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T.W. v. Shelby County Department of Human Resources

Alabama Court of Civil Appeals

May 3, 2019

T.W.
v.
Shelby County Department of Human Resources T.W.
v.
Shelby County Department of Human Resources C.L.B.
v.
Shelby County Department of Human Resources

          Appeal from Shelby Juvenile Court (JU-16-475.05), (JU-15-528.09), (JU-15-528.09)

          MOORE, JUDGE.

         In appeal number 2180005, T.W. ("the mother") appeals from a judgment entered by the Shelby Juvenile Court ("the juvenile court"), in case number JU-16-475.05, terminating her parental rights to L.G.P., whose date of birth is June 8, 2016. In appeal number 2180006, the mother appeals from that same judgment to the extent it was entered in case number JU-15-528.09 and terminated her parental rights to B.E.B., whose date of birth is September 8, 2013; in appeal number 2180030, C.L.B., the father of B.E.B., appeals from that same judgment to the extent it was entered in case number JU-15-28.09 and terminated his parental rights to B.E.B.

         Both the mother and C.L.B. argue that, considering their current circumstances, the juvenile court erred in terminating their parental rights; they also argue that the juvenile court erred in determining that there were no viable alternatives, specifically relative placements, to the termination of their parental rights. C.L.B. also asserts that the juvenile court failed to comply with the Indian Child Welfare Act of 1978 ("the ICWA"), codified at 25 U.S.C. § 1901 et seq. We affirm the juvenile court's judgment.

         Procedural History

         On March 20, 2018, the Shelby County Department of Human Resources ("DHR") filed a petition to terminate the parental rights of the mother and J.P. to L.G.P.; that petition was assigned case number JU-16-475.05. That same day, DHR filed a separate petition to terminate the parental rights of the mother and C.L.B. to B.E.B.; that petition was assigned case number JU-15-528.09.

         After a trial, the juvenile court, on August 30, 2018, rendered and entered a single judgment in case number JU-15-528.09 and case number JU-16-475.05, terminating the parental rights of the mother and C.L.B. to B.E.B. and of the mother and J.P. to L.G.P.[1] On September 12, 2018, the mother filed a single postjudgment motion referencing both case numbers; that motion was denied the same day. On September 13, 2018, C.L.B. filed a postjudgment motion in case number JU-15-528.09; that motion was denied on September 18, 2018.

         On September 25, 2018, the mother filed separate notices of appeal. C.L.B. filed his notice of appeal on October 2, 2018.[2]

         Facts

         I. Background

         The mother testified that DHR had removed B.E.B. from her custody in 2015. According to the mother, she had been using methamphetamine and marijuana daily at that time. The mother testified that she had subsequently received counseling services and in-home parenting services and that she had also attended parenting classes. The mother testified that she had ceased using drugs for a period beginning in February 2016. L.G.P. was born on June 8, 2016. According to the mother, B.E.B. was placed back in her home in October 2016. The mother testified that she had relapsed into drug use in December 2016.

         The mother testified that, in February 2017, DHR removed B.E.B. and L.G.P. from her home after she failed a drug test, which had been administered by her probation officer, testing positive for methamphetamine, "benzos," and marijuana. She testified that she had been arrested for possession of drugs in March 2017. She testified that, after her arrest, she had been admitted to an inpatient drug-rehabilitation program at Olivia's House in April 2017 but that she had been discharged from that program for fighting with other patients. According to the mother, after her discharge from Olivia's House, she had completed an outpatient drug-rehabilitation program at "Bradford" in June or July 2017.

         The mother testified, however, that, in March 2018, she had again been arrested for possession of methamphetamine. The mother admitted to having used methamphetamine at that time. Abigail Athey, a DHR caseworker, testified that the mother had admitted herself into Bradford's inpatient drug-rehabilitation program in April 2018. The mother testified that she had stayed in that program for two weeks. According to Athey, the mother had left that program voluntarily to go to the beach with her boyfriend.

         The mother testified that she had last used methamphetamine in March 2018; she admitted, however, that, although she was under an order from the juvenile court to submit to drug testing, she had not submitted to drug testing in the two months leading up to the termination-of-parental-rights trial. At the time of the trial, the mother had two charges pending against her for possession of drugs and was incarcerated for failing to appear for court hearings.

         C.L.B. testified that, at the time of the termination-of-parental-rights trial, he was incarcerated, having been convicted of rape in the first degree. He testified that his estimated release date is in 2023.

         II. Facts Regarding the Applicability of the ICWA

         At the trial, the evidence indicated that DHR had provided forms to the mother and C.L.B. inquiring about the possibility of B.E.B. having Native American heritage. A form signed by C.L.B. in 2015 indicated that he had information or belief that B.E.B. was of Indian ancestry. The 2015 form had requested information regarding in which Indian tribe B.E.B., C.L.B., or B.E.B.'s grandparent might have membership; in response to that request, C.L.B. completed the form stating: "Theirs [sic] several different tribes. Contact [the paternal grandmother] for information cause I have no clue, all of them I know Cherokee and Sue [sic]." A second form, dated in 2017 and signed by C.L.B., was also introduced into evidence. C.L.B. testified that his mother had assisted him in completing the 2017 form. On the 2017 form, C.L.B. listed Cherokee and "Ojibwa-(Chippewa)" as the tribes in which he, B.E.B., or one of B.E.B.'s paternal grandparents might have membership.

         Star Pope testified that, at the direction of C.L.B., she had inquired of the paternal grandmother of B.E.B. regarding with which tribes C.L.B.'s family might be affiliated. She testified that the paternal grandmother of B.E.B. had informed her that C.L.B. was not affiliated with the Cherokee or Sioux tribes but that she had identified the Chippewa or Ojibwe tribe as a possibility. Pope testified that she had contacted authorities in several different states and that she had eventually been directed to a central location to which, she said, she had mailed a letter requesting information concerning whether B.E.B. would be recognized as an Indian child or have benefits under the ICWA. DHR introduced into evidence a letter dated May 4, 2016, that had been mailed to the ICWA representative from the Chippewa Indians of Mackinac, Michigan, and stated, in part:

"The father of [B.E.B.] is [C.L.B.] DOB: ..., who is currently incarcerated in Shelby County Alabama. He informed this Agency that his great-grandmother has Native American Heritage. I have spoken with the Paternal Grandmother ... DOB: ..., who informed me that her father is [D.K.] DOB: Unknown and his mother is [M.C.] DOB: ... (Census Enclosed) also known as [A.M.C.] who was included in the 1927 Ojibwa/Chippewa Census.
"Please review and mail or fax a letter determining if you recognize that [B.E.B.] is part of the Chippewa Tribe and is eligible for benefits. ..."

         DHR also introduced a letter from the Bay Mills Indian Community dated May 19, 2016, in response to an inquiry from DHR; that letter indicated that B.E.B. was not eligible for membership in the Bay Mills Indian Community.

         Standard of Review

         A judgment terminating parental rights must be supported by clear and convincing evidence, which is "'"[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion."'" C.O. v. Jefferson Cty. Dep't of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).

"'[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'

"KGS Steel[, Inc. v. McInish, ] 47 So.3d [749] at 761 [(Ala. Civ. App. 2006)].

"To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947), ] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.'"

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the ...


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