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A.M. v. Houston County Department of Human Resources

Alabama Court of Civil Appeals

October 27, 2017

A.M.
v.
Houston County Department of Human Resources

         Appeal from Houston Juvenile Court (JU-15-97.02)

          DONALDSON, JUDGE.

         A.M. ("the father") appeals from a judgment of the Houston Juvenile Court ("the juvenile court") granting the petition of the Houston County Department of Human Resources ("DHR") to terminate his parental rights to J.L.M. ("the child"). The father challenges the juvenile court's jurisdiction over the proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, and the juvenile court's decision to terminate his parental rights to the child. As discussed infra, we hold that the juvenile court had jurisdiction under the UCCJEA and that the juvenile court's decision to terminate the father's parental rights is supported by the evidence presented at trial. Accordingly, we affirm the judgment.

         Facts and Procedural History

         In February 2015, the father and E.C. ("the mother") were traveling from New Mexico to Florida. The mother became ill during the trip. According to the father, he and the mother stopped in Dothan to visit a friend while the mother recovered from her illness. The mother remained ill for approximately two weeks; she was then rushed to the hospital where she gave birth to the child on February 16, 2015. At that time, the child and the mother both tested positive for marijuana and the father tested positive for methamphetamine.

         On February 19, 2015, DHR filed a dependency petition in the juvenile court, which was docketed as case no. JU-15-97.01 ("the dependency proceeding"). In that petition, DHR asserted that the child had no parent to care for him, that the father had tested positive for methamphetamine the day after the child was born, that the mother had an extensive history regarding protective services for other children in New Mexico, that there were pending felony drug charges against the mother, and that, regarding the mother, there was a pending extradition request from the State of New Mexico. The juvenile court entered a shelter-care order in the dependency proceeding on February 19, 2015, transferring custody of the child to DHR and setting an adjudicatory hearing for April 16, 2015.

         The father completed an affidavit of substantial hardship, and an attorney was appointed to represent him in the dependency proceeding. The record indicates that, as of March 16, 2015, the mother was incarcerated in New Mexico. As of April 8, 2015, the father had returned to New Mexico, but he informed DHR that he would return to Alabama to comply with DHR's goals toward reunification. On April 16, 2015, the juvenile court entered an order adjudicating the child to be dependent after a hearing at which the father was present and conceded the child's dependency. The record indicates that the mother was still incarcerated in New Mexico at the time of the dependency hearing.

         On November 30, 2016, DHR filed a petition seeking to terminate the father's and the mother's parental rights to the child, which was docketed as case no. JU-15-97.02 ("the termination proceeding"). On January 25, 2017, P.M. ("the paternal grandmother") and C.M. ("the paternal aunt") filed a joint motion to intervene in the termination proceeding, which was later granted.

         DHR filed a motion seeking to serve the parents by publication in Alamogordo, New Mexico, and Dothan, Alabama. Thereafter, the attorney representing the paternal grandmother and the paternal aunt filed a notice of appearance of limited scope in the termination proceeding on behalf of the father for the sole purpose of contesting the juvenile court's jurisdiction.

         On February 7, 2017, the father, the paternal grandmother, and the paternal aunt filed a joint motion seeking to dismiss the termination proceeding or to transfer the action to the State of New Mexico. They attached to their motion affidavits from the father and the paternal aunt indicating that the parties had always been residents of New Mexico and that they had no significant contacts with Alabama. DHR filed a response in which it asserted that the child had been in the physical custody of DHR since February 2015, that the father had not contested the juvenile court's jurisdiction in the dependency proceeding, and that the child had resided in Alabama since his birth. On April 12, 2017, after a hearing, the juvenile court entered an order denying the motion to dismiss.

         The juvenile court conducted a trial in the termination proceeding on April 13, 2017. Chermaine Gartmond, the foster-care worker assigned to the child's case, testified that she had worked with the child since February 19, 2015, when he entered DHR's custody. Gartmond testified that the mother was incarcerated in a county detention facility in New Mexico at the time of the trial. Gartmond also testified that the mother had sent a letter to DHR shortly after the child was placed in DHR's custody in February 2015 but that the mother had had no further contact with the child. According to Gartmond, at one point the mother had escaped from the detention facility in New Mexico, but she was later located and incarcerated again.

         Gartmond testified that the father had not had any physical contact with the child since April 16, 2015. According to Gartmond, DHR had offered to pay the costs associated with lodging and meals for the father if he secured transportation to Alabama to have contact with the child, but the father never returned to Alabama. Gartmond testified that, in an effort to reunite the father and the child, DHR had asked the father to participate in parenting classes and to undergo substance-abuse treatment. Gartmond testified that she had received documentation that indicated that the father had completed a parenting class and an assessment for substance-abuse services in New Mexico but that the father had not followed up with the recommended substance-abuse treatment. Gartmond testified that the father had stated that he would like for the child to be adopted by the paternal grandmother or the paternal aunt.

         Gartmond also testified about various potential relative resources for the child. While the mother was still in the hospital in Alabama after the birth of the child, she provided DHR with a list of potential relative resources, which included S.C., the child's maternal grandfather, and two other unspecified relatives. Gartmond testified that S.C., who was residing in Florida, indicated that he was unable to take custody of the child but that he would assist the mother or the father if they received custody of the child. Gartmond testified that another worker contacted two other unspecified maternal relatives located in New Mexico but that those relatives indicated that they were not able to care for the child and that they suffered from substance-abuse issues.

         Gartmond testified that DHR had worked with the paternal grandmother in an attempt to place the child with her. The paternal grandmother completed the Interstate Compact for the Placement of Children ("ICPC") process in New Mexico. The initial ICPC report prepared by a New Mexico agency following a home-study of the paternal grandmother was unfavorable, based on issues related to her financial problems, her criminal history involving a guilty plea for marijuana possession in 2003, and concerns related to her capacity to protect the child from the father. Gartmond testified that the paternal grandmother had only $66 in monthly discretionary income. Gartmond also stated that the father had indicated that he wanted to live with the paternal grandmother and the child, that the paternal grandmother became easily agitated when questioned about her capacity to protect the child, and that she was unable to state how she would be able to provide supervision for the child. An addendum to the ICPC report explained that the initial recommendation was to deny the paternal grandmother's home as an acceptable placement for the child based on concerns regarding the paternal grandmother's impulse control and judgment. The addendum explained that, overall, the results of the home study on the paternal grandmother were positive, that the paternal grandmother had been gainfully employed for many years, and that the paternal grandmother had received positive recommendations. Gartmond also testified that the paternal grandmother had expressed that she was financially unable to secure transportation to travel to Alabama to visit the child, even though DHR had offered to assist with her lodging and food expenses.

         Gartmond testified that DHR had also considered the paternal aunt and her husband as potential relative resources for the child. According to Gartmond, the paternal aunt first contacted DHR in July 2016, when she was living in Japan with her husband who was stationed there as part of his service in the United States military. The paternal aunt indicated that she and her husband would be returning to New Mexico, and Gartmond informed her that she would need to complete the ICPC process in New Mexico once she returned. Gartmond testified that the paternal aunt returned to New Mexico in November 2016 and that she provided her with information related to the ICPC process. Gartmond testified that, in order to begin the ICPC process, the paternal aunt was required to first submit a notarized letter stating her intent to provide for the child and identifying how she is able to do so. According to Gartmond, the paternal aunt had still not completed that step as of the trial date in April 2017. Gartmond also testified that the paternal aunt had indicated that she wanted to visit with the child, but that she had not done so. Gartmond testified that neither the paternal grandmother nor the paternal aunt had ever seen the child in person. Gartmond opined that the juvenile court should grant the termination petition so that DHR could obtain permanency for the child, who had been in foster care his entire life--over two years at the time of the trial.

         Rae Bryan, the service supervisor for the foster-care unit of DHR, testified that she spoke with the paternal aunt, informed her of the ICPC process, and asked for her permanent address. The paternal aunt told Bryan that she would have to contact DHR later to provide a permanent address, but she did not provide that address until the day before the trial in the termination proceeding. Bryan also testified that DHR had contacted a paternal uncle who was not interested in serving as a placement for the child.

         Bryan testified that, despite the New Mexico agency's recommendation that the paternal grandmother's home be approved as an acceptable placement for the child, DHR did not approve it based on concerns related to the paternal grandmother's protective capacities and her display of poor judgment. Bryan read the following from the ICPC report:

"There are concerns regarding [the paternal grandmother's] impulse control and judgment. She has made poor decisions in the past with her son, [E.], hiding marijuana for him. More recently, she has not had insurance for her vehicle. There are concerns about her ability to keep [the child] safe and may trust [the father] when she shouldn't. There are concerns regarding her ability to control her anger. While it is understandable that she is upset with this investigator when her protective capacities were questioned, there appears to be a pattern of her losing her temper."

         Toward the end of the trial, the attorney for the father, the paternal grandmother, and the paternal aunt told the juvenile court that "a case ha[d] been opened" in the State of New Mexico the day before the trial. The attorney provided a case number and a judge's name but did not indicate what type of case had been opened or provide additional details. The juvenile court advised the attorney that the trial on the termination proceeding would continue and that the attorney should file a notice with the juvenile court containing information regarding the New Mexico case. The record does not indicate that the juvenile court was provided with written notice of the name or case number of any other action concerning the child in any other state or any documentation relating to any other proceedings. The father does not assert on appeal that the juvenile court failed to follow any provisions of the UCCJEA regarding communications with a court in any other state.

         On May 3, 2017, the juvenile court entered a judgment that, among other things, terminated the parental rights of the father to the child. On May 16, 2017, the father timely filed a notice of appeal to this court. Neither the mother, nor ...


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