Mobile County Department of Human Resources
Released for Publication July 22, 2015.
Appeal from Mobile Juvenile Court. (JU-01-1999.01). George A. Brown, Trial Judge.
For Appellant: J.E. Wilson, Mobile.
For Appellee: Sharon E. Ficquette, Chief Legal Counsel, Karen P. Phillips, Asst. Atty. Gen., Department of Human Resources.
Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur. Moore, J., concurs in the result in part and dissents in part, with writing.
C.S. (" the mother" ) appeals from a judgment of the Mobile Juvenile Court terminating her parental rights as to a 12-year-old minor child, A.L.C. (" the child" ), in response to a petition filed by the Mobile County Department of Human Resources (" DHR" ) and after holding an ore tenus proceeding at which a DHR caseworker and her supervisor, a psychologist who had evaluated the mother, a mental-health therapist who has counseled the child, a family counselor, the child's foster father, and the child's maternal grandmother testified. In pertinent part, the judgment under review provides as follows:
" [The child] is a dependent child as that term is defined in the Code of Alabama having been adjudicated to be a dependent child by order of this Court lastly in 2004. The child has remained in the custody of [DHR] since [that] time.
" ... This Court previously issued an order terminating the rights of the mother and the father, [R.C.,] but the mother appealed said judgment and the same was reversed [see C.S.B. v. State Dep't of Human Res., 26 So.3d 426 (Ala.Civ.App. 2009) ('C.S. I')]. The father did not appeal and this Court determines that the father's rights have been terminated.
" ... Subsequent to remand to this Court, the Court dismissed the termination of parental rights petition and [adjudicated in the mother's favor] a subsequent termination of parental rights petition [via a] summary judgment [see Mobile Cnty. Dep't of Human Res. v. C.S., 89 So.3d 780 (Ala.Civ.App. 2012) ('C.S. II')]. The Court thereafter directed [DHR] to resume efforts at reunification.
" ... From the evidence presented this date, the Court finds [DHR] exercised all reasonable efforts to promote a reunification plan but that said plan failed because the mother is incapable of taking care of the child and providing for the child's needs.
" ... The Court finds that although [DHR] has made little if any efforts to find relative placement ... the evidence shows that only the maternal grandmother is a relative who has had any involvement with the child and the mother, and that the maternal grandmother has never sought custody of the child. The Court further finds that the maternal grandmother is well aware of the circumstances surrounding the child and the mother, and that her failure to seek to intervene in this matter establishes, in the Court's opinion, that she is not a viable placement resource. The Court therefore concludes that there are no relatives who are able or willing to take the care, custody, and control of [the] child.
" ... The Court further finds that the child has been in the care of the current foster parents for most of the child's life, has formed a significant bond with said foster parents, and that said foster parents are desirous of adopting this child. The Court finds that it is in the best interest of the child that she be allowed to be adopted by said foster parents.
" ... The Court concludes from all of the evidence that although the mother and child have a relationship, the child has a more significant relationship with the current foster parents and that said relationship should be made permanent by adoption and that therefore it is necessary to terminate the parental rights of the mother.
" ... Given the age of the child, and the relationship between the child and the mother and the relationship between the mother and the foster parents, this Court is convinced that the foster parents, (and later the adoptive parents),
will allow the child to maintain a significant relationship with the mother and that the same would be in the best interest of the child.
" ... Wherefore the Court finds that termination of parental rights is in the best interest of the child."
As a prefatory matter, we note that, in C.S. I, although a majority of this court opined that while the juvenile court could properly have determined the mother to have a mental defect and that " expert testimony should not be required to prove an obvious mental deficit," 26 So.3d at 433 (Moore, J., concurring specially but agreeing to proposition asserted in dissent authored by Thomas, J., and joined by Bryan, J.), a different majority of this court simultaneously concluded that DHR had failed to secure the admission of " evidence as to the extent of the mother's limited mental capacity, whether the mother's mental limitations prevent her from being able to fulfill her parental responsibilities to the child, and whether the mother's condition is likely to change" and noted that DHR had not appealed from the judgment to the extent that the juvenile court had excluded testimonial and documentary evidence of the mother's mental evaluations that might have supported the initial termination judgment. 26 So.3d at 432 (per Thompson, P.J., with Pittman, J., concurring and Moore, J., concurring specially). Similarly, in C.S. II, we held that DHR's second action seeking the termination of the mother's parental rights had been foiled by DHR's own admission that nothing had changed since the filing of its initial termination petition and by DHR's failure to timely ...