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Herring v. Madison County Department of Human Resources

Alabama Court of Civil Appeals

December 14, 2018

Amy L. Herring, as guardian ad litem for A.B. and I.C.B.
v.
Madison County Department of Human Resources, T.B., and C.B. T.B.
v.
Madison County Department of Human Resources

          Appeals from Madison Juvenile Court (JU-15-1004.03 and JU-17-813.02)

          DONALDSON, JUDGE.

         These consolidated appeals are from judgments entered by the Madison Juvenile Court ("the juvenile court") terminating the parental rights of T.B. ("the mother"), but not terminating the parental rights of C.B. ("the father"), to A.B. and I.C.B. ("the children"). The mother appealed from the judgments, challenging the decision to terminate her parental rights, and Amy L. Herring, the children's guardian ad litem, appealed from the judgments, challenging the decision not to terminate the father's parental rights. Based on the applicable standards of review, and for the reasons expressed below, we affirm the judgments insofar as the father's parental rights were not terminated, but we reverse the judgments insofar as the mother's parental rights were terminated.

         Facts and Procedural History

         The mother and the father were married in October 2011. The mother and the father each had a child from a previous relationship, neither of whom are involved in these appeals.[1] A.B. ("the child") was born October 8, 2012. In May 2013, the Madison County Department of Human Resources ("DHR") placed the child on a safety plan based on the mother's cocaine use. Pursuant to that safety plan, the mother moved out of the family's residence, and the father continued to care for the child and her halfsiblings and supervised the mother's visitation. At some point in 2013, DHR permitted the mother to return to the family's residence and ended its involvement with the family. In September 2014, the mother left the family's residence with the child and ended her relationship with the father. The mother began living with an ex-husband and his father, where she lived until the summer of 2017.

         In December 2015, K.H. ("the maternal grandmother"), filed a dependency petition in the juvenile court seeking custody of the child and asserting that the mother had been abusing drugs. In early 2016, DHR filed a dependency petition in the juvenile court seeking custody of the child. It appears that the maternal grandmother withdrew her petition after DHR filed its petition. The child was removed from the mother's custody in March 2016 and placed in foster care.

         In February 2017, after an evidentiary hearing, the juvenile court changed the child's permanency plan to "adoption by current foster parent."

         On May 13, 2017, the mother gave birth to I.C.B. ("the baby") at her home. The mother did not take the baby to a hospital. The record indicates that, a few weeks after the baby's birth, DHR took custody of the baby and placed the baby in the same foster home as the child.

         On June 13, 2017, DHR filed a petition in the juvenile court seeking to terminate the mother's and the father's parental rights to the child. On December 19, 2017, DHR filed a petition in the juvenile court seeking to terminate the mother's and the father's parental rights to the baby.

         The juvenile court held a trial on the termination petitions filed by DHR on March 16, 2018. At the time of the trial, the child was 5 years old and had been in foster care since March 2016 and the baby was 10 months old and had been in foster care since shortly after her birth.

         Rochelle Jones was the DHR caseworker involved with the family from July 2016 until August 2017. Jones testified that the baby was taken into DHR custody because the mother had another child in foster care and was noncompliant with services being offered by DHR. Jones testified that she could not recall what goals she had identified for the father to complete in order to be reunited with the children. After reviewing notes from an Individualized Service Plan meeting, Jones testified that the father was required to obtain safe and stable housing and to submit to a psychological assessment, a substance-abuse assessment, and random drug testing. Jones testified that she did not know whether the father had completed a psychological assessment or had complied with the other reunification goals, but, she testified, the father had maintained stable housing since November 2017.

         Jones also testified that she could not remember what goals had been established for the mother to complete in order to be reunited with the children, but, she testified, she was "assuming" that the needs and goals were the same as those established for the father. Jones recalled that she had also referred the mother to anger-management classes.

         According to Jones, she had removed both parents from the random drug-testing program at some unspecified point based on their noncompliance. From the drug-testing facility's records, which were admitted into evidence, it appears that the father began submitting to drug testing in May 2016. The results of one test conducted in May 2016 were positive for cocaine. Other than one additional test in September 2016 that was negative, the father did not submit to any other drug tests between June 2016 and March 2017. It appears that the father returned to the drug-testing program in June 2017 and that he submitted to all drug tests from that point until the date of the trial. The results of all of the father's tests after June 2017 were negative for the presence of illicit substances; two tests, however, had positive results for alcohol.

         Records from the drug-testing facility indicate that the mother was scheduled to begin submitting to drug tests in April 2016 but that she had not submitted to any of the scheduled tests until June 2016, when she submitted to four drug tests. The results of two of those tests were negative, one was "abnormal," and one was positive for two different illicit substances. In July 2016, the mother again tested positive for an illicit substance. From July 2016 until March 2017, the mother did not submit to any scheduled drug tests. In July 2017, it appears that the mother reenrolled in the drug-testing program, but she did not submit to any tests until September 2017. The results of that test were negative. In October and November 2017, however, the mother's drug-test results were positive for two illicit substances and alcohol. The mother did not submit to any drug tests after November 2017.

         Jones testified that she became concerned in July 2017 that the foster parents and the children's guardian ad litem were attempting to stop the visits between the children and the parents, and, she said, she relayed her concerns to her manager.

         Jones testified that the father did not identify any potential relative resources for DHR to consider for placement of the children. The mother had identified the maternal grandmother as a potential relative resource and DHR had evaluated and approved the maternal grandmother's home for the child before the baby's birth. Jones testified that DHR never placed the child with the maternal grandmother because the permanency plan for the child was changed at the February 2017 hearing to "adoption by current foster parents."

         Sharanna Bridges, an employee of DHR, had been the children's caseworker since August 2017. Bridges testified that she had not visited the mother's home because the permanency plan was not to return custody of the children to the mother. When asked whether part of her responsibilities included determining whether a parent had met identified goals, Bridges testified: "[N]ot if the permanency plan is adoption by current foster parent."

         Bridges echoed Jones's testimony regarding concerns related to the foster parents. Bridges testified that she believed that the foster parents and the children's guardian ad litem were trying to circumvent the efforts of the DHR caseworkers toward assisting the parents. According to Bridges, at the foster parents' request, the parents were required to wear gloves when visiting with the children and were not allowed any skin-to-skin contact with the children, which she opined is important for bonding. The foster parents had also allegedly told the child not to eat any food provided by the parents at visitations because, the foster parents allegedly said, the parents were "gross." Bridges testified that, in her view, there had been multiple occasions in which it appeared as though the foster parents and the guardian ad litem were attempting to sabotage the parents' reunification efforts and that the foster parents were pushing to move quickly to terminate the parents' rights to the children.

         Bridges acknowledged that, in September 2017, the father had requested additional reunification services and an in-home service provider to assist in his reunification efforts, but, because of scheduling difficulties with various providers, those services were not offered to the father until approximately two weeks before the trial.

         Bridges's testimony indicated that, based on the progress the father had made, DHR would have normally expanded his visitation with the children and in-home reunification services would have been "standard," but, she said, those services were not normally offered when the permanency plan is to terminate parental rights.

         When asked whether DHR could have made further progress with the father if there had not been a permanency plan of adoption, Bridges testified: "In general, yes, we would have." Bridges also testified that the father had done everything DHR had asked him to do, "but at the same time, it's a little late."

         Bridges testified that the parents and the children appeared to share a bond and love for one another and that she believed that the children could suffer if that bond were broken. Bridges testified, however, that she did not think that the children should be returned to the mother because she

"has been noncompliant with services for some time. The children have been out of the home for a very long time as well. I have current concerns with whether or not she's using drugs based on her lack of drug screens and drug screens that she's completed that have been positive. And, again, she's just completely stopped participating in services."

         Regarding the father, Bridges testified: "I definitely can say that [the father] has made some progress over the last six months, but I do have continued concerns with whether or not he will be able to care for the children." Bridges elaborated that she had concerns regarding the father's parenting ability and his history of domestic violence. Bridges acknowledged, however, that "parenting" had not been identified as a deficiency for the father. Bridges testified that she did not think it would be a viable alternative to allow the father to attend parenting classes and to have additional time for reunification.

         According to Bridges, when she inherited the case from Jones in September 2017, she spoke with Jones to determine whether any relative resources had been identified. Based on Jones's answer, the substance of which is unclear in the record, Bridges did not conduct an independent investigation regarding potential relative resources.

         Amanda Snipes testified that she is a DHR case aide and that she had supervised the visitation between the parents and the children. Snipes testified that the parents were able to visit with the children for 2 hours every other week and that they were offered 16 visits between July 2017 and the time of the trial in March 2018. According to Snipes, the mother had missed four visits due to incarceration and illness and had been late or left early for the other visits. Snipes testified that the father had missed one visit because he had the flu, but he did not miss any other visits.

         Snipes testified that the parents always brought toys, activities, and snacks for the children. According to Snipes, the parents' interactions with the children were appropriate. She testified that she had to remind the father on a few occasions to check the baby's diaper or to feed her but that he had responded positively to her directions. Snipes testified that she had been concerned that the foster parents wanted to set limits as to what the parents could do during the visitations, and she had concerns that the guardian ad litem and the foster parents had attempted to interfere with the parents' visitation with the children.

         According to Snipes, both parents shared an appropriate bond with the children, and she believed that the children could suffer if that bond was broken. Snipes also testified that, if these had not been termination-of-parental-rights cases, it would have been appropriate to increase contact between the parents and the children.

         Victoria Henry, an employee of an in-home reunification service provider furnished by DHR, testified that she had been contacted by DHR approximately two weeks before the trial date to work with the father on his parenting skills. According to Henry, they had been able to complete only 2 sessions by the time of the trial and the father would need approximately 10 sessions in order to complete the program. Henry testified that the father had been "very prompt and eager," that he was making progress, and that she believes that the father would benefit from additional time in the program. Henry testified that the father's one-bedroom apartment is "very, very clean" and child-proofed and that he has a nice room furnished for the children. According to Henry, the father intended to obtain a two-bedroom apartment if he regained custody of the children.

         Dr. Lois Petrella completed a psychological evaluation of the mother in July 2016. According to Dr. Petrella, the mother reported that she was a recovering addict. Dr. Petrella conducted various tests on the mother, which revealed, in Dr. Petrella's opinion, that the mother was of below average intelligence, that the mother had an adjustment disorder with anxiety and depression, and that the mother had an unspecified personality disorder. Dr. Petrella testified that the mother's substance-abuse evaluation did not reveal any recent or current chemical-dependency problems. Based on the results of that testing, Dr. Petrella recommended to DHR that the mother participate in counseling and anger-management classes, obtain medication to treat her psychiatric issues if necessary, and submit to random drug testing.

         The mother, who was 44 years old at the time of the trial, testified that she and the father were still married although they had been separated and living apart for approximately 4 years. The mother testified that, as of the trial date, she only communicates with the father when she and the father are visiting the children. During the marriage, the father worked outside the home and the mother stayed home to care for the child. The mother also testified that she and the father had had physical altercations with each other in the past. The mother later clarified her testimony to state that the father had never struck her, that he had just pushed her away, and that the only occasion in which he had become physical was when he was defending himself. The mother testified that the father is a good man and father.

         The mother and the father had attempted to reconcile on a few occasions; one such occasion resulted in the pregnancy with the baby. After the baby was born, the mother informed the father and he supplied many necessities for the baby. The mother stated that the father did not know that the baby had been born outside a hospital.

         The mother acknowledged that she had been involved with DHR in the past and that she had a criminal history. The mother testified that she had been to jail "more than a couple times" for, primarily, unpaid traffic tickets and misdemeanor theft charges. The mother testified that she had pleaded guilty to interfering with child custody, a felony, because she had taken the child from a visitation location and had not returned her to DHR until the following day. As a result of that guilty plea, the mother was sentenced to serve seven years in prison, but that sentence was suspended on the condition that she serve three years on probation.

         The mother testified that DHR had asked her to submit to a psychological evaluation, a substance-abuse assessment, and drug testing. The mother testified that she underwent a psychological evaluation but that she never received the results of that evaluation. The mother acknowledged that she had not submitted to many of the scheduled drug tests. The mother testified that she had seen a therapist and underwent a substance-abuse assessment, which recommended substance- abuse treatment one day each week. The mother testified that she completed all but two classes of the substance-abuse program while in jail from September to December 2017. The mother testified that she had attempted to finish the classes after she was released from jail. She ...


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