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H.T. v. Cleburne County Dep't of Human Res.

Alabama Court of Civil Appeals

October 10, 2014

H.T.
v.
Cleburne County Department of Human Resources

Released for Publication June 10, 2015.

Page 1055

Appeal from Cleburne Juvenile Court. (JU-13-33.02). Warren G. Sarrell, Jr., Trial Judge.

For Appellant: Adrienne Michele LaBudde, Anniston.

For Appellee: Luther Strange, Atty. Gen., Sharon E. Ficquette, Gen. Counsel, Elizabeth L. Hendrix, Asst. Atty. Gen., Department of Human Resources.

DONALDSON, Judge. Pittman and Thomas, JJ., concur. Thompson, P.J., and Moore, J., concur in the result, without writings.

OPINION

Page 1056

DONALDSON, Judge.

H.T. (" the mother" ) appeals from a judgment of the Cleburne Juvenile Court (" the juvenile court" ) terminating her parental rights to J.A.T. (" the child" ). On appeal, the mother contends (1) that the juvenile court lacked jurisdiction over the subject matter of the petition pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (" UCCJEA" ), § 30-3B-101 et seq., Ala. Code 1975, (2) that the

Page 1057

juvenile court improperly certified the judgment terminating her parental rights under Rule 54(b), Ala. R. Civ. P., and (3) that the Cleburne County Department of Human Resources (" DHR" ) failed to present clear and convincing evidence to support termination of her parental rights to the child. We conclude that the juvenile court had subject-matter jurisdiction, that the judgment was properly appealable, and that sufficient evidence was presented to support the judgment terminating the mother's parental rights. Therefore, we affirm the juvenile court's judgment.

Facts and Procedural History

On November 27, 2013, DHR filed a petition to terminate the parental rights of the mother and J.H. (" the father" ) to the child. The juvenile-court clerk assigned the petition case number JU-13-33.02. The case-action summary shows that the mother was served with process by personal service on December 9, 2013. The record does not indicate the location where the mother was served; however, her address on file with the juvenile court at that time was a street address in Fruithurst, Alabama (" the Fruithurst address" ). The juvenile court set DHR's petition for trial to begin on February 20, 2014. The father was not personally served with the petition,[1] and the juvenile court entered an order granting DHR's motion to serve him by publication. The trial on the petition to terminate the mother's parental rights began on February 20, 2014, as previously scheduled, and the juvenile court set a trial regarding the father to begin on April 24, 2014.[2]

The record contains the following facts relevant to the issues presented for review. The mother had a long history of drug abuse. She had given birth to six children, and each child had been removed from her custody. Testimony indicates that the father of the child in the present case is not the father of any of the mother's other children. At the time of the trial, the mother's oldest child lived with her former husband in Georgia. In April 2010, three of the mother's children were removed from her custody by the Georgia Division of Family and Children's Services (" GDFCS" ) because of the mother's abuse of methamphetamine, her lack of appropriate housing, and her inability to financially support the children. The three children were placed with paternal relatives. As a part of that case, GDFCS offered the mother a substance-abuse assessment, drug treatment, drug screens, parenting classes, and counseling. Although the mother was initially noncompliant with GDFCS's recommendations, she eventually entered into inpatient substance-abuse treatment in August 2010. She completed that treatment program and had negative drug screens for one year until she tested positive for methamphetamine in August 2011. Thereafter, GDFCS had difficulty contacting the mother. Testimony indicates that the mother was not able to maintain a stable residence for more than six months and that she was difficult to contact because she frequently moved between Georgia and Alabama.

On January 21, 2012, the mother gave birth to B.T.A. month before B.T.'s birth, the mother tested positive for methamphetamine. Shortly after B.T.'s birth, the mother voluntarily severed her relationship with B.T. by signing documents to

Page 1058

facilitate that child's placement for adoption in Georgia. On the 2012 adoption-acknowledgment forms, the mother provided the Fruithurst address as her residence.

On April 1, 2013, the mother gave birth to the child at Tanner Medical Center (" the hospital" ) in Georgia. At the time of the child's birth, both the child and the mother tested positive for amphetamines. DHR was notified and contacted the mother at the hospital. Concerning whether DHR or GDFCS would respond to the report regarding the mother and child, Jennifer Rios, a child-abuse-and-neglect investigator with DHR testified, as follows:

" [DHR'S Attorney:] ... [W]hat did you do in response to [receiving the report]?
" [Rios:] There [were] some jurisdictional issues due to the addresses provided to the hospital by [the mother], and -- but we made contact with the mother at [the hospital] in Georgia.
" [DHR'S Attorney:] Going back with the jurisdictional issues. What address did [the mother] give the hospital as the address that she would be leaving with the baby and residing there if she left the hospital? Do you recall?
" [Rios:] There were -- I didn't take the call. I just remember that Calhoun County DHR was contacted with an address, but there was no verification that she actually lived there. Haralson [County] or Carroll County[, Georgia], one of the two counties in Georgia were contacted, and they did not take it. I don't know th exact address. I know that there was one in Ohatchee[, Alabama]. [The mother] finally gave one in Fruithurst at her father's, that's how we got involved.
" [DHR'S Attorney:] She informed Cleburne County DHR that she was going to be living with her father in Fruithurst?
" [Rios:] Yes.
" [DHR'S Attorney:] And that was in Cleburne County?
" [Rios:] That's correct."

Before the child's birth, the mother had been living with the father in Georgia, but the record is not clear how long she had been living there. Testimony indicates that D.T. (" the grandfather" ), the child's maternal grandfather, resided at the Fruithurst address. The mother reported to a DHR worker that she did not want GDFCS in Haralson County, Georgia, contacted because, the mother said, she did not have a good relationship with that agency.

DHR obtained a pick-up order from the juvenile court and removed the child from the mother's custody on April 3, 2013.[3] DHR brought the child to Alabama. The record shows that a hearing was held on April 5, 2013, regarding the child and that the mother was present at the hearing. The juvenile court entered an order finding the child to be dependent on April 26, 2013. DHR initially placed the child in foster care in Cleburne County on April 3, 2013. On August 12, 2013, the child was placed with foster parents in Haralson

Page 1059

County, Georgia, who had adopted B.T., the child's half sibling. The child remained in the custody of the foster parents in Georgia at the time of the trial on the petition to terminate the mother's parental rights.

After the child was removed from the mother's custody, DHR offered the mother various services. An initial individualized service plan (" ISP" ) formulated by DHR on April 5, 2013, with the mother present, established that the mother, in order to be reunited with the child, would be required to provide for the child's basic needs, to obtain and maintain sobriety in order to adequately parent the child, and to provide safe and stable housing for the child.[4] DHR provided a standard-visitation schedule for the mother and the father and also directed the mother and the father to submit to a drug assessments. The visitation schedule allowed the mother and the father to visit the child up to three times a week for three hours each visit. Testimony showed that the mother visited with the child twice after the child was removed from her custody: once on April 5, 2013, and again in February 2014. On April 23, 2013, the mother was arrested on criminal charges in Haralson County, Georgia, relating to possession of drugs and fraudulent use of a credit card. She remained incarcerated until May 17, 2013, when she was sentenced and placed on probation for 10 years. After her release from incarceration, the mother had no contact with the child for the remainder of 2013. The mother contacted DHR to set up visits in May 2013 and July 2013, but she failed to attend those visits. Also, the mother failed to undergo the drug assessment. She also failed to submit to several drug screens requested by DHR. The mother did not attend ISP meetings held on May 4, 2013, July 1, 2013, August 2, 2013, and November 25, 2013. The record shows the mother was incarcerated at the time of the May 4 and November 25 meetings. She attended ISP meetings on only April 12, 2013 and on August 29, 2013, which meeting was held after a court hearing.[5] The mother admitted at trial to using methamphetamine during the pendency of the case.

The mother was arrested again in October 6, 2013, in Haralson County, Georgia, on charges of theft by bringing stolen property into Georgia, felony probation violation, misdemeanor probation violation, and theft by receiving stolen property. Arising from the same incident, the mother was charged with first-degree theft of property in Clay County, Alabama. The charges stemmed from her alleged involvement in the theft of a vehicle that had been transported over the state line. A certified copy of the Clay County warrant issued for the mother's arrest that was introduced as an exhibit at trial provided the Fruithurst address for the mother.

On November 25, 2013, DHR changed the permanency plan from a plan to return custody to the mother or placement with a relative to termination of parental rights, with the permanency goal of adoption by the foster parents. On November 27, 2013, DHR filed the petition to terminate the mother's and the father's parental rights.

Page 1060

The mother remained incarcerated in Georgia on the criminal charges until December 2013. Undisputed testimony showed that, in December 2013, the mother was ordered by the juvenile court to pay child support in the amount of $250 per month, although the order requiring that payment is not in the record. On December 20, 2013, the mother contacted DHR to report that she was entering a rehabilitation facility in Anniston. While in that facility, she became employed as a hostess at a restaurant in Anniston. Upon her employment, her wages were garnished to pay child support. While in the rehabilitation facility, the mother was provided random drug screens once a month, and she passed three drug screens. Until her wages were garnished when she obtained employment in January 2014, the mother did not provide financially for the child. The mother also had not provided diapers, clothing, bottles, or food for the child. The mother did not give the child a Christmas present.

At the time of trial, the pending criminal cases in Georgia and in Clay County had not been adjudicated. The mother testified that she had an opportunity to participate in a drug-court program as a way to address the charges and that she intended to complete an application for admission into that program. She testified that she had a court date of March 18, 2014, to address the criminal charges. The mother testified that she had not been informed whether probation-revocation proceedings would be initiated as a result of the charges filed against her arising from the October 2013 incident.

DHR's witnesses testified that the mother had not achieved the goal of obtaining and maintaining sobriety, although she had entered a rehabilitation facility in December 2013; that she had not achieved the goal of maintaining stable housing; and that there was no bond between the child and the mother. Testimony also indicates that DHR investigated and contacted numerous relatives for potential placement of the child. Many of the relatives whom DHR contacted lived in Alabama, including the mother's father, who lived at the Fruithurst address, and her sister, L.C., who lived in Ohatchee, Alabama. Testimony indicates that the father told DHR workers that he did not want the mother living on his property if she continued using drugs. According to testimony, the relatives who were contacted were determined to be unsuitable, declined to serve as placement for the child, or did not respond to inquiries.

On February 25, 2014, the juvenile court entered a judgment terminating the mother's parental rights. The juvenile court found that mother was unable or unwilling to discharge her parental responsibilities, that she had abandoned the child, that she was unable to properly care for the child and that her condition or course of conduct was unlikely to change in the foreseeable future, that she had failed to provide for the material needs of the child or pay a reasonable portion of the child's support, that she had failed to maintain regular visits with the child in accordance with a plan devised by DHR and agreed to by the mother, that she had failed to maintain consistent contact or communication with the child, and that she had failed to rebut the presumption that she was unable or unwilling to act as a mother due to her abandonment of the child for over four months. The mother filed a motion to alter, amend, or vacate the judgment on March 7, 2014. The juvenile court did not rule on the motion. The mother filed a notice of appeal to this court on March 21, 2014.

An affidavit of publication filed with the juvenile court on April 9, 2013, shows that

Page 1061

the last date of publication of notice to the father occurred on April 3, 2014. DHR's petition to terminate the father's parental rights to the child was tried on April 24, 2014. On May 14, 2014, the juvenile court granted the petition to terminate the father's ...


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