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J.S.L. v. Jefferson County Dep't of Human Res.

Alabama Court of Civil Appeals

April 17, 2015

J.S.L.
v.
Jefferson County Department of Human Resources

          Appeal from Jefferson Juvenile Court. (JU-12-443.03).

         For Appellant: Wendy Allison Reese, Birmingham.

         For Appellee: Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources.

         George W. Andrews and Alisha R. May, guardians ad litem, Birmingham.

         THOMAS, Judge. Pittman and Donaldson, JJ., concur. Thompson, P.J., dissents, without writing. Moore, J., dissents, with writing.

          OPINION

Page 873

          THOMAS, Judge.

         J.S.L. (" the mother" ) is the mother of J.Z.L. (" the child" ), who was born on November 29, 2012. The child's father is unknown. On December 5, 2012, the Jefferson Juvenile Court adjudicated the child dependent and awarded her custody to the Jefferson County Department of Human Resources (" DHR" ).[1] The juvenile court's dependency judgment required the mother to submit to a substance-abuse assessment, to obtain and maintain housing, to complete domestic-violence-prevention classes, and to complete a series of parenting classes. The child was first placed with J.S., and, then, three weeks later, she was placed in foster care, where she remained at the time of the termination-of-parental-rights trial pertaining to the child.[2] On September 19, 2013, DHR requested an order relieving it of the duty to provide reasonable services designed to reunite the family; the juvenile court entered the requested order after a hearing in December 2013. The mother failed to appear at the hearing; therefore, DHR's request was unopposed.

         On March 12, 2014, DHR filed a petition seeking the termination of the parental rights of the mother and the child's unknown father. DHR asserted that the child is the mother's fifth child and that the mother's parental rights to the child's four half siblings (" the siblings" ) have been involuntarily terminated due to the mother's drug abuse, acts of domestic violence, and acts of physical abuse of the siblings. The termination judgments pertaining to the siblings were entered between 2002 and 2008. DHR asserted that the mother had failed to adjust her circumstances to meet the needs of the child, had failed to visit the child, and had failed to take advantage of reunification services provided by DHR; that those conditions were unlikely to change in the foreseeable future; and that no viable alternatives to termination of parental rights existed.

         On September 3, 2014, the juvenile court entered a judgment terminating the mother's parental rights and awarding DHR permanent custody of the child.[3] The juvenile court based its termination judgment on its findings that the mother's parental rights to the siblings had been involuntarily terminated, that the mother had " not ever cooperated" with DHR, that the mother was unemployed, that the mother resided in subsidized housing, and that the mother had failed to support the child. The juvenile court noted that the mother had visited the child and that she had completed a drug-treatment program, a domestic-violence-prevention program, and a series of parenting classes. On September 16, 2014, the mother filed a notice of appeal seeking this court's review of whether the juvenile court's judgment is supported by clear and convincing evidence.

" This court's standard of appellate review of judgments terminating parental rights is well settled. A juvenile court's factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep't of Human Res., 975 So.2d 969, 972

Page 874

(Ala.Civ.App. 2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is 'required to apply a presumption of correctness to the trial court's finding[s]' when the trial court bases its decision on conflicting ore tenus evidence. Ex parte State Dep't of Human Res., 834 So.2d 117, 122 (Ala. 2002) (emphasis added). Additionally, we will reverse a juvenile court's judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972."

J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App. 2007) (footnote omitted). A juvenile court may terminate parental rights only when the evidence presented is " clear and convincing evidence, competent, material, and relevant in nature." § 12-15-319(a), Ala. Code 1975.

         The termination-of-parental-rights trial was held on July 10, 2014, and on August 21, 2014. Before the testimony began on the first day of the trial, the mother's attorney requested a continuance because, she argued, that same morning the mother had informed her for the first time that she had successfully completed a substance-abuse program. The mother's attorney stated that she had telephoned Kiwanna Morris, an employee of the Aletheia House, who had confirmed the mother's claim, and Morris additionally reported to the mother's attorney that she had the records of the mother's series of negative drug screens and the results of the mother's psychological evaluation. The attorney for DHR opposed the continuance, and the juvenile court declined to continue the trial, but it recommended requesting that Morris make documentation available to the court. However, at the close of the first day of the trial, the juvenile-court judge stopped the trial and stated orally:

" Okay. What's happening here is [the mother has] stuff nobody knows[,] including [her] lawyer, I think, which is sort of a surprise to everyone. All right, I am of a mind to end [the] trial right now and just wait and resume it later. And here is why, (speaking to the DHR attorney) because there's evidence here that would be important to me to know that no one -- there's not an attorney in here that knew any of this existed.
" ....
" Here's what I want you to do. I'm going to stop this trial right now and nothing is going to change. We're just going to put it off and get this evidence [regarding what the mother is] doing. You (speaking to the mother) really need to communicate with your attorney."

         Testimony at the two-day trial indicated that DHR had assigned the child's case to two caseworkers, first to Scarlett Holt in December 2012 and then to Adrian Hall in October 2013. Holt testified that the child was removed from the mother's custody at birth because the mother's parental rights to the siblings had been terminated. Under cross-examination by the child's guardian ad litem, Holt admitted that the child was removed from the mother's custody " based on previous issues," that DHR was not aware of the mother's " situation" at the time the child was born, that the mother was not tested for illegal substances when the child was born, and that the child was negative for illegal substances. The juvenile-court judge stated orally to the child's guardian ad litem: " Now, the [dependency] petition ha[d] to do with the history." Hall testified that the juvenile court had relieved DHR of its duty to provide reasonable efforts to reunite the family in December 2013 because of the

Page 875

" prior [termination-of-parental-rights] cases."

         The mother testified that she and the child had tested negative for illegal substances at the time of the child's birth, although she admitted that she had smoked marijuana until 2011. Hall testified that DHR's concerns regarding possible drug abuse were based upon the mother's history and that she did not suspect that the mother was using illegal substances. Morris testified that from January 2014 through June 2014 the mother had successfully participated in intensive, outpatient, substance-abuse group therapy at the Aletheia House. Morris praised the mother's progress; she said that the mother had participated in learning about avoiding triggers, developing coping skills, and building a support system. Morris testified that she had been trained to observe behaviors that indicate drug abuse and that the mother had never done or said anything to make Morris suspect that the mother abused drugs. Although the mother and Morris testified that the mother had submitted to a number of drug screens, the documentary evidence did not support their testimony. The mother testified that she had desired to take a hair-follicle drug screen but that DHR had refused to provide a referral for such a drug screen because it was no longer providing services to the mother.

         Regardless of whether the mother needed substance-abuse treatment or whether she eventually completed that treatment, the testimony demonstrated that the juvenile court had ordered the mother to undergo drug assessment and drug screening and that she had failed to comply with those orders before January 2014. As of October 2013, the mother had failed to submit to a substance-abuse assessment and she had submitted to random drug screening only once. Holt said that the mother had complained of transportation issues, and Holt admitted that she had never provided bus passes to the mother. Hall said that she had provided bus passes but that the mother had still failed to submit to random drug screening. The mother testified that she used the bus passes Hall provided to go to the Aletheia House for counseling. Hall said that the mother had not requested, and DHR had not provided, any additional financial assistance for the mother's drug screens. The mother said that she had failed to appear for random drug screening because she did not have reliable transportation, because she did not have $10 for the drug test, and because she forgot to follow through with the requirements of random drug screening.

         Hall testified that in 2014 the mother completed parenting classes at the Exchange Club as well as domestic-violence-prevention classes at the YWCA, and, Holt testified, DHR was no longer concerned about the risks of domestic violence in the mother's home. Morris testified that the mother had joined a supportive church.

         Holt testified that the mother lived in federally subsidized housing. Holt had visited the mother's residence once per month, and Holt said that it was clean and appropriate, although the mother smoked cigarettes. Hall agreed that the mother had maintained housing; however, Hall testified that, in December 2013, the mother did not have electricity or food in the house. Hall said that the mother had reported that she did not have adequate income, so she lived with friends or in hotels. The mother confirmed that the house had been without electricity for two months. Thereafter, Hall said, electric ...


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