Amy L. Herring, as guardian ad litem for A.B. and I.C.B.
Madison County Department of Human Resources, T.B., and C.B. T.B.
Madison County Department of Human Resources
Appeals from Madison Juvenile Court (JU-15-1004.03 and
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
and Procedural History
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. 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.
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.
February 2017, after an evidentiary hearing, the juvenile
court changed the child's permanency plan to
"adoption by current foster parent."
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.
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
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.
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.
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.
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
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.
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
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
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."
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.
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.
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.
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."
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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 ...