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Montgomery County Department of Human Resources v. O.W.

Alabama Court of Civil Appeals

December 15, 2017

Montgomery County Department of Human Resources
v.
O.W. et al.

         Appeal from Montgomery Juvenile Court (JU-11-300.03, JU-16-28.02, and JU-16-216.02)

          DONALDSON, JUDGE.

         The Montgomery County Department of Human Resources ("DHR") appeals from a judgment of the Montgomery Juvenile Court ("the juvenile court"), entered in three separate actions, declining to terminate the parental rights of O.W. ("the mother") and the alleged fathers of three children. At the time of the termination-of-parental-rights trial, the oldest child had been in foster care for 6 years, the middle child had been in foster care for almost 2 years, and the youngest child had been in foster care for 11 months--his entire life. Uncontradicted evidence established that the children were dependent, that the alleged fathers had abandoned the children, and that the mother was unwilling or unable to discharge her parental responsibilities. The record does not support the judgment of the juvenile court; to the contrary, the only legally correct conclusion that could have been reached based on the evidence presented to the juvenile court was to terminate the parental rights of the mother and the alleged fathers. See Montgomery Cty. Dep't of Human Res. v. A.S.N., 206 So.3d 661 (Ala. Civ. App. 2016) (holding that a juvenile court's decision not to terminate parental rights was unsupported by the record). Therefore, we reverse the judgment.

         Facts and Procedural History

         DHR had an extensive history with S.D., the mother's mother, based on reports of child abuse related to the mother and her siblings. The mother gave birth to M.R. ("the oldest child") on March 15, 2010, when she was 15 years old. In 2011, DHR became involved with the mother and the oldest child, when the mother was 16 years old. The mother had been living in a home with her 18-year-old brother, her 17-year-old sister, and her sister's three young children for approximately one year, since S.D. had been incarcerated for child-abuse charges. The mother had no income, and she had not been obtaining medical care for the oldest child. In April 2011, the juvenile court issued a pickup order for the mother and the oldest child and placed them in the temporary legal custody of DHR. The mother and the oldest child had multiple foster-care placements together until the mother left foster care in May 2014, at age 19, with the oldest child. Two days later, the mother returned the oldest child to DHR, but the mother refused to reenter foster care. The oldest child had remained in foster care since that time. DHR was relieved of custody of the mother in September 2014.

         M.W. ("the middle child") was born on November 16, 2014. When the middle child was born, the mother had obtained a place to live and DHR permitted the mother to take the middle child home from the hospital with her. DHR then arranged for the mother to have supervised in-home visitation with the oldest child. After three months, DHR allowed the mother to have unsupervised in-home visitation for two to three hours and, sometimes, half a day. The mother's visitation with the oldest child transitioned into overnight and weekend visitation. At that point, the mother reported to DHR that various people had been staying at her house. Those individuals would not cooperate with DHR to obtain DHR's permission to be around the mother's children. In response, DHR moved the mother into an apartment complex and provided the mother's deposit and rent for the first month. DHR then placed the oldest child back in the home with the mother and the middle child.

         Shortly thereafter, as a result of the oldest child's missing school and medical appointments and the mother's not having working utilities in her home, DHR removed both the oldest child and the middle child from the mother's custody and placed them in the home of Y.R. ("the foster mother"). In January 2016, the juvenile court found the middle child to be dependent.

         On March 22, 2016, S.W. ("the youngest child") was born. The youngest child was found to be dependent two days after his birth and was placed with the foster mother and his siblings. DHR permitted the mother to have additional visitation with the youngest child to facilitate bonding between them. The mother had in-home visitation with the youngest child three days per week for multiple hours at a time. That arrangement lasted only one month, however, because the mother was unable to pay for her utilities and had no electrical power in her home. DHR paid for the mother's utilities and helped her catch up on her unpaid rent, which she had not paid for two months. Visitation between the mother and all three children recommenced at DHR's office, and, over time, the visitations again transitioned into in-home visitation. Before the mother was able to transition to overnight visitation, however, the mother was evicted from her apartment and became homeless.

         The mother began staying with a friend in a house. After DHR approved the friend and the house, DHR reinstated in-home visitation for the mother with the oldest child and the middle child. After the mother had had one visitation with the children in the house, the mother's friend moved. The mother again had no place to live, and the location of the mother's visitation with the children returned to DHR's office.

         Around June 2016, the mother moved in with another friend in another home. DHR again approved the mother's friend and the home and reinstated in-home visitation for the mother and the children. It was undisputed that the mother was not consistent with visitation during that time. Testimony indicated that, on more than one occasion, the DHR case aide assigned to the children brought the children for in-home visitation but the mother was not at the home.

         In June 2016, DHR filed a separate petition to terminate the rights of the mother and of A.S., an alleged father, to each child. DHR noted in the petitions that paternity had not been established for the children.

         In July 2016, the mother moved to Auburn to live with a friend. Within two weeks, DHR had approved the mother's friend and her home in Auburn and had approved in-home visitation for the mother. When DHR attempted to begin the visitation, however, the mother reported that she had a problem with her friend's boyfriend and believed that it was not a good idea to have visitation with the children at that home. In response, DHR began transporting the children to a restaurant in Auburn for the mother to exercise visitation, which lasted approximately one month. On a day the mother was supposed to have visitation in Auburn, the mother asked if she could instead visit with the children in Montgomery. DHR agreed, but the mother did not contact the foster mother as she had agreed to do.

         Between July and October 2016, the mother lived in three different places in either Auburn or Opelika. In October 2016, the mother moved back to Montgomery. DHR reinstated visitation to be held at DHR's office; however, the mother did not visit with the children between June 2016 and November 2016. In November 2016, the mother visited with the children when the foster mother invited her to celebrate Thanksgiving.

         In December 2016, DHR moved to amend the petition it had filed to terminate the mother's parental rights to the middle child to add B.P. as an additional alleged father of the middle child, and DHR sought to have B.P. undergo paternity testing. The juvenile court denied DHR's motions. DHR then filed a motion to serve alleged fathers A.S. and B.P. and any unknown fathers by publication pursuant to § 12-15-318, Ala. Code 1975, which was granted.[1]

         On March 6, 2017, the juvenile court held a termination-of-parental-rights trial. At the beginning of the trial, the juvenile-court judge met with the attorneys. The attorney for the mother told the juvenile court that the mother had decided not to attend the trial and had instead decided to voluntarily consent to the termination of her parental rights.

         At the time of the trial, the mother was 21 years old, the oldest child was 6 years old, the middle child was almost 2 years old, and the youngest child was 11 months old. The foster mother testified that she had had custody of the oldest child for almost two years, of the middle child for one year, and of the youngest child for almost one year--since his birth. The foster mother testified that the oldest child had been having conduct issues at school recently, that the middle child had begun fighting with other children at a day-care facility, and that the youngest child suffers from "twisted bowels" and milk intolerance and that his medical conditions required multiple medical appointments. The foster mother testified that the youngest child will continue to need medical care regarding his bowel condition.

         The foster mother testified that, at the time of the termination trial, the mother had seen the children only three times since the previous summer--once in August 2016, once in November 2016, and once in January 2017. The foster mother testified that the mother never contacts the children by telephone but that she had sent the foster mother messages on Facebook, a social-networking Web site, to ask about the children. The foster mother testified that she had invited the mother to celebrate Thanksgiving in 2016 with the children at the foster mother's home and that the mother had visited with the children at that time.

         The foster mother testified that the permanency plan for all three children was adoption by her and her husband. The foster mother testified that she and her husband wished to adopt the children "to give them a better life, stability." The foster mother further testified that she had discussed adopting the children with the mother and that, if the mother wanted to maintain contact with the children after the proposed adoption, the foster mother would allow it. The foster mother testified that she and her husband are both employed and that the children would be covered on her husband's health-insurance policy if they are adopted. In response to questioning by the juvenile court, the foster mother testified that she and her husband receive approximately $400 each month as a subsidy for fostering each child, and she believed that the subsidy would continue after the children were adopted, although she was not sure.

         Zenene McCullough, a foster-care worker for DHR, testified that she had been the oldest child's and the middle child's foster-care worker for over two years and the youngest child's foster-care worker since his birth. McCullough testified that paternity had not been established for any of the children. McCullough testified that the mother had named F.R. as an alleged father for the oldest child and, initially, had named F.R. as the father of the middle child. F.R., however, had been incarcerated in a facility operated by the Alabama Department of Corrections since 2010 and, thus, could not have been the middle child's father.[2] The record includes results from a DNA paternity test that excluded F.R. as the father of the oldest child.

         McCullough testified that B.P. was named as a possible father of the middle child. McCullough testified that she had spoken with B.P., had notified him of the ongoing proceedings and of the termination trial, and had asked him to submit to paternity testing. McCullough testified that B.P. had initially agreed to testing but had since refused to answer or return McCullough's telephone calls.

         McCullough testified that J.B. was named as a possible father for the youngest child but that she had been unable to locate him.[3] A family friend provided McCullough with the name of A.S. as an alleged father, and the mother informed McCullough that he was the alleged father of all the children. McCullough conducted a search on the putative-father registry, and A.S. was listed as a putative father of all three children. McCullough testified that she was unable to locate A.S., or any other alleged father, despite her efforts, which, she testified, included

"child support referral, food assistance checks, Facebook, white pages, requesting information from the mother, went to look for the addresses provided by [the mother], unable to locate, sent 5 certified letters to addresses provided by child support and [the mother], [which] came back unclaimed, sent every possible combination of addresses given by [the mother], [conducted a] local jail search [and] Department of Corrections search, and [completed a] food assistance inquiry on [A.S.'s] mom and dad."

         McCullough also testified to the numerous attempts DHR had made to locate relative resources for the children. McCullough contacted R.D., the children's maternal grandfather who lived in Ohio, and, although they were willing to provide financial assistance to the mother, he and his wife were not willing to accept custody of the children. McCullough testified that the children's maternal grandmother was not a potential relative resource because she had a history of abuse and neglect investigations with DHR, her children had been removed from her home, and she had been convicted of a felony. McCullough testified that she had considered the mother's sisters but that they too had had their children removed from their custody. As a result, the mother's sisters were not potential placements for the children. McCullough testified that she also considered the mother's brothers but that they had been unwilling to cooperate with DHR's efforts to investigate their suitability. McCullough testified that she was not aware of any other maternal relatives and that the mother had not provided DHR with any additional relatives for consideration. McCullough testified that she had also considered at least five of the mother's friends as potential placements for the children but that none had been willing to accept custody of the children.

         McCullough testified that the mother's Individualized Service Plan ("ISP") goals were to maintain a safe and stable home for the children, to maintain employment, to maintain consistent visitation, to maintain consistency with in-home services she was provided, to attend therapy for her mental health, and to complete a parental-capacity assessment and any counseling or treatment recommended by that assessment.

         McCullough testified that the mother had completed a parental-capacity assessment, after DHR's second request. The record shows that a psychological evaluation/parental-capacity assessment that recommended counseling and parenting classes for the mother was completed in May 2016. The mother had not completed any of those recommendations at the time of the trial.

         McCullough testified that the mother had attended one counseling session but that she had refused to return because she did not like the counselor. In response, DHR referred the mother to a different counselor, but the mother was inconsistent in attending counseling sessions. The mother never attended mental-health therapy sessions as DHR had requested. McCullough also testified that the mother never attended parenting classes, even though DHR had referred her to them.

         McCullough testified that DHR had referred the mother to an organization that provided in-home services to achieve reunification with the children. According to McCullough, that organization provided in-home services twice per week that focused on "[g]eneral parenting skills, protective capacities, safe and age appropriate discipline, improved decision making, knowledge of client's daily educational and developmental needs, home management skills, includ[ing] budgeting and establishment of daily structure, and effective communication skills and appropriate boundaries to improve relationships." McCullough testified that the organization also provided employment assistance by assisting in the completion of resumes and applications, developing interview skills, and providing transportation related to employment searches. The organization also observed visitation to assess the parent-child interaction. According to McCullough, that organization terminated its services in August 2016 based on the mother's inconsistencies "[d]uring service provision and participation .... Participation was cyclic in nature with periods of engagement followed by more frequent periods of unavailability for sessions and failure to maintain contact with [the organization]."

         McCullough testified that DHR had also referred the mother to the local housing authority and to "Transformation Montgomery" for assistance in finding housing and that DHR had provided the mother with employment assistance, financial assistance for utilities and food, and free transportation and day care for the children. McCullough testified that she had bought groceries and meals for the mother with her own money in an effort to assist her. Despite DHR's efforts, the mother did not utilize the assistance offered. McCullough further testified that the mother "tends to withdraw when there are issues [rather than] problem solving or trying to reach out for help." McCullough testified that she did not know where the mother had been living since she moved back to Montgomery in October 2016.

         McCullough testified that the mother had bought the children one gift in two years and that she had not paid any financial support to the foster parents. According to McCullough, the mother had been served with a child-support-arrearage assessment of $3, 470 for one child, but she had not been served with notices of arrearage for the other two children because DHR had been unable to locate the mother.

         McCullough testified that, throughout the time DHR had worked with the mother, the mother had often been untruthful with DHR and had not maintained contact with DHR. McCullough testified that the mother had worked "very little" during the pendency of the cases and that the mother had not provided verification of her employment as requested. McCullough testified that DHR had provided employment listings to the mother, and had reached out when it became aware of potential employment opportunities, and that the children's ...


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