January 23, 2015
Jefferson County Department of Human Resources S.M.
Jefferson County Department of Human Resources
Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
from Jefferson Juvenile Court. (JU-12-103243.02,
JU-12-103245.02, and JU-103246.02). Appeal from Jefferson
Juvenile Court. (JU-12-103245.02 and JU-12-103246.02).
B.M., Appellant: Jason J. Bonar, Birmingham.
S.M., Appellant: Michele M. Alexander, Bessemer.
Appellee: Luther Strange, atty. gen., Sharon E. Ficquette,
gen. counsel, Elizabeth L. Hendrix, asst. atty. gen.,
Department of Human Resources.
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
24, 2013, the Jefferson County Department of Human Resources
(" DHR" ) filed in the Jefferson Juvenile Court
separate petitions seeking the termination of the parental
rights of B.M. (" the mother" ) to Sc.M. (case no.
JU-12-103246.02), Br.M. (case no. JU-12-103245.02), and L.M.
(case no. JU-12-103243.02). Sc.M., Br.M., and L.M. are
hereinafter referred to collectively as " the
children." DHR also sought the termination of the
parental rights of the unknown father of L.M. and the
parental rights of S.M. (" the father" ), who is
the father of Sc.M. and Br.M.
was born on July 6, 2001. DHR became involved with the family
that year when it received reports that the mother and the
father, who were unmarried at that time, had engaged in
" physical abuse." In 2003 DHR investigated a
report that the parents had provided inadequate shelter for
Sc.M., that Sc.M. was " dirty," and that the
parents had abused illegal substances. Br.M. was born on
April 28, 2005. In May 2005 DHR received a report that the
parents had abused alcohol and that the father had threatened
to kill the mother. The mother subsequently entered into a
safety plan, agreeing to participate in a domestic-violence
assessment and to seek shelter from the father if necessary
for her safety or the safety of Sc.M. or Br.M.; however, on
November 24, 2005, the mother and the father married one
another. In 2008 DHR received a report that the mother,
Sc.M., and Br.M. were often seen walking in downtown traffic
and that the mother was not watching Sc.M. or Br.M. In 2009
the mother filed a protection-from-abuse petition against the
father in the Calhoun Circuit Court; the mother, Sc.M., and
Br.M. then moved to a domestic-abuse shelter in Jefferson
County. According to DHR, at that time the mother revealed
that she had been severely abused as a child, that she had an
eating disorder, that she suffered from " multiple
personality disorder," that she " heard
voices," and that she regularly " s[aw] dead
people." L.M. was born on October 22, 2010; S.M. is not
the biological father of L.M.
February 22, 2012, the juvenile court found the children
dependent and awarded their custody to DHR; the children were
placed in foster care. Sc.M. was placed in therapeutic foster
care because of his issues with anger and aggression. In 2013
the mother had an automobile accident. Although she denied
that she was the driver of the automobile, she was convicted
of driving under the influence of drugs (" DUI" ).
It is clear that the mother was arrested again, because she
was transported to the June 30, 2014, termination trial from
the Birmingham city jail. However, the reason for her 2014
incarceration is unclear from the record -- the juvenile
court's termination judgments read: " [T]he Mother
was incarcerated for violating probation on a previous DUI or
[for a] theft charge." The mother admitted that she had
failed to appear for a docket call, that she had failed to
pay certain fines associated with the DUI conviction, and
that she had also pleaded guilty to theft " a few months
ago." Regardless of her inability to recall the reason
why she was incarcerated at the time of the termination
trial, the mother appeared sure that she would be released
from incarceration on December 8, 2014, because, she said,
her lawyer was appealing " it."
juvenile court entered separate judgments on July 9, 2014,
terminating the parents' parental rights to the children.
On July 17, 2014, the mother filed a postjudgment motion,
and, on July 22, 2014, the father filed a postjudgment
motion. On July 22, 2014, the mother filed a notice of
appeal. On July 24, 2014, the juvenile court denied the
mother's and the father's postjudgment motions. The
mother's appeal was held in abeyance pending the
disposition of the postjudgment motions, and it "
[became] effective upon the date of disposition of the last
of all such motions" ; thus, the mother's notice of
appeal was deemed filed on July 24, 2014. See Rule 4(a)(5),
Ala. R. App. P. On August 8, 2014, the father filed a notice
of appeal. This court consolidated the appeals ex mero motu.
Father's Appeal -- Appeal No. 2130924
4(a)(2), (3), and (5), Ala. R. App. P., require the father to
have filed his notice of appeal within 14 days of July 24,
2014 -- the date the juvenile court denied his postjudgment
motion and the date the mother's notice of appeal was
deemed to have been filed under Rule 4(a)(5). See J.H.F.
v. P.S.F., 835 So.2d 1024, 1026-27 (Ala.Civ.App. 2002)
(noting that the 14-day period under Rule 4(a)(2) ran from
the effective date of the notice of appeal). However, the
father filed his notice of appeal on August 8, 2014, which
was 15 days after July 24, 2014. Accordingly, the
father's notice of appeal was untimely; an untimely
appeal does not invoke the jurisdiction of this court. Thus,
the father's appeal must be dismissed. See Rule 2(a)(1),
Ala. R. App. P.; and Holt v. State
ex rel. Jones, [Ms. 2130726, Oct. 31, 2014] __ So.3d __, __,
Mother's Appeal -- Appeal No. 2130880
mother seeks our review of three issues -- whether the
juvenile court erred by terminating the mother's parental
rights when, she says, the alleged father of L.M. was not
served, whether the juvenile court failed to consider
maintenance of the status quo as a viable alternative to
termination of her parental rights, and whether clear and
convincing evidence supports the juvenile court's
" 'In reviewing factual findings in
termination-of-parental-rights judgments, this court has a
narrow standard of review that allows us to disturb those
findings only when they are so unsupported by the evidence as
to be plainly and palpably wrong. See J.C. v. State
Dep't of Human Res., 986 So.2d 1172, 1183
(Ala.Civ.App. 2007). If a fact-finder reasonably could have
been clearly convinced from the evidence in the record that a
parent is unwilling or unable to discharge his or her
parental responsibilities to and for the child, this court
may not reverse a judgment terminating parental rights
arising from ore tenus proceedings in a
termination-of-parental-rights case. See J.B. v. DeKalb
County Dep't of Human Res., 12 So.3d  at 111
" M.H. v. Jefferson Cnty. Dep't of Human
Res., 42 So.3d 1291, 1294 (Ala.Civ.App. 2010)."
T.M. v. M.D., [Ms. 2121005, April 11, 2014] 160
So.3d 1, 4, *5 (Ala.Civ.App. 2014).
we consider whether the juvenile court erred by terminating
the mother's parental rights when the alleged father of
L.M. was not properly served. See M.M. v.
B.L., 926 So.2d 1038, 1042 (Ala.Civ.App. 2005) (failure
to properly serve a father rendered a judgment terminating
his parental rights void). The mother lacks standing to
assert the rights of a third party. See Ex parte
Izundu, 568 So.2d 771, 772 (Ala. 1990) (quoting
Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of
Baum, 84 N.J. 137, 417 A.2d 1003 (1980)). Thus, her
argument as to this issue fails.
the mother contends that the juvenile court failed to
consider maintaining the status quo as a viable alternative
to termination of her parental rights. " Our supreme
court has held that a juvenile court should maintain foster
care ... without terminating parental rights when a child
shares a beneficial emotional bond with a parent and the
custodial arrangement ameliorates any threat of harm
presented by the parent." B.A.M. v. Cullman Cnty.
Dep't of Human Res., 150 So.3d 782, 786
(Ala.Civ.App. 2014). The mother highlights the undisputed
testimony that indicated that she had consistently exercised
biweekly supervised visitation and that her interactions with
the children were relatively appropriate. However, there was
no evidence presented indicating that the children had a
strong emotional bond with the mother, although there was
some testimony indicating that the mother felt emotionally
bonded with the children. The
only testimony regarding any shared bond between the mother
and the children was offered by Wydeesha Newsome, who
supervised the mother's visitation with the children,
testified that L.M. had " kind of warmed up" to the
mother but, Newsome said, L.M. did not " run to
time of the termination trial, the children had been out of
the mother's custody and in foster care for two years and
four months. Yolanda King, a DHR employee, testified that
DHR's permanency plan for the children was adoption and
that the children were adoptable.
" ... 'We have held that, " at some point, [a
child's] need for permanency must outweigh repeated
efforts by DHR to rehabilitate" a parent. N.A. v.
J.H., 571 So.2d 1130, 1134 (Ala.Civ.App. 1990) (citing
§ 26-18-7(b)(4), Ala. Code 1975). Further, " [i]n
R.L.B. v. Morgan County Department of Human
Resources, 805 So.2d 721, 725 (Ala.Civ.App. 2001), this
court held that maintaining a child in foster care
indefinitely is not a viable alternative to termination of
parental rights." T.G. v. Houston County Dep't
of Human Res.,  So.3d [1146, 1152] (Ala.Civ.App.
" [Montgomery Cnty. Dep't of Human Res. v.
W.J.,] 34 So.3d [686,] 693 [(Ala.Civ.App. 2009)]."
Jefferson Cnty. Dep't of Human Res. v. L.S., 60
So.3d 308, 316 (Ala.Civ.App. 2010). Therefore, we conclude
that, under circumstances in this case, the juvenile court
did not err by concluding that maintaining the status quo
while the mother continued to attempt to rehabilitate herself
was not a viable alternative to the termination of the
mother's parental rights.
the mother contends that there was not clear and convincing
evidence supporting juvenile court's findings. Section
12-15-319, Ala. Code 1975, provides, in pertinent part:
" (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 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
" (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 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 parents 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."
juvenile court heard testimony indicating that the mother
suffered from emotional and mental illnesses. See §
12-15-319(a)(2). King testified that the mother had submitted
to a psychological evaluation on March 5, 2012, and to a
psychiatric evaluation June 4, 2012. Tamika Thompkins, a DHR
employee, testified that the evaluations indicated that the
mother needed mental-health treatment. An exhibit that is
included in the record indicates that on June 5, 2012, the
mother was diagnosed with depression, post-traumatic stress
disorder, and a borderline personality disorder. King said
that DHR had provided in-home counseling services to the
mother, which were discontinued because the mother was
noncompliant. King and Thompkins said that the mother had
failed to take her medications as prescribed; however, the
mother testified that she took Celexa, which is prescribed
for persons suffering from depression, and Seroquel, which is
prescribed for persons suffering from bipolar disorder or
major depressive disorder.
Paulk, Ph.D., a licensed psychologist and the owner of
Birmingham Anxiety and Trauma Therapy, testified that she had
met with the mother on March 5, 2012. She said that the
mother was late for her appointment and that the mother's
hair and teeth were not brushed, that her shoelaces were not
tied, that her hands were dirty, that her makeup was smeared,
and that the mother appeared to be " really tired"
or under duress during the interview. Dr. Paulk said that the
mother admitted that she " had had some DUIs in
1999" and that she had spent " a couple of weeks in
jail." Dr. Paulk said that the mother reported that her
mind constantly raced and that she actively "
disassociate[d]" from herself " most of the
time." Dr. Paulk said that the mother reported that she
had been a victim of domestic violence and of sexual abuse by
family members over a number of years. The mother told Dr.
Paulk that she had been hospitalized " for being cut,
stabbed, and shot." Dr. Paulk said that the mother
indicated that she had been institutionalized during much of
her childhood because she had experienced " violent mood
swings." Dr. Paulk said that the mother reported that
she was anxious in " every situation," that she was
depressed, that she had attempted suicide by overdosing on
prescription medications multiple times in her 20s, and that
she was " bipolar." Dr. Paulk testified that
bipolar disorder is incurable; furthermore, Dr. Paulk said,
treatment of the symptoms of the disorder is difficult
because medication is a major component of the treatment. Dr.
Paulk said that the mother reported that she had been
prescribed lithium, Thorazine, Valium, and Xanax in the past.
Paulk said that the mother told her that she also suffered
from dissociative identity disorder (which is also known as
multiple-personality disorder) and that she received a
monthly disability benefit of $906 due to her mental illness.
Dr. Paulk testified that it is unlikely that a person could
recover from dissociative identity disorder without
treatment; however, she testified that medication can help
patients deal with the anxiety component of the disorder.
Paulk testified that she had administered several diagnostic
tests to the mother; however, Dr. Paulk could not score the
mother's tests. According to Dr. Paulk, the mother had
" faked" her answers on the personality test to
make her problems appear worse than they were, which,
according to Dr. Paulk, was a common tendency of people
attempting to qualify for disability benefits. Dr. Paulk said
that the mother gave the most extreme answer to
every question on the parenting-stress test, which, although
possible, Dr. Paulk said, was an " unexpected"
result. Dr. Paulk said that the mother did not read the
questions before indicating her answers on the " State
Trait Anger Expression Inventory" test and that, by the
end of that test, the mother's " pencil was just
trailing off." On the " Beck Depression
Inventory," the mother had answered some questions twice
and had provided no answers for other questions. Because Dr.
Paulk determined that the mother had failed to understand the
serious nature of the interview and was not " very
interested" in having her parenting skills evaluated,
Dr. Paulk recommended an inpatient psychiatric evaluation. In
conclusion, Dr. Paulk said: " I would recommend severe
caution in terms of reuniting or giving her independent
responsibility for her children."
juvenile court heard testimony that DHR's reasonable
efforts to rehabilitate the mother had failed. See §
12-15-319(a)(7). It was undisputed that DHR had offered
services and that the mother had participated in the services
provided. DHR witnesses testified that DHR had provided
substance-abuse counseling, parenting classes,
domestic-violence-prevention classes, supervised visitation
with the children, and a treatment plan that had included
in-home family support once or twice per week and family
therapy. However, Martisa Mauldin, a therapist, said that the
mother had not displayed an ability to follow through with
the skills Mauldin had attempted to teach. Mauldin said:
" I did not see evidence [of the mother's parenting
skills] improving or changing. The concern that I had in the
session I did have with mom was mom's ability to
understand the need to parentally observe kind of what the
children were doing. At the time my understanding was that
the children were having some violence in the home. The
juvenile court heard testimony indicating that the mother had
not provided financial support for the children. See §
12-15-319(a)(9). King and Thompkins said that the mother had
reported that she received disability benefits but that the
mother had failed to provide DHR verification of that income.
King said that the mother had been employed at the Tutwiler
Hotel from November 2012 through February 2013; however,
Thompkins said the mother was terminated from that employment
when she was arrested and incarcerated on the DUI conviction.
Herman Henderson, the mother's pastor, testified that the
mother worked with a program called " Stop the
Violence." King said that the mother was " paid in
food and gas when she did have a car and sometimes she was
paid maybe twenty-five dollars or so." Henderson said
that the mother was paid as " contract labor" ; he
said she once " made somewhere close to about a thousand
juvenile court heard testimony indicating that the mother
failed to adjust her circumstances to meet the needs of the
children. See § 12-15-319(a)(12). King testified that at
the time of the termination trial the children had been in
foster care for 28 months, and it was clear that the mother
was again incarcerated at that time. Before the mother was
arrested, King said, the mother had resided at a facility
operated by the YWCA. According to the mother, she left the
YWCA facility because the term for which she was allowed to
stay had expired. Allison Schubert, the housing specialist
for the YWCA of Cental Alabama, testified that the mother was
evicted from the YWCA facility for several reasons, including
because she had failed to consistently participate in the
required " case management meetings," because a
security guard had reported that the mother had appeared
intoxicated on one occasion, because the mother had had
a " verbal altercation with another resident," and
because the mother had harassed a YWCA staff member.
Schubert's testimony is supported by a letter that
appears in the record. The letter, signed by Monica Shields,
the YWCA's coordinator of resident services, indicated
that the mother's residency at the YWCA facility was
nonrenewed two months before the allowable term expired
because of the unsanitary condition of her apartment and the
specific disruptive behaviors that had been described by
we conclude that the juvenile court did not err by
determining that clear and convincing evidence demonstrated
that the mother was unable or unwilling to discharge her
parental responsibilities to and for the children and that
that condition was unlikely to change in the foreseeable
future based upon the testimony and documentary evidence
indicating that the mother suffers from various mental and
emotional illnesses, that DHR's reasonable efforts to
rehabilitate the mother had failed, that the mother had
failed to provide material support for the children, and that
the mother had failed to adjust her circumstances to meet the
needs of the children. We further conclude that the juvenile
court did not err by terminating the mother's parental
rights because the alleged father of L.M. was not served or
by failing to consider maintenance of the status quo as a
viable alternative to termination; therefore, the juvenile
court's judgments terminating the mother's parental
rights to the children are affirmed.
-- APPEAL DISMISSED.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
The mother asserted that T.J. was the
father of L.M. and that he resided in Calhoun County; the
unknown father of L.M. was served by publication in Jefferson
Wydeesha Newsome testified that during
visitations she supervised she had observed the mother
telling the children to shake vending machines to get snacks
for which they had not paid and that, during one period, the
mother had smoked cigarettes during the visits.