition rendered her unable to properly care for the child and that conduct or condition was unlikely to change in the foreseeable future. Additionally, the juvenile court found that DHR had made reasonable efforts to reunite the mother and the child and that those efforts had failed. It also found that DHR had investigated all viable alternatives to the termination of parental rights and that no such alternatives existed. The mother filed a timely notice of appeal from the judgment.
Standard of Review
DHR bore the burden of proof at trial to establish by clear and convincing evidence that the termination of the mother'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). A juvenile court's fact findings that are based on ore tenus evidence are presumed to be correct. K.R.S. v. DeKalb Cnty. Dep't of Hum. Res., 236 So.3d 910, 912-13 (Ala. Civ. App. 2017).
Analysis
In determining whether to terminate parental rights, a juvenile court is required to find clear and convincing evidence indicating that the child is dependent and must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990); see also B.M. v. State, 895 So.2d 319, 331 (Ala. Civ. App. 2004). Here, the mother does not challenge the juvenile court's determination that the child is dependent. However, she does contend that the juvenile court erred in finding that DHR had made reasonable efforts to reunite her and the child.
DHR is "required to make reasonable efforts to rehabilitate parents of dependent children." Montgomery Cnty. Dep't of Hum. Res. v. A.S.N., 206 So.3d 661, 672 (Ala. Civ. App. 2016). In doing so, it "must make an effort to tailor services to best address the shortcomings of and the issues facing the parents." Id.
In H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094, 1106 (Ala. Civ. App. 2007) (opinion on return to remand) (per Moore, J., with two judges concurring in the result), evidence indicated that, although the Baldwin County DHR had offered the mother in that case supervised visitation, random drug testing, and bus tickets to attend individualized-service-plan meetings and drug testing, it had failed to offer the mother "any services designed to assist [her] in overcoming her drug problem, in obtaining appropriate housing, or in obtaining employment or steady income." (Footnotes omitted.) In H.H., the main opinion stated that the services offered "hardly constitute[d] a fair and serious attempt to cure the mother's substance-abuse, housing, and income problems so that she could quickly and safely reunite with the child." Id. Therefore, the main opinion held, clear and convincing evidence did not support the juvenile court's finding that the Baldwin County DHR had used reasonable efforts to reunite the mother with the child. Id. As then Judge Bryan observed in an opinion concurring in the result in H.H.: "If DHR had exerted reasonable efforts to rehabilitate the mother in a timely fashion, the child … may have been returned to the mother much earlier or DHR could have prevailed in terminating the mother's parental rights due to her failure to rehabilitate." 989 So.2d at 1109-10. See also C.B. v. State Dep't of Hum. Res., 782 So.2d 781, 784-85 (Ala. Civ. App. 1998) (reversing a judgment terminating a mother's parental rights after concluding that the Jackson County DHR had failed to work with the mother toward rehabilitation).
In this case, the record is notable for what it does not contain. The evidence is sparse regarding the efforts DHR made to rehabilitate the mother or to ensure that she was provided with the services she needed to work toward reunification with the child. No individualized service plans were discussed or submitted into evidence. There is no evidence in the record indicating that DHR kept track of the mother's progress or lack of progress, other than her failure to submit to drug screens. Although the mother's drug use was of concern to DHR, no evidence was presented indicating that it had made any effort to see that the mother received treatment for her substance abuse. Todd testified that the mother had not participated in the counseling recommended after she had completed the drug assessment, but no evidence was presented indicating that DHR had made arrangements or referrals for the mother to receive counseling. Put simply, the record contains no evidence indicating that DHR actually addressed the mother's substance abuse, which was her main barrier to reunification. See M.L. v. Jefferson Cnty. Dep't of Hum. Res., [Ms. 2200948, Mar. 4, 2022] __So. 3d__ (Ala. Civ. App. 2022).
Additionally, there is no evidence in the record indicating that DHR attempted to assist the mother with finding appropriate housing, even though a lack of stable housing was one of the issues DHR had identified regarding the mother. There is also no evidence indicating that DHR provided any guidance to the mother while she took the courses through the Northern Learning Institute or whether DHR even sanctioned those courses.
We agree with the mother that DHR presented insufficient evidence from which the juvenile court could have been clearly convinced that DHR had made reasonable efforts to rehabilitate her or to provide her with services tailored to meet her substance-abuse and housing issues, which had been identified as barriers to reunification. Because DHR failed in its duty to use reasonable efforts to rehabilitate the mother, we reverse the judgment terminating the mother's parental rights, and we remand the cause to the juvenile court for further proceedings.
REVERSED AND REMANDED.
Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.