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L.M. v. Talladega Cnty. Dep't of Human Res.

Alabama Court of Civil Appeals

May 15, 2015

L.M.
v.
Talladega County Department of Human Resources; L.M.
v.
D.S

          Appeals from Talladega Juvenile Court. (JU-12-150.02, JU-12-152.02, and JU-12-153.02, JU-12-151.03).

          OPINION

Page 1082

          DONALDSON, Judge.

         L.M. (" the mother" ) appeals from a judgment of the Talladega Juvenile Court (" the trial court" ), entered in three separate actions, terminating her parental rights to C.M. (case no. JU-12-150.02), M.M. (case no. JU-12-152.02), and T.M. (case no. 12-153.02) following a trial and a separate judgment entered by the trial court placing legal custody of W.M. with D.S., a paternal aunt (case no. JU-12-151.03). C.M., M.M., T.M., and W.M. are hereinafter referred to collectively as " the children."

         The Talladega County Department of Human Resources (" DHR" ) first became involved with the mother and children in July 2012 because the mother and W.M., Jr. (" the father" ), were both incarcerated. DHR social worker Tiffany Twymon, a witness at the trial, testified that the children had been left with the mother's sister, who had six children of her own and was not able to care for the mother's children as well. Twymon testified that, when the children came into DHR custody on July 18, 2012, W.M. was " extremely malnourished" and the other children all had " a severe case of head lice." Twymon also testified that, when the mother was released from jail, she offered the mother rehabilitative services and visitation but that the mother moved to Tennessee in October 2012 without notifying DHR. Twymon further testified that the mother had four older children with another father, that the mother's parental rights to the oldest of those children had been terminated, and that the other three older children are in the custody of their father in Ohio. During the pendency of these cases, the mother gave birth to another child, who was in the custody of the mother's sister at the time of the trial.

         On July 16, 2013, DHR filed petitions seeking to terminate the mother's and the father's parental rights to C.M., M.M., and T.M. W.M., Sr., and S.M., the paternal grandparents of the children, filed dependency petitions seeking custody of the children. D.P. and B.P., former foster parents of the father, also filed dependency petitions seeking custody of the children. D.S., a paternal aunt of the children, filed a dependency petition seeking custody of W.M. On May 19, 2014, the trial court held a hearing at which it received testimony and documentary evidence on the dependency petitions and DHR's termination petitions. At the time of trial, C.M. was five years old, M.M. was four years old, T.M. was three years old, and W.M. was two years old. All the children had been in DHR's custody since July 18, 2012, but, DHR had placed W.M. in the care of D.S. approximately 11 months before the trial.

         At trial, Twymon testified that, since the children had been in DHR's custody, the mother had visited with them 8 times in 22 months. Twymon stated that seven of those visits had occurred on or before October 2, 2012, that the mother had not visited the children between October 2, 2012, and her eighth visit in November 2013, and that the mother had not visited

Page 1083

the children since November 2013. Twymon testified that the mother had not stayed in contact with DHR. Twymon also testified that she had investigated every individual identified by the mother as a potential placement resource and that none of those individuals was suitable to assume custody of the children.

         On May 23, 2014, the trial court entered a judgment terminating both parents' parental rights to C.M., M.M., and T.M., and it entered a separate judgment placing W.M. in the custody of D.S. In the judgment terminating the parents' parental rights to C.M., M.M., and T.M., (" the termination judgment" ), the trial court found that the mother was

" currently residing in a hotel in the State of Tennessee. Since the birth of the children, the mother has resided in New York, South Dakota, Ohio, Alabama, Tennessee and California. She has four older children that reside in Ohio. Her parental rights were terminated with respect to the oldest child and she does not have custody of the other three children. The mother left the State of Alabama in October of 2012 and has not seen her children but one time in November 2013."

         Moreover, in the termination judgment, the trial court found that DHR had offered the mother services directed toward reunification but that the mother had failed to take advantage of those services; that reasonable efforts at rehabilitation made by DHR had failed; that the mother was unable or unwilling to discharge her responsibilities to and for the children, that the conduct and conditions of the mother were such as to render her unable to properly care for C.M., M.M., and T.M.; and that such conduct and conditions were unlikely to change in the foreseeable future. The trial court also determined, in the termination judgment, that there were no placement resources suitable to have custody of C.M., M.M., and T.M. and that there were no viable alternatives to termination of the parents' parental rights as to those children. In the judgment placing W.M. in the custody of D.S. (" the dependency judgment" ), the trial court, in addition to placing custody of W.M. with D.S., found that DHR had " made reasonable efforts to finalize the permanency goal of relative placement" as to W.M. The trial court denied the dependency petitions filed by W.M., Sr., and S.M. and by D.P. and B.P., and none of those parties appealed.

         The mother filed postjudgment motions in each case on June 5, 2014, seeking to vacate the termination judgment and to modify the dependency judgment to award her visitation with W.M. Those motions were denied by operation of law on June 19, 2014. On June 19, 2014, the mother filed a timely notice of appeal in each case. The appeals have been consolidated by this court ex mero motu. The father has not appealed.

         Although the appeals have been consolidated for appeal, the mother has submitted two appellate briefs. In her brief addressing the termination judgment (appeal nos. 2130782, 2130784, and 2130785), the mother argues that DHR failed to prove that there was no viable alternative to termination of the mother's parental rights to C.M., M.M., and T.M. and that the trial court erred in excluding W.M., Sr., and S.M. and D.P. and B.P. as potential placement resources, before DHR had completed home studies of those individuals, in order to comply with the time requirements of § 12-15-320(a), Ala. Code 1975, which requires that " [t]he trial on the petition for termination of parental rights shall be completed within 90 days after service of process has been perfected." In her brief addressing the dependency judgment (appeal no. 2130783), the mother argues

Page 1084

that the trial court erred by not awarding her visitation with W.M. The mother also argues that the trial court erred by allowing D.S. to testify via telephone.

         The mother first argues in her brief addressing the termination judgment that DHR failed to prove that there was no viable alternative to termination of the mother's parental rights C.M., M.M., and T.M. The mother asserts that DHR failed to satisfy the second prong of the two-prong test announced in Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990):

" First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in [ยง 12-15-319, Ala. Code 1975]. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable ...

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