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K.J. v. Pike County Department of Human Resources

Alabama Court of Civil Appeals

September 21, 2018

K.J.
v.
Pike County Department of Human Resources

          Appeals from Pike Juvenile Court (JU-00-153.04, JU-00-171.03, JU-11-120.03, and JU-15-78.02)

          PER CURIAM.

         On June 14, 2017, the Pike County Department of Human Resources ("DHR") filed four petitions in the Pike Juvenile Court ("the juvenile court") seeking to terminate the parental rights of K.J. ("the mother") to her four minor children. In those petitions, DHR also sought to terminate the parental rights of J.A.C., the father of two of the minor children, and to terminate the parental rights of the unknown father or fathers of the mother's other two minor children. The juvenile court conducted an ore tenus hearing over the course of two days--December 7 and December 14, 2017.

         On January 3, 2018, the juvenile court entered four nearly identical judgments in which it made detailed findings of fact and ordered that the parents' parental rights be terminated. The mother timely appealed. This court has consolidated the appeals.

         The record indicates that the mother has four children, who, at the time of the December 14, 2017, hearing on DHR's petitions to terminate parental rights, were 18, 17, 13, and 11 years old.[1] The children were taken into protective custody after DHR social workers were called to a local emergency room on September 7, 2015, to investigate possible physical abuse committed by the mother against two of her four children. DHR alleged that the mother had physically abused those children when she bit the younger child and the oldest child intervened to protect her sibling. The juvenile court entered a shelter-care order on September 8, 2015, and all four children have remained in foster care since that time.

         The mother was charged with felony child abuse with regard to the incident that resulted in the two children being treated in the emergency room. She pleaded guilty to a misdemeanor charge of child abuse and received a sentence of four years' probation, and she remained on probation at the time of the termination hearing.

         The mother denied any other, earlier instances of abuse of the children, and she denied that DHR had filed any petitions seeking custody of the children before the 2015 incident. While being questioned by the juvenile court, the mother insisted that this was the first time that DHR had been involved with the family with regard to allegations that she had abused the children. However, the 2015 incident was not the first allegation of child abuse leveled at the mother. The record indicates that the two older children were placed in foster care when they were younger because of an incident in which the oldest child's collarbone was broken; the mother denied that she had injured the child, but she later admitted that those two children had been in foster care for several months. In another incident, DHR investigated allegations that the mother had poured boiling water on the oldest child and had hit her with a broomstick; the mother denied those allegations and stated that she had accidentally spilled boiling water on the child. In response to questions about her disciplinary methods, the mother denied abusing the children, and she testified that she had only disciplined the two boys by hitting them with belts. The mother stated that the children had not suffered any major injuries from anything she had done to them.

         When the four children were first placed in foster care in 2015, DHR offered the mother services, including parenting classes, a psychological evaluation and counseling, a drug-assessment and drug screening, domestic-violence classes, and anger-management classes. The mother completed the parenting classes in February 2016. The mother also participated in the psychological evaluation and the drug assessment. She did not complete the recommended outpatient drug classes, and, during the two years the children remained in foster care before the termination hearing, the mother submitted to drug screens only intermittently.

         Ashley Parker, a DHR social worker assigned to the children's cases, testified that, before the termination-of-parental-rights actions were filed, DHR had requested that the mother submit to a total of 28 drug screens and that the mother had failed 13 of those screens and had failed to test 10 times; a failure to test is equivalent to a positive drug-screen result. Thus, the mother tested negative for the use of illegal drugs only five times before the termination-of-parental-rights actions were filed.

         As a result of her child-abuse conviction, the mother agreed to attend "drug court." Roxanne Taylor, a monitoring specialist for the drug court, testified regarding the mother's drug screens for that program. Taylor stated that, between April 2016 and the termination hearing, the mother tested for the drug court and had 12 negative tests, 9 positive tests, and 5 "no shows." Taylor testified that the mother last tested positive for the use of marijuana on June 29, 2017, which was approximately two weeks after DHR filed its termination-of-parental-rights petitions. After DHR filed its June 2017 termination petitions, the mother submitted to seven more drug screens for DHR, and the results of each of those drug screens was negative for the use of illegal drugs.

         The mother started the domestic-violence and anger-management classes in January 2016, and she was to attend those classes until the providers believed that she had made sufficient progress. The providers went to the mother's home to provide services, but, on several occasions, the mother was not at home and missed those appointments. Parker testified that the providers reported that the mother was often uncooperative and made it clear that she did not want to participate in those services. Parker testified that, despite being encouraged to participate those services, the mother did not progress in the anger-management classes to a point at which the providers or DHR thought that she no longer needed those classes.

         According to Parker, the mother began counseling sessions in January 2017, but she often did not attend those sessions. Parker also stated that she encouraged the mother to resume her participation in the anger-management and counseling sessions. Parker testified that the mother began participating more actively in counseling in June 2017, immediately after DHR filed its petitions seeking to terminate her parental rights.

         Jessica Thomas, the mother's counselor, testified that the mother had progressed well in her counseling sessions. Thomas testified that the mother had consistently attended their monthly counseling sessions and that the only months that the mother did not attend counseling occurred when DHR failed to renew the referral for the mother to attend those counseling sessions. Thomas testified that the mother had made significant progress toward the goals Thomas had established for the counseling sessions; those goals included anger management and having plans for addressing difficult or stressful situations. Thomas stated that the mother regretted her actions (presumably the abuse of the children), that the mother was working to improve her impulse control, and that she believed that the mother could appropriately parent the children with the assistance of her extended family as a support system. We note that DHR questioned whether the mother had an appropriate family-support system. Thomas also stated that the mother had reported to her only one positive drug screen during the time she had counseled the mother, i.e., between January 2017 and the December 14, 2017, termination hearing. The juvenile court questioned Thomas regarding whether she would be surprised that the mother had had more than one positive drug screen and had failed to appear for other drug screens during that time, and Thomas indicated that she was unaware of those positive drug-screen results.

         The mother disputed much of DHR's evidence indicating that she had failed to participate in service. The mother stated that the services provider who came to her house to address anger-management issues told her that she had done well and had completed those classes. The mother also testified that she had tried to participate in outpatient drug-treatment classes of that circumstance but that she had been removed from the program after she missed two classes due to illness. The mother testified that she informed her social worker of that circumstance but that the social worker never followed up with her to re-enroll her in those classes.

         The mother claimed that she had missed many of her drug screens because of her work schedule. The mother admitted that she had continued to smoke marijuana until June 2017, when DHR filed its termination-of-parental-rights petitions. When asked why she had continued to use illegal drugs while her children were in foster care, the mother blamed the people with whom she was associating.

         The children were placed together in a foster home located in another county. The mother was offered regular visitation with the children, but she claimed that a lack of a vehicle and other transportation issues prevented her from visiting the children regularly. The mother admitted that DHR had transported her to some of the initial visitations and that, in 2016, DHR had offered her gas vouchers to assist with the cost of traveling to visit the children. At the time of the termination hearing, the mother had not traveled to visit the children since May 2017, although she had visited with them at three court hearings conducted between May 2017 and the December 7, 2017, termination hearing. The mother testified, however, that she speaks to the children on the telephone frequently.

         Four months before the termination hearing, the mother moved from her three-bedroom mobile home to a two-bedroom mobile home, which she acknowledged was not large enough if the children were returned to her home. The mother testified that she had not qualified for public housing because, she said, DHR refused to sign a statement saying that the children would return to her home. The mother testified that she moved because, she said, there had been break-ins in the neighborhood and the "the neighborhood in particular was just not my style of neighborhood to live in." However, she stated that the smaller mobile home was located across the street from the former one.

         The mother became employed after the children were placed in foster care, and she had maintained consistent employment since that time. At the time of the December 14, 2017, termination hearing, the mother had been working full time at a fast-food restaurant for eight months. She stated that she also earned approximately $80 per week cleaning houses. Parker testified that DHR had filed a claim seeking child support from the mother but that a problem with the paperwork had prevented DHR from receiving that child support. It is not clear whether that problem with the paperwork occurred before or after a child-support order could have been entered, although DHR's brief submitted to this court indicates that no child-support order was entered.

         In each of its termination judgments, the juvenile court made certain findings of fact and concluded, in pertinent part:

"Testimony was heard ore tenus regarding the petition, and the Court determined that the child was dependent and that the child's mother was unable or unwilling to discharge her responsibilities to and for the child.
"There was evidence that the child's mother had abandoned the child by withholding from the child, without good cause or excuse her protection, maintenance or the ...

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