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H.B. v. Mobile County Department of Human Resources

Alabama Court of Civil Appeals

April 14, 2017

H.B.
v.
Mobile County Department of Human Resources

         Appeal from Mobile Juvenile Court (JU-08-1785.03)

          MOORE, Judge.

         H.B. ("the mother") appeals from a judgment entered by the Mobile Juvenile Court ("the juvenile court") terminating her parental rights to H.M.P. ("the child"). We reverse the juvenile court's judgment.

         Procedural History

         On February 12, 2016, the Mobile County Department of Human Resources ("DHR") filed a petition to terminate the parental rights of the mother and P.P. ("the father").[1] After a trial, the juvenile court entered a judgment terminating the parental rights of the mother and the father to the child. In its judgment, the juvenile court determined the child to be dependent and found, in pertinent part:

"Since obtaining custody of said child, [DHR] has offered services to the mother, and made all reasonable efforts to promote reunification. Said unification efforts failed due to the failure of the mother to accept services, or to amend her circumstances for the best interests of the child."

         The juvenile court found that no other viable alternatives existed and that "termination of [the] parental rights of the [mother] is in the best interests of the child to promote permanency."

         Facts

         The evidence in the record indicates that the mother was diagnosed at age 22 with psychosis schizophrenia after suffering a mental-health breakdown following the death of her grandmother. The mother suspended taking her medication for that illness when she became pregnant with the child, who was born on January 30, 2007. She resumed taking the medication two to three months later, but at a different dose than as prescribed.

         In 2008, when the child was approximately 18 months old, DHR removed the child from the one-bedroom apartment the mother shared with her mother ("the maternal grandmother") and the child. The mother and the maternal grandmother testified to a dispute between the mother and a neighbor, which, they claimed, had possibly led to the neighbor's reporting the mother for failing to properly supervise the child. The mother testified that, on that occasion, she was on the front porch of the apartment while the child was inside the apartment in a high chair within the mother's sight. The mother said that she became stressed when DHR arrived to take the child away. When the child was removed, the mother said, she asked for an ambulance, which took the mother to a local hospital. Natasha Dysert, a DHR worker who was "not on the scene that day, " testified that DHR had been called due to the mother's erratic behavior and that, upon arrival at the mother's apartment, DHR workers discovered the child unattended in the doorway of the apartment; according to Dysert, drug paraphernalia had also been found inside the apartment. At that time, the mother, who, according to Dysert, was in the parking lot, reported that she had been shot in the head and that people were trying to run over her with a car.

         The mother testified that she had been hospitalized following the 2008 incident. Dysert testified that, at the time of that incident, the mother was off the medication she had been prescribed for her mental illness but that changes in her medication had been made by the doctors who treated her. The mother testified that the doctors had stabilized her medication. Dysert testified that the mother had complied with DHR's family-reunification plan, which included a psychiatric evaluation, and the child was returned to the custody of the mother in 2010.

         The child resumed living with the mother and the maternal grandmother in the same one-bedroom apartment. When the family planned to move from those premises in 2012, the management inspected the apartment and found 28 or more cats and a dog living there. DHR investigated and determined that the apartment was unsanitary and unsuitable for the child, so the child was again removed from the custody of the mother. The maternal grandmother testified that the mother was overly compassionate to animals and had regularly taken in strays. Charlene Clemons, the DHR social worker who oversaw the 2012 case, testified that DHR had established goals for the mother, including obtaining alternative housing and maintaining her mental health. According to Clemons, the mother had met those goals and the child was returned to the custody of the mother in December 2013 subject to DHR's supervision for the following six months. At that time, the mother and the maternal grandmother were residing in a three-bedroom house that the maternal grandmother had begun renting in 2012.

         On August 31, 2015, DHR was called to the family's house by police officers who were serving an arrest warrant on the mother for theft of property. Natasha Reyes, the DHR social worker who responded to that call, testified that, when she arrived at the house, the house did not have running water or electricity and was in an unsanitary condition due to trash, cat waste, and bugs. The mother testified that the electric and water services to the house had been cut off for approximately six months after the maternal grandmother had lost her employment and could not afford to pay the bills. DHR removed the child from the mother's custody and placed the child into foster care. DHR requested that the mother undergo a psychological evaluation, attend parenting classes, and work with "FOCUS" in-home services, which the mother initially declined; the mother did, however, visit with the child.

         On January 19, 2016, DHR changed its permanency plan from reunification with the mother to adoption. Sarah Jernigan, a DHR social worker, took over the case on March 8, 2016. Jernigan testified that the mother had begun cooperating with DHR's requests by undergoing a psychological evaluation in May 2016 and by participating in "Tools of Choice" in-home services. The mother testified that she had completed parenting classes. Jernigan testified that she had allowed the child to visit with the mother in the rental house in which the mother and the maternal grandmother resided after concluding that the house was suitable for the child. The maternal grandmother testified that she had resumed gainful employment and that she had paid all the necessary fees to restore electric and water services to the house. Jernigan testified that, at the time of the trial, the mother had made progress and was nearing completion of all of the goals DHR had set for her. The mother testified that she was given two years' probation on the theft-of-property criminal charge and that she was ready, willing, and able to regain custody of the child.

         There was no evidence of harm to the child, which the mother denied and which DHR did not attempt to prove. The mother testified that she had taken prenatal vitamins when she was pregnant with the child and that the child had been born "in perfect health." Dysert testified that, in 2008, the child had been found in a high chair, which, she admitted, was an appropriate place for the child to be. The mother testified that the child was never in danger. DHR discovered that the child had not yet been immunized, but no one testified that the child's immunization treatment was overdue. The mother testified that she and the maternal grandmother had paid to have the child immunized during the time the child was in DHR's custody between 2008 and 2010. The mother also testified that she had attended all of the child's medical appointments during that period.

         Although DHR removed the child due to the conditions of the apartment in 2012, no witness testified that the health of the child had been adversely affected by those conditions. The mother testified that the child had slept in the bedroom "away from the cats, " which, she testified, had stayed in the front room of the apartment. The mother testified that after the child was returned to her custody, the mother and the maternal grandmother had cared for the child by feeding, clothing, entertaining, and educating the child. The mother and the maternal grandmother celebrated birthdays and other holidays with the child by giving her toys and presents. No one from the child's school ever questioned the care the child received.

         Reyes testified that when she removed the child from the mother's custody in 2015, the child was in good physical condition and was clean. The mother testified that the child was never ill or malnourished, but was at a healthy weight. Although the family's house was without electric service and running water for a period, the child had informed Reyes that, during that time, she had been eating out and had also eaten frozen dinners that had thawed to room temperature. The maternal grandmother and the mother testified that they had improvised by using gallons of water to flush the toilet as well as occasionally staying at a motel to bathe. They both testified that, despite the lack of electricity and running water, the child had been kept well-groomed, had never missed a meal, had always had shelter, had always attended school on time, and had received help with her homework. According to the maternal grandmother, the child had earned good grades while in her and the mother's care, maintaining a "B" average. Jernigan testified that the child is bonded with the mother and the maternal grandmother and that they display love for one another.

         The mother was 37 years old at the time of the trial. She has been regularly taking two Haldol tablets per day for her mental illness, as well as undergoing therapy once a year at Altapointe, a mental-health facility. She also visits Altapointe every three months for the purpose of monitoring her medication. Veronica Davis, a licensed professional counselor who was called as an expert witness by DHR, testified that the mother was "stabilized" at the meeting they had had on May 18, 2016. The mother testified that she had not had a mental-health crisis since 2008, when DHR first removed the child from her custody. The mother testified that her mental illness does not impair her ability to care for the child. The maternal grandmother and the mother both testified that the mother could care for the child independently.

         Issue

         On appeal, the mother argues that the evidence does not support the juvenile court's findings that she failed to successfully rehabilitate herself and adjust her circumstances to meet the needs of the child or that termination of her parental rights serves the best interests of the child.

         Standard of Review

         A judgment terminating parental rights must be supported by clear and convincing evidence, which is "'"[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion."'" C.O. v. Jefferson Cty. Dep't of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).

"'[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'
"KGS Steel[, Inc. v. McInish, ] 47 So.3d [749] at 761 [(Ala. Civ. App. 2006)].
"To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947), ] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in ...

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