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Montgomery County Department of Human Resources v. N.B.J.B.

Alabama Court of Civil Appeals

June 12, 2015

Montgomery County Department of Human Resources
v.
N.B.J.B., a minor, by and through J.T., guardian ad litem
v.
N.B.

Appeals from Montgomery Juvenile Court (JU-10-650.04)

DONALDSON, Judge.

The Montgomery County Department of Human Resources ("DHR") and J.B. ("the child"), a minor, by and through J.T., the child's guardian ad litem, separately appeal from a judgment of the Montgomery Juvenile Court ("the juvenile court") denying DHR's petition to terminate the parental rights of N.B. ("the mother") to the child despite N.B.'s express consent to the termination of her parental rights to the child. We affirm.

Facts and Procedural History

The child, born in June 2003, is one of three children born to the mother. I.B., the child's sister, was born in August 1996, and Jo.B., the child's brother, was born in May 1998. The child's father died in 2008. According to uncontested documents in the record, the mother lost custody of the children in 2005. Between 2005 and 2010, the child and her siblings lived with various relatives in Alabama and in Ohio. At some point in 2010, the child and her siblings moved from Ohio to live with their maternal grandparents in Montgomery. In June 2010, I.B. gave birth to S.B., the child's niece. Pursuant to a request of the maternal grandmother, DHR removed I.B. from the home in August 2010 and placed her in foster care with D.C. In October 2010, I.B. reported to a school counselor that she had been sexually abused while in the custody of the maternal grandparents. DHR then removed the child, Jo.B., and S.B. from the maternal grandparents' home and placed them in foster care. DHR placed the child in foster care with D.C.

On November 8, 2011, DHR filed a petition in the juvenile court to terminate the mother's parental rights to the child, who was then eight years old. DHR did not petition to terminate the mother's parental rights to I.B., who was then 15 years old, or to Jo.B., who was then 13 years old, because, according to testimony, those children did not wish to be adopted. The child, however, had expressed a desire to be adopted. The juvenile court appointed an attorney for the mother and a guardian ad litem for the child. The juvenile court conducted a trial on DHR's petition on October 30, 2013. In support of its petition, DHR presented the testimony of two witnesses: Kristi Kelley, a DHR social-service caseworker in the foster-care unit, and the mother.

Kelley testified that she began working on the case in October 2010 when the child was placed into DHR's custody. She testified that she initially met with the mother in May 2011. Kelley testified that, at that meeting, the mother stated that she had been diagnosed with schizophrenia and admitted to using marijuana. Documents in the record also indicate that the mother had used cocaine. Kelley testified that she informed the mother at the initial meeting that, in order for her to regain custody of her children, she would be required to find a suitable residence, to stop using drugs, and to seek treatment for her mental illness. Kelley testified that DHR provided the mother with a referral to the Lighthouse Counseling Center ("Lighthouse") for drug treatment. She testified that the mother initially participated in daily group sessions at Lighthouse. Kelley testified that drug screening of the mother conducted by Lighthouse staff had occasionally rendered positive results. Kelley testified that she also referred the mother to the Montgomery Area Mental Health Authority for mental-health treatment. DHR did not introduce into evidence any documentary evidence concerning the mother's mental illness or her treatment for drug addiction. Kelley testified that, on the date of trial, the mother admitted to her that she continued to use drugs.

Kelley testified that DHR also offered the mother opportunities for visitation with her children and that the mother had telephoned and visited with the children occasionally. Kelley testified that, although the mother had attended some scheduled Individualized Service Plan ("ISP") meetings, the mother's attendance at those meetings was inconsistent. Kelley testified that, in her opinion, the mother loved her children but that the mother had informed Kelley that she was unable or unwilling to care for the children. Kelley testified that, during the three years the children had been in DHR's custody, the mother never expressed that she was willing or able to regain custody of the children.

Kelley testified that the child had been the victim of sexual abuse and that DHR had been made aware of allegations of sexual abuse occurring in the home when the child lived in Ohio. Kelley testified that the child had been diagnosed with post-traumatic stress disorder, that the child had behavioral issues, that the child was taking medication, that the child received treatment from a psychiatrist, and that the child participated in counseling. Kelley testified that she had had conversations with the child concerning adoption and that the child looked forward to being adopted. She testified that an adoptable resource for the child had not been identified at the time of the trial but that the child had a strong bond with D.C., her foster parent. Kelley testified that D.C. had mentioned, but had not committed to, adopting the child.

Kelley testified that DHR had investigated several relatives of the child for possible placement, including T.W., a cousin who lived in Alabama, and P.M., an uncle who lived in Michigan. Kelley testified that T.W. reported in 2011 that she was not willing to serve as placement resource for the child. Kelley had not inquired further whether T.W. would reconsider serving as a placement resource for the child at the time of the trial. Kelley testified that P.M., who had four children living in his home, was not a viable potential placement option based on a home study conducted by the Michigan Department of Human Services at the request of DHR under the Interstate Compact on the Placement of Children ("ICPC"), codified at § 44–2–20 et seq., Ala. Code 1975. The ICPC home-study report concluded that P.M.'s home was not adequate because there was not additional space for other children. That ICPC home-study report also indicated that P.M. was not willing to undergo the licensing process in order to qualify as a placement resource. Kelley testified that the mother provided no additional names for DHR to investigate for possible placement of the child. Kelley testified that I.B. had provided DHR with the name of a cousin who lived in Ohio but that that relative was unwilling to accept custody of the child.

At trial, DHR introduced a document titled "Waiver of Parental Rights and Consent to Permanent Termination of Parental Rights and Adoption" ("the written consent") signed under oath by the mother. In the written consent, the mother attested that she was consenting to the termination of her parental rights to the child; that she was not willing or able to assume parental responsibilities of the child; that she saw no hope of significant improvement in her circumstances in the foreseeable future; that, in her opinion, it would not be in the child's best interest to continue in foster care; that she had read DHR's petition to terminate her parental rights; that she had read the written consent; that her attorney had read the written consent to her; that she had discussed the written consent with her attorney; that she was waiving and abandoning her rights to the child; and that she agreed with DHR's position that it would be in the child's best interest to be placed for adoption.

The mother also appeared at the trial as a witness. Under questioning from her attorney, the mother testified that she understood that the purpose of the proceeding was to terminate her parental rights to the child, that she had no objection to the proceeding, and that she consented to the termination of her parental rights to the child. The mother testified that she had discussed the written consent with her attorney, and she acknowledged that she had signed it.

Under questioning from the juvenile court, the mother testified that she had been diagnosed with schizophrenia, bipolar disorder, and depression in 2005. She testified that she had been treated by the Montgomery Area Mental Health Authority but that she had not consistently attended her appointments and had not taken her prescribed medication for approximately one year. She testified that her children had been sent to Ohio to live with her half brother because she was not stable and because she was not able to obtain her own residence. The mother testified that she was not employed but that she had worked in the past at fast-food restaurants and for a telemarketing company. She was dismissed from the telemarketing company for getting into a fight. She testified that the highest level of education she had completed was the 9th grade.

Following the conclusion of the October 30, 2013, trial, the parties made multiple unsuccessful requests to the juvenile court for a ruling to be rendered and entered on DHR's petition. On August 13, 2014, DHR filed a petition for a writ of mandamus in this court seeking an order directing the juvenile court to rule on DHR's petition to terminate the mother's parental rights. On October 1, 2014, this court entered an unpublished order granting DHR's petition and directing the juvenile court "to issue an order as required by Rule 25, Ala. R. Juv. P." Ex parte Montgomery Cnty. Dep't of Human Res., (No. 2130923, Oct. 1, 2014) ___So. 3d___ (Ala. Civ. App. 2011)(table). Rule 25(D), Ala. R. Juv. P., provides that,

"[a]t the close of the dispositional phase, the juvenile court shall make its finding in writing. ... In termination-of-parental-rights cases, the juvenile court shall make its finding by written order within 30 days of completion of the trial."

We further note that § 12-15-320(a), Ala. Code 1975, provides that, in termination-of-parental-rights cases, "[t]he trial court judge shall enter a final order within 30 days of the completion of the trial."

On October 2, 2014, nearly one year after the termination trial, the juvenile court entered a detailed order with factual findings in which it denied DHR's petition to terminate the mother's parental rights to the child. The juvenile court determined that DHR failed to prove by clear and convincing evidence that grounds existed to terminate the mother's parental rights. Specifically, the juvenile court found that, despite the mother's written consent and oral testimony indicating that she consented to the termination of her parental rights to the child, DHR had failed to produce documentary evidence to support its position that the mother was mentally unable to care for the children. The juvenile court stated that the mother's consent to the termination of her parental rights was unreliable due to the mother's alleged mental illness and that, citing this court's decisions in C.C. v. State Dep't of Human Res., 984 So.2d 447, 451 (Ala. Civ. App. 2007), and S.D.P. v. U.R.S., 18 So.3d 936 (Ala. Civ. App. 2009), the mother's consent, alone, was not sufficient to satisfy DHR's burden of proof to present clear and convincing evidence to support its petition. The juvenile court further stated that the written consent signed by the mother did not address her alleged inability or unwillingness to care for the child. The juvenile court also found that DHR had failed to offer sufficient evidence concerning the child's purported desire to be adopted. The juvenile court determined that DHR had failed to present evidence of the reasonable efforts it had made to reunite the child with the mother or to rehabilitate the mother, finding specifically that DHR had failed to present evidence regarding the mother's use of illegal drugs, that DHR had failed to provide the mother with transportation to her appointments at Montgomery Area Mental Health Authority, that DHR had not assisted the mother in her efforts to obtain housing, and that DHR had not provided the mother with assistance in finding employment. The juvenile court also determined that DHR had failed to produce clear and convincing evidence showing that there were no placement resources that could serve as a viable alternative to termination of the mother's parental rights.

The child's guardian ad litem and DHR filed separate, timely motions to alter, amend, or vacate the judgment on October 14 and October 16, respectively. On October 24, 2014, the juvenile court, pursuant to Rule 1(B)(1), Ala. R. Juv. P., entered an order to extend the time period for ruling on the postjudgment motion by an additional 14 days. The juvenile court held a hearing on the postjudgment motions on November 6, 2014. On November 12, 2014, and November 13, 2014, respectively, the postjudgment motions were denied by operation of law without a ruling from the juvenile court.[1] DHR filed a notice of appeal to this court on October 29, 2014, and the guardian ad litem filed a notice of appeal to this court on November 10, 2014. Both notices of appeal were filed prematurely but were held in abeyance pending the outcome of the postjudgment motions. See Rule 4(a)(5), Ala. R. App. P. This court consolidated the appeals ex mero motu. The mother has not filed a brief on appeal.

Discussion

DHR and the guardian ad litem contend that the judgment of the juvenile court must be reversed because the judgment is contrary to clear and convincing evidence presented at the trial. Our standard of review in proceedings to terminate a parent's rights to a child is well settled.

"A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights."

B.M. v. State, 895 So.2d 319, 331 (Ala. Civ. App. 2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990)). Section 12-15-319, Ala. ...


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