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T.J. v. Winston County Department of Human Resources

Alabama Court of Civil Appeals

March 24, 2017

T.J., Jr., and J.J.
v.
Winston County Department of Human Resources

         Appeal from Winston Juvenile Court (JU-15-65.01)

          MOORE, Judge.

         T.J., Jr. ("the father"), and J.J. ("the mother") appeal from a judgment entered by the Winston Juvenile Court ("the juvenile court") terminating their parental rights to H.D.J. ("the child").

         Procedural History

         On October 13, 2015, the Winston County Department of Human Resources ("DHR") filed a petition alleging that the child was dependent. That same day, the juvenile court entered an order permitting DHR to immediately take the child into its custody. That order contained a notation indicating that an oral pickup order had been issued on October 7, 2015. Also, on October 13, 2015, the juvenile court held a shelter-care hearing, and, on October 16, 2015, a shelter-care order was entered maintaining the child in DHR's custody. After an adjudicatory hearing, the juvenile court entered an order on January 25, 2016, declaring the child dependent, determining that reasonable efforts by DHR to reunite the child and the parents were not required, and maintaining custody of the child with DHR. After a permanency hearing, the juvenile court entered an order on March 23, 2016, providing that the permanency plan for the child was adoption with no identified resource.

         On June 1, 2016, DHR filed a petition requesting that the juvenile court terminate the mother's and the father's parental rights to the child. The mother and the father, through the same counsel, filed an answer to the petition on June 16, 2016. After a trial, the juvenile court entered a judgment on August 23, 2016, terminating the mother's and the father's parental rights to the child. On September 1, 2016, the mother and the father filed a joint postjudgment motion, and, on September 6, 2016, the mother and the father filed their notice of appeal. The notice of appeal was held in abeyance pending the denial, by operation of law, of their postjudgment motion on September 15, 2016. See Rule 1(A) & (B), Ala. R. Juv. P.; Rule 59.1, Ala. R. Civ. P.; and Rule 4(a)(5), Ala. R. App. P.

         Facts

         Tyler Kilgore, a child-abuse-and-neglect investigator for DHR, testified that DHR had received reports that the parents had been homeless but that they were, at the time DHR took custody of the child, living with the father's parents; he testified that the reports also indicated that the father was using drugs. He testified that DHR took the child into its custody in October 2015. According to Kilgore, both the mother and the father submitted to drug tests. The mother tested positive only for drugs for which she had a prescription, but the father tested positive for methamphetamine and amphetamines. Kilgore testified that the father had claimed that he had not used drugs but had simply been in the home of someone who had been smoking those drugs.

         Martha Haynes, a foster-care worker for DHR, testified that DHR had sought to implement services for the mother and the father through "FOCUS, " but, she said, FOCUS employees, who had worked with the parents before, had refused to work with them again. She testified that she was not aware of any extensive parenting program similar to the FOCUS program but that the parents had completed a less extensive parenting class.

         Haynes testified that DHR had ordered both the mother and the father to submit to a psychological evaluation. A psychological evaluation was also done on the child. The reports from those evaluations were entered into evidence. The reports indicated that the mother and the father had requested that an older child "be placed in foster care [in 2010] due to his purported disruptive behaviors" and that their parental rights to that child had been terminated in 2012 due to the mental instability of the mother and the father. The mother had previously had her parental rights terminated to two other children in 2005 and 2006.

         According to the father's psychological report, the father admitted that the parents had engaged in domestic violence. The psychologist noted that the father's full scale IQ score is 67 and that that score "meets part of the requirements for a diagnosis of mild mental retardation." According to the psychologist, the father reported that he had used methamphetamine weekly for two years before ceasing use of the drug in 2013. The father also acknowledged having recently used the drug, but, he claimed, it had been "only once" in 2015.

         Haynes testified that the psychologist had recommended that the father participate in random drug screening, individual counseling, marital counseling, and "Celebrate Recovery." Haynes testified that the father had been referred to the Northwest Alabama Mental Health Center to address his drug usage and anger-management problems. She testified that domestic violence between the mother and the father had been an ongoing issue. She testified that the mother and the father had not participated in marital counseling.

         The mother's psychological report indicated that the mother had experienced suicidal thoughts her entire life and that she suffers from bipolar disorder. The psychologist noted that her full-scale IQ score is 80, which, he said, is "within the Low Average Range of intelligence." The report also noted that the mother had reported that the father had had an affair and had moved in with his paramour, with whom, she claimed, he had used drugs. The mother also reported that she had subsequently reunited with the father but that she had moved in with the father and his paramour for some time. The psychologist reported that the mother's "Child Abuse Potential Inventory" results suggest that the mother "shares personal and interpersonal characteristics of known physical child abusers."

         Haynes testified that the parents complain that the child is hyper, does not "mind, " and will not sit still. Before this case was instituted, the parents had taken the child to Children's Hospital of Birmingham to be evaluated for attention deficit/hyperactivity disorder ("ADHD"). Haynes testified that the physician who had evaluated the child at Children's Hospital explained to her that the problem was not the child's behavior but, instead, was with the parents' parenting. The psychological report on the child indicated that he does not have ADHD.

         Haynes testified that she does not believe that the mother and the father can care for the child without supervision. She testified that they both have difficulty understanding what the child should be doing at each age. Haynes testified that the parents often fight in front of the child at visitations; that, on a few occasions, the father had fallen asleep during visitations; that the mother and the father are loud; that the mother and the father often overreact to situations, which, she said, has an effect on the child; that the mother and the father had yelled at the child and had threatened to spank the child; that the mother had spanked the child for accidentally hitting her with a ball; that the mother and the father had engaged in inappropriate conversations with the child; and that the mother and the father had sometimes ended their visits early without a reason. Haynes testified that the child interacts more with the mother than with the father and that the child often gets upset with the father or avoids physical affection with him and states that the father is mean. She testified that the mother and the father would make the child feel guilty for not showing the father affection and that, after one such occasion, the child had hidden under the table and had said he felt sick.

         Pamela Sutherland, the supervisor of DHR's child-protective-service unit, testified that the father had gotten upset with her at one visit and had stood up and pointed his finger in her face. She testified that the parents are very loud and that the parents would affect the child in such a way that he would become loud and disruptive.

         Haynes testified that, at the time of the trial, the behavior of the mother and the father was consistent with their behavior at the time their parental rights had been terminated to their other child in 2012. She testified that the major issues the parents have are their low mental capacities and the anger and domestic-violence issues. According to Haynes, the father continued to exhibit anger even after completing anger-management counseling. She testified that the father had not tested positive for drugs subsequent to the child's having been taken into DHR's custody, but, she said, at the time of the trial, he had not recently attended "Celebrate Recovery." She testified that the parents had had housing since February 2016.

         The mother testified that there had been no incidences of domestic violence between her and the father since the child was born. She testified that she sees a psychiatrist and goes to counseling once every three months. The mother testified that she, the father, and their pastor had decided against the parents' engaging in marital counseling because, she said, the parents wanted to leave the past in the past. She also testified that, at the time of the trial, the father was attending "Celebrate Recovery" two or three times a month and that she had been attending with him to support him. The mother testified further that, before the child was taken into DHR's custody, she had taken the child to Children's Hospital for an evaluation and that she had subsequently attended a parenting class there.

         The father testified that he had tested positive for methamphetamine because he had been around someone smoking the drug. He testified that, at the time of the trial, he was attending ...


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